Every year, law firms receive hundreds if not thousands of applications for a handful of vacation schemes and training contract opportunities. This means, getting your initial application right is incredibly important. Here are some of my top tips to help strengthen your application.

Step 1 – Pick your firms

Chances are you are balancing your applications with studies, a career or both. Applying to a large number of firms can severely reduce your time to prepare each application and make it unique by tailoring it to their specific requirements. Consider what you are looking for from your future career and use this to pick a manageable number of firms to apply to. For example, what areas of law do you want to encounter during your training contract? Do you want to be part of a large or small trainee intake? What organisational culture and values are important to you?

Step 2 – Research

Next you need to research these firms in more depth to show the recruitment teams why you want to work for their firm. Each firm’s website is a fantastic place to start. Try and sign up for insight days or virtual workshops to gain exposure to the firm, but also look at the specific Training Contract pages which will provide the skills you should highlight in your application.

When speaking to Georgie Lewis in our recruitment team, she emphasised you should

“make sure you dedicate enough time to looking at who they are, what they do, their position within the market, values and culture as a starting point.”

Step 3 – Answering the written application questions

• Keep your responses clear and concise. When advising clients in the future you will need to ensure your advice is easy to understand, so it is important to show these communication skills in your responses.
• Link your responses to the firm and their work. For example, when asked about a recent news article you have read explain why this is relevant to the firm.
• Let your personality shine. Law firms are not looking to recruit robots, the clients want their advice to come from people who they can relate to and building relationships internally and externally is absolutely key.

Step 4 – Final checks

It can be tempting after your hard work to finish the application and press submit to move on to the next one. Take that extra time to proofread, check for spelling mistakes, making sure you have spelt the organisation’s name correctly and are using the right firm name. These small mistakes are common causes of applications being unsuccessful. Finally, ask a friend or family member to read it in case anything has been missed. Remember this is the only thing a recruiter has to base their decision on, so make sure it shows your true capability before submitting.

If you would like to know more about life as a trainee at Michelmores, please do get in touch.

The countdown to mandatory BNG delivery has begun, what do developers need to be doing to prepare for this milestone?

Biodiversity Net Gain (or ‘BNG’) found its way into legislation nearly a year ago. Its ‘transitional’ arrangements will close in November 2023, meaning thereafter BNG delivery will become a mandatory requirement for the vast majority of housebuilders and developers.

For an overview of the basics of BNG please consult our earlier publication:

Biodiversity Net Gain: the basics

What is the transition period and when does it end?

The Environment Act 2021 allowed for a ‘transition period’ to afford Local Planning Authorities an opportunity to gear up towards the mandatory requirement for BNG to be demonstrated and delivered through the planning system. In short, during the transition period LPAs are not required to impose BNG on developments unless they want to. Some LPAs have already rolled out BNG delivery on certain developments but the remainder will have to do so by law when the transition period comes to an end in November 2023 (we don’t currently know the precise date on which the transition period will come to an end).

All developers and housebuilders will need to ensure they have a firm grasp of the BNG requirements and delivery methods well ahead of the November 2023 deadline. Those who are not properly prepared will risk facing even greater delays in the planning system, unexpected costs affecting viability and potentially ongoing liabilities reaching far beyond sales and ‘site exit’ for which they have not accounted.

What steps should developers be taking before November 2023?

Over the next 12 months developers should be doing what they can to familiarise themselves with the BNG regime in the context of their business operations. Some practical steps to take would include:-

1. Understanding the Biodiversity Matrix prepared by Natural England. This provides the formula for calculating existing and required levels of biodiversity and will be the basis on which BNG requirements for individual developments are assessed.

2. Reviewing the Biodiversity Matrix against existing ‘pipeline’ sites and/or prospective sites where it is anticipated that a planning application will be submitted post-November 2023. This will offer some insight into what a 10% ‘net gain’ will look like on proposed development projects. Developers should also consider whether these sites fall within the administrative boundaries of an LPA that is already imposing BNG (because many will be) and if so what the consequences will be for their development proposals and viability. Finally, Developers should re-assess their contractual obligations to maximise value in light of the cost implications of on-site vs. off-site BNG options (with the latter, particularly BNG units, likely to be more expensive).

3. Familiarise themselves with existing LPA literature and guidance on BNG delivery, including examples of BNG planning conditions and S.106 obligations. Examples of these include:-

• The Dorset Biodiversity Appraisal Protocol
• Cornwall planning for Biodiversity Guide 
• Devon Planning Guidance for Biodiversity Compensation and Net Gain

4. Planning ahead by considering new design strategies aimed at maximising on-site delivery opportunities through the creation of habitats which can be incorporated into developments. Bat or bird boxes and hedgehog highways will not suffice because the Biodiversity Metric takes a habitat-based approach. So developers will need to think creatively about how they can, for example, convert public open space into a BNG vehicle – possibly by establishing meadows, using indigenous hedges rather than boundary fencing and/or creating wetlands within the proximity of attenuation facilities. Another key feature of the BNG regime is that the gain and associated management must be in place for 30 years. Developers need to be thinking about what changes they will need to make to their estate management services if their management companies will now be required to maintain specially created ecological habitats long after sales have completed.

5. Reviewing and understanding the current range of ‘off-site’ delivery measures available. These could include delivering BNG on neighbouring land, purchasing non-statutory BNG units created through networks of habitat banks and purchasing statutory biodiversity credits. We have also previously considered the use of conservation covenants to achieve BNG in: Conservation covenants: The basics  and Conservation covenants: What is a ‘Responsible Body’?

