Michelmores’ Corporate team has advised the leading Cerebral Palsy charity, Paces Sheffield on its bond offer which is currently being promoted by Triodos Bank and was launched on their crowdfunding website in June. Investors are invited to support the specialist school which offers life-changing skills for children with Cerebral Palsy and other neurological motor disorders. The bond offer will raise capital to support the charity’s ambitious growth plans including a new premises which will enable the school to increase its capacity by 75%.

The team has also advised Mama Bamboo on its EIS share offer, likewise listed on Triodos’ website. Mama Bamboo’s award winning sustainable baby products are made using 100% compostable bamboo fibre and the company is the only UK nappy brand to be B-Corp certified. The company aims to raise over £500,000 to support the marketing and technology required to accelerate sales growth. As an early stage and growth company, Mama Bamboo’s share offer qualifies under the EIS tax relief scheme, as assured by HMRC in May.

Corporate partner, Alexandra Watson led the Michelmores team with support from Adam Quint and Jess Hopkins.

Alex said:  ‘It was a pleasure to support both Paces Sheffield and Mama Bamboo to bring their investment opportunities to market on the Triodos website. The response from investors has already been positive and we look forward to continuing to monitor the individual offers and seeing the progress made in the corresponding growth plans.’

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.

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.

For many water abstractors, dealing with the Environment Agency (EA) can feel like navigating a complex web of policy, guidance and environmental regulation. Whether you are applying for a new abstraction licence, seeking to vary an existing licence, or responding to concerns about environmental impacts, it is important to understand the legal framework that informs how the EA deals with such issues.

This article is the first in a series exploring the legal framework governing abstraction licensing. We begin by providing an overview of the key legal duties and policy considerations that shape how the EA approaches abstraction licences.

The EA’s general duties

The EA’s principal aim is set out in Section 4 of the Environment Act 1995. When exercising its functions, the EA must seek to protect or enhance the environment as a whole in a way that contributes to sustainable development. The Act also allows ministers to issue guidance regarding the objectives the EA should pursue, and the Agency must have regard to that guidance.

Importantly for abstractors, environmental protection is not the only consideration. The EA is also subject to a number of wider public law duties. For example, it must consider costs and benefits when carrying out its functions, have regard to biodiversity conservation, and take account of promoting economic growth when exercising its regulatory functions.

In practice, this means the Agency is required to balance competing interests. It must protect the water environment, but it must also recognise the importance of water dependent businesses.

The balancing exercise is informed by the Agency’s water resources management functions under the Water Resources Act 1991. These include conserving, redistributing or otherwise augmenting water resources, securing their proper use, and considering minimum acceptable flows and levels. The Agency must also exercise its functions consistently with its wider environmental, conservation, fisheries and recreation duties concerning designated sites and biodiversity.

The interests engaged can differ materially. Consumptive abstractors, including public water suppliers, farmers and industrial users, remove water from the immediate source and may reduce flows or groundwater levels. Non-consumptive users may return water locally but can still alter the timing and route of flows, create depleted reaches or affect fish passage. Angling and fisheries interests are concerned with sufficient flows, habitat quality and migration, while navigation, recreation, conservation bodies, local communities and existing lawful abstractors may also depend on the same resource. The Agency must therefore assess both the volume taken and the practical effect of the proposal within the particular catchment.

The abstraction licensing regime

The principal legislation governing abstraction licensing is the Water Resources Act 1991. Under that regime, water abstraction generally requires a licence from the EA. The EA is responsible for administering that licensing system and determining applications.

When deciding whether to grant, refuse or amend a licence, the Agency must consider a range of factors. These include whether sufficient water is available, whether existing lawful users would be adversely affected, and whether the proposed abstraction would damage the environment.

This often means demonstrating not only a need for water, but also that the proposed abstraction can operate without causing unacceptable impacts on river flows, ecology or other water users.

The Agency may control those impacts through licence terms, including annual and daily quantities, authorised purposes and points of abstraction, seasonal limits and conditions that reduce or stop abstraction when flows or groundwater levels fall below specified thresholds. The Agency must also consider the cumulative effect of the proposal alongside existing abstractions, rather than assessing an application in isolation. Existing licences may be reviewed or varied where abstraction is causing, or risks causing, environmental damage, subject to the statutory framework governing variation, revocation and compensation.

