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.

Michelmores has advised Forestry England on a contract which will see the organisation work with Cuffe and Taylor to deliver Forest Live shows.

Forest Live is a major outdoor live music series that introduces forests to new audiences in unique, natural woodland arenas around the country.

Forestry England manages 1,500 of the nation’s woods and forests. Its land has been used to stage the Forest Live concert series for the past 22 years, during which two million people have attended the shows.

Live Nation’s Cuffe and Taylor has agreed to an exclusive seven-year contract to present Forestry England’s major outdoor live music series, involving a series of sustainability initiatives delivered in line with Forestry England’s net zero ambitions.

Live Nation has also said it has aspirations to present up to 32 concerts a year to a combined audience of more than 250,000 people at sites in Staffordshire, Cheshire, Suffolk, Gloucestershire, Kent, North Yorkshire and Nottinghamshire.

Chloe Vernon-Shore, a Partner in Michelmores’ Commercial team, comments:

“We are pleased to have supported this collaboration between Forestry England and Cuffe and Taylor, using our pragmatism and expertise to put together the legal framework for Forest Live 2024 and onwards.

“The exciting partnership enables brilliant live music experiences in wonderful natural locations, while sharing our Firm’s efforts to provide a sustainable future for people, nature, and the climate.”

Read more about the Firm’s outstanding Commercial team here.

What are the enforcement options currently available to the ICO?

The current ICO enforcement toolbox includes prosecutions, monetary penalties, enforcement notices requiring ICO prescribed action, and reprimands. Since January 2020, 152 enforcement actions have been taken by the ICO comprising 61 monetary penalties (the largest category of enforcement action), 45 reprimands, 43 enforcement notices and three prosecutions. The top three sectors in which enforcement action was taken were marketing, finance insurance & credit, and retail & manufacturing. However, the ICO’s approach to enforcement action has undergone recent change.

A change in approach

In a keynote speech to the National Association of Data Protection Officers’ annual conference in November 2022, the Information Commissioner – John Edwards – set out the ICO’s new strategic approach to enforcement, in particular relating to the public sector. This new approach focuses on:

• outcomes rather than outputs – the emphasis being on good results for the public rather than big financial penalties on organisations;
• a change in the approach to Monetary Penalty Notices (MPNs) for public authorities – seeking to avoid MPNs and the “money-go-round” of public funds; and
• a switch to reprimands – noting that damage to reputation and public impression can have a much bigger influence than imposing financial penalties, in particular as reprimands are now publishable (since January 2022) and cannot be appealed to the First Tier Tribunal unlike the ICO’s decision notices.

In his speech, the Commissioner explained how the definition of enforcement is a graduated response in respect of non-compliance rather than an automatic association between enforcement and fines. The Commissioner gave the example of the Department for Education detailed below where, under the old system of enforcement, the fine could have been in the region of £10 million. The Commissioner explained however, that enforcement action was based on the principles of accountability, transparency, certainty, predictability and flexibility so that organisations using personal data know what the law expects of them, how they can use personal data in terms of innovation and service or product delivery whilst remaining compliant and what will happen if they don’t comply with the law.

Examples of recent action by the ICO under the new approach

This change in approach is demonstrated by only one MPN for a public authority being issued by the ICO since January 2020. The MPN concerned was for an NHS Trust in the sum of £78,400 for sending bulk emails to over 1,000 gender identity clinic service users and highlighted the Trust’s serious failure to comply with data protection legislation.

However, it should be noted that MPNs and enforcement notices are still very much in use by the ICO for the most serious breaches of data protection law and the Commissioner explained that these will still be used where they are “truly needed”. You might have read about the recent ICO fine imposed on TikTok in the sum of £12.7m regarding children’s data on their platform and insufficient checks and balances as to the ages of the children concerned making use of the platform. In 2020, the ICO required Experian to contact every one of the individuals affected by the invisible profiling which the ICO alleged was taking place on a large scale.