Only 37% of the UK’s adult population has brought or thought about buying life insurance. A recent study conducted by MoneySuperMarket suggested homeowners with dependents were not taking out life insurance due to ‘widespread myths’ about cover, including concerns over it being too expensive and insurers not paying out. In addition, only 15% of people surveyed by a recent EY study considered life or health insurance as a top three priority to protect financial wellbeing, compared with 77% prioritising savings.

LifeSearch is the UK’s most awarded and biggest life insurance adviser and specialists in helping families and businesses get the right protection since 1998. They provide support and guidance to our clients and their businesses on life protection, insurance, critical illness cover, share-holder protection, keyman and income protection. In our latest article for the View, we speak to Tom Baigrie, Chair of LifeSearch on the importance of life protection and his 40-year experience in protecting families.

What led you to work at LifeSearch and what does your role entail?

I started life in England aged 20 and the only job I could get was as a self-employed commission only life insurance salesman. I turned that start into a wealth management business, Baigrie Davies, and eventually sold it to Standard Life back in 2016. As a spelling pedant, I’m glad I left before they rebranded to Abrdn! Back in 1998 though, I grew to feel that consumers would prefer to buy their simpler financial products, like life and disability insurance over the phone, from people who were specialists, who really knew their stuff, not financial advisers who did a bit of protection. So, I set up LifeSearch to give them that chance.

Why should people have life insurance and why is it so important?

It’s to answer the question, “How would your family, or business, cope financially were you to die?” If you can answer that question with a clear conscience great. But if you have dependents and can’t answer that question then you need life cover. But in Britain, that generic is used to cover three types of policy: life insurance, income protection insurance and critical illness insurance. I’ll leave out the latter for now, but the middle one is a form of disability insurance, and the question relevant to almost every worker is, “how would you cope if you were disabled and couldn’t earn a living?”.

Some employers have ‘Group Income Protection’ policies, but in today’s gig and SME dominated workplace it is shocking how few people, who do insure their possessions, do not insure the earnings engine that pays for everything. It doesn’t help that our market is very bad at explaining that need to consumers, but still, it should be obvious! LifeSearch arranges more individual income protection policies than any other firm, and many group schemes too. If you aren’t retired, super-rich, or too poor to care, you need to get income protection. It’s available for carers and home-makers as well as paid workers, and the policies we arrange pay out no matter what causes the disability, be it illness, accident or mental health, which is one of the most common reasons for successful claims.

How can someone ensure they have the right life insurance in place for them and their family? How does LifeSearch help?

You can do the applied maths yourself, using, say, the age of your youngest child and their likely point of future financial independence, multiplying the income the family relies on by, say, 10 or 20 times, and adding any debt, but there is a bit more to it than that and it costs no more and is far safer to speak to an adviser used to working out the sensible questions to ask to lead you to the right answer. Of course if you know exactly what you need and are in good health and time is what matters most, then a price comparison website will do. Moneysupermarket and Compare the Market will give you prices and the ability to deal there and then, but also the opportunity to speak to a LifeSearch adviser while you make up your mind. Advice costs nothing extra and gets you great protection from the financial ombudsman should something go wrong at the claims stage say. We recently helped a customer who was originally quoted an extortionate amount for a policy based on a rating at the application stage due to a mention of ‘breathlessness’ combined with being an ex-smoker. When they approached us we realised that this was producing an unnecessary rating to the customer, we investigated it further, getting extra information from the customer and raising it with underwriters directly, challenging the original decision. This led to the family being protected and with standard terms.

What has been your career highlight to date?

Well the immigrant story is that I came to the UK aged 20 after school and military conscription in South Africa and could only get a job advising on life insurance on a commission only basis. And 41 years later, my business is the UK’s largest protection adviser by quite a long way. After working in insurance for so many years and after selling Baigrie Davies, in 2016, I knew my passion was for protection, not making rich people richer, so I spun off LifeSearch and went on from there. There have been many highlights, but the one I’m most proud of is coming third in the 2019 Sunday Times Top 100 places to work for in Britain. The highest ever ranking for a first-time competitor. Passing our millionth family protected milestone a few years ago left me feeling I had done some good in the world too.

What is the Protection Distributors Group (PDG) and what do you do for the group?

I helped found the PDG with the sole purpose of improving what the protection market does for its customers. Today the board comprises leaders from 12 firms, from St James Place to LifeSearch to several near enough one-man bands. Our membership now accounts for c60% of all protection policies sold with advice. We have to-date signed up most insurers to a ‘Claims Charter’ of benchmark levels of service when handling a claim, and separately got them to all agree to pay out for funeral costs when probate has not yet been granted, amongst other improvements to customer service. Currently, we are leading a campaign to see insurers act as gatekeepers to our market, by mystery shopping distributors with very high early policy cancellation rates. Many of the ‘unknown’ brands advertising on Google or across social media cause considerable consumer detriment and the FCA seems unable to act on the issue. We see it as our market’s duty to protect its customers and indeed its reputation. Insurers, who after all fund all distribution, including the rogue elements, need to step up and monitor what’s been said in their name and clean it up.

What’s next for LifeSearch, what do you want to achieve in the next five years?

