The valuation of rural mast sites under the Electronic Communications Code (“New Code”) has been under the spotlight again with a new decision from the Upper Tribunal in the case of ON Tower UK Limited v JH & FW Green Limited [2020].

The site in question was let on a contracted out 1954 Act lease with provisions which allowed the operator to share and upgrade the site, subject to “payaway” terms to the landlord.

The landlord accepted that the operator had the right to a New Code agreement but the issues in contention were:

• What equipment can the operator install;
• Should the operator’s right to upgrade equipment be limited;
• Should the operator’s right to share the site be limited; and
• What is the correct rent taking these 3 issues into account.

Equipment

The operator wanted freedom to add equipment to the site, whereas the landlord wanted to maintain the status quo, having taken a careful inventory of current equipment.

The landlord was willing to allow sharing and upgrading, but only on a strict interpretation of para 17 of the New Code, so that the changes had to have a minimal adverse impact on the visual setting and impose no additional burden on the landowner (burden meaning an additional adverse effect on enjoyment of the land or loss, damage or expense).

However, these New Code rights only form the statutory skeleton for the agreement between the parties. They are restricted rights and if any meat was to be added to these bones it had to be by way of negotiation or direction of the Upper Tribunal.

The operator’s position was that they were in the business of providing the infrastructure for broadband and mobile phone connections. Upgrading and sharing without limitation was essential, because technology and the market were moving quickly and unpredictably. This concern was exacerbated by the Court of Appeal’s decision in Compton Beauchamp[1] where it ruled that an operator cannot go back to the Tribunal for additional rights once an agreement is imposed.

The landlord had obvious concerns about the roll out of 5G, which requires larger and noisier equipment. Given the operator’s desire to go beyond the basic statutory right, the Tribunal had to consider the evidence from both parties.

The operator acknowledged that the 5G roll out would require a new mast, but argued that the South Downs National Park status of the site would act as a sufficient control.  The landlord stated its concerns about additional traffic, security risks, disturbance, visual appearance and radiation.

The Tribunal had to engage in a balancing exercise to determine the terms of the agreement. Under the New Code it may (not “must”) grant a New Code right, providing that the relevant conditions were met. These conditions are set out in paragraph 21 and are that the prejudice caused to the landlord must be able to be compensated by money and be outweighed by the public benefit that will ensue from the grant of the right. Further, New Code rights are not absolute and may be the subject of terms to ensure that the “least possible loss and damage is caused by the exercise of the code right.”

In exercising this discretion the Tribunal were not convinced that the site’s appearance would change drastically with the upgrade to 5G given its small size (70 sq ft), although acknowledged the other concerns of the landlord were relevant, albeit exaggerated. In any event, disturbance, noise and access issues were addressed in the proposed new lease, so any breach would entitle the landlord to damages or, where necessary, injunctive relief. The Tribunal did not, therefore, see a need to modify the rights to cause the least possible damage to the landowner arising from the grant of upgrading rights, which go beyond the basic terms of paragraph 17.

Site sharing

The Tribunal then had to consider the right to share the site.  This could not be done on the same basis, as sharing is not a New Code right; the Tribunal has discretion to grant a right to share on such terms as are appropriate to ensure that the least possible loss and damage is caused to the landlord. A balance has to be struck between enabling the operator to share the site in order to provide a high quality telecommunications service and the objections of the landlord.;

The operator in this case was an infrastructure provider (rather than a network operator) so its equipment (masts, cabinets and other equipment) were passive. The operator had to be able to share with any network operator or it could not continue its business.  The Tribunal decided the landlord’s objections were not well founded, so granted the operator an unrestricted right to share. The paragraph 17 conditions were not required, given the same safeguards of planning law and lease terms explained above.

Consideration & Compensation

The Tribunal confirmed the approach taken in the Islington[2] case, where any compensation for predictable loss and damage was included in the assessment of consideration, to avoid inevitable subsequent claims. This does not stop a landowner making later claims under paragraph 25, but a second bite only exists for those litigating and is not available if a deal is reached by agreement.

The Tribunal continued in assessing consideration by adopting a framework previously used in the Hanover[3] and London and Quadrant[4]cases:

1. Assess the alternative use value of the site, which would be the rental value of its current use or of the most valuable non-network use. This process would be heavily influenced by location and be a matter of evidence in each case;
2. Add a rental value to reflect any additional benefits conferred on the operator – in Hanover, the site was protected by a manned security gate; and
3. If the letting would have a greater adverse effect on the willing lessor, than the alternative use, on which the existing use value was based, then this should be reflected by a rental adjustment.

This case was the first one arising on a lease renewal, as opposed to a new agreement for a previously undeveloped site. The operator’s expert determined a rental value of £500 p.a. after carrying out the 3 stage process, with half the value attributed to stage 3, to reflect a rolling break clause after 5 years and a right to enter other landlord’s property.

Comparables

Comparable evidence of other rural sites on similar lease terms was also considered by the expert.  Of these 23 renewal agreements, 16 of them contained caveats which made clear that the operator in each case was agreeing a rent higher than that which would be determined by a Tribunal in accordance with paragraph 24 of the New Code.

As such, the expert considered the comparables to be unreliable in terms of arriving at a true paragraph 24 valuation. They were also considered to be too high because they were a blend of consideration and compensation, so the expert deducted the value of what he called an “incentive payment” made by the operators to oil the wheels of commerce.

These deductions were around £1,000 in each case and resulted in rental values of £500 for 16 sites and £1,000 for a further 4, with outliers at greater sums of £1500 and £3,000 for 4 further sites.

