Renewable energy generation schemes come in many shapes and sizes. Agricultural land and buildings provide the opportunity to take advantage of these schemes be they for powering the farm operations or securing a regular income stream.

Energy generation schemes need planning consent. The various consent regimes available are tiered according to the scheme size. This article looks at those regimes across England, Wales and Scotland.

Permitted Development

All development needs planning permission, and energy generation schemes are development. However certain schemes have the benefit of permitted development rights. These rights ‘grant’ planning permission subject to certain conditions and restrictions. Where they exist, they can be relied upon. Often no approval is required, and this makes them very attractive. However, caution is needed to ensure that the permitted development rights are properly available.

In England, small-scale renewable energy schemes can be implemented under Part 14 of Schedule 2 of the 2015 General Permitted Development Order. These are for small schemes, which typically will only contribute to a farm’s energy needs, but as energy prices rise, they may still be helpful.

They have recently become even more flexible. If you have a sufficiently large shed roof, it is now possible to install over 1 megawatt of solar panel capacity. There are also new rights permitting the installation of ground and water source heat pumps for certain sizes as well as biomass heating systems.

The permitted development rights regime over the borders in Scotland and Wales are generally less flexible, but they may still be worth exploring.

Planning permission

The larger energy generating schemes require planning permission.

The route to consent depends on where in the UK you are: the consenting regimes differ between England, Scotland, Wales, or Northern Ireland.

In England, a solar farm with a generating capacity below 50 megawatts requires planning permission from the Local Planning Authority under the Town and Country Planning Act 1990. Above 50 megawatts the solar farm is considered to be a ‘Nationally Significant Infrastructure Project’ which requires a Development Consent Order (DCO) from the Secretary of State under the 2008 Planning Act.

In Scotland, the thresholds are currently the same as in England but schemes above 50 megawatts need to secure deemed planning permission under the section 36 of the Electricity Act 1989.

In Wales, a solar farm with a generating capacity between 10 and 350 megawatts is classified as a ‘Development of National Significance’ and applications for these schemes are decided by the Welsh Ministers. Above 350 megawatts a DCO is required.

Large and super-large scale solar is popular in England with many projects already consented and many more in the pipeline. There is a conflict between energy production and food production, and this is managed in the planning system through the encouragement of the use of less productive agricultural land.

Onshore wind projects in England are becalmed in the planning system’s Doldrums. This is because England’s national planning policy requires that the proposed turbine’s impacts, as identified by the affected local community, have been appropriately addressed and the proposal has community support. Wind turbines are marmite: some like them some don’t, and if a local objector doesn’t like them it is hard for operators to appropriately address the objector’s concerns.

The Welsh and Scottish administrations have taken a much more favourable approach toward the development of onshore wind. They typically allocate suitable areas for wind farms and have policies to deal with mitigation of the turbines’ impacts.

Grid constraints

Whatever technology is proposed for electricity generation, the project will not progress unless it can be connected to the grid. Securing a viable grid connection is difficult across the UK. The national grid needs upgrading, and the government is focusing on this, and as it does so, more sites will become viable.

Anaerobic digestion plants are capable of producing methane. This can be used to power an engine on site to produce electricity, or it supplied into the gas grid.

Opportunities

Large scale renewables projects are expensive to consent, expensive to construct and expensive to operate. This is a barrier to entry, but there are still opportunities for landowners. Agricultural land is needed for solar and land near grid connections is particularly desirable to promoters of large-scale solar schemes. Those promoters will, through an option for lease agreement, take on the risk of obtaining planning permission and securing the grid connection and then construct the scheme on your land. In return, you’ll receive rental payment for the 30 or more years of the lease.

Conclusions

Planning and consenting are major elements to renewable energy projects, but often also major barriers. With this in mind, landowners considering renewable development should take appropriate advice at the earliest stage possible.

If you would like to discuss any of the issues raised in this article, please contact Fergus Charlton or Harriet Grimes.