After a long run of rapid growth before and through the pandemic, this year is one of regrouping for our next big step: becoming a consumer brand recognised for what we are, the best at what we do in personal and business protection. Our business team is our fastest growing with many BIBA, ICEAW and Law Society members signposting their customers to us for protection help. Along the way, I decided I need new energy and skills and so recruited Debbie Kennedy to replace me as CEO last year, following her impressive success as MD of LV’s Life and Pensions division, and before that helping lead the transformation of Royal London that saw it rise from doing almost no business to being one of the UKs biggest life insurers. Our most significant recent appointment was by Which?, the consumer group who now advocates all their customers with protection queries to trust LifeSearch to help them.

What could be done to raise awareness of the importance of life insurance?

Most people have at least a working knowledge of what Life Insurance might do. But as to their need for it, ever fewer fear the rare catastrophe that is death during working age. And that’s doubly true of income protection which is claimed some six times more often. Awareness campaigns could change this, but there’s no doubt that the biggest gain would be if professionals advising business and personal clients on their tax and financial affairs, property purchase, mortgage and debt transactions highlighted the need for protection for those whose financial risks and responsibilities they are helping increase. We call it signposting clients to protection, and LifeSearch’s key business model is to form relationships with those who ordinary people rely on for any and all forms of financial advice, so that, through a simple referral, they can help with protection too. Some firms have turned it into an entirely new revenue and profit stream. It’s great to earn good money doing something good for your customer.

What benefits do you see in the reform of the life insurance industry?

Our market has been pretty stagnant, perhaps except for an 18 month blip upwards during the pandemic. But consumers need us as much as ever.  If we are to resume growth we must first ensure that all consumers who approach us get a fair deal. At the moment a growing number don’t. Those that self-serve online do, as do those who take advice. Both routes do what they say they will. But the fastest growing route is a thing called ‘non-advised telesales’, or more euphemistically ‘guidance’ delivered over the phone’. In practice it is a highly persuasive and profitable hard sell, often delivered in a blizzard of unsolicited calls, and that puts the sale way ahead of the customer’s need and makes that viable by denying consumers the protection of the ombudsman, without explaining that. We need to reform the worst behaviours of such distributors or face ever declining consumer trust.

How does Michelmores help you to achieve your business goals?  

I first used Michelmores when selling Baigrie Davies to the FTSE30 giant Standard Life. I was impressed by the resilience and determination they showed in the face of the serried ranks of lawyers and accountants sent in to grind us down. Since then most of the work has been contractual, which means again negotiating with some of Britain’s biggest brands. For all the big ticket things, we find Edwin Richards and his supporting teams, as well as those experts he brings on to help us with occasional oddities like patent law, to be excellent and personable and effective.

The National Federation of Builders (NFB) has reiterated recently its call upon the government to support small and medium size builders and developers ahead of forthcoming Biodiversity Net Gain (BNG) requirements.

In response to government consultation in April, the NFB called for a cost effective process to calculate BNG requirements on smaller sites of less than 50 units. Other concerns have surrounded issues like how the provision of BNG will impact infrastructure schemes such as cables and pipelines, sites for phased development as well as compulsory purchase of land.

NFB members were concerned that the BNG could add materially to the costs, delays and consenting risks of undertaking property development. Requests were made for government clarification of qualifying measures, both onsite and offsite to count towards improving BNG performance. NFB members are worried about how offsite solutions will work in particular. Issues include how BNG measures will impact on the development process and how much they will cost. As a consequence, NFB has questioned whether more could be done to broaden qualifying onsite measures.

The NFB is hoping for a sympathetic response from Liz Truss’ new government following her previously stated plans to review nutrient neutrality guidance in a bid to cut red tape. The BNG regime is currently due to take effect in November 2023. Between now and then many planning authorities have started to develop their understanding, and building up their skills and resources to be able to implement the new requirements. Many authorities are critically short in these areas. Private sector planning consultants and environmental consultants will be needing to do the same in kind. Hopefully, as the implementation date draws nearer, more information and local planning guidance will be made available to address and assuage the concerns outlined by the NFB members.

The development sector is hoping for a measured approach to implementation, avoiding any hiatus to schemes and projects which are already in the pipeline and a repeat of the experience recently seen with aspects of nutrient neutrality.

By the time these words reach the website, my trainee cohort will have moved into our second year, and a new set of trainees will be preparing for their first week at Michelmores. It’s been a fast year for me, and I remember well the excitement that the 2022 cohort must be feeling. Over the summer, I was in touch with our future trainees—those starting in September, and others joining after their studies—to ask whether they had any remaining questions about how to prepare for their training, and what to expect when it starts.

I’ve collected a few of their questions below.

The Solicitors Qualifying Exam (SQE)

• Where should I complete the SQE?

For applicants who have not yet completed the SQE, Michelmores prefers that you enrol at the University of Law. If, however, you completed your SQE at another institution, or are enrolled elsewhere when you apply, this won’t prevent you receiving an offer.

• Will Michelmores put me in touch with other future trainees at my institution?

While Michelmores won’t ordinarily put future trainees in contact when they begin their studies, present and future trainees meet frequently at Firm socials, and are kept in the loop through a ‘buddy scheme’.

• How do I pay for the SQE?

This one’s nice and simple. If you receive an offer prior to your SQE, Michelmores will fund it, and provide a bursary to support you while you study. If the offer comes after your exams, Michelmores will reimburse you for the fees.

Seat Rotation

• How likely am I to be allocated my first seat preference and location?

The Firm tries very hard to give each trainee their first choice, but this isn’t always possible. It depends on the preferences of other trainees and business needs. The main thing to remember if you’re worried about not getting your top seat is to be consistent. If you have a particular path in mind, make it known. If there are seats you definitely want to take but perhaps not first or second, rank them accordingly but give a full explanation of your reasoning, and emphasise what your ‘priority seats’ are from day one.