Landowner’s expert’s approach

The Landowner’s expert took two approaches to the valuation. The first was market value based on evidence of 15 transactions.  The Tribunal rejected 11 of these, as they were deals that were completed after the New Code came into effect, but implemented terms that reflected the old regime, to which the parties were contractually committed.

The Tribunal pointed out, that in both Hanover and London and Quadrant, evidence of this sort could not be taken as a reliable guide to no-network assumption valuations required by paragraph 24. The expert’s justification for persisting in presenting such evidence was that further research had shown that the rents were, despite the caveat, actually calculated on the basis of the New Code.

This argument was rejected by the Tribunal in terms that thinly disguised its exasperation at having to explain for a third time that such evidence is useless.

The remaining transactions were also not helpful, as they were either 1954 Act renewals to non-Code operators, urban sites or sites with significant alternative use value. The landowner’s expert figure was £5,500 based on these comparables, with an additional £1,500 pa to reflect the grant of access and use of a generator.

The second approach valued the alternative use of the site at £50, with an ultimate consideration of £7,800 pa. This was based on agreements granting access rights to third parties like Network Rail and Northumbrian Water, the granting of non-network benefits by the landowner and compensation to reflect health and safety concerns.

The Tribunal found the evidence presented by the landowner’s expert to be of very little help, with both his proposed valuations being higher than the passing rent. The Tribunal said that this told them that the expert had not accepted or understood the paragraph 24 valuation process.  Under lengthy cross examination the expert remained insistent that his evidence was relevant and the Tribunal fired a clear warning shot in saying that if this happened again, such evidence would be rejected without the need for further cross examination.

Operator’s expert’s approach

In contrast the operator’s expert evidence pointed to the fact that rents of £1500 or above were the norm, ignoring the effect of transitional incentive payments. These were commercial deals struck to avoid the cost of Tribunal proceedings and do not reflect the paragraph 24 reality.

However, the Tribunal considered that the operator was underestimating consideration values and overstating how much was paid as a commercial inducement – a doubling of the consideration was thought to be more realistic.

Tribunal’s approach

Taking the 3 stage approach set out above:

1. The experts agreed a nominal £100 pa alternative use value;
2. Additional benefits conferred on the operator included a right to keep a mast on the site, electric supply, right to enter other property of the landowner and tenant’s rolling break clause after 5 years. The operator said £400, the landowner said £1300 and the Tribunal ruled £600; and
3. Adverse effect on landowner was considered by the Tribunal to be caused by the access rights (to the “heart of a private rural estate”) and the loss of amenity caused by likely replacement of the mast for 5G upgrade purposes. This was valued by the Tribunal at £500, although it stated that if rents of nearby properties were negatively affected, this could form the basis of a subsequent compensation claim.

The cumulative consideration was therefore £1200 pa, which seems right when considered against a comparable put in evidence comprising a consensual deal at £2,500 for a similar wooded site on a rural estate. Compensation was awarded for legal and professional fees. The legal fees were allowed in full but a breakdown of the valuer’s fees was required as the landowner was not entitled to be reimbursed for any litigation related expense.

Our Natural Capital hub contains information and resources written by our team of experts as well as papers and online materials authored by a variety of sources including the UK Government, the UN, Conservation International and the World Forum on Natural Capital.

The International Integrated Reporting Council (IIRC) is a global coalition of regulators, investors, companies, standard setters, the accounting profession, academia and NGOs. The coalition promotes communication about value creation as the next step in the evolution of corporate reporting. and in particular promotes Integrated Reporting <IR>.

Their mission is to establish integrated reporting and thinking within mainstream business practice as the norm in the public and private sectors. Their vision is to align capital allocation and corporate behaviour to wider goals of financial stability and sustainable development through the cycle of integrated reporting and thinking. The resources tab includes useful FAQs, and the International <IR> Framework which establishes the Guiding Principles and Content Elements for integrated reporting.

To access this resource please click here: ‘Integrated Reporting Council‘.

If you have any questions about Natural Capital our Agriculture team would be pleased to hear from you: please click here for their full contact details.

To access our Natural Capital hub, please click here.

For Multi Academy Trusts (MATs), a variety of information must be published on its main website as well as each Academy’s website. Whilst some MATs are operating under multiple Funding Agreements, we recommend that you publish everything required under the latest DfE model Funding Agreement as well as the Academies Financial Handbook. This will need to include any charging information.

On the MAT website, an Academy must publish:

• its annual accounts no later than the end of January following the financial year to which the accounts relate
• its current Memorandum & Articles of Association and Master Funding Agreement
• the required information relating to governance structures, including for example the structure and remit of the members, board of trustees, its committees and local governing bodies, and the full names of the chair of each (where applicable)
• information about its Pupil Premium, including for example the amount of Pupil Premium allocation that it will receive during the Academy Financial Year
• if received, information about its Year 7 literacy and numeracy catch-up premium funding
• various details about its curriculum, including for example the content of the curriculum and its approach to the curriculum.

