When applying for graduate roles, it is important to apply to firms that will be a good fit for you. One way of getting an insight into a firm and what it would be like to work there is through attending open day events. Attendance at these events will usually reveal much more about the firm than online research. This article provides tips to help you make the most out of the open day events that we hold at Michelmores.

1. Be engaged

During an open day event, attendees hear from a range of speakers about the firm and their role within it. You should bring a note pad and a pen to the event so that you can make a note of:

a) any questions which you cannot ask immediately;

b) names of individuals you hear from throughout the event, particularly those who you would like to follow up with after the event; and

c) things you learn about the firm which will be useful to remember when writing your application.

2. ‘Put yourself out there’

Open day events often finish with a networking session during which attendees get the opportunity to chat to employees of the firm. Whilst it can be daunting to speak to new people, it is important to push yourself outside of your comfort zone and take the initiative to approach members of the firm. Try to avoid the temptation to stay standing with a group of your friends. Instead, split off into pairs and consider approaching:

a) a lawyer working in a practice area that interests you;

b) a member of the graduate recruitment team for any questions you may have about the recruitment process and/or the structure of a training contract/graduate scheme; or

c) a trainee/graduate about their experience of the recruitment process or of the role itself.

3. Prepare questions/conversation starters in advance

It can feel awkward when approaching someone new to start a conversation. To avoid feeling uncomfortable, consider preparing a question for each of the following types of people that you are likely to meet at an open day event:

a) a Partner or Senior Associate;

b) a Trainee/Junior Solicitor; and

c) a member of the graduate recruitment team.

Preparing a question in advance will encourage you to approach a member of the firm by giving you a topic that you can use to start a conversation.

4. Post-event action

Take some form of follow up action after the event. This could be as simple as connecting on LinkedIn with someone at the firm who you spoke with and thanking them for their time. Alternatively, it could be referring to something you learnt about the firm at the open event when writing your application.

Follow our page on LinkedIn or visit our website for updates about upcoming events.

Michelmores is pleased to announce that it has advised the UK’s largest independent processing dairy, Freshways, on the acquisition of the business and assets of Liverpool based Coulton’s Bread Ltd a prominent bread wholesaler from its administrators.

Since its beginnings in 1990 as a small wholesaler, Freshways has grown into one of the largest independent and family-run dairy suppliers in the UK. This acquisition follows the recent acquisition of Milk & More, one of the market leaders for home grocery deliveries.

With this acquisition, Freshways Group is poised to sell in excess of 50 million loaves per annum. This strategic move not only expands Freshways’ market presence but also safeguards 110 jobs and supports local businesses, contributing to industry stability. The integration of the Coulton’s Bread business will enhance operational efficiency and distribution capabilities, further strengthening Freshways’ position as a reliable bread wholesaler.

This acquisition aligns with Freshways’ growth strategy and commitment to job preservation while remaining dedicated to sustainability and excellence in the dairy and bakery sectors and by swift execution, has saved a significant regional business in the sector.

The Michelmores team advising on the deal was led by Partner from the Firm’s Restructuring and Insolvency Team, Sacha Pickering, alongside Partners Alex Watson, Benn Richards, Robert Forsyth, Adam Corbin, and Paul Beanlands.

Adam Corbin, Freshways Client Partner comments:

“We really enjoy assisting Freshways with these exciting, fast paced, transactions, and are well placed to provide a reactive service where our teams can use their knowledge and understanding of Freshways’ business, and this sector as a whole to deliver good client service, and strong technical work”.

Freshways Director, Bali Nijjar said:

“We committed to this transaction with a very short timescale, safe in the knowledge that Adam, Sacha, Alex, and the Michelmores Team would make sure we achieved our objectives. Having a Team of lawyers who know us and know our business makes a real difference in transactions like this, and Michelmores have really invested in our relationship to ensure they deliver that.”

Michelmores’ consumer and commercial specialists help UK and international brands to break into new markets, connect with customers and close deals. From food and drink to luxury goods, brands with big ambitions and sustainable visions trust our extensive legal expertise. Read more on our website.

On 1 March 2024, M&S won an important legal victory in their bid to redevelop their flagship Marble Arch Store, an Art Deco building on London’s Oxford Street.

The High Court has quashed the Secretary of State’s (“SoS”) controversial refusal of the M&S redevelopment.

Mrs Justice Lieven asserted that the SoS Michael Gove misinterpreted the National Planning Policy Framework (NPPF), effectively rewriting the policy to include a “strong presumption in favour of repurposing buildings” where no such presumption exists.

Background

In 2021 M&S applied to demolish and upgrade its flagship store. M&S’s proposals were supported by the local council, the Mayor and an Independent Inspector.

In June 2022, the application received a number of objections, notably from Save Britain’s Heritage. As a result, the SoS called in the application for his own determination under section 77 of the Town and Country Planning Act 1990. In July 2023, the SoS refused to grant permission for the redevelopment, arguing it would “fail to support the transition to a low carbon future and would overall fail to encourage the reuse of existing resources including the conversion of existing buildings”.