A total of 45 reprimands have been issued by the ICO since January 2020 across the spectrum of private and public sector organisations, including:

• Government departments – such as the Ministry of Justice for bags of confidential waste found in an unsecured holding area in a prison and the Department of Education for failures in security allowing third party access to its database and processing of personal data including that of children, held by the DfE, without appropriate control of oversight or transparency as to the purposes for the processing by those third parties.
• Private companies – such as Virgin Media Limited – who received 9,500 Subject Access Requests (SAR) over a six-month period in 2021, 14% of which were not responded to within the statutory timeframe, and the Chartered Institute for Securities & Investment following the exploitation of a known vulnerability in the Institute’s software to leverage a cyber-attack in which malicious code was uploaded to the Institute’s website, capturing payment details of around 3,800 data subjects and other personal data such as names and email addresses.
• The NHS – including for the Blood and Transplant service for inadvertently releasing untested development code into a live system for matching transplant list patients with donated organs in August 2019 and for the permanent loss and inaccessibility of some patient records downloaded prior to the transfer from one electronic document viewing system to another.
• The Police – including the Metropolitan Police Service for an “immature” ability in its systems, to ensure that sensitive criminal records information uploaded daily to the Police National Database, were correctly loaded. Additionally, the Chief Constable of Kent Police for failure to complete 40% of SARs within the statutory deadline, with some taking over 18 months for Kent Police to respond to and, as of May 2022, in excess of 200 SARs remaining overdue.
• Local Authorities – including for non-compliance with SAR requirements under the UK GDPR and failure to respond to SARs within the statutory time limit as well as data breach situations. In one incident, a local Council sent papers prepared as a Court bundle in Child Protection legal proceedings and containing sensitive information such as medical information relating to the child and the home address of the mother and her two children, to both parents of the child in question.

Takeaway points

1. No organisation, whether operating in the private or public sector is immune from ICO enforcement action and the examples of reprimand action taken since January 2020 confirms the ICO’s new approach in practice.
2. As the strategy identifies, damage to reputation and public impression can indeed have a much bigger influence on compliance than imposing financial penalties.
3. Whilst the new strategy might reduce the need for organisations to set aside funds for the payment of MPNs, non-compliance in the form of reprimands could still be costly.

If you would like further advice or insight on any matters relating to data protection or enforcement, please contact Emily Aggett or another member of our Data Protection & Privacy team.

Jalla and another -v- Shell International Trading and Shipping Co Ltd and another (“Jalla”)

The tort of private nuisance has received significant judicial attention from the U.K. Supreme Court in 2023. The judgment in Fearn v Board of Trustees of the Tate Gallery (“Fearn”) [2023] UKSC 4 was given on 1 February 2023. Fearn clarified that intrusive viewing from a neighbouring property (in that case the Blavatnik Building, part of the Tate Modern art museum in London) into residential flats, can in principle (and did in that case) give rise to a claim for private nuisance.

Following Fearn, the Supreme Court, in Jalla, has provided authority on the circumstances in which a private nuisance is continuing and constitutes a ‘continuing cause of action’, a concept which has implications for the limitation period (the length of time potential claimants have to bring a claim).

This article examines:

• what the tort of private nuisance is;
• the concept of the continuing cause of action and its impact upon the limitation period; and
• the implications of the Supreme Court judgment in Jalla.

Background: what is private nuisance?

The tort of private nuisance is committed: “where the defendant’s activity, or a state of affairs for which the defendant is responsible, unduly interferes with (or, as it has commonly been expressed, causes a substantial and unreasonable interference with) the use and enjoyment of the claimant’s land“[1].

There is considerable scope for private nuisance claims to be brought and such potential claims may relate to (amongst others): odour, noise, intrusive viewing (as in Fearn), Japanese knotweed, tree roots, and environmental damage including oil spills such as in Jalla.

