The requirement that developments in certain catchment areas be nutrient neutral has been criticised by many developers. We have explained how the system works in previous articles – see Nutrient neutrality: The basics. The issue remains controversial, with many seeing it as yet another obstacle to much needed housing development, whilst others regard it as a long overdue recognition of the environmental cost of development.

The policy of nutrient neutrality has delayed planning applications over the last three years at every stage and has consequently become a political issue. The policy has been threatened before with Liz Truss arguing for its removal – but we all know how that ended. Now it is the turn of the current Prime Minister to question its future as he is apparently seeking to use the Levelling Up Bill to avoid the impact of the Dutch Nitrogen Case.

The recent case of C G Fry v Secretary of State [2023] considered whether the Natural England advice note, which started the whole nutrient neutrality delay, catches developments which already have outline planning consent.

The case

In the C G Fry case Somerset Council (“Somerset LPA“) had granted outline planning permission for 650 houses, community and commercial use, a primary school and associated infrastructure. As usual, the outline consent was subject to various conditions or reserved matters.

The planning permission was due to be implemented in eight phases with the first two being commenced under separate reserved matters approvals.

In June 2020 the developer, C G Fry (“Claimant“) obtained reserved matters approval for the third phase of 190 dwellings (“Development“). The approval was subject to a number of conditions but none of them related to nutrient neutrality.

In August 2020, Natural England published their advice note, which dropped the nutrient neutrality bombshell onto the desk of all the affected local authorities, including the Somerset LPA. The Development had the potential, adversely, to affect the Somerset Levels and Moors Ramsar Site, so an appropriate assessment under the Habitats Regulations 2017 (“Appropriate Assessment“) was required. Whilst the 2017 Regulations do not designate Ramsar Sites as protected areas, the National Planning Policy Framework (“NPPF“) grants them the same level of protection.

In June 2021 the Claimant sought discharge of a number of the conditions, none of which went to the principle of the development, which had been established under the outline planning consent. The Somerset LPA withheld approval on the basis that an Appropriate Assessment was needed.

Appeal

In April 2022 the Claimant appealed arguing that an Appropriate Assessment was not needed at the discharge of conditions stage or, if it was, it should be confined in scope to matters being considered for the conditions in question.

The Somerset LPA maintained that an Appropriate Assessment was needed and their own shadow calculations showed that the Development would have an adverse impact on the Ramsar Site.

The Inspector dismissed the Claimant’s appeal finding that the NPPF overarching protection was legitimate as discharge of conditions was part of a wider consent process, which would permit the Development to have an adverse effect on the Ramsar Site. An Appropriate Assessment was required at the discharge of conditions stage. The unfulfilled requirement for an Appropriate Assessment was an issue of material significance, which outweighed the delay in housing delivery.

Written Ministerial Statement

In July 2022 the Secretary of State for Environment Food and Rural Affairs issued a Written Ministerial Statement which confirmed that “the Habitats Regulations Assessment provisions apply to any consent, permission or other authorisation, this may include post-permission approvals, reserved matters or discharges of conditions.”

The Claimant therefore launched this claim for statutory review under section 288 of the Town and Country Planning Act 1990 (“1990 Act.”)

Legal Framework

Nutrient neutrality is a creation of European law with the 2017 Regulations transposing the requirements of Council Directive 92/43/EEC on the Conservation of Natural Habitats and Wild Flora and Fauna (“Habitats Directive.”)

Prior to Brexit the provisions of the Habitats Directive could be relied upon directly in the English courts to trump domestic law, including the 1990 Act. That reliance is also possible in circumstances in which the wording of the 2017 Regulations fell short of achieving the level of protection required.

The Court of Justice of the European Union (“CJEU“) adopts a strict precautionary approach to the assessment provisions of the Habitats Directive, so authorities have to make certain that development will not adversely affect protected sites.

Further, the CJEU held in the Dutch Nitrogen Case (which prompted the Natural England advice note referred to above) that the Appropriate Assessment must be capable of removing all reasonable scientific doubt as to the effects of development on a protected site.

Since Brexit, domestic legislation derived from EU law, such as the 2017 Regulations, continues to have effect pursuant to section 2(1) of the European Union (Withdrawal) Act 2018 (“EU Withdrawal Act“). Similarly, the pre-Brexit case law of the CJEU lives on in relation to the interpretation of EU law.

Case law (drawing on examples relating to environmental impact assessments) has established that an Appropriate Assessment can be carried out at the reserved matters stage.

Grounds of Challenge

The Claimant’s case was that the additional phosphate loading, caused by the development, was irrelevant, as it fell outside the matters left to be determined in a planning context after the grant of the outline permission. In addition, none of the conditions associated with the reserved matters application related to the phosphate issue.

The first line of attack from the Claimant was that the 2017 Regulations only apply to the formal grant of planning permission and not the approval of reserved matters or discharge of conditions. The Judge agreed with this strict interpretation but found that the Appropriate Assessment requirements applied due to Article 6 (3) of the Habitats Directive, a purposive interpretation of their provisions and case law binding him.

Habitats Directive – Article 6 (3)

The Claimant argued that the Habitats Directive had no status in the UK legal system as there was no EU or UK case law dating from before Brexit. The Judge disagreed with that view confirming that Article 6 (3) remains part of UK law. This is due to it having been accepted as binding by the CJEU in a previous case, as it was closely related to another provision of the Habitats Directive, which was the key clause in that case. This is because the EU Withdrawal Act states that previous case law will be recognised “whether or not as an essential part of the decision in the case.”

Article 6 (3) requires that an Appropriate Assessment must be carried out before a planning project is approved. A planning consent is part of agreeing a project when it consists of implementing development. In turn, the discharge of pre-commencement conditions is a necessary step in the implementation of development. In the Fry case the conditions could not be discharged without an Appropriate Assessment being undertaken.

Purposive Interpretation

The 2017 Regulations demand a purposive interpretation so that they apply to subsequent consent stages such as reserved matters applications and discharge of conditions. This approach stems from the strict precautionary approach which the CJEU has adopted to the assessment provisions of the Habitats Directive.

The Claimant’s case was that the precautionary approach is already observed as the 2017 Regulations require an assessment at the outline stage “whether before or after obtaining approval of any reserved matters.” Leaving aside the obvious timing issue in this case (that the Natural England advice note was issued after the grant of outline permission) the Judge identified the potential for negative environmental issues only surfacing after the initial stages of a multi-stage planning process. It must be remembered that in such a multi-stage process there is no implementing decision until the reserved matters are approved and conditions discharged. This is because any development in breach of such requirements is unlawful.

Caselaw

The Judge’s view was that existing caselaw provided authority for the proposition that an Appropriate Assessment can apply at the reserved matters or discharge of conditions stage, even if there has been a grant of outline planning permission under which the subsequent approval is the implementing decision. All the cases concerned the interpretation of the Habitats Directive and the 2017 Regulations and the point that the facts were different was no basis for undermining the principles they established.

Any arguments that the 2017 Regulations must be subservient to the 1990 Act is met by the long-established principle of the superiority of EU law over domestic UK legislation, which is preserved by the EU Withdrawal Act.

Conclusion & leapfrog appeal

The conclusion is that the Habitats Directive and the 2017 Regulations mandate that an Appropriate Assessment must be undertaken before a project is consented, regardless of the stage it has reached.