The decision underlined the need for the property sector to consider carbon emissions and publicised the concept of embodied carbon (meaning the Co2 emitted from the production of construction materials) and its impact on planning decisions.

In late August 2023, M&S announced it would be challenging the validity of the SoS’s decision by statutory review.

M&S brought forward 6 grounds of challenge to the SoS’s refusal and successfully appealed to Judge Lieven to quash the decision on 5 of those grounds, set out below.

1. Lieven asserted the SoS misinterpreted paragraph 152 of the NPPF when he said there is a “strong presumption in favour of repurposing buildings”. The judge claimed that the SoS had effectively rewritten the policy. She added that, while paragraph 152 contains some encouragement for the reuse of buildings, it does not contain anything that comes close to a presumption. In her conclusion, Judge Leiven commented the importance of noting “that where the NPPF wishes to create a presumption, or suggest or direct refusal if certain conditions are not met, this is made clear on the face of the NPPF”.
2. The SoS failed to provide sufficient reasons for disagreeing with the Inspector on whether there were viable and deliverable alternatives to the scheme. The Inspector concluded in her inspection report that the structural issues and layout of the site would deter any meaningful refurbishment. The Court felt that in his decision letter the SoS did not “grapple with this issue” and held that that he could not simply assert his disagreement with the Inspector but needed to provide sufficient reasons for doing so. The Court concluded that in the absence of this information, it is impossible for the Court to determine the rationality or lawfulness of the SoS’s decision.
3. The Court held that the SoS failed to grapple with implications of refusal and loss of public benefit by refusing the application against the heritage impacts. The Inspection Report raised the possibility that without significant intervention to the property the store may be used by multiple trades including “American candy and luggage type stores.” The Inspector highlighted the potential conflict this would create with the aspirations of the Development Plan and the “wider vision for the retail heart of London”. The Court concluded that a reader of the report would be “left in a position of understanding that the loss of the benefits would be highly material”. In her judgment, Lieven found it difficult to understand the SoS’s reasoning for giving this consideration so little weight in the decision process and therefore found in favour of M&S on this ground.
4. The SoS simply stated that, in refusing the application, the harm to the vitality and commercial viability of Oxford Street, “would be limited”. He did not explain why he reached this conclusion. The Court regarded this issue as one of the most important considerations in the application. The Court stated that “it is obvious to any informed reader of the Inspection Report that significant harm to the vitality and viability at the western end of Oxford Street will have implications across the centre because of the loss of investment across the designated town centre”. Further, the SoS did not provide any reasoning to contradict the Inspector’s findings of significant harm, which the Court felt was necessary to justify his assertions.
5. Finally, Lieven found that the SoS misapplied the London Plan, referring to their interpretation as “transparently wrong”. She claimed that the net zero-carbon reference within the policy is concerned with operational carbon impacts, and not construction carbon impacts. Lieven arrived at this conclusion as the words “net zero” were defined in the policy documents, limiting the scope of interpretation. Her comments were that “any other interpretation of the policy would be both nonsensical, and contrary to the obvious words.” The SoS incorrectly understood that the requirement for carbon offsetting applied to embodied carbon and not just operational carbon. The judge inferred that had the SoS correctly understood the policy he might have come to a different conclusion.

In summary, the High Court decision may prompt relief among developers looking to redevelop rather than retrofit. Nonetheless, the judgment highlights the need for clearer guidance and national policy on reusing, rather than demolishing, buildings.

To discuss any of the issues raised in this article, or similar Specialist Real Estate issues, please contact someone from our Real Estate team.

Michelmores is pleased to have hosted a consultation in relation to the proposed devolution to establish a Devon and Torbay Combined County Authority.

The proposed Devon and Torbay devolution deal was announced by the Secretary of State for Levelling Up, Homes and Communities on 25 January 2024. The devolution will involve the transfer of powers and funding from central to local government.

The event, hosted by Michelmores at the Firm’s headquarters in Exeter in early March, was attended by over 20 key stakeholders in ‘housing’, one of the major areas for consideration. The stakeholders were drawn from key figures from the public sector and local authorities, private sector developers and major landowners.

Combined County Authorities (CCAs) are a new model of devolution, outlined in the Levelling-up and Regeneration Act 2023. Establishing a CCA is a formal, legal step, allowing upper tier councils across the region to work more closely together in a more structured way. A CCA for Devon and Torbay would be a new statutory authority created to lead collaboration between councils and would act as the recipient of powers and funding from Government.

The consultation was held in the Firm’s boardroom and allowed the invitees to openly discuss the pros and cons in a neutral environment. The event was co-chaired by Charles Courtenay, Earl of Devon and Partner in Michelmores’ Commercial & Regulatory Disputes team, and Mark Howard, Head of Michelmores’ Planning team.

For more information on the Firm’s sector specialisms, visit our website.

The highly-regarded Michelmores Property Awards are returning in 2024, marking 21 years of celebrating the South West’s best property, development and construction projects.