On the individual Academy’s website, you must publish:

If applicable, the Academy’s most recent Key Stage 2 results as published by the Secretary of State in the School Performance Tables:

• average progress scores in reading, writing and maths
• average ‘scaled scores’ in reading and maths
• percentage of pupils who achieving the expected standard or above in reading, writing and maths
• percentage of pupils who achieving a high level of attainment in reading, writing and maths

If applicable, the Academy’s most recent Key Stage 4 results as published by the Secretary of State under the following column headings in the School Performance Tables:

• progress 8 score
• attainment 8 score
• percentage of pupils who achieving a strong pass (grade 5 or above) in English and maths
• percentage achieving the English Baccalaureate
• percentage of pupils continuing in education of training, or moving on to employment at the end of 16 to 19 study
• information about where and how parents (including parents of prospective pupils) can access the most recent report about the Academy published by the Chief Inspector
• information as to where and how parents (including parents of prospective pupils) can access the School Performance Tables published by the Secretary of State.

Finally, and by way of best practice, we recommend that each Academy’s website includes the following information: contact details, admissions arrangements, Ofsted reports, behaviour policies, values and ethos. Whilst this is not a legal requirement for academies, the information is both important and helpful!

The European Court of Justice (“ECJ”) has given a preliminary ruling on the jurisdiction of member states in relation to copyright materials published without the owner’s consent.

The Austrian case of Pez Hejduk v EnergieAgentur.NRW GmbH, Case C-441/13 concerned the use of photographs by a conference organiser on a website and the subsequent option to download these photos by website users. The owner of the photographs did not consent to this and sued the conference organiser for copyright infringement. It was argued that the Austrian Court did not have jurisdiction to hear the case on the basis that the conference’s organiser’s website had a .de domain name and was directed at German, not Austrian users.

The ECJ’s view was that under Article 5(3) of EC (44/2001) Brussels Regulation, proceedings could be brought in any member state where the relevant website was accessible. As set out in Pinckney v KDG Mediatech AG Case C-170/12, this was sufficient to seise the court, an activity did not need to be “directed” to that member state, i.e. through a country-specific, top-level domain name. However, the ECJ did make it clear that the courts where a website was accessible  could only determine damages which had been incurred within their own member states.

This ECJ decision widens the potential jurisdiction further than in previous case law as unlike in Pinckney, there is no requirement for hard copies to have been received to act as proof of damage in a jurisdiction – anyone can log onto a website and download online materials onto their own devices. It is anticipated that we will see an influx of online copyright infringement claims, as a result.

For potential claimants, this decision is likely to be welcomed as it enables claimants to rely on the jurisdiction of their own member state in order to bring a claim. However, where there has been significant damage, it is likely that the claimant would still be well-advised to sue in the defendant’s member state, to enable it to claim all damages, rather than just those in the claimant’s member state.

For website owners, this decision acts as a reminder to ensure that all content displayed and available for download  has the appropriate consents and licences in place.  This decision will be particularly significant for online users with territory-specific rights, who will now have difficulty arguing that they did not directly target an excluded territory. It is now clear that mere “accessibility” of content in an excluded territory could enable a claim to be made.

For more information please contact Charlotte Bolton, Solicitor in the Commercial Disputes & Regulatory team on [email protected] or on 01392 687745.

The training contract application process can feel daunting, particularly if it’s your first time applying or you don’t have experience in the legal industry. While everyone’s experience will be different, I have set out some practical things to consider as you navigate the application process.

1. Understand what type of firm you’re looking for

Law firms come in all shapes and sizes, from smaller high-street practices to large international firms, so it is important to consider what sort of firm best suits the career you want to build. Looking at a firm’s website is a great place to start, but it’s difficult to understand the culture of a firm through a screen.

Many firms hold in-person or online events and open days, giving you the chance to attend sessions about the firm, meet current trainees and even get top tips on applications. These events are invaluable in helping you decide if a firm is the right fit for you. If you’re considering applying to Michelmores, we have a number of upcoming Early Careers events which you can sign up to here.

2. Don’t underestimate your existing experience

When writing your application or preparing for an interview, it’s important not to overlook your non-legal work experience. It’s easy to think that certain experience isn’t relevant, but you may be surprised by the transferable skills you have developed.

When I applied for training contracts, aside from pro bono volunteering at university, my experience was in hospitality, childcare and the beauty industry. These roles helped me develop my organisation, commercial awareness, communication and time management skills, which I was then able to discuss in my interview. It’s important to go beyond purely listing your skills and instead demonstrate them through real-life examples.

If you have limited work experience, think about your hobbies and life experiences too. Remember, you’re applying for a training role, so firms are looking for future potential, not just what you’ve already achieved.

3. Quality over quantity

It’s important to take time to research the firm you are applying for and tailor each application rather than firing out hundreds of applications. I was once told that if you could copy and paste your application to a different firm then it was not tailored enough – this was a piece of advice I always went back to when writing my applications!

Take a look at the type of work the firm offers and whether this aligns with your interests – is there anything specific that one firm offers that you’re keen to learn more about? What recent successes has the firm shared and why do they interest you?

In addition to the work the firm does, have a look at their values and any ESG initiatives and see if anything stands out to you. These are great talking points in your application, interview and if you’re attending firm events.

4. Be yourself

It can be tempting to write what you think a firm wants to hear, but your application is also an opportunity to show who you are and what genuinely interests you. Remember that anything you include in your application could become a talking point at interview, so make sure you feel comfortable expanding on it and explaining why it interests you.

Rather than choosing topics simply because you think they sound impressive or because other applicants might discuss them, focus on topics that genuinely interest you. This will make it easier to talk about them naturally in an interview and allow your personality to come through.

5. Make the most of the resources available to you

There are lots of free resources available to support you through the training contract process, including trainee blogs, virtual law fairs, webinars and other online events. It’s important to make the most of these to build your understanding of the profession and strengthen your applications.