It’s also worth remembering that even if you are not sat in a particular team, you are more than welcome (and encouraged) to attend their knowledge sessions and events, where possible.

Relocation

• Are trainees able to train in Bristol or London for one or more seats?

Trainees have the opportunity to train in London for one six-month seat, and there is no limit to the number of seats you can apply for in Bristol. That said, you’re choosing practice areas or teams, rather than offices, so where you end up will depend on the sort of work you want to be involved in.

For example, the Commercial Litigation team is spread across the offices, and trainees in the team can expect to support fee earners in multiple locations. Still, I asked to be placed in the London team because it has a number of IP specialists – an area I have an interest in. Many teams operate like this, so it’s worth asking questions early on to get a sense of the work being done, who is conducting it, and where their teams are based.

On a more general note, I’d say it’s a good idea to complete a seat in another office, and most trainees do. It builds your profile in the Firm and broadens your training experience.

• Does Michelmores help with relocation if we undertake a seat in the London office?

In short, yes. The Firm has a flat available for trainee secondments. It is very close to the office, and most expenses are covered.

• Is it possible to complete a seat in a department based elsewhere, without relocating to that office?

It will be clear when you apply to join a team where that team is based, and there is a general preference that you work from that office – but this is not a hard rule. If you have any doubts about whether you will be expected to relocate, or have any preferences about this, I’d encourage you to make these clear when choosing your seats. The people who make the decisions on seat rotation are keen to understand your rationale, and will be happy to discuss your options.

Culture

• What sort of work/life balance can I expect as a trainee?

As you’ll expect, the amount of time you spend at your desk is likely to depend on the seat that you’re in, the time of the year, whether there are court deadlines or completions on the horizon, and your individual work-style. Still, Michelmores trainees consistently report their satisfaction with their work-life balance.

Of course, there are occasional peaks and troughs in most practice areas, and good time management is necessary to avoid last-minute sprints for a deadline, but it is generally true that early starts and late nights will not be necessary to meet your responsibilities. The trainee testimonials on Glassdoor, Lex 100, Chambers Student and Legal Cheek speak for themselves.

• Will I be working across offices (for fee-earners based elsewhere)?

Quite probably. As explained above, larger teams are often spread across the offices, and the type of work completed in each office can differ according to the interests and specialisms of the senior lawyers. Though you should bear this in mind come seat selection, you can expect to support fee earners across the team wherever you’re based.

This doesn’t necessarily mean that you’ll need to travel between the offices for work, especially since the transition to agile working (see below). That being said, Michelmores recognises that it is desirable (particularly for junior fee earners) to meet in person, at work and socially. This means that there are fairly frequent opportunities for interoffice travel, the most common examples being department meetings; marketing events; socials; and the occasional conference.

• How often do Michelmores trainees work in the office and from home?

Following a successful pilot last year, the Firm voted by a large majority to adopt agile working, which allows each team to decide for itself what expectations to set for home and office working. For most teams, this means two or three days a week in the office, with an anchor day to ensure that the whole team meets once a week. As a trainee, you should aim to be in the office more frequently than this, to learn from those around you and build relationships with your team.

Final Preparations

• What will my first few weeks at Michelmores look like?

In your first few days, you’ll have the pleasure of meeting Phil Willis, who provides excellent training on the core apps and systems that you’ll use every day. There will be meetings with the department heads, and you’ll get to know the rest of your cohort (which is especially important – here’s why).

Before joining your teams you’ll also sit the core modules of your Professional Skills Course. Thankfully, these are short, relatively informal, and getting them out of the way early means you won’t be distracted when you start your first seat.

• How can I prepare in advance?

Rest up; read in.

You’ve probably come straight from your studies, and you’re soon to begin your training. If you have some time in between, I suggest you take it. Rest up and be ready to start with your batteries charged.

Once you’re in, and completing your induction, you might reach out to your supervisor. They may have some questions for you, and can (if you ask) direct you to something to read for a head-start on the seat.

The Royal Institution of Chartered Surveyors (‘RICS’) recently published its report on ‘Levelling Up and Sustainable Placemaking’ (“the Report”) which can be found here, Levelling Up and Sustainable Placemaking. The Report sets out the RICS overarching recommendations, with an interesting property focus on sustainability. There are some interesting recommendations that interact with a number of legal points. Our top takeaways are as follows:

1. Retro-fitting: The Report flagged the promotion of sustainability by prioritising the repurposing and retro-fitting of existing commercial stock (over building new). This is to help drive down energy costs and ensure long-term viability. This can interact with commercial leases and in particular the alterations clauses in existing leases. Many tenanted buildings can be retro-fitted at lease events, with suitable legal documentation to record the position.
2. Commercial lease renewals: The Report flagged plans for the future of commercial real estate moving beyond a ‘narrow focus on landlord v tenant’. The aspiration being to level up the overall agenda to release the full potential for tenants, as the underlying customers. There are interesting interactions and reflections with lease renewal negotiations, which can sometimes require a Court based process to resolve.
3. ESG for commercial property assets: The Report flagged a need for the commercial property sector to increase its awareness of ESG (“Environmental, Social and Governance”) overall and how to measure ESG. Measuring changes in buildings is increasingly coming up with commercial conveyancing, in terms of due diligence to verify the asset management practices.
4. EPC regulations: The Report flagged the power of commercial real estate as an enabler of regeneration. It suggested this be recognised and prioritised. The Report talked about the way funding could be prioritised for the renovation of commercial assets which risk ‘becoming stranded’. There is a link here for commercial leasing with the Energy Performance Certificate Regulations. Certain properties that do not meet the minimum energy standards are not possible to be leased, which can mean significant works, often covered with an agreement for lease before a new letting.
5. Resi development and journey times: It was interesting to see the policy aimed at housing developments being located near employment, to decrease residents carrying out long commutes. The creation of a UK settlement strategy based on sustainable transport was noted as fundamental to the ‘proper stewardship of land and managing natural resources.
6. Planning law and retail: The Report flagged that it should be recognised that commercial property, in particular the retail sector, is changing. The reflection was on the planning system to enable alternative uses of retail space more quickly. This feeds into the change of use lease wording and licences for alterations drafting that is often the subject of legal scurrility.