The shortlisted projects have now been announced for the Awards – a high-profile, sell-out event with around 450 individuals in attendance – to celebrate outstanding property and construction projects in Bristol, Gloucestershire, Wiltshire, Dorset, Somerset, Devon and Cornwall.

This year’s Awards received 63 nominations across 11 categories, with our panel of nine expert judges visiting each project and reviewing the applications during judging day. Our judging panel were faced with some exceptionally difficult decisions while narrowing down the shortlist this year and judging day included some long and lively debates around which projects should make it through.

Having long championed sustainability and innovation, the Awards place social, environmental, sustainable and economic values at the heart of their judging criteria – with these attributes considered just as important as a project’s aesthetics and purpose.

Regarded as among the most coveted accolades in the region, Michelmores’ 2024 Property Awards will include a new category reflecting the industry’s aim to reduce carbon and waste. The Regeneration Project of the Year category will showcase projects that involved work of significant refurbishment, retrofitting, regeneration or transformation value on an existing property or brownfield site, giving it a new lease of life and an environmentally efficient future.

The Michelmores Property Awards were established in 2002 and celebrate the very best construction and real estate projects taking place each year in the South West – from the most prestigious and exciting, to the truly innovative and daring.

Emma Honey, Head of Property at Michelmores said:

“Congratulations to all of the projects shortlisted in the Michelmores Property Awards 2024. As we celebrate the 21^st year of the Awards, the quality of the projects in the region is higher than ever and highlight the creativity and commitment of those working in the sector.

“We look forward to celebrating 2024’s winning projects at our gala dinner on Thursday 27 June at Sandy Park Conference Centre in Exeter. I look forward to seeing you all there.”

This year’s shortlisted projects:

The winner of the John Laurence Special Contribution Award will be announced at the Awards Dinner on 27 June.

Special thanks to our panel of judges: Iestyn John from Bell Cornwell, Glayne Price of LHC Architects, Nathan McLoughlin from McLoughlin Planning, Jo Davis from Avison Young, Mike Leece OBE, Ron Persaud of Change Real Estate, Toni Riddiford from Stride Treglown, Ajay Sharma from KTA Architects, Thelma Sorensen OBE, Honorary President of South West Women in Construction.

Read more about the Michelmores Property Awards here.

Sponsoring the Awards

The Michelmores Property Awards’ reach extends throughout the region’s property, real estate and construction sectors. Sponsoring the Awards is an excellent opportunity to raise your organisation’s profile in front of this audience and the ideal corporate hospitality opportunity. As a sponsor, you will be part of a bespoke networking event and your brand will benefit from exposure from a prestigious and well-regarded property-focused campaign that reaches over 1,300 engaged real estate companies in the South West.

Email events@michelmores.com to request a 2024 Awards sponsorship brochure to find out more about our opportunities.

The High Court recently overturned a retrospective consent for unauthorised alterations to agricultural buildings.

The judge held that the Council unlawfully concluded that the applicant had a “fall-back” position of being able to operate the site as a dairy farm without the unauthorised development.

Background

The applicant acquired agricultural land and set about creating a dairy farm under permitted development rules. However, the applicant altered existing barns by building a concrete yard area and concrete cladding to keep his cows within the confines of the barns. This constituted unauthorised engineering operations.

The applicant sought to regularise the planning position by applying for a retrospective consent. The Council granted consent for the development which was described as fundamental to the dairy operation. A neighbouring resident challenged the decision by judicial review on the following grounds:

Ground 1: that the Council unlawfully concluded that the applicant had a fall-back position of being able to operate the site as a dairy farm without the unauthorised development

Ground 2: that the Council failed to accord great or considerable weight to Natural England’s objection in relation to two Sites of Special Scientific Interest (SSSIs)

Ground 3: that the Council failed to obtain sufficient information in relation to the odour impacts.

What is the “fall-back position” in planning?

The fall-back position is where development could still take place if a planning application was refused because permitted development rights exist or there is an alternative planning permission. In this case, the applicant sought to establish a permitted development fall-back position of being able to operate the site as a dairy farm without the authorised development and to use it as a lever to gain planning permission due to it being treated as a material consideration.

Judgment

The judge held that the fall-back position was not a real prospect and quashed the consent.

The planning officer described the development as essential for the operation of the dairy farm and the applicant made no attempt to contradict this. The judgement noted the requirement that the planning officer considered not merely what was achievable or “doable” as permitted development, but also whether there was a real prospect that the applicant would have housed cattle in the barns without planning permission – something the available evidence suggested would not have been possible.

The Court also considered that the Council failed properly to consider the impact of development on the SSSIs and the successful challenge on Ground 1 essentially led to success on Grounds 2 and 3.

This decision demonstrates that a fall-back position will be given limited weight if it is unlikely to happen in reality. Click the link to view the full judgment: Ward v Torridge District Council [2023] EWHC 2629 (KB).

Above the vast patchwork of fields carpeting the UK, a silent revolution is unfolding in the skies. Unmanned Aerial Vehicles (UAVs), once confined to military applications and hobbyist pursuits, are being developed for new commercial purposes.