An interesting postscript to this case is that permission has been given for a leapfrog appeal straight from the High Court, bypassing the Court of Appeal, to the Supreme Court. This is a rare event and reserved for the cases of the highest public interest. The securing of a leapfrog appeal is a significant feather in the cap of the Claimant’s legal team led by Charles Banner KC of Keating Chambers. By way of illustration, the last example was the Brexit challenge brought by Gina Miller. An expedited appeal to the Court of Appeal is the consolation prize in the event that the Supreme Court do not grant permission to appeal and either decision will be eagerly awaited by all involved in nutrient neutrality schemes.

As I approach the end of my Training Contract, and like my fellow trainees, I now appreciate the breadth of work conducted in the four seats but also the various ‘non-chargeable’ opportunities that have shaped my Training Contract. We are encouraged to participate in the Firm’s several initiatives which allows for that well sought after ’rounded’ experience that everyone talks about. This factor was also considered in our NQ job applications (my colleague George explores the application process a bit further here). Given the wealth of benefits, both from personal and professional perspectives, below are a few examples of opportunities that I have been involved over the last two years.

Client specific events

Across the seats, there have been opportunities to attend and support the Firm at events where we invite clients and contacts. These events would serve as opportunities to foster relationships in a more relaxed and ‘non-legal’ context.

Examples include partnering with the Women in Telecoms & Technology (WiTT) to host a Women in Tech event and hosting clients for lunch whilst hearing from authors talk about their books and inspirations. I have enjoyed finding out more about the clients that we assist and in turn collaborate with colleagues from other teams.

Sector specific events

As the header suggests, depending on your current seat or interest, you will have the opportunity to attend events (alongside other people) that target certain areas of law which often presents itself as a business development opportunity.

As a Commercial and Corporate trainee, I have been involved with the day-to-day running of MAINstream. This is the Firm’s initiative to encourage investment in the South West by connecting angel investors with innovative start-ups. My colleague Will and I cover this in some detail in a previous article here, but after the pitch events, I had the opportunity to hold conversations with both investors and founders of interesting companies. This allowed me to talk about different topics and on instances where I have little knowledge about a sector, I have become more comfortable to ask questions or to simply listen to those that know more than me.

Team collaboration is heavily encouraged at Michelmores. Whilst in Corporate and supporting the Agriculture team with coordinating our podcast series, I attended the Cereals 2023 event, given our mutual focus on Natural Capital. This two-day event allowed me to put my networking skills to the test and it was insightful to see how other senior fee earners network and interact with existing contacts or potential new clients.

Internal business development

As a Firm, we want to attract the best talent and as trainees we get the opportunity to meet prospective candidates and talk about our experiences. I have attended a few Q&A panel, open days and law fairs. I found these useful when researching firms and having the opportunity to delve into others’ experiences further can give context to a nice brochure / website.

Michelmores’ programme ‘Momentum’ has partnered up with VisionPath to create opportunities for disadvantaged students in the South West. As my colleague Charlie discusses here, volunteering to run presentations on a range of skills aimed at secondary school students was rewarding. It also allowed us to talk to students who had an interest in law but might have not had the opportunities to explore this further. Ultimately, connecting with the schools in this way equipped students with skills and tools but also encouraged those with an interest in law to apply for work experience at the Firm.

Mostly offline but don’t forget your online presence!

Whilst most activities raised rely on in-person events, our online presence is as important. Producing website content like this article (as part of our ‘Trainee Blog’ series) or other sector specific articles enables a wider audience reach. You might not have the time to attend every event and speak to every person – a useful article that can point people in the right direction or update them on an important legal point is always welcomed.

This leads me to the next point: do not be shy to show off your work. This is something that might not come easy for a lot of people but try to get in the habit of posting on social media (e.g. LinkedIn) about the content you have put out. If not comfortable at first, then share and repost content from other colleagues.

Final thoughts

I have enjoyed partaking and supporting the various events over the last two years – it’s something that lawyers will continue to focus on in their careers and it’s the interesting and more social aspect of the usual day-to-day work. A few take aways from me:

1. Be natural and yourself;
2. Don’t underestimate the importance of just listening in to conversations;
3. Have an awareness of the different pockets of practice areas in the Firm;
4. Remember it’s all a learning process and you will find your preferred style; and
5. Don’t forget to have fun in the process!

Introduction:

There may be a variety of reasons why a landlord and/or tenant may want to undertake a surrender and re-grant of a lease. The parties may wish to update the covenants to which each is bound, or to put the lease onto a surer footing by extending the term. Further, in farming or agricultural contexts, it may be preferable for the parties that the lease qualifies as a farm business tenancy under the Agricultural Tenancies Act 1995 (or an agricultural holding under the Agricultural Holdings Act 1986) and enables them to agree more specific terms relating to their legal relationship. In such situations, the parties will often enter into an express agreement to bring to an end to the existing lease and immediately replace it with a new lease.

Aside from the commercial implications, there are a number of tax issues which must be borne in mind when considering such an express surrender and re-grant of a tenancy. This article discusses those tax issues in brief (and for completeness, the article focuses on express surrenders and re-grants rather than the transactions which could amount in law to a surrender and re-grant of a lease, such as a variation to increase  the demised area under a lease).

Stamp Duty Land Tax (SDLT):

A surrender and re-grant involves two acquisitions for SDLT.  Firstly, the landlord makes an acquisition on the surrender as the freehold is enlarged, and secondly the tenant makes a different acquisition when it is granted the replacement lease in the usual way. For SDLT, a surrender and re-grant is therefore a land exchange.

The SDLT rules on land exchanges (where one of the limbs of the exchange is a major interest such as a freehold transfer or the grant of a lease) are ostensibly very punitive: SDLT is payable by reference to the market value of the interests passing (if the actual chargeable consideration provided is less than the market value – which it often will be). So, the landlord and tenant can both face a market value charge to SDLT even where little if any actual cash passes between them.

A measure of relief is however available provided that the new lease is granted in consideration of the surrender of the existing lease and the surrender and grant are between the same parties (it is prudent to specifically state this in the documentation). If so, the market value rule is switched off and SDLT is only payable by reference to any other chargeable consideration provided (for example, if one party pays the other a cash sum). Overlap relief on rent under the new lease may also be available.

Care must be taken to ensure that the parties to the re-grant are indeed the same as to the surrender (for example, specific SDLT rules apply where a nominee is involved). Similarly, where the parties are connected and one of them is a company, that company can also face a possible market value charge to SDLT, notwithstanding the above relief.

VAT:

VAT on a surrender and re-grant can be far more complex than meets the eye. As above, since land transfers are made between the same persons in opposite directions, there arises a barter transaction for VAT (as a supply is ‘paid for’ otherwise than in cash).  Whether VAT actually arises, however depends on whether the landlord and tenant have opted to tax their interests.

A barter is complex as it requires a subjective valuation of the consideration received. So, upon the landlord’s acquisition, the question is what would the landlord subjectively decide to pay the tenant for the surrender if the landlord chose to pay cash (and not to grant the replacement lease)?  If the tenant has opted to tax their interest for VAT, the landlord needs to account to the tenant for VAT on this subjective amount. The reverse analysis broadly applies on the re-grant.