It is clear that the overall agenda is accelerating towards property that is managed to be sustainable for the long-term. This flags that the sustainable legal credentials of a commercial building can be important to its future marketability and indeed ability to obtain grants/statutory support in some cases.

From 30 September 2022, landowners will be able to enter into conservation covenants, committing them to manage their land for conservation purposes over the long term – for more details see Conservation covenants: The basics.

Responsible bodies are the essential counterparty to the landowner or covenantor in a conservation covenant. But who will fulfil the role of a Responsible Body?

We now focus on the role of Responsible Bodies and consider how they are selected, the process for appointment and what happens if they cease to exist.

What is their role?

The Responsible Body will ensure that the objectives of the conservation covenant are secured and delivered. They will be under a duty to monitor compliance and enforce any breaches as necessary.

The level of monitoring required could vary significantly, depending on the duration of the covenant, the terms of the individual agreement, its underlying objectives and the type of habitat etc.

Responsible Bodies must lodge an annual return with the Secretary of State[1] confirming:

• if they held any conservation covenants during the reporting period;
• the number of covenants they held; and
• the area(s) of land to which they relate.

The Secretary of State has power to require further information to be included in annual returns, via secondary legislation, if needed. No such legislation has been tabled to date and it is not anticipated that it will be necessary to do so in the short term. Given the longevity of these arrangements, flexibility has been built into the legislation in case it proves necessary to obtain additional information in future.

Who can be a Responsible Body?

Responsible bodies will be formally designated by the Secretary of State under section 119 of the Environment Act 2021.

Organisations will need to apply to be designated. They are likely to be Local Authorities, other public bodies, conservation charities and conservation organisations.

It is for the applicant organisation to decide whether they have the capacity to perform the function of a responsible body.

Local Authorities applying to be responsible bodies will need to satisfy the Secretary of State that they are suitable to be a responsible body: s119(2) and (3).

Other bodies will, additionally, have to satisfy the Secretary of State that at least some of their main purposes, functions or activities relate to conservation[2].

Who selects a Responsible Body?

The Secretary of State has overall responsibility:

a) to determine if an applicant body is eligible to be a Responsible Body in accordance with the requirements of section 119;

b) to publish and maintain a list of designated Responsible Bodies;

c) to revoke a designation, either on the application of the Responsible Body itself, or if the Secretary of State is satisfied that the body no longer meets the relevant s119 criteria.

The Secretary of State has power to determine the criteria to be applied in deciding whether a body is suitable to be or remain a responsible body[3] and to publish those criteria.[4]

Applications must then be assessed by reference to these criteria. No further details have been released to date, so it remains to be confirmed whether further qualifying requirements will be imposed, in addition to those found within s119 itself.

It also remains unclear exactly how the process will be managed. We hope that the necessary secondly legislation will be come into force imminently.

Who will decide which responsible body is designated to specific sites / conservation covenants?

Site acceptance and designation is likely to be a matter for individual organisations once they have been designated as a Responsible Body under s119.

They will decide whether they are willing to take on a particular site and to be the counterparty to a conservation covenant.

Likewise, landowners/covenantors will require confidence in any potential Responsible Body and their credibility. In addition to their expertise in the sector, a key issue is likely to be their financial standing and ability to fulfil their obligations for the duration of the conservation covenant.

What organisations are likely to be Responsible Bodies?

Apart from Local Authorities, responsible bodies are likely to have close links to and experience in conservation and wildlife work.

We hope they will be organisations that care passionately about biodiversity, conservation and the natural environment and that are skilled at delivering those objectives.

Initially we expect Local Authorities to form the significant bulk of responsible body designations, given that conservation covenants provide an efficient legal mechanism for delivering and securing habitat sites necessary for complying with the BNG requirements for development in England.

What if a responsible body ceases to exist or loses its designation?

If a responsible body ceases to be a designated body, it will automatically cease to be the responsible body under any conservation covenant to which it is a party. This will occur if the responsible body loses or withdraws its designation, or otherwise fails or ceases to exist.

The legislation makes provision[5] for the Secretary of State to step in as an interim replacement/custodian, until the Secretary of State appoints a replacement[6], or elects to be the replacement responsible body itself. This is likely to be an option of last resort.

The benefit and burden of the obligations under the conservation covenant will transfer to the Secretary of State, but only in terms of future performance; existing breaches will not transfer.

Whilst it is custodian, the Secretary of State can enforce the obligations of the landowner and exercise any powers conferred on the responsible body under the terms of the specific conservation covenant. However, they will have no liability to perform any obligations imposed on the responsible body under the covenant.

Can a Responsible Body appoint a replacement?