When it comes to experience, see if there are any charities you can volunteer with or pro bono projects you can get involved in. These are great ways to develop your skills if you are struggling to secure any legal work experience.

If you’re at university, you’ll likely have a careers team who can support you throughout the application process. I was lucky enough to be able to attend several application workshops and even undertake a mock interview. Universities also often host law fairs where you can meet representatives from a range of firms, learn more about the opportunities they offer and ask any questions you may have.

6. Rejection is normal

Rejection is a common part of the process – try not to get too disheartened and instead focus on the positives.

Whether it was through writing the application, attending an open day or participating in a vacation scheme, you will have learnt something from the process. It’s important to reflect on what went well and what could have gone better so that you can adjust your approach going forward.

The overall takeaway

There is no one-size-fits-all approach to training contract applications – everyone’s experience will be different. The application process can be challenging, but it is also an opportunity to learn more about the profession, different firms and what you want from your future career.

Be yourself, focus on your own experiences and interests and take each application as an opportunity to develop your skills and experience. Most importantly, don’t be discouraged by setbacks along the way.

If you’re interested in training with Michelmores, you can find our current Early Careers Vacancies here.

This article was first published in AgriLore Autumn 2026. To explore the full edition and related insights, view the publication here.

This article was first published in AgriLore Autumn 2026. To explore the full edition and related insights, view the publication here.

The new National Planning Policy Framework (dated August 2026) (NPPF) has significant implications for those living and working in rural areas. It places strong emphasis on supporting sustainable rural development and diversification, potentially opening the door to a broader range of development opportunities in the countryside and on the edge of settlements.

Recent coverage by ITV’s Tonight programme has put retirement housing under the spotlight, raising concerns around issues including resale values and increasing service charges. Those are important issues and ones which anyone considering a move into retirement living should understand before committing to a purchase.

But the programme also highlighted something equally important: not all retirement living is the same.

The term “retirement property” encompasses a range of different housing and operating models. This includes Integrated Retirement Communities (IRCs), which combine independent accommodation with communal facilities, on-site support and access to care. ARCO, the main body representing the IRC sector in the UK, was keen to draw this distinction following the programme and confirmed that none of the organisations which came under scrutiny were ARCO members.

Looking beyond the property itself

For anyone considering retirement living, the decision is rarely simply about buying a flat or a house. It is about choosing a home, a community and, importantly, a long-term arrangement with an operator.

That makes understanding the particular model extremely important.

Prospective residents and their families should understand not only the purchase price, but the financial arrangements that will apply throughout their occupation and when the property is eventually sold.

Depending upon the particular scheme and documentation, matters requiring careful consideration may include:

• the service charges and what they cover;
• how and when charges can change;
• responsibility for major expenditure;
• any fees becoming payable when the property is sold;
• restrictions or procedures affecting resale;
• what happens to ongoing charges if the resident dies or permanently leaves the property; and
• the practical and financial implications for executors or family members while a property is awaiting sale.

These points should not necessarily be regarded as reasons not to choose retirement living. Rather, they demonstrate why transparency and proper advice at the outset matter.

The Integrated Retirement Community model

ARCO has emphasised that its members operate a different model from the retirement housebuilders featured critically in the ITV programme. Michelmores is proud to be a member of the ARCO Affiliate network and to work closely with those operating in the Integrated Retirement Community sector. Through our work in this area, we see the importance of ensuring that residents and their families understand the legal and financial arrangements involved, both when they move into a community and when the property is eventually sold.

In particular, ARCO says that IRC operators retain a financial interest in the long-term success of their communities, including the resale of properties. Its position is that this creates greater alignment between the interests of the resident and operator. ARCO also highlights the role operators can have in assuming responsibility for major capital expenditure, as part of its proposals for future tenure models.

Consumer protection is another important part of that distinction.

The ARCO Consumer Code is approved by the Chartered Trading Standards Institute. Its underlying principles are transparency and fairness, including ensuring that prospective residents receive clear information about fees and service charges sufficiently early to make an informed decision. ARCO also carries out compliance reviews of its members against the Code.

This additional framework is significant, but it does not remove the need for a purchaser to understand the particular legal arrangements they are entering into.

What happens when circumstances change?

One point arising from the ITV coverage deserves particular attention: what happens when somebody can no longer live in their retirement property, or dies and their executors need to sell it?

It is easy for this part of the arrangement to feel quite remote when somebody is happily choosing their new home. In practice, though, understanding the exit arrangements can be just as important as understanding the purchase.

That is why it can be helpful for family members to be involved in the process, where the prospective resident wishes them to be.

A purchaser should understand from the outset what will happen on resale, what payments may continue while a property remains unsold and what fees may become payable when the property is eventually sold. That knowledge can also make matters considerably clearer for family members or executors who may ultimately have to deal with the property.

A question of informed choice

There is considerable appeal in the modern retirement living model. For many people it offers the opportunity to retain independence while becoming part of a community, with facilities, support and care available as their needs change.

The important lesson from the recent debate is therefore not that retirement living is inherently problematic, nor that every model produces the same experience.

It is that the detail matters.

Consumers need to understand which model they are considering, how it operates, the protections that apply and both the immediate and longer-term financial commitments involved.

The legal documentation for a retirement property can differ significantly from a conventional residential purchase. Taking specialist advice at an early stage gives prospective residents and their families the opportunity to ask the right questions and understand the arrangements before making what is often an important lifestyle as well as financial decision.