The Technology and Construction Court handed down judgment in May 2024 in a long-gestating IT dispute which was one of the top 20 cases of 2023 according to The Lawyer. The dispute arose because of a modernisation project to the IT and other systems used by the Disclosure and Barring Services (“DBS”) between 2012 and 2020.

The Claimant, Tata Consultancy Services Limited, (“TCS”) claimed more than £110m in delay damages, with DBS counterclaiming for delay and for the poor quality of the software delivered. Separately, both parties disputed the true construction of a volume-based regime for service charges.

This recent case of TCS v DBS 2024 EWHC 1185 covered several issues on interpretation of the agreement between the parties and issues relating to delay analysis. This note only looks at the way the learned judge, Constable J, dealt with the question of whether a notice to be given under the contract was a condition precedent.

This issue commonly arises in circumstances where the giving of a notice is a precondition to a party being able to claim a benefit, usually an extension of time or compensation, under a contract.

As stated, the case concerned an agreement between TCS and DBS under which TCS was to provide an IT system to modernise DBS’s process for processing and issuing DBS checks. The project was substantially delayed for reasons considered in much of the judgment.

The contract contained delay notice provisions as follows:

“clause 5.1 if, at any time, the Contractor becomes aware that it will not, (or is unlikely to) achieve any Milestone by the relevant Milestone Date it shall as soon as reasonably practicable notify the Authority of the fact of the Delay or projected Delay…”

Clause 5.6 stated that the Authority “shall not be liable to compensate the Contractor for Delays… unless the Contractor has fulfilled its obligations in accordance with clause 5.1…”

Clause 6.1 also had a requirement for the Authority to “promptly issue a non-conformance report to the Contractor” if the Contractor failed to satisfy Acceptance Tests.

Both parties contended that the clauses that benefited them, clause 5.1 and 5.6 in DBS’s case and clause 6.1 in TCS’s case were conditions precedent to be able to recover compensation.

The learned judge reviewed the authorities on conditions precedent and at paragraph 74 of the judgment set out the relevant matters to be considered when construing a relevant clause as a condition precedent.

He did warn that “any attempt to articulate an exhaustive checklist of factors to consider when considering whether a particular clause in a particular contract is a condition precedent will inevitably be futile“. That is because clearly every contract turns on its specific wording.

The list of matters which he identified, and no doubt will be set out in future cases or submissions on the interpretation of whether a clause is a condition precedent, was as follows:

1. Whether it is necessary for a party to comply with one or more stated requirements in order to be entitled to make a claim for money or relief will ultimately turn on the precise words used, set within the contractual context;
2. There is nothing as a matter of principle which prevents parties freely agreeing that the exercise of a particular right to payment or relief is dependent on compliance with a stated procedure, but parties will not be taken to have done so without having expressed that intention clearly;
3. The language of an obligation in relation to procedure to be complied with (e.g. “shall”) is necessary, but not sufficient;
4. The absence of the phrase “condition precedent” or an explicit warning as to the consequence of a non-compliance is not determinative against construing the regime as one of condition precedent;
5. However the absence of any language which expresses a clear intention that the right in question is conditional upon compliance with a particular requirement is likely to be, at the very least, a powerful indicator that the parties did not intend the clause to operate as a condition precedent;
6. The requisite “conditionality” may be achieved in different ways using different words and phrases when construed in their ordinary and natural meaning;
7. The clearer the articulation, purpose and feasibility of the requirement to be complied with (in terms of substance and/or timing), the more consistent it will be with the conclusion that, depending on the rest of the language used the requirement forms part of a condition precedent regime”.

Applying those factors to the clauses in question, the judge felt the clauses were conditions precedent.

It is often the case that a party seeks to get round the effect of a notice being a condition precedent by reframing the claim as one for general contractual damages rather than compensation under the particular contract. In this case, the learned judge found that clause 5.6 was sufficiently widely drawn to cover claims for general damages for delay as well as loss and expense pursuant to the contract.

The judge also had to consider another commonly used attempt to avoid the consequences of a failure to comply with a condition precedent namely estoppel. In this case he found, on the facts, that DBS were estopped from claiming delay damages because both parties had shared an assumption that the requirement on TCS to serve an exception report within five days would not be adhered to.