Section 131 enables responsible bodies to appoint a replacement, and to do so unilaterally, unless the terms of the covenant prohibits this.

Accordingly, if a landowner wants to have input into this process, the covenant agreement needs to contain appropriate contractual provisions.

If an appropriate replacement responsible body is identified:

• the transfer of obligations must be effected via a formal deed between the outgoing and incoming party.
• an application must be lodged to amend the land charges register entry for the underlying covenant. The transfer will only have effect once the register entry has been amended.
• The incoming responsible body will take on the benefit and burden of the obligations under the conservation covenant but will not acquire liability in respect of any existing breaches of obligations. The transfer only has effect in relation to future performance.

Conclusion

At the point of writing, some of the key practical details about the process of selecting and confirming Responsible Bodies is awaited, despite the imminent 30 September 2022 implementation date.

As noted above, LPAs may well be the most suitable organisation in many cases, but we are not aware that additional funding will be allocated for this purpose, so quite how they will fulfil the role remains to be seen.

In time, we are likely to see all sorts of other bodies applying – for example environmental charities and organisations and even private trusts and other entities focused on the preservation and maintenance of historic buildings and environmentally vulnerable sites. The challenge will be ensuring that applicant Responsible Bodies are truly suitable, have sufficient financial standing and are not politically motivated or too connected to the development of land.

For more information, please contact Josie Edwards.

Our asset management lawyers act for landlords, tenants, freeholders and leaseholders on the full spectrum of contentious and non-contentious property matters.

The team successfully provides legal services to clients based (and in respect of sites located) across England and Wales, and deals with matters from the routine to complex; low to high value.

We deal with offices, retail and industrial buildings, together with public sector buildings, including some significant estates.

The strength of the team’s expertise, combined with the depth of experience, allows us to give you a lawyer to work with at just the right level to make sure you have the best value from our service.

The Michelmores Planning team, led by Sarah Reardon and supported by David Blakeley, has recently assisted Yelland Quay Limited on its successful appeal to over-turn a decision in respect of the 250 home development at The Waterfront, Yelland Quay, Devon.

The original planning application was dated in 2016 and a decision to reject the application was made in 2021 by the Council. Yelland Quay Limited brought an appeal against the Council’s decision and the appeal was allowed in June 2022.

The land of nearly 40 hectares was previously the site of an operational coal fired power station, although most of the associated buildings were demolished over 30 years ago. The re-development of the brownfield site consists of a nine stage programme spanning around 13 years. The scheme is for 250 new homes in addition to the associated community centre building, restaurants and employment space to serve the local community. The development is estimated to bring £400 million to the local economy and facilitate 840 construction jobs over the lifespan of the project.

Michelmores acted on behalf of Yelland Quay Limited to negotiate with North Devon District Council and Devon County Council to secure the necessary planning obligations for the appeal by way of a S106 Agreement. Among others, the agreement secured key obligations relating to the preservation of ecology, and the creation of green open spaces including play areas in the development.

The Court of Appeal has confirmed the legality of Natural England’s technical guidance to local planning authorities on nutrient neutrality (“Guidance“) in a judgement handed down on 15 July.

Mr Wyatt is the Chairperson of a local residents group which is opposed to the development and he judicially reviewed Fareham Borough Council’s (“Council“) decision to grant planning permission. That application for judicial review failed on all fronts but Mr Wyatt obtained permission to appeal that decision and it was this appeal which was considered by the Court of Appeal.

Given their vested interest Natural England joined the party and made submissions as did the landowners of the proposed development site.

The case concerns a planning application for an eight unit development in the catchment area of the Solent and Southampton Water Special Protection Area (“SPA“).

The Council, as part of the planning process, was required by regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“Habitats Regulations“) to undertake an “appropriate assessment” to ensure that the development would not adversely affect the integrity of the SPA.

Regard was had to the Guidance and a nutrient neutrality budget calculation was carried out. For an explanation of those calculations please see our article.

The case law considered by the Court of Appeal makes it clear that the role of the court is to satisfy itself that the assessment carried out by the Council was lawful and not to undertake an assessment of its own. It is also appropriate for the Council to give significant weight to the advice of an “expert national agency” such as Natural England.

The Habitats Regulations embody the precautionary principle which requires a high standard of investigation but that does not need to establish an absolute certainty of no adverse effects on the SPA. The test is that the Council must be satisfied that there is no reasonable doubt as to the absence of adverse effects on the integrity of the site concerned. The assessment, using the best scientific knowledge in the field is subjective in nature and the issue ultimately rests on the judgment of the Council.

Guidance

The Guidance advocates the calculation of a nutrient budget which calculates the levels of nutrients produced by a development and compares those to the levels generated by the existing lawful use of the site.

The nutrient loss from the existing use is modelled using standard figures (Farmscoper model) for different types of land use such as agricultural, woodland and green space considering the history of the site over the last 10 years.

If this calculation results in a positive figure then some form of mitigation is required to avoid increased levels of nutrients in the SPA and the associated problems of algal blooms etc.

In calculating the nutrient output of a development an average national occupancy rate of dwellings of 2.4 persons was used along with maximum daily water usage of 110 litres per person. A 20% precautionary buffer is then applied.

Since the High Court decision referred to above, Natural England have revised the Guidance but those changes do not impact on the issues before the Court of Appeal.

Mr Wyatt objected to the use of the average national occupancy rate on the basis that the proposed development was of large detatched houses with four or five bedrooms. He also argued that the 20% buffer was an arbitrary figure with no evidential basis.