At Michelmores, our Retirement Living team advises purchasers and their families on the legal aspects of buying and selling within retirement communities, helping clients understand both the property they are purchasing and the wider arrangements that come with it.

As demand for mobile connectivity and digital infrastructure continues to grow, many landowners are finding themselves approached by telecoms operators seeking rights over rooftops, compounds, agricultural land and other property assets. While such arrangements can provide a valuable income stream, a telecoms lease is rarely comparable to a traditional commercial letting.

Understanding the key differences at the outset can help landowners make informed decisions and avoid unexpected issues further down the line.

More than just another tenant

In a conventional commercial lease, the tenant’s use of the premises is often relatively predictable. An office occupier, retailer or warehouse operator will usually carry out its business from the property with limited changes over the term of the lease.

Telecoms operators have different requirements. Their equipment forms part of a wider communications network that must be maintained, upgraded and adapted as technology evolves. As a result, operators typically seek a greater degree of flexibility than many other occupiers.

For landowners, this means that a telecoms lease often requires a different approach to risk management and control.

Access requirements

One of the most common differences concerns access.

A traditional commercial tenant will usually access its premises during normal business hours, with occasional requirements outside those hours. Telecoms operators, however, may require access at short notice and, in some cases, 24 hours a day to respond to service outages or emergency repairs.

Whilst these rights are often necessary to maintain network coverage, landowners should consider how such arrangements may affect the wider property, neighbouring occupiers and site management arrangements.

Ongoing works and equipment changes

Technology changes quickly, and telecoms sites must evolve with it.

Unlike many commercial tenants, operators frequently require rights to upgrade equipment, replace apparatus and carry out works throughout the term. New technologies, increasing data demand and network improvements may all require changes to the equipment installed on site.

For landowners, the key consideration is often not whether works should be permitted, but ensuring there is appropriate visibility and control where those works may affect other parts of the property.

Clear drafting around works, access routes and approval procedures can help strike the right balance between operational flexibility and protection of the landowner’s wider interests.

Long-term impact on the property

Before granting any telecoms rights, landowners should consider their future plans for the property.

A telecoms installation may occupy only a relatively small area, but its presence can influence future development proposals, redevelopment programmes and estate management decisions. This is particularly relevant for rooftop installations and strategically located sites where future development value may be significant.

Taking specialist advice at the outset can help identify potential issues before they become obstacles later.

A different legal framework

Telecoms leases are also influenced by a specialist legal regime designed to support the provision of electronic communications infrastructure across the UK.

The policy objective is clear: reliable connectivity benefits businesses, communities and the wider economy. However, the result is that telecoms negotiations often differ significantly from those seen in traditional landlord and tenant transactions.

Landowners should therefore avoid assuming that a telecoms lease will follow the same negotiation process or commercial outcome as a standard occupational lease.

Getting the balance right

A well-structured telecoms agreement can deliver benefits for both parties. Operators obtain the rights needed to maintain and improve essential infrastructure, while landowners receive income and can support improved connectivity in their local area.

The key is recognising from the outset that a telecoms lease is not simply another commercial letting. Understanding the unique operational, legal and property management considerations involved can help landowners protect their interests while maintaining a constructive relationship with the operator.

Ultimately, the most successful telecoms transactions are those that achieve a practical balance between network requirements and landowner control.

Every telecoms site is different and the right approach will depend on the property, the operator’s requirements and your future plans for the site. If you would like to discuss a proposed telecoms agreement or an existing arrangement, please get in touch with our Real Estate team.

This article was first published in AgriLore Autumn 2026. To explore the full edition and related insights, view the publication here.

A landowner agrees terms for the sale of a former agricultural holding. The parties are aligned on price, funding is in place and completion appears straightforward. Then the buyer’s environmental consultant raises a question: was part of the land once used for firefighting training, waste disposal or industrial activity?

Further investigation follows. Soil and groundwater testing is commissioned. The reports identify the presence of a strange-sounding substance called ‘PFAS’.

Suddenly, what appeared to be a routine transaction becomes an environmental risk management exercise involving consultants, lawyers, insurers and lenders. This scenario is increasingly common as awareness of PFAS grows, and these previously unheard of substances are becoming an important consideration for anyone owning, developing or transacting land.

PFAS: the “forever chemicals”

PFAS is an acronym for perfluoroalkyl substances. They are a large family of synthetic chemicals which have been used for decades in products ranging from agricultural pesticides, firefighting foams and industrial processes to product packaging and non-stick cookware.

Their attraction lay in their resistance to heat, water and grease. Unfortunately, those same characteristics make them remarkably persistent once they enter the environment. Many PFAS compounds do not readily break down and can remain in soil, groundwater and surface water for decades, often migrating significant distances from the location where they were originally released. This persistence has earned them the nickname “forever chemicals”.

The concern is not that every site containing PFAS presents an immediate environmental problem. Rather, it is that these substances can be difficult and expensive to remediate, while scientific understanding and regulatory expectations continue to evolve. For landowners, the greatest challenge is often uncertainty rather than contamination itself.

Understanding and managing the risk

A landowner may first encounter PFAS issues during contaminated land due diligence when selling or mortgaging their land. Environmental searches may identify a historic high-risk use, such as firefighting activities, prompting consultants to recommend PFAS sampling. What starts as a routine environmental review can quickly develop into a detailed investigation of soil and groundwater conditions.

Sites linked to airports, military facilities, waste operations, chemical manufacturing and metal treatment are often considered higher risk, although PFAS contamination is by no means limited to these uses and may arise in an agricultural setting from activities such as the storage and use of pesticides and organic waste fertilisers.