Jalla: the facts

In Jalla, the private nuisance claim arose from a major oil spill brought against a company within the Shell PLC group of companies. Despite the incident occurring in Nigeria, Jalla represents a further example of multinational companies being sued in the jurisdiction of England and Wales for oil spills. For further analysis of this trend, please see Michelmores’ article here: Liability for MNE’s in environmental law

The oil spill in Jalla was caused by an oil leak during operations at an offshore installation in an oil field which occurred off the coast of Nigeria in December 2011. The oil leak was stopped within six hours. This is an important point in categorising the incident as a one-off, rather than a continuing event, which will be revisited later in the article.

The claimants’ case was that the oil had not been removed or cleaned up and was continuing to cause them a private nuisance by reason of undue interference and enjoyment of their land.

Limitation Issues: the claim

The claimants issued their claim form in December 2017. The relevance of this is that in the jurisdiction of England and Wales, pursuant to S2 Limitation Act 1980, generally a claimant has six years from the date of the cause of action to bring a claim. Therefore, the claimants had no initial issue with limitation having issued their claim within time.

However, In April 2018 (beyond six years after the spill) the claimants attempted to amend their claim form and particulars of the claim.

The claimants argued that the claim constituted a continuing cause of action and, on that basis, that their amendments were not outside of a relevant limitation period and should be allowed.

The defendants resisted the application on the basis that the amendments were sought after the expiry of the limitation period and the claimants had to satisfy the requirements of the Civil Procedure Rules (“CPR”) relating to amending a statement of case outside a limitation period[2].

What is a continuing nuisance and why is it relevant?

At paragraph 26 of the judgment, the Judge described a continuing cause of action as follows (emphasis added):

“In principle, and in general terms, a continuing nuisance is one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land. For a continuing nuisance, the interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis. So, for example, smoke, noise, smells, vibrations and, as in Fearn, overlooking are continuing nuisances where those interferences are continuing on a regular basis. The cause of action therefore accrues afresh on a continuing basis.”

The relevance of a set of facts constituting a continuing cause of action is that the limitation period runs afresh from day to day. Had the Court found the facts of Jalla to constitute a continuing cause of action, the claimants’ proposed amendments to their claim would not face a limitation issue. More generally, the continuing cause of action concept means that, in circumstances constituting a continuing cause of action, a defendant committing a private nuisance continues to face litigation exposure even after six years has passed following the original incident.

The key issue for the Supreme Court to decide in Jalla was whether a one-off oil spill could constitute a continuing cause of action on the basis that the oil had allegedly not been cleaned up.

The Findings

The Judge summarised the claimants’ submissions as follows: “The essence.. is that there is a continuing nuisance in this case because, on the facts that are to be assumed for the purposes of this appeal, the oil is still present on the claimants’ land and has not been removed or cleaned up[3].”

Developing the point, the Judge illustrated the practical consequences of the claimants’ case on what constitutes a continuing cause of action by the following example: if a claimant’s land was flooded by an isolated incident on day one, if the land remained flooded on day 1000 there would be a fresh cause of action accruing day by day.

The Judge described the claimants’ submission as incorrect and found there to be no continuing cause of action in Jalla as to accept the claimants’ conception of a continuing cause of action that would undermine the law on limitation of actions. In coming to this finding, the Judge noted that: “there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land[4]“. The Judge distinguished the one-off oil spill in Jalla with the example of a tree roots case which “provides a good example of a continuing nuisance…. In such a case, there is an ongoing state of affairs outside the claimant’s land, constituted by the living tree and its roots, for which the defendant is responsible and which causes, by extraction of water through its encroaching roots, continuing undue interference with the claimant’s land. The cause of action for the tort of private nuisance therefore accrues afresh from day to day“[5].

The Implications

The distinction between one-off events and events constituting a continuing nuisance have significant implications for the limitation period, with the former type of claims having to be brought within six years of the event and the latter type accruing a fresh cause of action for each day the nuisance is continuing (meaning that the limitation period extends). Those operating in sectors which may give rise to potential nuisance claims should take note of the requirement of “repeated activity or an ongoing state of affairs” required for a set of facts to constitute a continuing cause of action (in addition to the general nuisance requirements including causing undue interference with a potential claimants’ enjoyment of the land).