Generally, the value of the supplies for VAT will be of equal value, but not always. It also goes without saying that where cash is also paid (for example cash paid to a tenant on the surrender element), VAT would also be due on that part of the consideration. So, for example, if a lease reversion is worth £1m and the landlord pays the tenant £100k and grants a new lease of broadly the same terms, the landlord is required to account for VAT of £20k in relation to the cash payment and £200k in relation to the value of the surrender.

Often, the actual accounting for VAT can be simplified by using VAT-only invoices.  So, where no cash changes hands on the surrender and re-grant, the parties can give each other a VAT invoice as if they had made a supply with an amount of VAT due. While the invoice records the amount of VAT arising, there can be a set-off such that there doesn’t need to be an actual payment of cash representing VAT from one party to the other and then vice versa.

The VAT analysis on surrenders and re-grants can be very complex and it is essential that each party (and their accountants) understands their obligations at the outset.

Capital allowances:

Where a property contains fixtures on which a tenant has claimed capital allowances, the surrender of a lease of the property by a tenant for cash consideration counts as a ‘sale’, such that a landlord may be able to claim capital allowances on the portion of the payment that is attributable to those fixtures at the property. The parties would be able to agree this apportionment using an election.

However, on a surrender and re-grant, the re-granted lease is treated as the same qualifying interest which the tenant held (i.e. the original lease), so that the tenant is not treated as having made a disposal for capital allowance purposes. This means the tenant can continue to claim allowances as normal and there does not need to be any apportionment.

Inheritance Tax (IHT):

A typical surrender and re-grant scenario will not generally give rise to any IHT implications unless there is a transfer of value pursuant to section 3 Inheritance Tax Act 1984.

There will often be situations where there is a clear transfer of value, such as a surrender for no consideration where there have been no commercial negotiations. A transfer of value may also arise where the tenant and landlord are connected to each other, for instance under the “close companies” provisions of the IHT legislation.

Each case will turn on its own specific facts, so it is important to take proper advice from the outset.

Capital Gains Tax (CGT):

CGT arising on a surrender and re-grant is generally a more complex area.  Where a party to the transaction is a limited company, it is corporation tax rather than CGT which will apply.

For the landlord, the re-grant will usually amount to a part disposal of the freehold of the property out of which the new lease is granted. The landlord’s position will depend also on whether they receive a premium from the tenant or whether the circumstances are such that a notional premium may be imputed.

A surrender is usually considered to be a disposal by the tenant for CGT purposes. Generally, the consideration for the surrender will be the value of the new lease granted by the landlord in addition to any consideration actually provided. However, this will not necessarily be the case where the parties are connected, or the transaction is not on an arm’s length basis.

Where there is a disposal, whether there is CGT to pay will depend upon whether there is a chargeable gain. This will be a question of valuation in each case. Certain reliefs may also be available to mitigate any tax liability.

The tenant can often rely on HMRC’s Extra Statutory Concession D39. Where the five conditions set out in the Concession are met, the surrender by the tenant will not be regarded as a disposal. The five conditions are as follows:

• The transaction, whether made between connected or unconnected parties, is made on terms equivalent to those that would have been made between unconnected parties bargaining at arm’s length;
• The transaction is not part of, or connected with, a larger scheme or series of transactions;
• A capital sum is not received by the tenant;
• The extent of the property in which the tenant has an interest under the new lease is the same as that under the old lease; and
• The terms of the new lease (other than its duration and the amount of rent payable) do not differ from those of the old lease. Trivial differences are ignored.

In addition to these conditions, the Concession will only apply where the new lease extends the term of the previous lease, as opposed to the demised property.

Again, a case by case analysis of how the CGT rules apply to the specific facts is key.

Overall, a number of complex tax issues can arise on a seemingly straightforward surrender and re-grant, particularly where the parties involved are connected, the land in question is opted to tax or where one of them is a company. If you have any questions on the matters raised in this article, please contact Nerys Thomas or Anthony Reeves.

Michelmores’ capital markets team has advised long-standing client Allenby Capital in a new transaction with AIM-quoted Deltex Medical Group plc. Deltex, the UK manufacturer of the TrueVue™ oesophageal doppler monitoring (ODM) system, has raised £1.89 million by a placing, subscription and retail offer via the REX retail platform. Allenby is Deltex’s nominated adviser and was its sole placement agent in relation to the placing.

The Michelmores team was led by London-based corporate Partner, Ian Binnie, with support from corporate Solicitor, Gruff Cartwright.

Commenting on this fundraising, Ian Binnie said:

“This was an important transaction for Deltex so we were pleased to have supported Allenby Capital in the placing. It is interesting to note the increasing use of retail platforms such as REX as a cost-effective method of extending participation in secondary fundraisings to existing shareholders.”

For more information about the Firm’s equity capital markets team, visit our website.

Introduction

The UK’s National Security & Investment Act 2021 (“the Act”) provides a mechanism for the UK government to scrutinise the acquisition of control over a UK business or asset, and to intervene on national security grounds, including potentially preventing the acquisition. While the regime is similar in some respects to other countries’ ‘foreign direct investment’ (FDI) regimes, the UK regime applies equally to all domestic and international transactions.

So, for anyone acquiring any control over UK businesses and assets, the regime is an important factor to consider and potentially to take account of in deal structures and timetables.

There are no minimum turnover thresholds and very limited exceptions. Indeed, the regime even captures intra-group corporate restructurings and reorganisations.

Mandatory pre-notification

The Act imposes a mandatory suspensory notification regime in relation to acquisitions in 17 different industry sectors.  The 17 sectors are:

It is the acquirer’s responsibility to make a notification to the Cabinet Office. Failing to pre-notify and obtain clearance from the government in relation to a relevant acquisition in any of these 17 sectors is an offence (leading to potentially significant fines and imprisonment) and the transaction will be void.

In terms of control thresholds, notifiable acquisitions are those where:

• the acquirer’s shareholding goes from: (i) 25% or less to greater than 25%; (ii) 50% or less to more than 50%; or (iii) less than 75% to 75% or more;
• the acquirer’s percentage of voting rights goes from: (i) 25% or less to greater than 25%; (ii) 50% or less to more than 50%; or (iii) less than 75% to 75% or more; or
• the acquisition gives voting rights which enable the acquirer to secure or prevent the passage of any class of resolution.

There is no limitation period for the government to take action in relation to an acquisition that qualified for mandatory notification.

It is possible to make a retrospective notification in relation to a transaction that should have been notified. Subject to government approval, this can have the effect of making a transaction not void.

Voluntary notification

To obtain comfort in relation to transactions which do not fall within the mandatory notification requirements, an acquirer can make a voluntary notification.

This process is typically used by those involved in transactions:

• falling just outside the 17 sector definitions;
• involving lower degrees of control (e.g. material influence);
• asset acquisitions (particularly within the 17 sectors); and
• any other situations where national security issues may be a risk.

Non-notified transactions

The government has up to five years post transaction to investigate non-notified transactions concerning acquisitions outside the mandatory regime and to take action in relation to them.

This is reduced to six months where the Cabinet Office is ‘made aware’ of an acquisition. It is not entirely clear what is required, short of a voluntary notification, for the Cabinet Office to be ‘made aware’ of a transaction. It has been suggested that it might be sufficient for the transaction to be publicised, e.g. on a company website or the trade press. However, this is yet to be clarified.