During the coronavirus pandemic, UAVs and drones gained attention for their trialled use by the medical sector, focused on the use of drone technology to deliver medical supplies to patients across Scotland. That organisation has now turned to the development and trial of the UK’s first national network of UAV/drone flight corridors, designed to connect hospitals, labs, GP surgeries and distribution centres.

Similar UAV/drone corridors are also under development in other sectors including logistics and agriculture. With the imminent arrival of widespread commercial use of UAV/drone technology, we consider the myriad legal considerations for private landowners.

Who owns the air above land?

Does a landowner have exclusive ownership of airspace rights over their land? Thirteenth century case law provided that a landowner owned their land “all the way to Heaven and all the way to Hell”. This very literal interpretation of ownership over the vertical column above one’s land cannot persist into the 21st century with the dawn of aircraft, satellites and drones.

The law changed in the 1970s[1] in a case involving an unmanned aircraft deployed to photograph homes with the aim of selling the photographs to homeowners.

The courts determined that landowners’ rights extended to such a height as is “necessary for the ordinary use and enjoyment of their land”.

Trespass and nuisance

UAV operators must obtain a landowner’s permission to land or take off on their land. It is less clear whether the act of flying a UAV over someone’s land amounts to trespass or nuisance in and of itself. It will likely depend upon the extent to which peaceable enjoyment of the landowner’s property is affected (height and frequency of activity, duration, noise, hovering etc.) having regard to the activity taking place on the ground.

Current legislation indicates that UAV users are exempted from liability where an operator pilots their drone over a person’s land in a reasonable manner, at a reasonable height, and in compliance with all other relevant laws and regulations (see s.76(1) Civil Aviation Act 1982). Of course, the meaning of reasonable is open to interpretation and is yet to be properly tested by the courts.

In addition, all UAVs must be flown in accordance with a general duty not recklessly or negligently to cause or permit them to endanger any person or property.

A landowner is more likely to have an actionable claim where a person causes a UAV to engage in an activity which could be considered a trespass or nuisance, such as landing without permission or causing property damage or personal injury.

Owners or operators of drones will be held to strict liability (liable regardless of one’s intention) for any surface damage, personal injury or damage to a person’s property caused by a drone[2].

Liability is channelled through the owner or operator of the drone and, unless the injury or damage is as a result of the victim’s own negligence, the victim must be compensated.

If a person intentionally or recklessly hits someone or their property with a UAV, they could also be liable for a criminal offence such as battery or criminal damage.

The Civil Aviation Authority (CAA) is the UK’s primary statutory regulator for aviation, including UAVs. Most prosecutions against errant drone operators are conducted by the CAA, although the police have taken an increasingly active role in pursuing prosecutions against individuals.

It should be noted that landowners can also be held responsible for accidents that take place on their land if they have given the drone operator permission to take off or land on their property.

Data protection and privacy

Landowners are also likely to be concerned about the risks UAVs pose to their privacy, particularly those with sophisticated cameras and sensors which process personal data. This may lead to confidentiality and privacy issues if a drone captures footage of, for example, people, vehicles or signage over land.

In the UK, processing of personal data is subject to the GDPR and Data Protection Act 2018. The Information Commissioner’s Office (ICO) is the UK data protection regulator in charge of enforcing legal requirements. Any drone with a camera should be registered with the CAA. Where a drone operator contravenes data protection rules, the ICO can pursue enforcement action, including fines.

What can landowners do if they are affected by UAVs/ drones?

It can be difficult for landowners to regulate unwanted UAV/drone behaviour. However, there are a number of things they can do. Collecting good records and evidence such as recordings and photos of drone use can be helpful. Reporting incidents to the police and making enquiries of the CAA should also be considered. In more persistent cases, landowners can employ drone tracking technologies. Concerned landowners may also want to register their land as a no-fly zone with the No Fly Drones website.

[1] Bernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479

[2] Section 76 (2) Civil Aviation Act 1982

Dhana Sabanathan, a Partner in Michelmores’ Tax, Trusts & Succession team in London, part of the Firm’s Private Wealth group, has won Gold in the ‘Outstanding Individual of the Year’ category at CityWealth’s Powerwomen Awards 2024.

The Awards took place on 6 March at the JW Marriott Grovesnor House Hotel in Park Lane, London. The annual ceremony recognises outstanding female leaders in the wealth sector, namely individuals and companies who maximise the potential of women in wealth. The Awards also create a platform for best practice to collectively exercise positive social influence on the sector.

Her Gold success is in respect of Dhana having increasingly been recognised as a ‘go to’ lawyer for advice on complex technical legal points. She is seen as a “safe pair of hands” to guide clients in a way they understand though challenging scenarios, including being called in to provide a second opinion or a more practical way of dealing with a structure.

Dhana specialises in advising high net worth and ultra-high net worth individuals, family offices, entrepreneurs, corporates and owner-managed businesses. She advises significant family offices and in addition to UK based clients, acts for clients based in Europe, the US, Asia and the Middle East.