[1] Paragraph 2, Jalla v Shell [2023] UKSC 16: https://www.bailii.org/uk/cases/UKSC/2023/16.html

[2] CPR rr 17.4.

[3] Paragraph 34, Jalla v Shell [2023] UKSC 16

[4] Paragraph 37, ibid

[5] Paragraph 30, ibid

Click here to listen to the accompanying podcast.

As part of the Government measures to help the UK meet its commitments to combat climate change, the Environment Act 2021 introduced a new 10% biodiversity net gain requirement, which will be imposed on most new planning developments from the date when it comes into force. This is likely to be later this year. We explain what biodiversity net gain is and focus on the opportunities it presents.

What is biodiversity net gain?

Biodiversity net gain (BNG) is a strategy for contributing to the recovery of nature whilst developing land. The Environment Act 2021 requires that development land must be left in a better state for wildlife than before the development. These provisions will come into full force during 2023 and require a minimum 10% increase in biodiversity as a result of any development.

Implementation of BNG is of course significant, as once the legislation takes effect, most developments will need to yield an increase of biodiversity in order for developers to obtain the required planning consents. Accordingly, BNG will be a live issue across most development sites which require any form of planning consent after the implementation date. For more details on the basics on BNG, see our previous article here.

Obstacle or opportunity?

The need to increase biodiversity will add additional considerations for developers on how they plan their sites and also impact on the profitability of those sites. In this way, BNG may be considered an obstacle. However, beyond this, BNG also offers a range of new opportunities for those willing and able to capitalise on the legislative changes.

One such opportunity is BNG land banking. This is where a landowner takes steps to increase the biodiversity on their land and then sells the benefit of this increased biodiversity to a developer as a “credit” to offset the loss of biodiversity arising from their development. Purchasing these BNG “credits” allows developers to meet the BNG requirements without needing to improve the biodiversity of the actual development site. A land banking arrangement also relieves the developer of the burden of managing the site in a way that ensures the gain of biodiversity is maintained. Selling BNG credits to developers allows landowners to generate income whilst managing land in an environmentally conscious manner.

Form of a BNG deal

A BNG deal typically has two limbs.

First, there will be a commercial agreement between the landowner and the developer. This will be for the purchase of BNG “credits”. The developer will buy these “credits” and the landowner will undertake to manage the land in a way that will protect the habitat and so yield the required increase in biodiversity.

There will then be a further agreement between the landowner, the developer and the local planning authority. This agreement is the mechanism by which the creation and maintenance of the habitat can be enforced. Currently, this is taking the form of a s106 agreement, but in due course this is likely to be replaced by a new legal structure called a conservation covenant. Although technically in force, the practical working of conservation covenants has yet to be finalised by the Government, but this should be completed this year.

For landowners looking to take advantage of BNG and developers needing to meet the requirements, there are some key considerations which need to be taken into account when formulating specific BNG deals.

Key considerations for developers

• Developers need to familiarise themselves with the upcoming changes and consider the steps they need to take to meet the new requirements. We have previously provided an overview of what those steps might entail here.

This may be done through factoring in increased biodiversity on site or looking to make use of BNG land banking with off-site provision. We have considered the use of off-site BNG here. Developers considering on site provision should consult Natural England’s Biodiversity Matrix, so that they can assess the existing levels of biodiversity at a site and work out how to bring about the required increase.

• Developers also need to consider whether their existing agreements remain suitable in light of the upcoming changes. If not, they may need to approach landowners and seek to vary the terms in light of the additional costs. This might in turn, however, encourage landowners to seek to renegotiate some of the other terms.
• Developers should address in any written documents what will happen if planning consent is refused due to BNG issues; who will carry that risk and what action each party will then take.