The first task is to understand the nature and extent of any risk.

As with any contaminated land issue, the starting point is a review of historic land use and, where necessary, environmental investigations. In England and Wales, PFAS risks must be considered through the lens of Part 2A of the Environmental Protection Act 1990. For further details see our previous article: Contaminated land: from an agricultural landowner’s perspective.

The key question is whether a complete contaminant linkage exists: a source, a pathway and a receptor. The mere presence of PFAS does not automatically create liability; expert assessment is required to determine whether there is a risk of harm or pollution.

Where risks are identified, the appropriate response will depend on the circumstances. While some risks can be managed through further investigation and ongoing monitoring, others may require remediation. Given the complexity and cost of PFAS remediation, the focus is increasingly on proportionate and defensible risk management rather than eliminating all traces of contamination.

Insurance and property transactions

As awareness of PFAS has increased, so too has the importance of environmental insurance. Environmental insurance cannot remove contamination from a site, but it can help manage the financial consequences of unexpected liabilities, regulatory intervention and third-party claims. For that reason, insurance is becoming an increasingly valuable tool in transactions involving known or suspected contamination risks.

However, insurers are understandably cautious. PFAS is as new to them as it is to the rest of us. The availability of cover will often depend on the quality of environmental investigations, the extent of known contamination and the disclosures made to underwriters.

PFAS is also influencing the way property transactions are negotiated. Buyers may be concerned about future environmental liabilities. Sellers may be reluctant to retain open-ended obligations. Lenders often seek additional comfort before advancing funds. As a result, environmental due diligence, contractual risk allocation and pollution legal liability insurance are playing a greater role than ever before.

A landowner’s perspective

Prudent landowners should resist taking comfort solely from the absence of current regulatory action. PFAS contamination can be remarkably persistent, scientific understanding continues to develop and regulatory scrutiny is increasing.

The lesson is a simple one. Landowners who identify potential PFAS risks early, investigate them proportionately, explore remediation and insurance options where appropriate and address the issue openly within transactions are likely to find themselves in a much stronger position than those who wait for a problem to emerge.

Investigating, mitigating and insuring against PFAS risks can take months rather than weeks, potentially delaying land sales, lettings and funding arrangements. Landowners should therefore consider potential risks well in advance of any transaction.

In the first article in this series, we explored the legal framework governing abstraction licensing and the factors that influence how the Environment Agency (EA) exercises its licensing functions.

This second article looks at the rights on which an abstractor may rely, the circumstances in which an abstraction licence is required, the principal exceptions and exemptions, and the process of applying for a new licence.

The historical position

Before the introduction of the modern abstraction licensing regime, rights to abstract water arose in a variety of ways. One of the most significant ways was through ownership of land adjoining a natural watercourse. Such landowners, known as riparian owners, enjoyed certain common law rights in relation to water flowing through or alongside their land, including the right to take reasonable quantities for ordinary domestic purposes and, in some circumstances, agricultural use. Those rights were not unlimited and could not generally be exercised in a way that interfered with the rights of downstream users or materially altered the natural flow of the watercourse.

Many farms, businesses and industrial operations historically relied upon these riparian rights or long-established abstraction practices. As demands on water resources increased, concerns grew that unrestricted abstraction could lead to environmental damage and conflicts between competing water users. In response, abstraction licensing was gradually expanded, with existing abstractors being given the opportunity to formalise their historic water use through what became known as licences of right or licences of entitlement.

The purpose of this process was to bring established lawful abstractions within a regulated framework without requiring long-standing users to compete for new water rights. Qualifying abstractors were able to convert historic abstractions into licensed permissions, providing greater certainty for water users whilst enabling regulators to develop a comprehensive picture of water use across individual catchments. Many abstraction licences in force today originated from these historic conversion exercises.

The Water Resources Act 1963 introduced the first comprehensive abstraction licensing system. Existing lawful abstractions could be brought within that system through licences of right. Further transitional arrangements followed when controls were extended to additional areas and activities, including licences of entitlement under later legislation.

The current regime is contained principally in the Water Resources Act 1991 (WRA 1991), as amended. Historic licences may therefore reflect an earlier lawful use, but their present scope depends on the wording of the licence, including the authorised source, point, purpose, quantities, means of abstraction and any conditions.

When is a licence required?

The general rule under section 24 of the WRA 1991 is that a person must not abstract water from a source of supply, or cause or permit another person to do so, except under and in accordance with an abstraction licence. Abstraction includes removing water temporarily or permanently and transferring it from one source of supply to another.

A source of supply includes inland waters and water contained in underground strata. Inland waters include rivers, streams and other natural or artificial watercourses, lakes, ponds, reservoirs, docks, canals, tidal waters and estuaries. Groundwater abstraction from wells, boreholes, springs, quarries and mineral workings may also require preliminary consent to investigate the source before a licence application is made.

Waters outside the licensing regime

The statutory definition of source of supply excludes discrete waters. An isolated lake, pond or reservoir which does not discharge to another inland water may therefore fall outside the abstraction licensing regime. The same may apply to a self-contained group of lakes, ponds, reservoirs and connecting watercourses or mains where none of the waters discharges outside the group. Whether water is truly discrete is a factual and hydrological question. A visible or engineered connection, such as a pipe, culvert, ditch, overflow or cascade, is likely to be particularly relevant. The position may be less straightforward where the only possible connection is through groundwater or percolation, and specialist hydrological advice may be required.