Call-in notice

The government may issue a ‘call-in notice’ if it reasonably suspects that an acquisition may give rise to a national security risk.

The government is required to publish a statement about its intended exercise of the call-in power. This emphasises the flexibility of the power, but also that the government’s intention is that it should only be used for the purpose of dealing with risks to national security and not to interfere arbitrarily with investment.

The government statement says that it will consider the following risk factors:

Target risk: whether the target could be used in a way that raises a risk to national security;

Acquirer risk: whether the acquirer has characteristics that suggest there is or may be a risk to national security from the acquirer having control of the target; and

Control risk: the level of control the acquirer obtains through the transaction.

Investigation timetable

The investigation timetable can be suspended if the government issues an information notice or an attendance notice, requiring further information or to interview someone.

During the assessment period, the government has wide powers to prevent ‘pre-emptive’ action by means of an interim order.

Notifications can be made at a relatively early stage in a deal process (e.g., based on heads of terms).  However, should the deal change in any substantial detail, a new notification would have to be made and the process starts again. Therefore, parties intending to notify should generally wait until the key acquisition details, particularly relating to ownership and control rights, are unlikely to change before making notification to government.

Transparency

Notifications and clearance decisions are not made public.

Similarly, while the government does publish final orders (where it has concerns about a transaction and is taking action), these decisions do not contain detailed reasoning. The decisions simply state the parties and include a high level summary of the action taken to protect the UK’s national security interests.

The government is however required to publish an annual report, which contains various statistics which provide some insight into the operation of the regime.

Risk management

Finally, the government states (and experience confirms this) that for most transactions the risk to national security is low. For example, the government believed that there could be between 1,000 and 1,830 notifications per year with 70 to 95 call-ins per year.  However, to date (covering the year and a half or so of full operation of the Act) there have only been 17 final orders where issues were found and action taken, and only five of these have so far resulted in transactions being prohibited (although this does not include transactions which were withdrawn before this stage was reached).

Consistent with the government expectations, the transactional risks might therefore be said to be low for most transactions caught by the regime.

However, given the potentially very serious sanctions for failing to notify and non-compliance with the process, the process risks are high, particularly for transactions involving one or more of the 17 defined sectors.

Therefore, it is essential that acquirers factor in managing these risks when planning and executing transactions involving UK targets.

Challenging a final decision

While the government’s decisions under the Act can be challenged in the courts, this is only on a judicial review basis (and in some respects a limited judicial review at that). Therefore, such challenges can be expected to be an uphill battle.

This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek specific legal advice.

The Michelmores Cycle and Run Clubs were established to provide inclusive, friendly and safe networking opportunities for like-minded bike enthusiasts.

The Cycle Clubs meet once a month on a Friday morning in Exeter and Bristol. London will be hosting a few cycle & run events throughout the year (dates TBC).

Exeter Run Club meet on the same dates as the Cycle Club, after which the Clubs join together for a coffee and breakfast snack.

Please email us at events@michelmores.com with which Club you’re interested in joining, then we will email you each month to let you know about upcoming rides and runs.

Michelmores Bristol Run Club (joint with Deloitte) is hosted by Ben Adams, meeting once a month on a Monday evening. To be added to the mailing list, please email Ben Adams.

Please email us at events@michelmores.com with which Club you’re interested in joining, then we will email you each month to let you know about upcoming rides and runs.

On 10 July the EU announced its long-awaited adequacy decision for personal data flows to the US based on the new EU-US Data Privacy Framework (DPF)[1]. While this seems a major step forward for data flows from the EU to the US, not all EU businesses will be rushing to tear up their current data export procedures just yet and UK data exporters will have to hold fire pending agreement of an equivalent UK-US “data bridge”.

Why was the DPF required?

As we previously reported (see here), in the case known as Schrems II, the Court of Justice of the European Union (Court) invalidated the US Privacy Shield framework which had enabled the flow of personal data from the EU to the US. In Schrems II, the Court had significant concerns about the powers of access that US law enforcement and security agencies have with respect to personal data and the lack of meaningful legal redress for EU data subjects.  The Executive Order 14086 signed by President Biden in October 2022 introduced new safeguards for US intelligence activities to address the concerns raised by the Court and opened the way for the DPF to be agreed.

As a result of Schrems II, businesses in the EU and the UK wishing to export personal data to the US have been required to implement alternative transfer mechanisms, principally the Standard Contractual Clauses (SCCs). Data exporters must also undertake due diligence on the laws of the country to which personal data is being exported by conducting transfer impact assessments (or “transfer risk assessments” as they are known in the UK) (TIA) and considering whether supplementary measures (such as specific encryption technologies) are required to protect the rights of the data subject.

This can be very time-consuming and costly for data exporters, especially SMEs. Whilst some US data importers have taken measures to help exporters navigate the requirements, many exporters have had to make difficult business choices whether to export data to the US.

How does DPF differ from Privacy Shield and is this safe from challenge?

Privacy Shield, managed by the US Department of Commerce (DOC), pre-dated GDPR and was a self-certification scheme whereby US data importers had to prepare certain policies and documentation and self-certify that they were compliant with certain privacy principles. Some US data importers maintained their Privacy Shield even though it no longer provided adequacy status for the EU. The DOC has confirmed that DPF remains a self-certification process and that it builds on the Privacy Shield with additional requirements to meet the concerns raised in Schrems II and updates to reflect GDPR.

It comes as no surprise that Max Schrems has already announced that DPF will be challenged.

When will DPF come into effect and how can registration status be checked?

The DOC launched the DPF Program on 17 July 2023. Existing participants under the Privacy Shield now have a 3 month grace period (until 17 October 2023) within which to update their privacy policy and documentation to reflect the new requirements. There is no requirement for existing participants to re-certify under DPF but data importers which were not previously certified under Privacy Shield must now submit applications under DPF. DPF certification must be renewed annually. Data exporters can check a data importer’s registration status on the DPF Website.  We anticipate that there will be some delays while the DOC handles the volume of new applications.

Are Transfer Impact Assessments and supplementary measures still required?

Where an EU data exporter is dealing with a US data importer covered by DPF, it seems likely that data exporter TIAs will now refer to data importer DPF status to avoid requirements for supplementary measures. Data exporters will need to monitor their data importers’ DPF status and be prepared to review TIAs and implement supplementary measures if DPF status is not maintained. Also, DPF not will apply in all circumstances (see below).

Do SCCs and Binding Corporate Rules still have a place?

Where a US data importer is not registered under the DPF, EU data exporters will still need to undertake a TIA and ensure that a transfer tool, such as SCCs or Binding Corporate Rules, along with supplementary measures where appropriate, are in place. Certain categories of data transfers are outside of the scope of DPF including financial services and not-for-profit. A data exporter may in any case, and particularly given the threat of further challenge, decide it is prudent to maintain their SCCs to avoid any future risk of interruption to their ongoing data flows.

In this context, Executive Order 14086 is still helpful as the EU Commission has confirmed that all the safeguards that the Commission has agreed with the US Government in the area of national security (including the redress mechanism) will be available for all transfers to the US under the GDPR, regardless of the transfer tool used.

Can UK data exporters take advantage of DPF?

Whilst UK data exporters were able to take advantage of Privacy Shield, now that the UK has left the EU, UK data exporters cannot rely on DPF in relation to the exports of UK personal data.