In the space of just under a year since joining Michelmores, Dhana has also been helping to grow the Firm’s Private Wealth group. The team has seen a year-on-year growth of 15% in addition to an increase in the calibre of the Firm’s clients both in London and internationally.

Moreover, Dhana is ‘independently ranked’ for Private Wealth Law in the Chambers High Net Worth Guide 2023 and has been recommended in the Legal 500 guide for 2023. She has also been recognised in the Citywealth Leaders List as well as Eprivate Client. Dhana is a contributing author at LexisNexis, a member of STEP and on the committee for the STEP City of London branch, and was awarded Silver in the “Woman of the Year – Business Growth Mid Size” category in the 2021 Citywealth Powerwomen Awards.

Dhana comments on her accolade:

“It has been a remarkable year at Michelmores and I am so grateful to the Firm and my wonderful colleagues for the success we have achieved. It is wonderful to get this recognition from CityWealth and to see the spotlight on so many remarkable women in the private wealth industry.”

Michelmores was also named Law Firm of the Year – UK at the 2024 CityWealth Magic Circle Awards, which took place on 15 May. The Firm’s 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.

At Michelmores, we believe that being one of the best Private Wealth law firms demands an equal strength and focus on both the personal and business needs of our clients. We strive to offer joined up thinking across all related areas and work closely with some of the best advisers across the UK and Internationally to deliver a truly exceptional service.

Read more about the Firm’s Private Wealth team on our website.

Amongst the flurry of Budget announcements, the Government today published its long-awaited response to the consultation on the taxation of ecosystem service schemes.

This guidance appears to be a positive first step towards establishing a robust tax framework which will help facilitate the ongoing growth of the Natural Capital economy.

We set out the key, headline points below.

Agricultural Property Relief (APR)

• In a move which will be much welcomed by landowners and advisers alike, the Government have confirmed that they will extend the existing scope of APR to include environmental land management from 6 April 2025.
• The key points are:
  • Relief will be available where the environmental land management scheme is entered into on or before 6 March 2024 (provided that it remains in place after 6 March 2024), but relief will only be available for lifetime transfers and transfers at death which take place on or after 5 April 2025.
  • Relief will be available for land managed under an environmental agreement with or on behalf of the UK Government, Devolved Administrations, public bodies, local authorities or approved responsible bodies.
  • Relief will continue to be available following the conclusion of an agreement, provided that it continues to be managed in a way which is consistent with the agreement.
  • For the relief to apply, the land in question needs to have been agricultural land for at least 2 years prior to the change of land use, although interestingly one would not have to show that the land had been used for the purposes of agriculture or would have qualified for APR in its own right.
  • Ownership period requirements for APR will not be restarted by land use change.
  • The value of the relief will be based on a special assumption of a restriction as to its current use – presumably, much in the same way as “agricultural” values. Hope and development values will remain part of the open market value, which may have interesting implications for valuers and tax advisers if the open market value of the land extends beyond its “environmental” value (see further below).
  • Farmhouses (and ancillary buildings) will qualify for relief if occupied with, and that occupation is ancillary to, environmental land.
• The existing (and now long out of date) land habitat provisions set out in Section 124(c) of the Inheritance Tax Act 1984 will be repealed.

Business Property Relief (BPR)

• There are no proposed changes to the operation of BPR in this context, and the general rules will continue to apply. The availability of BPR will be assessed on a case-by-case basis in the usual way. BPR will continue to be available if the land in question forms part of a wider, composite, trading business (for example, in a “Balfour” context).
• The Government have also reaffirmed that the activities required to design, create, and maintain schemes falling within the Woodland Carbon Code and the Peatland Carbon Code are trading activities for BPR purposes.
• However, this guidance does not appear to go far enough to specifically confirm whether or not the activities required to develop and maintain other environmental schemes (including those involving Biodiversity Net Gain and Nutrient Neutrality, for example), would be deemed to be trading for BPR purposes.
• The activities carried out in each case will need to be carefully considered. However, in the absence of specific guidance, this may remain an area of uncertainty, and it will be interesting to see whether the draft legislation goes some way to redressing this in due course.

VAT

• The underpinning legislation for the VAT Terminal Markets Order (TMO) will be updated, including bringing trades in carbon credits within the scope of VAT and the TMO.

Working group with industry representatives

• The Government will be establishing a joint HM Treasury and HMRC working group tasked with clarifying the tax treatment of the production and sale of ecosystem service credits and associated units. DEFRA will also provide input.

Potential restrictions to APR

• The government have decided not to restrict APR to tenancies of at least 8 years. One of the deciding factors was that they felt it may lead to a contraction in the land available for tenant farmers. DEFRA will continue to work with the industry and look to support longer term tenancy agreements which retain flexibility.
• Environmental Land Management Schemes will also be accessible to tenant farmers, and this includes for tenants on shorter terms, on rolling annual tenancy agreements and on longer terms.
• Penalties will no longer be applied for tenants who have to exit a scheme early if their tenancy ends unexpectedly.
• Whilst tenants need to check the terms of their tenancy agreement before applying to SFI, SFI does not require the tenant to gain the landlord’s consent although in the spirit of collaboration, the expectation is that the tenant would communicate with their landlord.
• DEFRA is also looking to ensure that more options are offered on shorter durations in their combined Environmental Land Management Scheme offer for 2024.