The case is interesting for other issues including how the judge dealt with delay issues and his robust views on certain expert evidence in relation to delay analysis.

On the question of whether a notice is a condition precedent or not the summary of matters to be considered in interpreting a clause will no doubt prove useful in future cases.  One lesson is clearly that if the intention is to make a clause a condition precedent then expressly say so in the contract.

The party who has the benefit of such a condition precedent also needs to be careful in their conduct and in open negotiations and correspondence not to have encouraged an assumption of an agreement not to enforce any condition precedent. An express reservation of rights may well assist in defeating any alleged estoppel.

Not identifying and complying with conditions precedent could be costly for contractors if they lose their entitlements. Similarly, inadvertently waiving the benefit of such conditions could leave Employers out of pocket.

If you would like to discuss any of the issues raised in this article, please contact Ashley Pigott.

We wrote this edition for a special hard copy release at Cereals last week. The articles go alongside season 2 of our Agriculture Podcast, which we released over the past few weeks. Listen to the podcast here.

This time we cover a wide range of topics including:

• Seaweed Farming: Q&A with Mollie Gupta at WWF
• Harvesting Power: Planning for Renewable Energy Schemes
• Protecting your land for development: Three topics to consider
• Partnerships, tax and succession: Planning for the future
• Your food labelling and advertising: Keeping it “legal, decent, honest and truthful”
• Agricultural Tenancies: New code, changes to AHA tenancies and Natural Capital Scheme collaboration
• Biodiversity Gain Site Register Regulations 2024: Structuring and documentation

In this episode, Elizabeth Newson, Cheryl Brady and Richard Walford talk about Strategic Land and how you can protect your land for potential future development with a focus on the importance of watercourses, and issues of water scarcity and knowing the extent of your land and where it starts and ends and how to deal with gaps between ownership. Strategic land is the broad term given to land with potential to develop in the mid to long-term encompassing the process of site assembly, promotion for planning consent all the way through to ultimate delivery into a developable asset.

Michelmores has advised independent wealth management firm Succession Wealth on its significant acquisition of London Wall Partners, a London-based firm providing advice to City professionals, entrepreneurs, executives in industry and family estates.

London Wall Partners was founded in 2012 and has £900M of assets under advice. The firm’s partners and staff will continue to operate from its City of London offices.

The acquisition by Succession not only marks an important expansion of the firm’s capabilities in London and the South East, it also enhances Succession’s independent financial advice offering and gives the firm a market leading, distinctive proposition for Ultra High Net Worth families and individuals.

It is Succession’s fourth acquisition since the company was bought itself by Aviva in 2022.

The Michelmores team was led by Partner Henry Taylor, alongside Associate Hollie Halston, both from the Firm’s Corporate team. Partners Andrew Tobey, James Baker and Solicitor Tegan Osborne-Brown provided Employment advice and Partner Tom Torkar provided Commercial advice.

Henry Taylor comments:

“It has been a pleasure to work with the Succession team on this latest phase of Succession’s growth strategy. Our Corporate team have a strong track record of advising clients in the wealth sector on key transactions such as this and we are delighted that we could help guide Succession through this milestone transaction from start to finish.“

Michelmores’ award-winning Corporate team of specialist lawyers advises clients across the UK, US, EMEA and beyond – on capital markets, mergers and acquisitions, management buyouts, impact investing, energy projects, microfinance initiatives and more. For more information, visit our website.

On 17 May, the National Audit Office (NAO) published a report examining the progress Defra and Natural England have made on the implementation of biodiversity net gain (BNG) in response to a request from the Environmental Audit Committee.

The report looks backwards assessing the implementation of BNG and its contributions to the biodiversity objectives and considers risks to the long-term effectiveness of BNG policy. The NAO makes recommendations to support Defra and Natural England to maximise value and manage risks to the implementation of BNG policy as it becomes business as usual.

Developers in England are now required to provide BNG of at least 10%, with the exception of large infrastructure projects which will be subject to the BNG regime from November 2025.