While UK GDPR is based on the same principles as EU GDPR, it is a separate piece of UK legislation. It is for the UK government alone to determine which countries are adequate and UK data exporters cannot rely on the EU adequacy decision in relation to the transfer of personal data of UK citizens to the US. See here for the list of adequate countries under UK GDPR.

The indications are that the US and UK governments are actively working to agree an arrangement, the so-called “data bridge”, to enable UK data exports to the US later this year. Whilst the terms of that data bridge continue to be negotiated, UK data exporters should continue to follow the UK GDPR’s requirements to undertake a UK GDPR transfer risk assessment and rely on UK SCCs or the ICO’s International Data Transfer Agreement to ensure that the export of UK data remains compliant with UK GDPR. UK data exporters using UK SCCs may gain some comfort from the EU Commission’s confirmation of Executive Order 14086 as the requirement for TIAs (derived from the Schrems II decision) occurred when the UK was in the Brexit transition period and still subject to EU data protection law.

Please see here for our guidance on the UK GDPR data export requirements.

What about UK businesses operating also in the EU?

UK businesses which also have business operations in the EU may wish to consider relying on DPF in relation to the export of EU personal data, but this will require them to identify the data sets for each of the UK and the EU individually and to undertake separate assessments of the risks and requirements for each data set according to the requirements of each of the UK and EU. Depending on the volumes and types of personal data being exported from each of the UK and EU, this could be an involved and complicated process.

In light of the risk of challenges to DPF, the anticipated UK-US data bridge as well as the potential for more flexibility on adequacy under the UK Government’s proposed Data Protection and Digital Information Bill currently working its way through Parliament, UK businesses with EU business operations may decide it is prudent to retain the “tried and tested” tools for both UK and EU data transfers for the present time.

Michelmores Data Protection & Privacy team will be happy to assist you navigating the complexities of international data transfers under UK GDPR.

[1] COMMISSION IMPLEMENTING DECISION of 10.7.2023 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate level of protection of personal data under the EU-US Data Privacy Framework

Michelmores is pleased to announce that the Firm has been recognised for its legal expertise and excellent client care in the Chambers High Net Worth Guide 2023.

Michelmores is highly ranked in five practice areas, with seven of the Firm’s lawyers also recognised as leading lawyers. Notably, for the first time, the Firm’s Real Estate High Value Residential team has been ranked (Band 2) and recognised as a national leader outside of London. James Frampton, Partner in Michelmores’ Tax, Trusts & Succession team, has been ranked for the first time for Private Wealth Law and Tony Cockayne, Partner at Michelmores and head of the Disputed Wills and Trusts team, has moved into Band 1 in the South West for Private Wealth Disputes.

Chambers High Net Worth differentiates the best legal talent for international private wealth by identifying and ranking law firms and lawyers in this area globally. The firms and individuals ranked in its market leading annual guide understand the complex needs of HNW individuals and provide specialist advice and legal services.

The rankings recognise Michelmores’ achievements over the past 12 months, including complex and high value work, excellence in client service, and impressive strategic growth.

Michelmores’ reputation and experience in the private wealth sector continues to attract financial institutions, partnerships and other advisers as clients – the Firm is a key player in the UK’s private wealth sector which is a fast-changing regulatory and commercial environment.

The Firm is pleased to announce the following Chambers High Net Worth Guide 2023 results:

Family

• Daniel Eames, Partner and Head of Michelmores’ Family team, remains in Band 4 for Ultra High Net Worth matters.

Immigration – High Net Worth Individuals

• Philip Barth, Partner and Head of Michelmores’ Immigration practice, remains in Band 1.

Private Wealth Law – Exeter

• The Exeter-based team remains in Band 1
• James Frampton, Partner in Michelmores’ Tax, Trusts & Succession team, has been ranked in Band 2.

Private Wealth Law – Bristol

• The Bristol-based team remains in Band 2
• Sandra Brown, Partner in Michelmores’ Private Wealth team, remains in Band 1.

Private Wealth Law – London

• Dhana Sabanathan, Partner in Michelmores’ Tax, Trusts and Succession team, remains in Band 4.

Private Wealth Disputes – South West

• Tony Cockayne, Partner at Michelmores and head of the Disputed Wills and Trusts team, moved from Band 2 to Band 1.
• Georgia Wookey, Associate in the Disputed Wills and Trusts Team, has been ranked as an “Associate to Watch” for the 4^th year in a row.

Real Estate High Value Residential – National Leaders Outside of London

• The team has been ranked in Band 2, receiving its first ever ranking
• Christian Massey, Partner in Michelmores’ Private Property and Landed Estates team, and head of the Private Wealth team, remains in Band 2.

“Michelmores has excellent senior specialists and a strengthened broader team.”

“Michelmores handled complex matters well and provided solid professional advice.”

“Michelmores offers great experience and knowledge at all levels across the team.”

“Daniel is phenomenal. He’s the person you go to if you have a tricky question about European law. He really understands and gets the dynamic of a case and knows how to run complicated, difficult litigation.”

“Phillip Barth impresses me greatly with his knowledge of immigration and involvement in the space.”

“James Frampton is an outstanding lawyer, very capable and affable, calm and strong.”

“Christian is lovely to deal with and is very experienced. He is such a big force in land and estates.”

Richard Cobb, Michelmores’ Senior Partner, says: “I am delighted with these rankings for Michelmores’ Private Wealth team. As a team, and as individuals, we are constantly striving to provide the best service for our clients and we are pleased to have that commitment acknowledged, especially when the rankings are the result of feedback from such a prestigious and highly-regarded Guide. We look forward to building on the strength and breadth of the team moving forward.”

The Firm’s private wealth advice covers a range of specialities to the sector, including traditional private client advice of the highest quality to commercial advice to new corporate entrants into the market on all aspects of their business.

For more information visit our website.

Hillside and Pilkington

Last November, Hillside Parks v Snowdonia NPA was heard in the Supreme Court. Hillside concerned multiple and inconsistent planning permissions for the same site based in Snowdonia Park. In this article we will reflect on the practical implications of the case for the planning sector.

Without going into significant detail about the background of Hillside, the case concerned a series of full planning permissions for residential development on a site, dating back to a masterplan for 401 dwellings permitted in 1967. Only 41 of the houses had been built on the site but several later permissions had been granted. The Supreme Court decided following the principles in the case of Pilkington v SoS for the Environment 1973, that the development authorised by the original 1967 planning permission could no longer be built-out, as the intervening development of dwellings on the site had made it physically impossible to complete the original development in accordance with the 1967 permission. The case of Pilkington concerned mutually consistent planning permissions to the same site and held that where development has already been built in accordance with Permission A the ability to lawfully implement a second, normally full Permission B on the part of the same site, is dependent on whether it is physically possible to implement and carry out the second permission, given what has already been carried out under Permission A (the ‘Pilkington Principle’). This has been referred to in the planning world as a ‘drop-in permission’.

Drop-in permissions have been a common tool to allow changes to be made to a development that surpass the thresholds for non-material or a section 73 applications. If successful, a drop-in permission permits a new planning permission for an area within an existing planning application and will work alongside the original planning permission. Although Hillside goes some way to clarify the approach regarding multiple planning permissions, it raises questions regarding the use of drop in applications and the extent, they can be a valid way of varying an existing permission.