How water availability is managed

At the operational level, the Agency manages abstraction through the Catchment Abstraction Management Strategy (CAMS) and abstraction licensing strategies. These assess how much water is available within a catchment, identify environmental constraints and help inform decisions on new and existing abstraction licences. They are an important starting point for an applicant, although they do not replace the site-specific assessment required for an individual proposal.

Surface-water availability is generally assessed at defined assessment points and against the flow needed to support the ecology of the water body. This can affect whether water is available throughout the year, only at higher flows, or not available for further consumptive abstraction. Groundwater assessment considers the balance between recharge and abstraction, together with links to river, springs, wetlands and other groundwater dependent features. Because surface water and groundwater are connected, pressure in one part of a catchment may constrain abstraction elsewhere.

Catchment management is also relevant to reliability. A licence may authorise a stated quantity yet remain subject to hands-off flow or level conditions, meaning the water will not always be available when the abstractor needs it. Applicants should therefore consider storage, trading, shared or collaborative arrangements and demand management, as well as the headline licensed volume.

Recent years have seen increasing pressure on water resources from climate change, population growth and environmental demands. As a result, abstraction licensing is now closely linked to wider water resources planning.

The EA’s National Framework for Water Resources 2025 sets out a long-term strategy for managing water availability. The Framework emphasises the need to balance water for growth, food production, energy generation and environmental protection.

Of particular relevance to abstractors is the Framework’s recognition that abstraction licences must be assessed against both water availability and environmental requirements. The EA must protect existing water rights and lawful uses while ensuring that rivers, groundwater and protected habitats are not adversely affected.

As environmental standards evolve, abstractors should therefore expect the Agency to place increasing scrutiny on the sustainability of water use, particularly in environmentally sensitive catchments.

River basin management and environmental objectives

Another key influence on abstraction licensing is the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017.

These regulations provide the framework for managing the water environment through River Basin Management Plans (RBMPs). The purpose of the regime is to prevent deterioration in the status of water bodies and to support the achievement of long-term environmental objectives. Public authorities, including the EA, must have regard to RBMPs when exercising relevant functions.

For abstractors, this is significant because decisions about abstraction licences are often influenced by wider catchment objectives identified within these plans. Where a river or groundwater body is under environmental pressure, licensing decisions may reflect the need to improve environmental outcomes or avoid further deterioration.

RBMPs are prepared for river basin districts and set legally binding, locally specific environmental objectives for surface waters and groundwater. They identify the status of water bodies, the pressures preventing objectives from being achieved and the programme of measures intended to address those pressures. For surface water, relevant objectives include preventing deterioration and achieving good ecological status, or good ecological potential for artificial or heavily modified water bodies. For groundwater, the regime addresses both quantitative and chemical status.

Flow is a supporting element of ecological status, so abstraction licensing is one of the regulatory mechanisms used to deliver RBMP objectives. The Agency compares actual and permitted abstraction pressures with the flow conditions required to support river biology. Where abstraction contributes to a failure, or creates a risk of deterioration, this may affect the availability of new water, the conditions imposed on a licence or the review of existing licences. A proposal may also require separate consideration under the habitats legislation where it could affect a protected European site, and under domestic legislation protecting Sites of Special Scientific Interest.

Although closely linked, RBMPs and abstraction licensing strategies operate at different levels. RBMPs establish the environmental objectives for a river basin district, while abstraction licensing strategies assess how those objectives affect water availability and licensing decisions within individual catchments. The EA then applies that framework when determining specific abstraction licence applications.

Fisheries, ecology and other water users

The EA’s responsibilities extend beyond water quantity. It also has statutory duties relating to fisheries.

Under the Environment Act 1995, the Agency has a duty to maintain, improve and develop fisheries. Additional obligations arise under legislation such as the Salmon and Freshwater Fisheries Act 1975 and the Eels Regulations 2009. These duties can be particularly relevant where abstraction may affect fish migration, flow conditions or habitats.

The assessment may need to consider reduced depths and velocities, higher water temperatures, loss of wetted habitat, barriers to upstream or downstream migration and the effect of intakes or associated structures on fish and eels. These issues can arise with consumptive abstraction and with hydropower schemes, even where much of the water is returned to the river. Conditions, screening requirements, bypass flows or other mitigation may be necessary, and the views of fisheries interests, angling bodies and conservation organisations may form part of the evidence relevant to the decision.

Looking ahead

While the abstraction licensing regime can appear complex, the key takeaway is that the EA’s decisions are shaped by a broad legal framework rather than a single piece of legislation. The Agency must balance environmental protection, sustainable development, economic growth, water resources planning and fisheries interests when determining licence applications.