Water taken from the sea in open coastal areas is also outside the abstraction regime. Care is needed at the interface with tidal waters and estuaries, which are inland waters for licensing purposes.

Small quantities exception

It is important to distinguish between waters that fall outside the licensing regime, statutory exceptions and exemptions, and regulatory position statements (RPSs) in which the EA adopts a particular enforcement position, as each has a different legal effect.

An abstraction licence is generally not required where the total quantity abstracted from the same source does not exceed 20 cubic metres, or 20,000 litres, in any 24 hour period. Multiple abstraction points or a series of operations cannot be used to avoid the threshold; the combined quantity from the same source must be considered. The threshold is not a general permission to cause damage or interfere with private rights, and different controls may still apply to the works or the use of the water.

Other statutory exceptions and exemptions

The Water Resources Act 1991 also contains targeted exceptions, including abstractions for firefighting and certain activities connected with vessels, land drainage, and investigation of groundwater carried out with the EA’s consent. The emergency exception is narrow. It applies where abstraction is necessary to prevent the immediate risk of death, personal injury or harm, or serious damage to the environment. It should not be treated as a general health and safety or operational convenience exemption.

The Water Abstraction and Impounding (Exemptions) Regulations 2017 add specific exemptions. These include defined activities by:

1. navigation, harbour and conservancy authorities and dry docks;
2. emergency abstractions by navigation, harbour and conservancy authorities;
3. small-scale dewatering and surface water abstraction in connection with building or engineering works;
4. abstraction in the course of dredging;
5. abstraction within a managed wetland system; and
6. abstraction from specified saliferous strata.

Each exemption is subject to detailed conditions, so the activity, duration, source, quantity and purpose must be checked against the relevant provision.

Regulatory position statements

In addition, the EA publishes RPSs for certain low risk activities, including specified rainwater harvesting, passive dewatering and some small-scale construction dewatering or nature-recovery abstractions. An RPS is not the same as a statutory exemption. It records circumstances in which the EA will not normally take enforcement action, provided all stated conditions are met, and it may be withdrawn or amended.

Agricultural abstractions

Agricultural use is not subject to a broad standalone exemption. The 20 cubic metre daily threshold may apply, but larger abstractions for livestock watering, irrigation or other farm uses will normally require a licence unless a specific exemption applies.

Care is required for agricultural irrigation. The general small quantity threshold should not be assumed to authorise every method of irrigation, and the position should be checked against the detailed statutory provisions and current EA guidance.

Types of Abstraction Licences

• A full licence is used for most abstractions over 20 cubic metres a day lasting 28 days or more.
• A transfer licence applies where more than 20 cubic metres a day is moved from one source to another, or between points in the same source in specified dewatering circumstances, without intervening use.
• A temporary licence applies to an abstraction lasting less than 28 days.
• A separate impounding licence may be required to construct or alter a dam, weir, sluice or other structure which obstructs or impedes flow. Historic impounding works require separate consideration. Some works constructed before present controls took effect may not have required an impounding licence, although the EA may still have powers to regulate their environmental effects.

Applying for an abstraction licence

Obtaining an abstraction licence typically involves much more than simply completing an application form.

Before applying, the proposed abstractor should identify the precise source and point of abstraction, confirm a sufficient right of access to the relevant land, and review the local abstraction licensing strategy. The strategy indicates the water availability position within the catchment and the EA’s likely approach to a new licence application.

The application will need to explain the quantity required, purpose, timing and seasonality of abstraction, the proposed works and method of measurement, and the environmental impact. Plans, hydrological or hydrogeological information, ecological evidence and other assessments may be required. A groundwater proposal may require consent to investigate and a hydrological impact assessment before the abstraction licence application is made.

How the EA assesses applications

The EA does not simply consider whether water is physically present. When determining an abstraction licence application, it must assess whether the proposed abstraction is sustainable within the wider context of the relevant catchment. A key consideration is whether sufficient water is available without causing unacceptable environmental harm or adversely affecting existing lawful water users. The EA will also consider ecological impacts, including potential effects on river flows, groundwater-dependent ecosystems, fisheries, protected habitats and designated conservation sites.

In carrying out that assessment, the EA uses the Catchment Abstraction Management Strategy (CAMS) process and the relevant abstraction licensing strategy. The strategy provides information about water availability within the catchment and indicates whether water resources are available for further licensing, or already fully committed, or subject to environmental constraints.

The EA also takes account of Environmental Flow Indicators (EFIs), which are benchmarks used to assess the environmental health of watercourses and the flows needed to support ecological objectives. Where an existing or proposed abstraction would risk reducing flows below these levels, the EA may refuse an application, restrict the quantity of water available, or impose conditions designed to protect the water environment.

Applications for new full or transfer licences may need to be advertised, and third parties may make representations. New licences are commonly time limited and linked to a common end date for the relevant catchment. The precise duration and conditions will depend on the proposal and local strategy.

Looking ahead

The first question is not simply how much water is needed, but where the water comes from, how the source is connected to other waters, what right the applicant has to reach and use the abstraction point, and whether the activity falls within a precise defined exception. Those issues should be investigated before pumps, boreholes, pipelines or storage infrastructure are commissioned.

If there is uncertainty, early engagement with the EA is sensible. Abstracting without a licence when one is required, or outside the terms of a licence, may result in enforcement action. It may also expose the abstractor to private law claims from neighbouring owners or other rights holders.