Headline 1: Physical impossibility – inconsistency and materiality

Hillside upheld the ‘Pilkington Principle’. The test of physical impossibility applies to the whole site covered by the unimplemented planning permission, and not just the part of the site on which the landowner subsequently wants to build. Hillside went further to clarify the principles and Pilkington:

1. ‘Physical impossibility’ of constructing the development authorised by the earlier permission is to be contrasted with ‘mere incompatibility between the 2+ permissions’ which is not fatal. The court referred to the earlier judgement of Prestige Homes case where two permissions involved the same site, the earlier one had a condition relating to the retention of trees. The later one was a condition relating to the removal of those trees. The later one was implemented. That did not preclude reliance on the earlier one because the development of the earlier one could still be built out it was just a condition of it that was no longer able to be complied with but the actual physical development was possible to complete. So, this was a case of mere incompatibility.
2. Physical impossibility does not require ‘exact compliance’. For example, deviations from a previous permission which are not material in the context of the development as a whole, would not be fatal to carrying out development pursuant to that permission. Where implementing permission B (later permission) means any of the development authorised by Permission A is physically impossible, Permission A is incapable of further implementation unless the incompatibility is not material in the context of the scheme as a whole The Court did not provide a definition of what is ‘material’ but they explained that “what is or is not material is plainly a matter of fact and degree” and it appeared to be analogous of the term with section 96A of 1990 Act in determining non-material amendments.

Headline 2: Severability

The court found that the 1967 planning permission was not severable as it did not comprise independent acts of development that could be implemented separately so they were not able to preserve some of the 1967 permission in areas where there was no physical incompatibility. However, the court clarified that it is down to interpretation whether it is a permission which authorises a series of independent acts of development, each of which was separately permitted by it. If it was for example, a large, phased permission then it may be possible to continue under the permission after works have been completed on part of the site under another permission.

Bringing together the courts analysis of the cases of Pilkington, Lucas and Sage the main point is “In summary, failure or inability to complete a project for which planning permission has been granted does not make development carried out pursuant to the permission unlawful. But (in the absence of clear express provision making it severable) a planning permission is not to be construed as authorising further development if at any stage compliance with the permission becomes physically impossible”. This confirms that there is no principle of abandonment of a planning permission in planning law, a planning permission can only be lost by the terms of the permission itself or by statute. It was also held that a part-completed development for which permission has been granted does not make the development already carried out unlawful.

Headline 3: Variation

Hillside established that a later planning permission cannot now generally be considered a variation of an earlier planning permission. The Court was not satisfied that the later permissions comprised ‘variations’ because “the development which took place under each of them is substantially at variance from what was shown in the Master Plan” and without plans showing how they integrated with the rest of the development “it cannot be said that these permissions authorised a new development scheme for the whole site”. A later permission would only be considered a variation of an earlier planning permission if the variation was to the scheme as a whole, and simply using the word variation in the later permission is not enough.

The court found that a developer could submit an additional application for permission that incorporates the wider site which benefits from an existing permission that has not been fully built out. Permission B can however be interpreted as authorising a “variation” to Permission A if it covers the whole site. This needs to be done by an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications. The court suggested that this should include (re)submission of the documents relevant to the whole site including an EIA if required. The documents would have to demonstrate that the two planning permissions could work coherently together for the whole site. The courts suggestion to follow this approach rather than use the drop in application process, would mean that the developer would have a new second permission under which they could proceed. The governing permission for the whole site thereafter will be Permission B on it’s own and therefore not a drop in permission.

Practical takeaways

From the judgement there appears to be three ways to deal with multiple and inconsistent planning permissions:

1) Developers might be able to future proof a large consent by making it expressly severable. If the original planning permission is drafted explicitly and carefully (in particular thinking about the description of development and making sure there is no ambiguity) the permission may still be capable of making certain parts of the development severable. It is unlikely that reference to phasing conditions alone would be suitable, and for the foreseeable future be prepared to see creative and lengthy descriptions of development. This will only be helpful for future developments.

2) If the amendments needed to the existing permission are material changes, then the drop-in approach will not be suitable, instead the new Permission B should be treated as a variation to Permission A and should include a plan of the whole site which incorporates the development that can be built out under Permission A, which will become the overarching permission for the site once implemented. Proceeding with a whole fresh permission may not be practical in every case and the options and associated risk, must be considered on a case-by-case basis for example:

• the practicalities of re-submitting documents
• application fees
• potential implications for CIL payments and
• it is possible that the Local Authorities may require developers to require any interested parties in the wider site to be bound to any new section 106 agreement required which could cause issues and further delays.

3) If the proposed amendments are not material in the context of the scheme as a whole, then developers might be able to utilise the drop-in application process. It could be made to sit together with the existing permission by ensuring that clarity as to what development will be built out pursuant to which permission, so that for example, phases are built under one or the other permission. As part of this process, careful thought and assessment must been given to anticipated development scenarios. Points to consider with using the drop in application process include:

• This process could be attractive to developers where they do not want to proceed with a whole fresh permission which will come with associated costs and risks.
• Whilst it will be possible to use drop in permissions to preserve the ability to carry out further works under the original permission, materiality and inconsistency will be assessed on a case-by-case basis.
• Although it may still be possible to use drop in permissions alongside other applications to amend conditions through section 73, there could be further restrictions to using s73 as a result of the Finney [2019] judgement, which places a ‘web of restriction’ over large schemes for changes to be made without a fresh planning application. Finney established that section 73 can only be used to amend conditions and cannot be used to vary the description of the development. Although, in the recent case of Mikael the Court held that s73 is not limited in scope to “minor material amendments” which clarifies that there was a much wider scope for application of s73 and may see an increase of developers using it.

Conclusion

Although the judgement went some way to clarify some uncertainties within the planning and development sector such as that a planning permission can never be abandoned and that the Pilkington principle only applies when physical impossibility is engaged in a material rather than merely inconsistent manner, there are still questions about the best way to approach making material changes to multi-phase developments in the most risk-free and cost effective way. Developers are now awaiting the proposed new statutory framework in the Levelling-Up and Regeneration Bill which is currently before Parliament. this will insert a new section 73B into the Town and Country Planning Act 1990 giving the local planning authority power to grant a new planning permission that varies an existing permission but only if the local planning authority is satisfied that “its effect will not be substantially different from that of the existing permission”.

There are many take aways from the judgement and time will tell how they will operate in practice and whether the proposed new statutory framework will be welcomed by the sector.

Michelmores has been appointed to advise Ashford Borough Council in Kent on the construction of unique, short-stay apartments for homeless people on the under-used Henwood car park on the edge of Ashford town centre.

Ashford Borough Council has selected ZED PODS, an award-winning British modular company, to design and build 23 high-quality, extremely energy efficient, factory-produced homes for the site.

The homes will be built in a fraction of the time of traditionally built conventional housing. They are highly-insulated and triple-glazed, with heat recovery ventilation and featuring 175 solar panels integrated into the roof. The fabric of the building is designed to create zero carbon homes with very low energy consumption and running costs.

This will be the first-of-its-kind modular development in the borough. It will be built on a steel podium, and all necessary safety features and flood risk mitigation measures have been adopted for this scheme due to the site situated in a flood zone area.