Comment

• The Government have clearly stated that the potential loss of APR should not be a barrier to land use change. This is a very welcome move and reassures landowners that they should not be forced to choose between (1) using their land in environmentally friendly ways for economic gain on the one hand and (2) the potential loss of valuable APR on the other. The guidance makes sense and seems to suggest that the legislation will follow the current APR framework closely, with ownership periods, farmhouses and ancillary buildings all covered. Draft legislation will be embodied in a future Finance Act, and we await sight of that with interest.
• That said, there is an argument to say that the change will not come soon enough – the relief will not be available on lifetime transfers or deaths until 5 April 2025.
• And the position in relation to BPR is less clear, with no proposed changes to incorporate environmental land usages. It had been hoped that the Government would offer further guidance in relation to whether activities required to run (for example) BNG and Nutrient Neutrality schemes could also be deemed to be trading (as they are for the Woodland Carbon Code and the Peatland Carbon Code).
• This “mismatch” with BPR could trigger some interesting valuation issues if the land used for environmental purposes is deemed to have a “hope” value above its agricultural / environmental value. The agricultural / environmental value would be covered by APR, but any “hope” value would not. This will provide further food for thought for landowners and advisers alike, particularly as valuations develop in this area.
• Overall, this is clearly very welcome news, particularly in relation to APR, which will provide some comfort for landowners as they continue to explore opportunities in this area.
• However, there remain a number of tax uncertainties (not least the treatment of payments received under ecosystem service schemes, and whether they income or capital), and so this feels like the first step along what will inevitably be a long road to an efficient framework for environmental taxation.

The full response can be found here: Government_response_-_taxation_of_environmental_land_management_and_ecosystem_service_markets_w._logo.pdf (publishing.service.gov.uk)

Michelmores has advised Family Adventures Group Ltd, a rapidly expanding leisure venue and day nursery group, on its £5m investment from Foresight Group, the regional private equity investment manager.

Founded by husband-and-wife team Tom and Laura Filer, Family Adventures Group’s operations are built on a “hub and spoke” model which sees a children’s leisure site opening with accompanying nurseries created nearby. There are currently six nursery sites across the South West and Midlands, which are supported by two leisure venues.

The investment from Foresight will support the Group’s ambitious growth plans, which will see the creation of further new leisure sites with accompanying nurseries across the South West and Midlands.

The Michelmores team advising on the deal was led by Partner Harry Trick with support from Adam Quint, Hollie Halston, Sena Guvercin (all from the Firm’s Corporate team) and Cathy Bryant (a Partner in the Firm’s Corporate Tax team).

Tom Filer, chief executive of Family Adventures Group, added:

“We’re proud of the growth we have been able to achieve since starting in 2019, creating high-quality childcare and leisure venues. The whole team is delighted to have investment from Foresight into our company to allow us to turbocharge our growth.”

“We were really impressed with the support provided by the team at Michelmores and the commercial approach that they took – they were outstanding“.

Nick Mettyear, Senior Investment Manager at Foresight Group, said:

“Tom and Laura have created an exciting business model that shows real potential for growth. The team are targeting areas where there has been a chronic shortage of quality early years education options and will provide an excellent alternative to parents. The imaginative playscapes in the leisure sites will also bring a new approach to educational and interactive play.”

Also advising on the transaction were Evelyn Partners (Corporate Finance to Family Adventures Group) and Shoosmiths (legal advisors to Foresight Group).

In Great Britain, the potentially harmful effects of activities in the marine environment are controlled by a complex system of marine management, primarily governed by the Marine and Coastal Access Act 2009 (MCAA). This article provides a brief introduction to MCAA, and considers how the current regime has operated to protect the marine environment.

MCAA introduced a single framework for marine management and licensing. At that time, the policy emphasised the need to sustainably manage, enhance and use the natural environment for the benefit of current and future generations[1]. This was effected in MCAA by imposing an objective on the regulator to contribute to the achievement of sustainable development (General Objective)[2].

How do we currently protect the marine environment?

The regulators of the GB marine environment (Regulators) further the General Objective primarily through marine licensing and conservation zoning, and the management of marine fisheries.

Marine Licensing

Unless an exemption applies, anyone undertaking an activity listed in MCAA must have a licence from the licensing authority[3]. The list of licensable activities captures most activities in the marine environment, including any that involve removing or depositing objects; constructing, altering or improving works (in or over the sea, or on or under the seabed); scuttling and dredging, among others. When determining an application for a marine licence, the licensing authority must have regard to the need:

• to protect the environment
• to protect human health
• to prevent interference with legitimate uses of the sea (e.g. navigation, fishing).

The authority may also consider any other matters that it thinks relevant, provided always that it functions in accordance with the General Objective.

Marine Conservation Zones (MCZs)

MCAA allows the Regulators to designate zones to conserve or protect species of marine flora and fauna, marine habitats, and other significant features of the seabed.

