Michelmores is pleased to announce that this year’s round of promotions brings the Firm’s proportion of female Partners to 49 per cent, moving the firm closer to gender parity within its partnership.

Charlotte Bolton has been promoted to Partner in the Commercial & Regulatory Disputes team. Charlotte joined Michelmores as a trainee in 2012 and specialises in intellectual property disputes. She advises on issues relating to trade marks, patents, copyright, designs and confidential information.

Nerys Thomas has been promoted to a Partner in the Tax, Trusts & Succession team. Nerys joined the Firm in March 2022 and advises individuals, families and business owners on a wide range of matters including wills, powers of attorney, tax planning, trusts and estate administration.

The Firm’s newly promoted Senior Associates bring the total number of female Senior Associates to 74 per cent.

This year’s newly promoted Senior Associates include:

• Lisa Benham in the Disputed Wills & Estates team
• Laura Bond in the Family team
• Abigail Brown in the Commercial & Regulatory Disputes team
• Philippa Collison in the Commercial team
• Katharine Everett Nunns in the Agriculture team
• Yvonne Farrell in the Projects & Infrastructure team
• Harriet Grimes in the Real Estate team
• Kate Higgins in the Private Property & Landed Estates team
• Victoria Miller in the Corporate team
• Seema Nanua in the Agriculture team.

Becky Hunt, an Associate in the Firm’s Governance and Risk team, has also been promoted to the role of Senior Legal Counsel.

Commenting on the promotions, Tim Richards, Michelmores’ Managing Partner, says:

“I am very proud to announce our new Partners and Senior Associates and congratulate them all on achieving this significant milestone in their career. Each colleague has demonstrated their ongoing commitment to the Firm, as well as our ambition and values. I look forward to seeing the impact that their drive and energy has at Michelmores.

“This year we have made another positive step forward towards reaching gender parity within the Partnership, yet there is still work to be done. We remain committed to fostering an inclusive culture and one of the ways we can achieve this, is to continue to improve the gender balance across our Firm.”

Read more on our website.

On 9 April 2024 the European Court of Human Rights (ECHR) delivered a landmark ruling on the obligations of its 46 signatory states to mitigate the impacts of climate change. Verein KlimaSeniorinnen Schweiz[1] and Others v Switzerland (53600/20) marks the first time that government inaction in relation to the climate crisis has infringed basic human rights, and paves the way for future legal challenges against signatory states who fail to protect their citizens from the adverse impacts of climate change.

Background

The case was brought by members of a non-profit association (KlimaSeniorinnen) established to promote effective climate protection for women in Switzerland. The claim sought judgment against Switzerland for failing to protect its citizens from the impacts of global warming. In particular, with members predominantly aged over 70, KlimaSeniorinnen highlighted the increased risks of global warming to the health and quality of life for women and the elderly, and the detriment being suffered as a result of inaction by the Swiss government and authorities.

Human Rights and Climate Change

KlimaSeniorinnen argued that the Swiss government’s failings breached several provisions of the European Convention of Human Rights (the Convention):

• Article 2: the right to life
• Article 8: the right to respect for an individuals’ private and family life and their home
• Article 6: the right to a fair trial

Specifically, it was alleged that the Swiss government failed to implement the necessary regulatory framework to protect the health of its citizens. The claim highlighted excess illness and deaths among the elderly, and in particular women, who suffer the greatest harm from heatwaves. KlimaSeniorinnen asserted association members had been unable to carry on their daily lives during summer heatwaves, and that this infringed Article 8 which includes the right for personal autonomy and the right to age with dignity.

The Swiss government argued that climate change is a global phenomenon caused collectively by all nations. Given Switzerland’s comparatively low greenhouse gas emissions, the government argued that the applicants could not demonstrate that the suffering alleged was being caused by Swiss emissions.

The Climate Change Obligations of Governments

The Court’s assessment primarily focused on rights protected by Article 8. It held that the adverse effects of climate change can amount to an interference with an individual’s enjoyment of his or her private or family life or home. This watershed assessment extends the rights of citizens to protection by their state from the serious adverse effects and risks of climate change on their health, well-being and quality of life.

The Court outlined that, in the context of climate change, a government’s primary obligation to protect the rights of its citizens is to adopt regulations and measures capable of mitigating its existing and future impacts. In assessing the extent of a governments’ conformity with this obligation, the Court set out that close scrutiny will be paid to:

• The adoption of general measures specifying a target timeline for achieving carbon neutrality (or an equivalent method of quantifying greenhouse gas reductions)
• The implementation of intermediate targets to ensure that overall goals are adhered to
• Keeping the relevant targets updated, through due diligence and reference to the best available evidence
• Providing evidence to demonstrate compliance with emission reduction targets
• Acting in “good time” and in an “appropriate and consistent” manner when devising and implementing the relevant legislation and measures

The Court also noted that further, supplemental measures would be required to protect individuals from the most severe and imminent consequences of climate change.