The Michelmores team advising on the deal is led by Alan Tate, a Consultant in Michelmores’ Construction & Engineering team arising from his involvement with the award winning ZED PODS project for Bristol City Council .

Alan is experienced in advising on projects using modern methods of construction. He recently advised Bristol City Council on a similar ZED PODS project; the multi-award winning Hope Rise development. This pioneering zero operational carbon and socially focused development of 11 homes was built in East Bristol for vulnerable young people who are at risk of homelessness.

Alan comments on the deal between Ashford Borough Council and ZED PODS:

“ZED PODS are a very practical way of trying to help solve the housing crisis and giving more to communities. These homes are quick to assemble and energy-efficient and environmentally friendly.

“In line with the Firm’s strong commitment to promoting sustainable business practices, we are pleased to advise Ashford Borough Council on this milestone development which will benefit individuals in the Ashford area who have become homeless and give them the opportunity to start again.”

Michelmores offers advice to public authorities, investors, developers, landowners and planners on a wide range of sustainable infrastructure, real estate and resource management projects. For more information about our Construction and Engineering expertise, services and lawyers, visit our website.

As part of any recruitment process, Michelmores collects and processes personal data relating to job applicants. Michelmores is committed to being transparent about how it collects and uses that data and to meeting its data protection obligations.

In this policy we explain how and why we collect your information, what we do with it and what controls you have over our use of it.

Our commitment to protecting the privacy of your personal information may result in periodic changes to this Privacy Policy. As a result, please remember to refer back to this Privacy Policy regularly to review any amendments.

Any questions regarding our Privacy Policy should be directed to Kim Tomlinson, Head of HR at Michelmores at kim.tomlinson@Michelmores.com.

Your acceptance of these Privacy Statement terms

By using this vacancy finder you unconditionally agree to be bound by this Privacy Policy.

What information does Michelmores collect?

Michelmores collects a range of information about you. This includes:

• Your name, address and contact details, including email address and telephone number;
• details of your qualifications, skills, experience and employment history;
• information about your current level of remuneration and future salary expectations;
• whether or not you have a disability for which Michelmores needs to make reasonable adjustments during the recruitment process;
• information about your entitlement to work in the UK; and
• equal opportunities monitoring information, including information about your ethnic origin, sexual orientation, health, and religion or belief.

The Firm collects this information in a variety of ways. For example, data might be contained in application forms or CVs, obtained from your passport or other identity documents, or collected through interviews or other forms of assessment, including online tests.

Michelmores will also collect personal data about you from third parties, such as references supplied by former employers, information from employment background check providers and the Solicitors Regulatory Authority. The organisation will seek information from third parties only once a job offer to you has been made and will inform you that it is doing so.

Data will be stored in a range of different places, including on your application record, in our HR system and on other IT systems (including email).

Why does the Firm process personal data?

Michelmores has a legitimate interest in processing personal data during the recruitment process and for keeping records of the process. Processing data from job applicants allows the Firm to manage the recruitment process, assess and confirm a candidate’s suitability for employment and decide to whom to offer a job.

Following the recruitment process, the Firm needs to process data to enter into a contract with you.

In some cases, the Firm needs to process data to ensure that it is complying with its legal obligations. For example, it is required to check a successful applicant’s eligibility to work in the UK before employment starts.

The Firm processes health information if it needs to make reasonable adjustments to the recruitment process for candidates who have a disability. This is to carry out its obligations and exercise specific rights in relation to employment.

Where the organisation processes other special categories of data, such as information about ethnic origin, sexual orientation, health or religion or belief, this is for equal opportunities monitoring purposes.

For some roles, the Firm is obliged to seek information about criminal convictions and offences as part of the screening checks the Firm undertakes. Where the organisation seeks this information, it does so because it is necessary for it to carry out its obligations and exercise specific rights in relation to employment and to comply with its regulatory obligations including Solicitors Regulation Authority (SRA) and anti-money laundering (AML) requirements.

If your application for employment is successful and the Firm makes you an offer of employment, further information on pre-employment screening checks will be provided to you before the commencement of these checks.

Log files/IP addresses

When you visit our vacancy webpages, we automatically log your IP address (the unique address which identifies your computer on the internet) which is automatically recognised by our web server. We use IP addresses to help us administer our web pages and to collect broad demographic information for aggregate use. We do not link IP addresses to personally identifiable information.

We may automatically collect non-personal information about you such as the type of internet browsers you use or the site from which you linked to our webpages. You cannot be identified from this information and it is only used to assist us in providing an effective service on our webpages.

Cookies are pieces of information that a webpage transfers to your hard drive to store and sometimes track information about you. Most web browsers automatically accept cookies, but if you prefer, you can change your browser to prevent that. Please be aware that some of the features of this website will be unavailable if you switch cookies off in your browser. Cookies are specific to the server that created them and cannot be accessed by other servers, which means they cannot be used to track your movements around the web. Although they do identify a user’s computer, cookies do not personally identify users or passwords.

Click here for detailed information about the cookies we use.

Who has access to the data?

Your information will be shared internally and with our third party recruitment process outsourcing supplier for recruitment, screening and employment purposes. This includes members of the HR team, the third party recruitment team, external screening providers, interviewers involved in the recruitment process, managers in the business area with a vacancy and IT staff if access to the data is necessary for the performance of their roles.

The Firm will share your data with third parties when you are required to undertake an online assessment. In this circumstance you will be asked to provide confirmation that your name and email address can be given to the online assessment provider.  If your application for employment is successful and the Firm makes you offer of employment, the Firm will then share your data with former employers to obtain references for you and the Solicitors Regulation Authority (if applicable).

Your personal data will normally only be sent within the European Economic Area and to Canada. Some of our Third Party Suppliers either process data, or are situated, outside the EEA.  In those cases, in accordance with best practice, we require that contracts are put into place to ensure that appropriate safeguards are in place to protect your personal data and that you can exercise the rights given to you under the data protection laws.

How does Michelmores protect data?

Michelmores takes the security of your data seriously. It has internal policies and controls in place to ensure that your data is not lost, accidentally destroyed, misused or disclosed, and is not accessed except by our employees in the proper performance of their duties. There are restrictions on who can access personal data in Michelmores’ systems and we have a Firm Data Protection Policy.

With regard to our vacancy webpages, we use secure server software (SSL) to encrypt any personal information you input before it is sent to us. While we cannot ensure or guarantee that loss, misuse or alteration of data will not occur, we use our best efforts to prevent this.

For how long does Michelmores keep data?

If your application for employment is unsuccessful, the Firm will hold your data on file for 6 months or 24 months for Summer Vacation Scheme and Training Contract applicants, after the end of the relevant recruitment process. We may ask you at that point if we can hold your data for a longer period. If you agree to allow the Firm to keep your personal data on file, the Firm will hold your data on file for a further 6 months for consideration for future employment opportunities. At the end of that period, your data is deleted or destroyed. You can ask us to remove this data at any point by emailing humanresources@michelmores.com.

If your application for employment is successful, personal data gathered during the recruitment process will be transferred to your personnel file and retained during your employment. The periods for which your data will be held will be provided to you in our employee privacy notice. A copy of this is will be available upon request.