For applicants, the key point is to review the relevant RBMP and abstraction licensing strategy at an early stage, identify any affected users or environmental features, and consider water availability from the outset. It is important not to assume that a non-consumptive abstraction will have no impact, or that a consumptive abstraction can be assessed solely by reference to the volume of water taken. The EA will also consider factors such as the timing, location and pattern of use within the catchment. In our next article, we will look in more detail at abstraction rights and licences.

Michelmores has achieved 85 rankings in The Legal 500 United Kingdom – Solicitors 2027 Edition, comprising 34 firm rankings and 51 individual lawyer recognitions.

The results reflect the breadth of the Firm’s expertise across its Corporate, Disputes, Employment, Private Wealth, Real Estate, Energy and Technology practices. They include five Top Tier practice rankings listed in the South West categories, alongside further progress in London, where Commercial Litigation: Mid-Market moved to Tier 3 and the Firm secured new rankings for Venture Capital and Employers.

Key highlights from the 2027 edition include:

• 34 firm rankings
• 51 individual lawyer recognitions
• 10 Top Tier practice rankings (with 5 explicitly designated South West)
• 2 Hall of Fame lawyers
• 23 Leading Partners
• 13 Next Generation Partners
• 10 Leading Associates

Michelmores’ Top Tier rankings are:

• Corporate and Commercial: Dorset, Devon and Cornwall
• General Crime and Fraud
• Commercial Litigation: Dorset, Devon and Cornwall
• Employment: Dorset, Devon and Cornwall
• Agriculture and Estates (South West)
• Contentious Trusts and Probate (South West)
• Family (South West)
• Personal Tax, Trusts and Probate (South West)
• Commercial Property: Dorset, Devon and Cornwall
• IT and Telecoms (South West)

Together, the results highlight Michelmores’ established strength in the South West and growing recognition in London, supported by continued recognition for its Corporate and Commercial practice in Cambridge.

Tim Richards, Michelmores’ Managing Partner, said:

“These results are a strong endorsement of the quality of our people and the trusted relationships we build with our clients. We are particularly pleased to see recognition across so many of our practice areas.

“The breadth of the results reflects the depth of expertise across Michelmores and our continued commitment to delivering outstanding advice and service to our clients. It is especially encouraging to see our established strength in the South West recognised alongside positive results in London and continued recognition in Cambridge.”

For the full breakdown of Michelmores’ Legal 500 UK 2027 rankings, visit The Legal 500 website.

Those working in UK immigration will be familiar with frequent changes designed to narrow the scope of immigration routes or introduce additional restrictions. It is therefore particularly welcome to see a development moving in the opposite direction.

From 1 July 2026, the Global Talent route was expanded to include a dedicated Design Industry endorsement pathway. Applications are submitted to UKVI and, where endorsement is required, are assessed by the Design Business Association (DBA) on behalf of Arts Council England.

Why this matters for employers

For employers, the practical significance of the new design pathway is that it creates another immigration option for internationally recognised design professionals, without requiring employer sponsorship. Unlike Skilled Worker sponsorship, the Global Talent route does not require the employer to hold a sponsor licence, assign a Certificate of Sponsorship or monitor the individual. This may be particularly helpful for design-led businesses, creative agencies and employers engaging senior creative talent on more flexible or less traditional employment models under sponsor compliance duties.

The route can also offer the individual greater flexibility, including the ability to change roles, work for more than one organisation or undertake self-employed or portfolio-style work. From an employer perspective, that flexibility can be useful where the business wants access to specialist design expertise but does not necessarily need, or wish, to structure the arrangement as a sponsored role.

However, the route will not be suitable for every proposed hire. The application turns on the individual’s external recognition and evidence of achievement, rather than the employer’s recruitment need. Employers should therefore consider at an early stage whether the candidate’s portfolio, awards, media profile, published or distributed work and industry references are likely to meet the endorsement criteria.

Who can apply?

Reflecting the breadth of the design sector itself, the list of eligible disciplines is intentionally non-exhaustive. Examples provided by Arts Council England include:

• Graphic design;
• Brand design;
• Product design and development;
• Furniture design;
• Commercial interior design;
• Exhibition design and display; and
• Service design.