Risks to delivery of the long-term BNG benefits

The overall thrust of the NAO report is that there is still work to be done, against the backdrop of a shortfall in resources.

The NAO report raises some significant risks that the government will need to manage to achieve its biodiversity objectives.

The NAO flag that Defra is relying on a market for BNG units emerging, which remains uncertain. Defra does not intend on monitoring or influencing this market, which the NAO warns is a significant risk. For our part we consider this snapshot in time is not reflective of the emerging market. The BNG register records five BNG sites already and in our experience many landowners are seeking opportunities to realise the natural capital potential of their land for BNG purposes.

The report also raises the concern that demand for certain habitat types may not be served properly, harming the overall biodiversity objective. There is likely to be some geographic variation in the offsite market which may disadvantage some LPAs seeking to raise income from legal agreements.

Local authorities are responsible for operating the planning system locally through which the government has implemented statutory BNG. A key concern to the overall biodiversity objective is the capacity and capability of Local Planning Authority’s (LPAs) and their lack of resources to monitor and enforce statutory BNG. The report states that sufficient and timely funding is needed for LPAs who have not yet received any additional money. Compounding this resourcing crisis ecologists, who are central to the successful implementation of the objectives, are in short supply at a time when there is unprecedented demand for their expertise.

The BNG regime makes government the BNG provider of last resort, with developers purchasing statutory biodiversity credits. In this respect the report identifies another hurdle for Defra being that there is no mechanism to spend income raised from statutory credit sales that is legal and consistent with HM Treasury rules on managing public money.

The NAO suggests that Defra needs to actively monitor the effectiveness of LPAs and responsible bodies in applying BNG policy. While LPAs can source information on offsite gains and ‘significant’ onsite gains which require registration on the NE statutory register, there is no comprehensive source of information in respect of onsite gains.

A major challenge for Defra is monitoring regional engagement with BNG policy, as some LPAs may be more effective than others in compliance and enforcement. Where some LPAs are struggling, NAO recommends that Defra targets support to them.

The monitoring is essential to charting the success of the government’s biodiversity objective. Defra and Natural England are encouraged to obtain more accurate data to review the policy’s impact and application over time.

Recommendations

NAO sets out various recommendations aimed at supporting Defra and Natural England to maximise value and manage risks to statutory BNG, including the following:

• Implementing a legal mechanism for Defra to spend income from the proceeds of statutory credits sales;
• Making arrangements for understanding and addressing risks to the long-term success of BNG;
• Providing funding certainty for LPAs;
• Determining how it will monitor the effectiveness of compliance by LPAs and responsible bodies;
• Monitoring the emerging biodiversity market to ensure it meets demand; and
• Publishing information annually on what statutory BNG has delivered so far toward national biodiversity targets.

The NAO report highlights that there is some further work needed by Defra to ensure BNG meets its policy objectives. However, given this is the first time any government worldwide has introduced BNG as a national legal requirement, this is perhaps unsurprising.

At Michelmores, we can provide expert assistance to clients navigating the complex and novel landscape of BNG.

Michelmores is pleased to have been named as a finalist for the Enterprise Investment Scheme Association (EISA) Awards 2024 for the second year running.

The EISA Awards are a prestigious event held at the House of Lords in Westminster, London. Each year, the Awards celebrate the outstanding achievements of participants in the EIS and SEIS field.

EISA recognises the founders, investors and advisers who are driven by the common goal of supporting entrepreneurs across the UK to drive innovation and economic growth.

Michelmores has been recognised as a finalist with regard to regularly having advised on the EIS and SEIS schemes and associated tax reliefs for a wide range of clients including funds, individual investors and investee companies.

Michelmores has also presented at the EISA’s Ready, Steady Grow! event in Bristol in September 2023 and the British Business Bank regional seminar in Exeter in November 2023. The Firm has contributed to the ongoing success of these investment schemes and promoted their wider visibility, particularly for female founders, through our investor and start-up networks.