The Judgment against The Swiss Government

Assessing Switzerland’s record in adhering to these obligations, the Court ruled that the government’s actions on tackling climate change constituted a breach of Article 8. Central to this infringement was the government’s failure to (1) adhere to its 2020 targets set to cut carbon emissions; (2) enshrine in law new emissions targets designed to keep global warming below 1.5^oC; and (3) act in good time to draw up and implement a strategy for reducing emissions, including a failure to quantify national emissions limitations.

The Court noted that the introduction of new legislation was insufficient to remedy the shortcomings of Swiss inaction to date and highlighted the need for immediate action to prevent overburdening future generations.

The Court separately found that the Swiss Government had infringed its citizens’ rights to a fair trial afforded by Article 6, because the Swiss administrative authorities and domestic courts at two levels of jurisdiction had rejected KlimaSeniorinnen’s claim without assessing its merits. This restriction of access to judicial consideration was concluded to have impaired the right to a fair trial.

Key Takeaways for the UK

The Convention is an international treaty (distinct from the European Union) incorporated into UK law by the Human Rights Act 1998 (HRA). The HRA requires all UK law to be interpreted, as far as possible, in a way that is consistent with the Convention and to take into account the ECHR’s case law. Therefore, the principles laid down by the ECHR in KlimaSeniorinnen will be of interest to any party wishing to hold the UK Government’s climate policy to account.

In summary, the ECHR decided that government action to mitigate climate change and protect citizens from its adverse consequences should be assessed with reference to these key points:

• An arguable claim under Article 8 will require a specific negative effect on an individual’s private or family sphere. It will be insufficient if the detriment suffered is negligible in comparison with the environmental hazards inherent in modern city life.
• It is insufficient for governments to legislate the timeframes for achieving carbon reductions without taking requisite immediate and interim actions. Courts will scrutinise governments’ implementation of administrative, regulatory and legislative frameworks and will assess how these measures contribute to overall targets to reduce emissions. Failure to implement measures in “good time” will constitute an infringement on citizens’ human rights.
• Governments should legislate for both overall emissions targets and intermediate targets that assess progress. Targets will need to be updated with reference to the best available evidence.
• States must ensure that citizens are provided access to courts at national level to hear complaints relating to climate change. Failure of national courts to assess the merits of complaints will constitute a breach of Article 6.

Those in the UK seeking to challenge the decisions of the Government and public bodies in relation to climate change can do so under the HRA by way of judicial review. Our courts have authority to disregard secondary legislation (such as statutory instruments created by ministers or government departments) that is incompatible with the Convention and, most commonly, send the matter back to the relevant authority to reconsider.  Alternatively, our courts can issue a declaration of incompatibility between the UK’s primary legislation (statutes passed by parliament) and the Convention – prompting parliament to change the law or, if not, prompting the claimant(s) to refer the UK to the ECHR.  A decision of the ECHR is binding on the UK and it is obliged to remedy any violations of the Convention, by amending its legislation and/or paying compensation to victims who have sustained damage.

For further information and advice about issues relating to the above, please do get in touch with Jonathan Kitchin or Alex Southall.

[1] Senior Women for Climate Protection in Switzerland.

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

1. Be engaged

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

a) any questions which you cannot ask immediately;

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

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

2. ‘Put yourself out there’

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

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

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

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

3. Prepare questions/conversation starters in advance

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

a) a Partner or Senior Associate;

b) a Trainee/Junior Solicitor; and

c) a member of the graduate recruitment team.

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

4. Post-event action

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

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

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

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

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

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

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

Adam Corbin, Freshways Client Partner comments:

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

Freshways Director, Bali Nijjar said:

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

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

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

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

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

Background

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Emma Honey, Head of Property at Michelmores said:

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

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

This year’s shortlisted projects:

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

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

Read more about the Michelmores Property Awards here.

Sponsoring the Awards

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

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

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

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

Background

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

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

Who owns the air above land?

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

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

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

Trespass and nuisance

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

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

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

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

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

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

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

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

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

Data protection and privacy

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

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

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

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

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

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

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

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

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

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

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

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

Dhana comments on her accolade:

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

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

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

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

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

We set out the key, headline points below.

Agricultural Property Relief (APR)

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

Business Property Relief (BPR)

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

VAT

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

Working group with industry representatives

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

Potential restrictions to APR

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

Comment

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

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

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

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

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

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

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

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

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

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

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

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