Historic water rights continue to matter, but they now operate within a detailed statutory system. Common law rights, the licensing threshold, discrete waters, statutory exemptions and any relevant RPS must be considered separately. The safest approach is to analyse the source, connections, quantity, purpose and duration of the proposed abstraction before deciding that no licence is required.

In our next article, we will examine variations to abstraction licences.

For many sports clubs, their existing pitch or ground is both their greatest asset and their greatest constraint. A well-located site may have significant development value, yet ageing buildings, inadequate changing facilities, limited accessibility and increasing maintenance costs can prevent the club from meeting the expectations of players, supporters, regulators and funders. Redevelopment can unlock the value from an existing ground and use the proceeds to deliver a modern, efficient and fit-for-purpose facility elsewhere. Done well, relocation can improve participation, broaden community use and place the club on a more sustainable financial footing. However, the process involves much more than obtaining planning permission and selling land. Site assembly, governance, funding, liability and project timing all require early and coordinated attention.

Start with ownership and title

The first task is to establish precisely what assets the club owns, who owns it and on what terms. Long-established grounds are sometimes unregistered, and the documentary title may be incomplete or held by former officers or members. Historic conveyances can contain restrictive covenants, rights of way, drainage rights, sporting restrictions or reversionary provisions which affect both development value and access to a replacement site. A title review should therefore be undertaken before commercial terms are agreed, supported where necessary by first registration, statutory declarations, indemnity insurance or negotiations with third parties.

Clubs should also investigate whether long-standing public recreational use creates a risk of town or village green registration. Even an application can cause serious delay and uncertainty. Other matters may include public rights of way, assets of community value, charitable restrictions, protected playing-field policies and requirements to replace lost sporting provision. These issues are easier to manage when identified before a developer, funder or local authority has committed to a timetable.

Put the club’s legal structure in order

Many clubs operate as unincorporated associations. In that case, the club itself may have no separate legal personality and cannot hold land or enter contracts in its own name. Property may instead be registered in the names of individual members or trustees, sometimes on historic trusts which are inadequately documented. Before any disposal or development agreement is signed, the club must confirm who has authority to act, whether member approval is required and how sale proceeds must be applied. Constitutional documents, trust deeds and minutes should be checked, and replacement trustees appointed where necessary.

Redevelopment may be an appropriate trigger to consider incorporation, whether as a company, charitable incorporated organisation or community benefit society. The right structure can clarify decision-making, ring-fence risk and satisfy grant conditions. Tax and regulatory advice will be needed, including consideration of whether the club is, or could become, registered with HMRC as a Community Amateur Sports Club (CASC). CASC status can provide valuable reliefs, including relief from tax on certain income and capital gains where funds are used for qualifying purposes, but eligibility requirements, restrictions on non-sporting income and the effect of any disposal or restructuring should be reviewed carefully. Public liability also requires careful consideration. Until completion of any relocation, the existing landowner, club, developer and contractors may each carry responsibilities for players, spectators, volunteers and visitors. Insurance, occupational arrangements and development contracts should clearly identify responsibility for site safety, maintenance and claims during every phase.

Early planning promotion — and enabling wider use

Planning strategy should begin well before an application is prepared. If the existing ground is to be released for housing or another valuable use, promotion through the Local Plan process may be essential to establish favourable policy status. Evidence will often be needed to show that sporting provision will not be lost, or that a replacement facility will be at least equivalent in quantity, quality, accessibility and community benefit. Early engagement with the local planning authority, governing bodies and local stakeholders can expose objections while there is still time to redesign the proposal.

The replacement facility should also be designed around the club’s future business model, not merely its current sporting use. Modern clubs frequently depend on income from community activities, hospitality, paid events, conferences, education programmes, health services and flexible workspaces. Planning permissions, leases, covenants and funding documents must permit those activities and allow sensible opening hours, signage, parking, catering and licensing. A narrow “sports only” restriction can undermine the revenue streams needed to maintain the new facility.

Map the funding conditions

Existing facilities may be subject to grants, loans, charges or clawback arrangements. Disposal can trigger repayment, require funder consent or oblige the club to reinvest proceeds in replacement sporting provision. Those arrangements should be catalogued at the outset, including expiry dates and release mechanics. At the same time, the new scheme should be tested against the technical and governance requirements of prospective grant providers and governing bodies, such as the Football Association. Pitch specifications, accessibility, safeguarding, changing provision, security of tenure and procurement rules can all affect eligibility. The funding plan should include contingencies for development project risks such as: inflation, abnormal ground conditions and any gap between sale receipts and construction expenditure.

Coordinate the two sites as one project

The central practical challenge is timing. The club may need the value from its existing ground to pay for the new facility, but it cannot vacate until the replacement site is acquired, consented, funded and ready for play. Separate planning processes can move at different speeds, and seasonal constraints may delay pitch establishment. Contracts should therefore link the transactions through appropriate conditions, long-stop dates and termination rights. Options, conditional sale agreements, phased completion, overage and development agreements may help allocate risk. Arrangements for temporary occupation or ground sharing should be considered as a fallback, together with the cost and impact on fixtures, membership and income.

Build the right team early

Successful redevelopment depends on treating the legal, planning, financial and operational strands as a single programme. An early feasibility review should bring together property and planning advisers, tax specialists, funders, governing bodies, designers and construction professionals. A realistic programme, clear decision-making structure and comprehensive risk register will allow the club to negotiate from an informed position. The objective is not simply to sell one ground and build another: it is to convert property value into a resilient sporting and community asset that can serve future generations.