Anthony Reeves, a Senior Associate in the Firm’s Corporate team, comments:

“We are delighted to be nominated for this EISA award for the second year in succession. The EIS and SEIS investment schemes offer fantastic advantages for eligible companies as well as generous tax reliefs for individual investors (and the Association works tirelessly to spread this message). We are very pleased to play a part in helping our clients to make use of these underused schemes in order to facilitate growth in the UK.”

For more information, visit the EISA website.

Michelmores is delighted to have been recognised as Law Firm of the Year – UK at the 2024 CityWealth Magic Circle Awards.

The CityWealth Magic Circle Awards, which have been running for nearly two decades, are a key feature in the private wealth sector calendar, celebrating the leading advisers and firms.

Tim Richards, Michelmores’ Managing Partner, comments on the win:

“I couldn’t be prouder of the Michelmores team for taking home the Law Firm of the Year accolade at this year’s CityWealth Magic Circle Awards.”

“Our Private Wealth group are long standing, trusted advisors to numerous high net worth  individuals and families in the UK and internationally, and work tirelessly to provide creative solutions for our clients and their nuanced requirements.

“It is fantastic to see the exceptional experience and exemplary client service that the team provide, recognised by our industry peers at such a prestigious event.”

Iwan Williams, Partner in the Firm’s Tax, Trusts & Succession team, also took home the accolade for Lawyer of the Year.

Commenting on the win, Iwan said:

“I am absolutely delighted, astonished, and humbled to have won Lawyer of the Year. It was such a lovely surprise and deserving recognition for the entire team after a year of outstanding growth and success throughout the Private Wealth group at Michelmores”. 

Karen Jones, Founder, CEO and Editor of CityWealth, commented on the awards:

“With multiple elections, growing global aggression and civil protests, the wealth manager and adviser in all capacities are being called on for advice. In two decades we have not seen such critical issues up for debate. Now, more than ever, UHNW clients need to rely on the safety the industry provides to protect assets and knowledge to navigate family issues whether divorce, ESG investing, tax or succession.

“With that, CityWealth is delighted to present the best of breed for 2024. Congratulations to all the shortlisted individuals and organisations – they are absorbing the impact of world changes and digesting them in a manageable format for their clients.”

The Awards ceremony was held on Wednesday 15 May 2024 in London and attended by over professionals from over 140 organisations, including law firms, trust companies, family offices, tax advisers and investment managers. Following a submission process, nominations were judged by a panel of highly respected wealth managers and advisers.

For more information about the awards visit CityWealth’s website.

The Olympics – every brand’s dream marketing opportunity.

With the world’s most popular sporting event just around the corner – capable of gripping over 3 billion people worldwide – it is no surprise that businesses big and small want a piece of the action.

The sales slogans practically write themselves; with artwork recognised globally, you could save yourself a fortune in promotional spend by associating yourselves with the Games.

However, before you showcase your business’s unwavering support for the Games by hanging up the Olympic rings in your shop window or plastering your favourite athlete on your social media page, you need to be aware of the legal implications that come with free-riding on the world’s biggest sporting spectacular.

Protection for the Olympic symbols

The IOC owns the exclusive rights to the Olympic symbol, flag, and a variety of other recognisable works associated with the Olympic and Paralympic Games, collectively called “Olympic properties”. These can be found in the Olympic Charter Guidelines¹.

There are 206 National Olympic Committees (NOC) which work under the IOC and alongside International Sport Federations to “develop, promote and protect the Olympic Movement in their respective countries, in accordance with the Olympic Charter.”²

Each NOC must monitor the misuse of the Olympic properties that go against the IOC’s Rules and Byelaws and ensure compliance with any national legal protections and/or instruments to prosecute and/or bring civil claims against individuals depending on the severity of the breach.

Each country that bids to host the Games must enforce the Guidelines by creating or modifying existing laws in their country to facilitate the protection of the values of the Olympic Movement. This means that an Olympic Symbol on display in your shop window without permission from the IOC could lead to a lawsuit.

Ahead of the 2024 Summer Games in Paris, the French passed a new law (Law No. 2018-202 of 26 March 2018) to facilitate the management of the Olympic and Paralympic Games, many provisions of which have been modified from active laws including the provisions regarding advertising (governed by the environmental code) and the use of Olympic properties which are protected under French intellectual property laws.