High Court

The judge was critical of the use of the 2.4 person occupancy rate but did not think it sufficiently unreasonable and that it was in line with the precautionary principle. The reasoning was that there is not a directly proportional link between occupancy and water consumption. Also, the algorithm assumes that the occupants are all inwards migrants to the area and not moving within the locality. The use of the 20% precautionary buffer did not justify judicial intervention as there was room for debate between reasonable scientists.

Court of Appeal

In the leading judgment given by Sir Keith Lindblom, the Senior President of Tribunals, the Court had to determine two questions as to whether the Council had:

1. Failed to comply with the Habitats Regulations; and
2. Complied with its duty under section 38 (6) of the Planning and Compulsory Purchase Act 2004.

Habitats Regulations

Mr Wyatt criticised the judge for accepting the expert evidence from Natural England and argued that the failing status of the SPA meant that a greater degree of certainty was required. The uncertain data meant that the approach should have been that of the “reasonable worst case scenario” which is the approach taken in environmental impact assessments.

The standard occupancy rate was attacked once again and it was argued that the Council should have adopted a bespoke calculation so as to be in accordance with the precautionary principle and based on the best available evidence.

It was also argued that the average figures for agricultural and other land uses were inappropriate as they relied on speculation about future land use and so did not provide the certainty required under regulation 63.

The arbitrary nature of the 20% precautionary buffer was the next target with the main points being that it lacked any evidential basis and could only be sensibly quantified once the inherent uncertainty of the scheme had been calculated.

The court rejected these arguments ruling that the Council had reached an evaluative judgement and the judge had assessed the expert evidence with care. The unfavourable status of the SPA was already acknowledged by the Guidance which the Council relied upon. The judge did not fail to apply the precautionary principle and did not have to assess the “reasonable worst case scenario.” Further, it was open to the Council to rely on the precautionary effect of several factors in the nutrient budget which combined to make the occupancy rate selection acceptable. The reasons aired in the High Court that there is not a directly proportional link between occupancy and water consumption and the algorithm assuming that the occupants are all inwards migrants to the area being cases in point.

The court said that there is no objection in principle to using standard land use figures and the appropriateness of doing so was a matter of judgement for the Council.

On dealing with the buffer figure of 20% the decision was that it does not lack the necessary certainty merely because it is the product of an exercise of judgment as opposed to an arithmetical calculation.

Planning and Compulsory Purchase Act 2004

Section 38 (6) of the 2004 Act requires a planning application to be determined in accordance with the development plan unless material considerations indicate otherwise. The second question to be determined by the court was whether the Council had complied with this requirement.

Broadly the Council had acknowledged that it did not meet the five year housing supply test and that as such development outside defined settlements would be acceptable. The Court accepted that the Council was entitled to conclude that the proposed development was in accordance with the development plan as a whole. That was a matter of judgment when considering two planning policies which pulled in different directions.

Lord Justice Males dissented from the leading judgment on the single issue of the occupancy rate. His view was that the Council’s assessment was not in accordance with the Guidance but the process was lawful because there was a good reason not to follow that procedure.

The reasoning was that the average occupancy rate of 2.4 represents a starting point only and not a mandatory recommendation. Also, for the development in question it was easy to obtain an average occupancy rate for four bedroomed houses (3.14 persons per dwelling) from the same 2011 Census.

The Council also then erred in assuming that the use of the 2.4 average figure was already sufficiently precautionary because it assumes that every occupant of every new dwelling is a new resident of the area. That, the judge determined, is not what the Guidance says.

Also, the Council then mistakenly took the view that the application of the 20% precautionary buffer helps ameliorate the effect of underestimating the total population of the development. Again, this is not a correct application of the methodology. The precautionary buffer is not a substitute for using the best available evidence based occupancy rate. It is an additional protection to be applied after the evidence has been gathered for the nutrient budget and that process has been completed.

However, the question for the Council was not whether it had followed the Guidance methodology but whether it had carried out a sufficient “appropriate assessment” for the purposes of the Habitats Regulations. The Guidance is not mandatory and Natural England said they had no concerns which was a view the Council was entitled to have regard. That was a good reason for departing from the Guidance methodology and so the assessment was lawful.

As a postscript, Males LJ points out that the 2022 updated guidance from Natural England recognises that the average occupancy rate of 2.4 may not be appropriate for certain types of development.

The Government updated its ancient and native woodland policy earlier this year setting out its commitment to recognise and protect the natural capital and cultural value of ancient and native woodlands and ancient and veteran trees in England. But it is not only ancient woodland which is protected in the UK; there are various restrictions and obligations of which landowners should be aware.

Ancient woodlands

Ancient woodlands have taken hundreds of years to establish and are defined as areas of land where there has been a continuous cover of trees since 1600. Not only do they boast beauty and character, but they are also valuable natural assets, which are important for wildlife and biodiversity, having developed complex and irreplaceable ecosystems. As detailed in the policy, ancient trees provide numerous benefits and improve our environment by providing shade, cleaning our air and water, nurturing our soil and wildlife and sequestering carbon.

Comprising only a small percentage of British woodland, the decline of ancient woodlands has been largely down to factors such as pollution, inappropriate management, invasive species, urban development and fragmentation.

Ancient woodlands are subject to varying degrees of protection to manage and conserve their special features. Some sites have a statutory designation as National Nature Reserves, Special Areas of Conservation or Sites of Special Scientific Interest (SSSI). The SSSI designation, for example, requires ancient woodland owners to manage them effectively and appropriately. Consent is likely to be required from Natural England/Forestry Commission before carrying out works of management or changing an existing management regime.