Key considerations for landowners

• Landowners need to consider the impact of entering into a BNG deal.

Typically, landowners will be committing to manage their land in a way that protects the credits they have sold for at least 30 years. Being tied in to such a long-term obligation will obviously impact on how landowners can manage their land and its underlying capital value. So, this will need to be considered carefully before signing up.

• Using land for habitat creation will also impact on succession planning for landowners. Landowners need to balance using the land to create habitat, whilst also retaining the required element of agricultural use needed to qualify for agricultural property relief in relation to inheritance tax. This potential issue is compounded by the long-term nature of BNG deals, as landowners will be committing to that use for an extended period of time.
• Another consideration for landowners is the risk of breaching their obligations under the agreement due to factors outside of their control. Creating and maintaining a habitat is dependant on more than just the steps taken by the landowner, including natural and environmental factors such as climate change. Landowners must be careful to protect themselves from the impact of these factors. Suitable steps could include the inclusion of force majeure type clauses, which remove or reduce the obligation if damage is caused by circumstances outside the landowner’s control.

Even where a landowner is not looking for a specific BNG deal, they should be mindful of the BNG potential of their land and its value to prospective developers. This is particularly relevant when developers seek to take on additional land as part of a development. If the pricing mechanism in an existing development agreement does not reflect the BNG potential of the land, there is a risk that it will be undervalued. This is particularly the case if the land does not have development potential in a traditional sense.

Importance of additionality

A key consideration for landowners and developers alike is the requirement that credit can only be claimed in respect of an environmental benefit once. A site can be managed to produce a BNG benefit, as well as perhaps an improvement in nutrient neutrality. Whilst it is possible to claim both in relation to a site, it is not possible to combine this and obtain other benefits, such as carbon credits, without additional measures being implemented. Choosing the appropriate metric for any given change will therefore be important in order to bring about the most profitable outcome whilst meeting all of the required standards.

The additionality requirement is also important in the context of planning a development site. Developers are unlikely to be able to rely on green spaces and “habitat” to meet their BNG requirements, where those features are already required as a condition of planning consent. Developers will need to find other ways to incorporate features aimed at increasing biodiversity on a site and not simply rely on existing features or those that would be present in any event.

Two cases at the end of last year have clarified the rules around service of court documents by email.

Court documents can be validly served by email, providing the receiving party has indicated in writing that this is acceptable. The relevant rules are set out in Practice Direction 6A of the Civil Procedure Rules.

A decision in the Administrative Court in October 2022 caused some concern amongst practitioners when it was held that service of a claim form by email was valid only if the recipient nominated a single email address rather than multiple addresses. In that case (R (Tax Returned Ltd & Ors v Commissioners for HMRC [2022] EWHC 2515 (Admin)), the receiving party had provided two email addresses, so service of the claim form was ineffective.

Two months later, in in the case of Entertainment One UK Ltd & Anor v Sconnect Co Ltd & Ors [2022] EWHC 3295 (Ch), the opposite conclusion was reached. This decision from the High Court’s Chancery Division was that service of the claim form was valid even though the defendants’ solicitors had provided more than one email address.

The confusion caused by these two cases was noted by the Civil Procedure Rules Committee and an amendment made to the rules to clarify the position. The amendment came into force on 6 April 2023 and confirms that, as per the decision in Entertainment One UK, multiple email addresses can be provided. However, where multiple email addresses are provided by the receiving party, service will be effective when the document is sent to any two of the email addresses.

As the judge in Entertainment One UK noted, providing more than one email address for service is often a sensible option, in case one recipient isn’t working or is unavoidably unable to access their emails, or one email address just doesn’t work on the day.

The other issue considered in Entertainment One UK was whether serving parties had to check for any limitations on what recipients could receive by email before service could validly be effected. The judge again took a pragmatic approach, concluding that unless a solicitor stated at the outset that there were limitations, it was fair to assume that there were none.