UK Protection

In the UK the British Olympic Association (BOA) is responsible for ensuring compliance with the Olympic Guidelines. The introduction of the Olympic Symbol etc (Protection) Act 1995 incorporated the Rules set out by the IOC and what amounts to infringement.

Section 3 of the Act provides that a person can infringe the Olympics association rights by using a “representation of the Olympic symbol, the Olympic motto or a protected word” or using something similar that is “likely to create in the public mind an association with it” which is then used in the following ways:

1. By affixing it to goods or the packaging,
2. Incorporating it in a flag or banner,
3. offers or exposes for sale, puts on the market or stocks for those purposes goods which bear it or whose packaging bears it,
4. importing or exporting goods which bear it or whose packaging bears it,
5. offers or supplies services under a sign which consists of or contains it, or
6. uses it on business papers or in advertising (Section 3(2)).

The aim of each NOC’s legislation is to counter “ambush marketing”; a term used to describe advertisers who ‘gate-crash’ an event by using its exposure to promote their brand. The Olympics has had its fair share of ambush marketing which has caused commercial repercussions concerning lucrative sponsorship contracts.

Using without permission

The IOC produce guidance material to highlight the key principles for non-Olympic partners who sponsor an athlete but not the Games and want to advertise during the Olympic period. ³

Non- Olympic sponsors must only use an athlete’s image without any connection to the Games and the advertising must have been running for at least 90 days prior the Games period, running consistently and not ‘materially escalated’.

The key Dos and Don’ts have been summarised below:

If you have no connection with the Games or an athlete, the best advice is to steer clear of any temptation to piggy-back Paris this summer.

Conclusion:

The Paris organising committee will monitor use of the Olympic symbols globally. They will only take immediate action in the most serious of cases BUT they will pursue everyone after the games for damages. So, play by the rules and enjoy the games.

Michelmores is pleased to have advised reupholstery and furniture repair business Upholstery2u on a £1.125 Million investment by Middleton Enterprises.

Upholstery2u offers on-site services, in-house repairs and maintenance contracts. The award-winning business, founded in 2021 by Daniel and Michael Boyle, prides itself on delivering a personalised, human service that prioritises the needs of its clients and thriving in multiple industries, catering to the diverse needs of businesses nationwide.

Family investment firm Middleton Enterprises is a team of nine professionals, backing fast-growing businesses and managing the interests of the Middleton Family. The firm provides opportunities for future generations and helps to create growing businesses that build wealth and employment.

The investment in Upholstery2u by Middleton Enterprises will enable the former to consolidate its position in the market and expand internationally.

The Michelmores team advising on the investment was led by Partner Adam Kean, along with Associate Ben Adams, both from the Firm’s Corporate team.

Michael Boyle, Managing Director and joint CEO of Upholstery2u, comments on the deal:

“This investment will enable us to launch our innovative product to global markets and offer us the flexibility our business needs as it grows. We believe that Upholstery2u has the potential to revolutionise upholstery repairs, bringing the workshop to a customer’s doorstep and we are excited to see where our product will go with the support of Middleton Enterprises.

“It’s been a pleasure working with Adam and the Michelmores team – we’re grateful for their excellent advice throughout the whole process. The Firm really understands what we need and how we like to work, and they adeptly guided us through the investment process complexity with ease.”

Adam Kean adds:

“Middleton Enterprises invests in cutting-edge companies that are set to revolutionise and innovate their markets – Upholstery2u is a prime example of that. We are pleased to have advised Daniel, Michael and their talented team on this exciting new phase of business and look forward to seeing Upholstery2u go from strength to strength with this latest investment round supporting its ambitious expansion plans.”

Michelmores’ award-winning Corporate team of 25 specialist lawyers advises clients across the UK, US, EMEA and beyond – on capital markets, mergers and acquisitions, management buyouts, impact investing, energy projects, microfinance initiatives and more. Read more about our Corporate team services here.