Where a public authority’s functions may affect an MCZ, that authority must act in the manner that best furthers or (if this is impossible) least hinders the MCZ’s conservation objectives.

To help further these objectives, and to protect MCZs generally, the Marine Management Organisation (MMO) may make byelaws to control activities not currently regulated (licensed) in the inshore region[4].

This supports a key MCAA objective of building a network of marine protected areas (MPA) that contributes to the conservation or improvement of the marine environment[5].

Marine Management Organisation (MMO)

MCAA established the MMO, the primary Regulator of marine activities in the seas around England and Wales. The MMO exercises many functions on behalf of the UK Government. In so doing, it must reach a balance between environmental, social and economic considerations.

Management of Fisheries

The MMO may, for example, make byelaws relating to the offshore exploitation of sea fisheries resources (animals or plants) in England and Wales for the purpose of conserving marine flora and fauna or marine habitats. The Regulators have greater powers in this respect in relation to certain MPAs.

MCCA also established inshore fisheries and conservation districts/authorities (IFCAs) to manage the exploitation of sea fisheries with a direction to ‘seek’ to ensure that this is carried out in a sustainable way.

Historically, GB’s fishing fleets and stocks were managed under the EU Common Fisheries Policy which aimed to ensure the long-term viability of fish stocks and promote sustainable fishing practices. The Fisheries Act 2020 now provides the framework for GB fisheries management.

Has the existing regime been effective?

Marine Licensing Though the Regulators may include any relevant matters in their consideration of marine licence applications, the prescribed decision-making criteria (see above) is protective and preventative.

The Regulators are encouraged by the General Objective to promote a positive change in the marine environment, but the language of marine licensing instead promotes decisions that maintain the status quo. The focus of policy remains on marine recovery and habitat enhancement, and there is some question on how that can be achieved under the current licensing regime.

Marine Conservation Zones

Some of the criticisms of how MCZs operate include:

a) Protecting features of conservation interest will not restore biodiversity

MCZs are intended to maintain or restore specific features (habitats or species) to ‘favourable’ condition, within defined areas. In this, MCZs are broadly successful; but there is evidence that feature-based conservation is not supporting the recovery of marine biodiversity[6].

A long-term study of conservation measures at Lyme Bay found that adopting broad-scale habitat measures across the whole site resulted in a significant increase in biodiversity; exceeding the objectives for the individual features of conservation interest.

The ‘whole-site’ approach is notably more aligned with EU Directives (from which the UK’s MPA policy derives) which recommend measures that improve an area’s “ecological integrity” – the coherence of its structure, habitats and species, as a whole.

b) MMO byelaws fail to promote positive change

As with the narrow focus of MCZ conservation objectives, the limited scope of the MMO’s byelaws regime undermines the wider goals of sustainable development. The MMO may make byelaws to further the conservation objectives of MCZs or to manage the exploitation of sea fisheries resources. In either case, the purpose of any byelaw made under this power is limited to the conservation or protection of specific marine features.

Given that MCAA’s model byelaws exclusively restrict or prohibit potentially harmful activities, it is unsurprising that there were only 10 MMO byelaws in force last year; all related to restricting the use of bottom-towed fishing gear[7]. There is a question mark over how the regime can promote activities beneficial to the marine environment, and ensure that it is not instead inhibiting them.

Management of Fisheries

A major criticism of the regime for protecting the GB marine environment is the failure to recognise that marine conservation and fisheries management are interdependent.

The ability of fish stocks to replenish themselves is dependent on marine habitats providing nurseries for juvenile fish. However, certain fishing activities are linked to the destruction of those very habitats. A report produced by Oceana in 2023, “Taking Stock, The state of UK Fish populations 2023”, stated that “…destructive bottom trawling is allowed in 90% of UK offshore marine ‘protected’ areas […] making a mockery of the concept of ocean conservation”[8].

Further, the Oceana report claims that 5 out of 10 of the UK’s most important fish stocks are being overfished or are in a critical state. If that is the case, then the levels of fishing activity in the UK are not supported by the existing marine habitats despite a long-term policy to promote sustainable fisheries.

A thriving fishing industry is considered essential in providing nutritious, local produce and must be supported with thriving marine habitats.

How can MCAA be used most effectively to improve marine environments?

MCAA provides a comprehensive framework for the protection of our marine habitats, as well as providing the authority and the tools for the Regulators to give effect to the General Objective. To date, however, it has been deployed restrictively, protecting specific features without contributing to the restoration or enhancement of marine habitats. Meeting the wider aims set out under MCCA, i.e. sustainable development, requires more than maintaining the status quo.

Since 2018, the UK Government has consulted on how to incorporate a requirement for “Marine Net Gain” (MNG). MNG refers to the principle that new marine developments[9] should leave the environment in a measurably better state than before development. For MNG to deliver on restoring marine habitats and increasing biodiversity, a holistic management approach to all marine activity must be adopted, harmonising the competing demands on our waters.

[1] Defra, “A Sea Change: A Marine Bill White Paper” (Defra, 2007) p 2.