Applicants must be able to show that they have worked regularly in the design field and that they are producing work which has been published, distributed or exhibited internationally. The DBA must judge that work to be outstanding. The work may be produced by the applicant individually, as part of a group, or through a significant contribution to a group’s work.

To avoid overlap with other endorsement pathways, a number of related disciplines are expressly excluded. These include, amongst others:

• Illustration;
• Textile design;
• Fashion design;
• Games design; and
• Costume or set design for film, television and theatre.

Evidence requirements

As with other Global Talent routes overseen by Arts Council England, applicants must provide an up-to-date CV together with supporting evidence demonstrating their achievements and standing within the industry.

Three reference letters

Applicants must provide three letters of recommendation:

• Two letters must be from well-established design organisations, one of which must be based in the UK; and
• The third letter must come either from another established design organisation or from an individual recognised as an expert in the field.

Importantly, the applicant must be able to demonstrate that they have worked with the referees in a professional design capacity. The letters must also comply with the detailed format and content requirements prescribed by Arts Council England.

Ten pieces of supporting evidence

Applicants must also submit up to ten pieces of evidence from the previous five years demonstrating achievement in at least two of the following areas:

• Appearances, exhibitions, publications or distribution of their work;
• Media recognition; and/or
• Awards and industry accolades.

Appearances, publications and exhibitions

Evidence in this category must demonstrate that the applicant’s work has been recognised within the design industry through exhibitions, publications, distribution arrangements or similar activity.

Applicants applying as Exceptional Talent must demonstrate a substantial record of work in at least two countries, whereas Exceptional Promise applicants are likely to be earlier in their careers and must show a developing record of recognised work in at least one country.

Awards

Applicants seeking endorsement as Exceptional Talent must generally demonstrate that they have won at least one international award in the field of design (or made a significant contribution to an award-winning project).

By contrast, applicants applying as Exceptional Promise may rely on having won, been nominated for or been shortlisted for a national or international award.

The guidance contains a non-exhaustive list of recognised awards, including the Red Dot Awards, D&AD Awards, Pentawards and Cannes Lions.

Media recognition

Media recognition requirements also differ depending on the endorsement category.

Applicants seeking endorsement as Exceptional Talent must provide evidence of at least two examples of significant international media recognition from at least two countries.

Applicants seeking endorsement as Exceptional Promise need only demonstrate at least two examples of national or international media coverage from one country.

Practical steps for employers and candidates

Employers should not assume that a strong portfolio or senior job title will be enough. The endorsement application turns on independent recognition, credible referees and evidence that fits the published categories. The strongest applications are likely to be those where the evidence is mapped carefully before the immigration strategy is fixed.

Practical takeaways for employers

The introduction of this new pathway represents a welcome expansion of the Global Talent route, recognising the contribution made by professionals working within the commercial design sector and the value they can bring to the UK economy.

For employers, the new pathway is unlikely to replace Skilled Worker sponsorship for most design hires, but it gives businesses another option where the individual has a strong independent profile in the design industry. It may be particularly relevant when recruiting senior designers, product designers, brand specialists, service designers or commercial design leaders whose work has already attracted external recognition.

As with all Arts Council-endorsed Global Talent applications, success ultimately depends on presenting compelling evidence that aligns closely with the published guidance. Businesses considering this route should assess the strength of the individual’s evidence at the outset and take specialist advice before deciding whether Global Talent, Skilled Worker sponsorship or another immigration route is the most appropriate strategy.

Please see the table below for a summary of the key differences between the Exceptional Talent and Exceptional Promise routes.

Michelmores has advised Triodos Bank UK Ltd on the financing of LEAP24, a rapidly growing provider of fast-charging infrastructure for commercial electric vehicles, supporting the expansion of its charging network across Greater London and the Netherlands.

The new loan facilities will enable LEAP24 to increase access to fast-charging stations near zero-emission zones, helping businesses transition to cleaner transport while reducing operational downtime. 

In the UK, LEAP24 currently owns and operates 11 sites, with plans to expand to 34 locations and 80 DC chargers by the end of 2027. Through its network of strategically located fast-charging hubs, including sites near city centres and business parks, LEAP24 provides charging solutions designed specifically for commercial users, including vans and other larger vehicles.

Founded to accelerate the adoption of electric transport, LEAP24 also offers dedicated overnight charging facilities for businesses, helping to optimise available grid capacity and support fleet electrification.