Michelmores is pleased to announce that this year’s round of promotions brings the Firm’s proportion of female Partners to 49 per cent, moving the firm closer to gender parity within its partnership.

Charlotte Bolton has been promoted to Partner in the Commercial & Regulatory Disputes team. Charlotte joined Michelmores as a trainee in 2012 and specialises in intellectual property disputes. She advises on issues relating to trade marks, patents, copyright, designs and confidential information.

Nerys Thomas has been promoted to a Partner in the Tax, Trusts & Succession team. Nerys joined the Firm in March 2022 and advises individuals, families and business owners on a wide range of matters including wills, powers of attorney, tax planning, trusts and estate administration.

The Firm’s newly promoted Senior Associates bring the total number of female Senior Associates to 74 per cent.

This year’s newly promoted Senior Associates include:

• Lisa Benham in the Disputed Wills & Estates team
• Laura Bond in the Family team
• Abigail Brown in the Commercial & Regulatory Disputes team
• Philippa Collison in the Commercial team
• Katharine Everett Nunns in the Agriculture team
• Yvonne Farrell in the Projects & Infrastructure team
• Harriet Grimes in the Real Estate team
• Kate Higgins in the Private Property & Landed Estates team
• Victoria Miller in the Corporate team
• Seema Nanua in the Agriculture team.

Becky Hunt, an Associate in the Firm’s Governance and Risk team, has also been promoted to the role of Senior Legal Counsel.

Commenting on the promotions, Tim Richards, Michelmores’ Managing Partner, says:

“I am very proud to announce our new Partners and Senior Associates and congratulate them all on achieving this significant milestone in their career. Each colleague has demonstrated their ongoing commitment to the Firm, as well as our ambition and values. I look forward to seeing the impact that their drive and energy has at Michelmores.

“This year we have made another positive step forward towards reaching gender parity within the Partnership, yet there is still work to be done. We remain committed to fostering an inclusive culture and one of the ways we can achieve this, is to continue to improve the gender balance across our Firm.”

Read more on our website.

On 9 April 2024 the European Court of Human Rights (ECHR) delivered a landmark ruling on the obligations of its 46 signatory states to mitigate the impacts of climate change. Verein KlimaSeniorinnen Schweiz[1] and Others v Switzerland (53600/20) marks the first time that government inaction in relation to the climate crisis has infringed basic human rights, and paves the way for future legal challenges against signatory states who fail to protect their citizens from the adverse impacts of climate change.

Background

The case was brought by members of a non-profit association (KlimaSeniorinnen) established to promote effective climate protection for women in Switzerland. The claim sought judgment against Switzerland for failing to protect its citizens from the impacts of global warming. In particular, with members predominantly aged over 70, KlimaSeniorinnen highlighted the increased risks of global warming to the health and quality of life for women and the elderly, and the detriment being suffered as a result of inaction by the Swiss government and authorities.

Human Rights and Climate Change

KlimaSeniorinnen argued that the Swiss government’s failings breached several provisions of the European Convention of Human Rights (the Convention):

• Article 2: the right to life
• Article 8: the right to respect for an individuals’ private and family life and their home
• Article 6: the right to a fair trial

Specifically, it was alleged that the Swiss government failed to implement the necessary regulatory framework to protect the health of its citizens. The claim highlighted excess illness and deaths among the elderly, and in particular women, who suffer the greatest harm from heatwaves. KlimaSeniorinnen asserted association members had been unable to carry on their daily lives during summer heatwaves, and that this infringed Article 8 which includes the right for personal autonomy and the right to age with dignity.

The Swiss government argued that climate change is a global phenomenon caused collectively by all nations. Given Switzerland’s comparatively low greenhouse gas emissions, the government argued that the applicants could not demonstrate that the suffering alleged was being caused by Swiss emissions.

The Climate Change Obligations of Governments

The Court’s assessment primarily focused on rights protected by Article 8. It held that the adverse effects of climate change can amount to an interference with an individual’s enjoyment of his or her private or family life or home. This watershed assessment extends the rights of citizens to protection by their state from the serious adverse effects and risks of climate change on their health, well-being and quality of life.