[2] Strictly, the General Objective applies to the regulator in England. However, the equivalent organisation in Wales has a similar objective. For simplicity, we refer to both objectives as “the General Objective” here.

[3] The Marine Management Organisation, in England; or Natural Resources Wales (NRW), in Wales.

[4] The Welsh Ministers have an equivalent power to make “conservation orders” in Wales.

[5] This is to fulfil the UK’s requirement to designate ecologically coherent and representative networks of Marine Protected Areas under the Marine Strategy Framework Directive (2008).

[6] Siân E. Rees, et al. “Emerging themes to support ambitious UK marine biodiversity conservation” Marine Policy, Vol 117, 2020.

[7] MMO Guidance: Understand MMO marine conservation byelaws (Jan 2023).

[8] Oceana, “Taking Stock: The State of UK Fish Populations 2023” (Sept 2023), p 3.

[9] In this case, development activities in English waters below the mean low water mark.

We have touched upon the environmental advantages of promoting marine nature recovery throughout The Blue Economy publication. Sometimes, rightly or wrongly, it takes the identification of economic opportunities to really see the acceleration of an emerging sector.

In this article, we consider the commercial opportunities of marine net gain and highlight three innovative businesses that we are working with that are advancing marine nature recovery and building growth businesses while doing so.

The government released its response to the public consultation on the principles of Marine Net Gain (MNG) last year (the Response).

Net gain is the concept of leaving the environment in a measurably better state than prior to any development. We have seen an explosion of activity following the mandatory requirement on all land developers in England to deliver a 10% Biodiversity Net Gain (BNG) when building new housing, industrial or commercial development. The new mandatory BNG applies to developments on land and intertidal locations, down to the mean low water mark.

MNG will complement the mandatory BNG regime and, pursuant to the Response, apply to any development that takes place below the mean low water mark. Assuming the structure of the BNG regime is followed (and the Response does refer to strong support by respondents of a mandatory requirement for MNG), marine development will only be permitted if the developer brings about or secures an improvement in the marine environment.

Marine development includes, for example, fisheries, port and harbour development, sewage and waste transportation and offshore wind farms. All involve significant infrastructure and will frequently result in significant damage to the marine environment.

If mandatory MNG is adopted in line with the Response, there will be a statutory duty on all those in industries that undertake marine development, such as the marine fishery, marine engineering, marine transportation and marine energy sectors, to improve the marine environment either in and around their development or elsewhere.

So how does this create commercial opportunities?

We are seeing a burgeoning market develop for BNG units where on-site BNG is unavailable (i.e. the mandatory requirement to achieve a minimum 10% BNG cannot be achieved within the red-line boundary of a development site) and developers need to meet their BNG commitment by ‘buying-in’ BNG from a third party.

The same arrangement is easily plausible with MNG, with biologically rich and diverse marine environments being established in the best ecological places for them (which may be outside of the red-line boundary of a marine development) and the value in that marine biology bank being sold to developers that need to achieve MNG.

One of our clients who is exploring a collaborative approach to MNG is ARC Marine.

ARC Marine has developed a plastic free, carbon-neutral technology that it utilises in a line of specifically developed products, including reef cubes®, Marine Matts and Intertidal reef cubes®, allowing a variety of marine industries to leave a lasting positive impact on the environment where they would not have otherwise done so.

ARC Marine’s flagship products are designed to support and protect life on the sea floor. Manufactured entirely from marine-friendly materials, ARC Marine is offering a form of scientifically backed construction that is kind to the environment and enhances biodiversity.

Another client of ours in the blue sector is growing a network of scalable, offshore regenerative ocean farms or, as they like to call them, “algapelagos“.

Co-Founded in 2021 by three times world record holder, Olly Hicks, Algapelago secured the largest licence for kelp cultivation in the UK. Based in North Devon, the first Algapelago regenerative ocean farm (ROF) is positioned for optimal growing conditions and minimal spatial conflict. As well as growing kelp and shellfish, a key focus for the Algapelago pilot farm (and all future farms) is to convert the seaweed biomass grown into ready products, such as feed additives for livestock and crop bio-stimulants.

Our Q&A with Mollie Gupta of WWF (on pages 5 and 6 of this publication) highlights some of the benefits of seaweed farming, both in terms of the positive impact that it has in the ocean and in the way that seaweed products can be used to support increasingly in demand food systems.

Finally, Waterhaul is improving the marine environment by recovering ‘ghost gear’ from the coastline and recycling it into designer eyewear. Ghost gear (lost or discarded fishing gear at sea) is abundant, strong and durable (it can last for up to 500 years in the ocean) and costly for fisherman to dispose of.

These qualities have an incredibly detrimental impact on the environment, frequently resulting in ghost fishing where marine life gets trapped and entangled and attracts more species, but make it an excellent recycled, raw resource.

By creating a circular economy pathway for fishing gear, Waterhaul are able to give this ‘waste’ new value, incentivising recycling instead of disposal at sea.

If you have a growth business in the Blue Sector, we would be keen to hear from you.