Michelmores advised long-standing client Triodos Bank UK Ltd on all aspects of the financing. The multidisciplinary team was led by Danielle Collett-Bruce, Managing Associate (Banking), supported by Noah Jefferies, Associate (Banking) and Karen Williams, Partner (Banking). Specialist advice was provided by Ian Holyoak, Partner (Commercial), Tatiana Menezes, Associate (Commercial) and Moya Smith, Associate (Commercial). Michelmores also supported on the real estate aspects of the legal due diligence for Triodos Bank UK Ltd.

Danielle Collett-Bruce commented:

“We are delighted to have supported Triodos Bank on this financing, which will help expand critical charging infrastructure for commercial electric vehicles. Increasing access to reliable charging facilities is a key part of enabling the transition to cleaner transport, and this transaction demonstrates the important role sustainable finance can play in accelerating that shift.”

Alex Stephens, Senior Relationship Manager for Energy and Project Finance at Triodos Bank UK, said:

“LEAP24’s approach to deploying fast-charging infrastructure across Greater London, providing larger charging bays for commercial vehicles and high-usage drivers such as taxi and delivery operators, sets it apart in the market. By locating sites within zero-emission zones, LEAP24 is helping to accelerate the transition to electric transport while contributing to cleaner air and more sustainable urban environments. We are pleased to support a business that is expanding access to reliable, high-speed charging where it is needed most.”

The transaction reflects Triodos Bank UK’s ongoing commitment to financing projects that support the transition to a more sustainable economy and reduce carbon emissions through investment in clean infrastructure.

The August update to the National Planning Policy Framework (NPPF) provides clearer policy direction for renewable energy developments mandating that the English planning system supports the UK’s transition to net zero.

The new look NPPF gives clean energy (and water) their own dedicated chapter, with separate policies for plan-making and decision-making.

But has anything other than format changed? For renewable energy developers, the most immediate changes are set out in the national decision-making policies. These introduce standardised policies for the determination of applications, including those for renewable and low-carbon energy.

Decision making is a balancing exercise; weighing the proposals ‘good’ against its ‘impacts’. Mostly decision makers are free to give such weight to various aspects of a scheme as they see fit. However, as is the case of Policy W3, sometimes the weight to be given is prescriptive. W3 requires decision-makers to give ‘substantial’ weight to the benefits of improving energy security, life-extension and repowering of existing infrastructure of existing sites, and the contribution small-scale schemes and community-led projects can make to reducing greenhouse gas emissions.

Repowering gets its own broad definition, helpfully confirming repowering does not need to result in like-for-like replacement, recognising that new infrastructure will be required.

Semantics perhaps, but this ‘substantial’ weight is an enhancement over the ‘significant’ weight that these elements of a project previously attracted. This wording change raises the threshold for assessing planning benefits and should make it harder for decision-makers to refuse renewable schemes unless identified harms clearly outweigh those benefits.

The new NPPF cuts across existing local plan policies that sought to constrain renewable energy development to certain areas. Now a scheme that lies outside a prescribed area is to be determined not against the local plan policies but against the NPPF as a whole. This represents a shift from the previous approach and should give developers greater flexibility where local plan policies are restrictive.

Government has indicated that Planning Practice Guidance (the detailed guidance that sits behind the NPPF) will be updated to provide further guidance on identifying suitable areas for renewable and low-carbon energy.

When it comes to plan making by local planning authorities, we see that Policy W1 strengthens expectations for early engagement between planning authorities, utilities, regulators and infrastructure providers to identify capacity constraints and future infrastructure needs. Development plans must now make provision for renewable and low-carbon energy and grid infrastructure, including stand-alone schemes, and avoid policies that would constrain future operation or expansion.

The policy encourages a more proactive, coordinated approach to planning for clean energy than old NPPF paras 165-169 which focused on positive renewable strategies but did not require early engagement.

We also look forward to the forthcoming spatial development strategies (SDS). These SDSs are to, among other things, set out the type, extent and broad location of strategic infrastructure needed to enable development and are to expressly include the provision of renewable and low carbon energy infrastructure and the electricity network as a whole. The SDSs are intended to coordinate the provision of this strategic infrastructure.

Conclusion

Overall, the new NPPF marks a clear policy shift in favour of renewable energy. It moves further away from recent policy approaches that constrained delivery, particularly the former local support requirement for onshore wind.

By elevating the weight given to renewable benefits, broadening support for schemes outside identified suitable areas and requiring more infrastructure-led plan-making, the Framework should make the planning environment more positive for renewable and low-carbon development.