The Court outlined that, in the context of climate change, a government’s primary obligation to protect the rights of its citizens is to adopt regulations and measures capable of mitigating its existing and future impacts. In assessing the extent of a governments’ conformity with this obligation, the Court set out that close scrutiny will be paid to:

• The adoption of general measures specifying a target timeline for achieving carbon neutrality (or an equivalent method of quantifying greenhouse gas reductions)
• The implementation of intermediate targets to ensure that overall goals are adhered to
• Keeping the relevant targets updated, through due diligence and reference to the best available evidence
• Providing evidence to demonstrate compliance with emission reduction targets
• Acting in “good time” and in an “appropriate and consistent” manner when devising and implementing the relevant legislation and measures

The Court also noted that further, supplemental measures would be required to protect individuals from the most severe and imminent consequences of climate change.

The Judgment against The Swiss Government

Assessing Switzerland’s record in adhering to these obligations, the Court ruled that the government’s actions on tackling climate change constituted a breach of Article 8. Central to this infringement was the government’s failure to (1) adhere to its 2020 targets set to cut carbon emissions; (2) enshrine in law new emissions targets designed to keep global warming below 1.5^oC; and (3) act in good time to draw up and implement a strategy for reducing emissions, including a failure to quantify national emissions limitations.

The Court noted that the introduction of new legislation was insufficient to remedy the shortcomings of Swiss inaction to date and highlighted the need for immediate action to prevent overburdening future generations.

The Court separately found that the Swiss Government had infringed its citizens’ rights to a fair trial afforded by Article 6, because the Swiss administrative authorities and domestic courts at two levels of jurisdiction had rejected KlimaSeniorinnen’s claim without assessing its merits. This restriction of access to judicial consideration was concluded to have impaired the right to a fair trial.

Key Takeaways for the UK

The Convention is an international treaty (distinct from the European Union) incorporated into UK law by the Human Rights Act 1998 (HRA). The HRA requires all UK law to be interpreted, as far as possible, in a way that is consistent with the Convention and to take into account the ECHR’s case law. Therefore, the principles laid down by the ECHR in KlimaSeniorinnen will be of interest to any party wishing to hold the UK Government’s climate policy to account.

In summary, the ECHR decided that government action to mitigate climate change and protect citizens from its adverse consequences should be assessed with reference to these key points:

• An arguable claim under Article 8 will require a specific negative effect on an individual’s private or family sphere. It will be insufficient if the detriment suffered is negligible in comparison with the environmental hazards inherent in modern city life.
• It is insufficient for governments to legislate the timeframes for achieving carbon reductions without taking requisite immediate and interim actions. Courts will scrutinise governments’ implementation of administrative, regulatory and legislative frameworks and will assess how these measures contribute to overall targets to reduce emissions. Failure to implement measures in “good time” will constitute an infringement on citizens’ human rights.
• Governments should legislate for both overall emissions targets and intermediate targets that assess progress. Targets will need to be updated with reference to the best available evidence.
• States must ensure that citizens are provided access to courts at national level to hear complaints relating to climate change. Failure of national courts to assess the merits of complaints will constitute a breach of Article 6.

Those in the UK seeking to challenge the decisions of the Government and public bodies in relation to climate change can do so under the HRA by way of judicial review. Our courts have authority to disregard secondary legislation (such as statutory instruments created by ministers or government departments) that is incompatible with the Convention and, most commonly, send the matter back to the relevant authority to reconsider.  Alternatively, our courts can issue a declaration of incompatibility between the UK’s primary legislation (statutes passed by parliament) and the Convention – prompting parliament to change the law or, if not, prompting the claimant(s) to refer the UK to the ECHR.  A decision of the ECHR is binding on the UK and it is obliged to remedy any violations of the Convention, by amending its legislation and/or paying compensation to victims who have sustained damage.

For further information and advice about issues relating to the above, please do get in touch with Jonathan Kitchin or Alex Southall.

[1] Senior Women for Climate Protection in Switzerland.