Your rights

As a data subject, you have a number of rights. You can:

• access and obtain a copy of your data on request;
• require the Firm to change incorrect or incomplete data;
• require the Firm to delete or stop processing your data, for example where the data is no longer necessary for the purposes of processing;
• object to the processing of your data where the Firm is relying on its legitimate interests as the legal ground for processing; and
• ask the Firm to stop processing data for a period if data is inaccurate or there is a dispute about whether or not your interests override the Firm’s legitimate grounds for processing data.

If you would like to exercise any of these rights, please contact Kim Tomlinson, Head of HR via Kim.tomlinson@michelmores.com. If you believe that Michelmores has not complied with your data protection rights, you can complain to the Information Commissioner.

What if you do not provide personal data?

You are under no statutory or contractual obligation to provide data to the Firm during the recruitment process. However, if you do not provide the information, the Firm may not be able to process your application properly or at all.

You are under no obligation to provide information for equal opportunities monitoring purposes and there are no consequences for your application if you choose not to provide such information.

Automated decision-making

Recruitment processes are not based solely on automated decision-making.

The 20th Michelmores Property Awards were held on Thursday 22 June 2023 with a glittering awards ceremony and gala dinner at Sandy Park Conference Centre in Exeter. The evening was hosted by journalist and former breakfast television presenter, Louise Minchin, and celebrated outstanding property and construction projects throughout the South West across ten categories.

Located in Bristol, Brabazon secured the award for Residential Project of the Year (36 homes and over). Brabazon is the largest area of brownfield land in the South West, located less than five miles from Bristol City Centre. The development demonstrates outstanding quality and design that runs through both the development itself and the landscaping. Emphasis has been placed on maximising light and open spaces, and the project features impressive sustainable features such as solar panels and EV charging points.

St. Sidwell’s Point Leisure Centre in Exeter took home the prestigious Building of the Year award as well as the prize for Leisure and Tourism Project of the Year. The judges were impressed with the sustainable design, expertise and innovation that has gone into this project. St. Sidwell’s is the UK’s first leisure centre built to the Passivhaus standard.

Just outside of Exeter in Lympstone, Charles Court scooped up the award for Residential Project of the Year (35 homes and under). A neighbourhood of ten new homes created alongside a village green area with pond and public walkways, Charles Court is an exemplary sustainable development which sensitively compliments the local setting.

The winner of the Project of the Year (under £5m) category was Plymouth-based BLOCK. A collaborative co-working space located at the iconic Royal William Yard and a first of its kind for the city, BLOCK incorporates beautiful Georgian features that have been sensitively restored. The innovative new business concept has transformed a Grade 1 listed building into an attractive workspace. The building design is also flexible, allowing the space to be adapted for different uses.

The Education Project of the Year category was awarded to The High School Leckhampton, located in Charlton Kings, Cheltenham. The project has overcome significant planning challenges to respond to a genuine need within the local community. The school demonstrates high quality architecture and design, fitting seamlessly into its natural surroundings.

This year, the winner of the John Laurence Special Contribution award went to former Chief Executive and Growth Director of Exeter City Council, Karime Hassan, MBE. Karime has made a significant contribution to the city of Exeter over many years, working tirelessly to transform Exeter into a knowledge economy, and internationally recognised city of culture. He is a passionate advocate of the role of town and county planning and public and private partnerships, as well as supporting the city in its transition to a low carbon future.

Of this year’s Awards, Emma Honey, Head of Property at Michelmores said:

“We are delighted to celebrate 20 years of the Michelmores Property Awards, showcasing outstanding property and construction projects and the teams involved in bringing them to life.

“Our panel of judges deliberated for many hours to select the very best projects in each category and have commended the continued high standard of projects this year. My congratulations to all of this year’s winners.”

The winners in full:

Project of the Year (under £5m)

BLOCK

The winner of the Project of the Year (under £5m) category was Plymouth-based BLOCK. A collaborative co-working space located at the iconic Royal William Yard and a first of its kind for the city, BLOCK incorporates beautiful Georgian features that have been sensitively restored. The innovative new business concept has transformed a Grade 1 listed building into an attractive workspace. The building design is also flexible, allowing the space to be adapted for different uses.

Watch winners video.

Project of the Year (over £5m)

Edwards Court

Edwards Court won the award for Project of the Year (over £5m). A 53-flat scheme built by Exeter City Council, Edwards Court is one of the most well-designed buildings of its type. The Court combines accommodation with care and support services for people aged 55 and over and has incorporated new design thinking that aligns better with the requirements of elderly life, placing strong focus on community and companionship, as well as being the first UK healthcare facility built to Passivehaus standards.

Watch winners video.

Education Project of the Year

The High School Leckhampton

The Education Project of the Year category was awarded to The High School Leckhampton, located in Charlton Kings, Cheltenham. The project has overcome significant planning challenges to respond to a genuine need within the local community. The school demonstrates high quality architecture and design, fitting seamlessly into its natural surroundings. It contains two wings of teaching accommodation surrounding an external courtyard, with state-of-the-art facilities including six science labs, ten ICT suites, a music suite, drama studio and 400-seat auditorium with bleacher seating.

Watch winners video.

Leisure & Tourism Project of the Year and Building of the Year

St. Sidwell’s Point Leisure Centre

St. Sidwell’s Point Leisure Centre in Exeter took home the prestigious Building of the Year award as well as the prize for Leisure and Tourism Project of the year. The judges were exceedingly impressed with the sustainable design, expertise and innovation that has gone into this project. St. Sidwell’s is successful not only for being a visually outstanding addition to the community with unrivalled customer experience, but also for being the UK’s first leisure centre built to the Passivhaus standard.

Watch winners video.

Heritage Project of the Year

The Hall for Cornwall

The Hall for Cornwall in Truro won the Heritage Project of the Year award for 2023. The complex regeneration and retrofitting of one of Cornwall’s primary cultural and historical assets was realised when the Hall for Cornwall reopened in October 2021. The Hall has been reimagined into a major new theatre space, showcasing the forward-thinking approach to the performing and creative arts. The project team’s specialist knowledge in heritage, conservation and regenerative works shines through.

Watch winners video.

Masterplanning for the Future

Millfields

Millfields took home the coveted award for Masterplanning for the Future. Millfields is a flagship project which links the ferry port to the city of Plymouth, reflecting the area back to its historical importance. Comprising a number of high-quality interrelated buildings and open spaces that will form a new and dynamic neighbourhood focus for the area, Millfields is a thoughtfully considered project, that the community actively engaged with and supported throughout.

Watch winners video.

Residential Project of the Year (36 homes and over)

Brabazon

Brabazon bagged the award for Residential Project of the Year (36 homes and over). Brabazon is the largest area of brownfield land in the South West, located less than 5 miles from Bristol City Centre. The development demonstrates outstanding quality and design that runs through both the development itself and the landscaping. Emphasis has been placed on maximising light and open spaces, and the project features impressive sustainable features such as solar panels and EV charging points.

Watch winners video.

Residential Project of the Year (35 Homes and Under)

Charles Court

Just outside of Exeter in Lympstone, Charles Court scooped up the award for Residential Project of the Year (35 homes and under). A neighbourhood of ten new homes created alongside a village green area with pond and public walkways, Charles Court is an exemplary sustainable development which sensitively compliments the local vernacular and church setting. This proposal was designed with input from to the local residents and the largely landscaped site invites the local community in to use the green amenity space and includes important pedestrian links.

Watch winners video.