Conservation area

Trees within a conservation area also benefit from protection by the local planning authority (LPA), whose prior consent must be obtained before carrying out work or cutting down a tree. There is a six-week period for the LPA to decide whether the tree or trees in question should be made subject to a Tree Preservation Order (TPO).  It is a criminal offence carry out works on trees, within a conservation area, without giving the proper notice to the LPA, unless the work falls within a limited number of exemptions.

Tree Preservation Order

Where a tree is protected by a TPO, works involving cutting down, uprooting, topping, lopping, wilful damage and/or destruction are prohibited without the LPA’s consent. Any works carried out contrary to a TPO would also be a criminal offence.

All areas

The Forestry Act 1967 provides that a felling licence is required for the felling of any growing trees, unless they fall within a number of exceptions. These include:

• Trees with a diameter of 8cm or less (15cm for coppice or underwood)
• Fruit trees or trees standing or growing in an orchard, garden, churchyard or public open space
• The topping or lopping of trees or trimming/laying of hedges
• Trees with a diameter of 10cm or less where felling required to improve growth of other trees
• Felling for the prevention of danger or abatement of a nuisance
• Felling carried out by an electricity operator due to proximity to electricity lines
• Felling required for development authorised by planning permission

There are also concessions which allow landowners or occupiers to fell small numbers (five cubic metres or less) of trees each quarter without obtaining a felling licence, provided the sale of those trees meets certain limits (two cubic metres or less).

If these rules are breached, Forestry England or Natural Resources Wales can serve a notice, requiring restocking or the remedying of any breach of a felling licence. If this is not followed, they can carry out the restocking or other works themselves and impose fines on the person who fails to comply with the notice. If there is a change of ownership or occupation of the land after the felling and if the previous owner has not complied with the notice served on them, Forestry England or Natural Resources Wales can serve a new notice on the new owner or occupier requiring them to fulfil the terms of the notice instead.

Impact on landowners and occupiers

The updated policy from the Government highlights the ongoing importance of trees and woodlands to our health, wellbeing and environment. Before carrying out any works involving/affecting trees and/or woodland, landowners and occupiers should seek advice to ensure they are complying with their obligations, as there are strict consequences for failing to do so.

Furthermore, any purchasers or new tenants of farms and estates (or landlords taking back holdings from a tenant) should make enquiries regarding the recent felling of any trees and the service of any notices to ensure that they do not find themselves saddled with enforcement action in place of the former owner or tenant.

Adverse possession is a method of acquiring the title to land simply by occupying it without permission. The basic requirement is that a squatter must possess the land exclusively, generally excluding all others from it, and also show an intention to possess it.

Prior to the Land Registration Act 2002 (“LRA 2002”), if a squatter could show adverse possession for a period of 12 years, they could acquire good title to the land.

The LRA 2002, which came into force on 13 October 2003, restricted opportunities for adverse possession significantly. A squatter who wishes to claim adverse possession must now put in an application once ten years of possession without any form of consent has elapsed. At this point H M Land Registry will notify the registered owner, to determine if there is any objection to the claim. Only after the registered owner fails to oppose will the squatter then acquire the title.

Milton Keynes Council v Wilsher and another

Adverse possession can be a tricky field to navigate, sometimes quite literally.

In this recent case, Milton Keynes Council (“Claimant”) acquired title to a farm in Milton Keynes. There were three fields (“Land”) forming part of that farm which adjoined a traveller’s site. Mr Wilsher, (“Defendant”) was a traveller and small livestock farmer, who resided at the traveller’s site. He used the Land for grazing animals.

The Claimant claimed that the Defendant was trespassing on the Land. The Defendant argued that his father obtained legal title by adverse possession for at least 12 years before 13 October 2003, and that he had succeeded to the title. He also put forward a second argument based upon proprietary estoppel, but that argument is not considered within this article.

The Defendant was able to show that both he and his father exercised a good degree of control over the land:

• A number of witnesses confirmed that he and his father had grazed horses over the Land for a significant period of time
• He was able the show that his father had installed a concrete bridge on the Land, through the course of his own recollection during cross-examination.
• A worker, Mr O’Brien, conducted significant work on the Land, and was given permission to camp there by the Defendant’s father.
• He installed a locked gate and erected a “Private Property” sign. Whilst this took place towards the end of the period of twelve years leading up to October 2003, the Judge found it showed a continuing approach to the Land by the Defendant, following on from his father.
• A wake for the Defendant’s father was held on the Land in 2004, and whilst this fell outside the relevant period, the judge found that it showed the Defendant exercising a degree of physical control that would be expected by the owner, and the attitude he had towards the Land.

As a result of the various factors above, the Judge held that the Defendant had satisfied the requirements for adverse possession, possessing the Land with his father from at least 1990, and excluding others from it.

Lessons learned

Even though the Land Registration Act came into force almost 20 years ago, curbing fresh claims for adverse possession, Milton Keynes Council v Wilsher highlights how it can be combined with succession of title in order to succeed.

Landowners should be alive to any activity occurring on their land, especially if it has carried on for significant periods of time unchecked.

When purchasing land, a buyer should beware of anyone using any part of that land, and make sufficient enquiries so as to satisfy themselves there is no dispute as to possession. If in doubt, it is advisable to seek title indemnity insurance, which covers potential adverse possession claims.

For more information, please contract Adrian Bennett.