Michelmores respects your privacy and is committed to protecting personal data. This privacy policy will inform you as to how we look after your personal data when you visit our website www.michelmores.com (regardless of where you visit it from), when you become a client, purchase our legal services, when you visit our premises or when you otherwise contact us. It will also tell you about your privacy rights and how the law protects you.

References to “you” or “your” include to you as an individual using our services where you are an employee, representative, agent or contractor representing a business or organisation that is our client.

1 Important Information

It is important that this privacy policy is read together with any other privacy policy or fair processing notice we may provide on specific occasions when we are collecting or processing personal data, so that you are fully aware of how and why we are using your data. This privacy policy supplements the other notices and is not intended to override them.

This version was last updated on 28 February 2023 and last reviewed on 28 February 2023.

It is important that the personal data we hold about you is accurate and current. You should keep us informed if your personal data changes during your relationship with us.

Our website may include links to third-party websites, plug-ins and applications. Clicking on those links or enabling those connections may allow third parties to collect or share data about you. We do not control these third-party websites and are not responsible for their privacy statements. When leaving our website, we encourage you to read the privacy policy of every website you visit.

Personal data, or personal information, means any information about an individual from which that person can be identified. It does not include data where the identity has been removed (anonymous data).

2 Who We Are

We are Michelmores LLP, a limited liability partnership, authorised and regulated by the Solicitors Regulatory Authority and registered in England and Wales under partnership number OC326242. Our registered office is Woodwater House, Pynes Hill, Exeter EX2 5WR. Michelmores is the controller and responsible for your personal data (referred to as “Michelmores”, “the firm”, “we”, “us” or “our” in this privacy policy.)

Michelmores provides legal services to a wide range of businesses, other organisations and individuals. We are bound by applicable data protection laws in respect of the handling and collection of your personal data. Michelmores is registered as a data controller in England and Wales, with the Information Commissioner’s Office (ICO) under the ICO number Z5749328.

If you have any questions about this privacy policy, including any requests to exercise legal rights, please contact us using the contact details in section 13.

3 Basis for Processing Personal Data

3.1 Paragraphs 3.2 – 3.10 below explain how and why we process your personal data, as well as the legal basis on which we carry out this processing.

3.2 To enter into and perform contracts with you: Where you ask us to provide services, we will process your personal data so that we can deliver these services to you. We may also use your information to notify you about important changes or developments to our services and to contact you for your views on our services. The legal basis on which we process your personal data in this way is the necessity to be able to enter into and perform the contract for the supply of services you have requested from us. If you do not wish to provide us with your personal data in this way, you will be unable to use our services.

3.3 To check your identity: In accordance with money laundering regulations and in order to carry out credit reference checks, we may be required to undertake checks on your identity. To do so, we will process your personal data. The legal basis on which we process your personal data in this way is the necessity for us to comply with legal obligations.

3.4 To provide services to others: Where you have provided personal data about another person (for example, where you request legal services on behalf of someone else whilst acting in the capacity of that other person’s attorney, parent or legal guardian), we need to process such personal data in order to provide these services to the other person or people. We need to process their personal data in this way to be able to provide them with the services you have requested for them from us. The legal basis on which we process their personal data in these circumstances is our legitimate interest to provide the person you have identified with the services you have requested.

3.5 To make our website better: We also use various cookies to help us improve our website (more details are set out in section 6), and may share aggregate data on the usage of our site with third parties (including third party analytics and search engine providers that assist us in the improvement and optimisation of our website), but this will not include data that can be used to identify you.

We will also process your personal data for the purposes of making our website more secure, and to administer our website and for internal operations, including troubleshooting, data analysis, testing, research, statistical and survey purposes.

The legal basis on which we process your personal data in these circumstances is our legitimate interest to provide you with the best client experience we can, and to ensure that our website is kept secure.

The use of any non-essential cookies is subject to your consent. You can also prevent us from using your personal data in this way by contacting us (please see section 13) or using the ‘do not track’ functionality in your internet browser. If you enable such ‘do not track’ functionality, our website may be less tailored to your needs and preferences.

3.6 To provide client services to you: We may process your personal data in order to provide various supporting client services to you (such as where you contact us with a question in connection with a service and/or request certain information from us). The legal basis on which we process your personal data in these circumstances is the legitimate interests of both us and our clients. If you do not provide us with the personal data we request from you for client services purposes, we may not be able to fully answer your queries.

3.7 For marketing purposes: Where you have expressly opted in to receive marketing communications from us, we will process your personal data to provide you with direct marketing communications in line with the preferences you have provided. The legal basis on which we process your personal data is your consent.

We may also contact you when you have instructed us previously and where we believe there are additional services that may be of interest to you or where there have been legal changes that may affect you. The legal basis on which we will use your personal data is our legitimate interest in providing you access to a complete legal service.

You are not under any obligation to provide us with your personal data for marketing purposes, and you can withdraw your consent to your personal data being processed in this way or opt out from receiving marketing at any time by contacting us (please see section 13) or, where relevant, by following the unsubscribe link in every marketing communication you receive from us. If you do choose to withdraw your consent or opt out, this will not mean that our processing of your personal data before you withdrew your consent was unlawful.

3.8 For prospecting: In a business-to-business context we may make contact with individuals to provide or seek information in connection with our services. The legal basis we rely on for making contact with individuals and processing their personal data is our shared legitimate interests in doing business together. When we make contact with individuals, they can exercise their right to object to such contact from us (for more information about individuals’ rights, see section 11).

3.9 If our business is sold: We will transfer your personal data to a third party:

3.9.1 in the event that we sell or buy any business or assets, in which case we will disclose your personal data to the prospective seller or buyer of such business or assets (at all times in accordance with all applicable data protection laws); or

3.9.2 if Michelmores or substantially all of its assets are acquired by a third party, in which case personal data held by Michelmores about its clients (including those individuals who work for an on behalf of our clients) will be one of the assets transferred to the purchaser,

in each case, the legal basis on which we process your data in these circumstances is our legitimate interest to ensure our business can be continued by a purchaser. If you object to our use of personal data in this way, the relevant seller or buyer of our business may not be able to provide services to you.

3.10 In certain circumstances we may also need to share your personal data if we are under a duty to disclose or share personal data in order to comply with any legal obligation.

4 Categories of Information we collect from you 

4.1 We will collect and process the following personal data about you:

4.2 Information you give us: This is information about you that you give us by filling in forms on our website, registering for an event or seminar or by corresponding with us by phone, email, letter or otherwise. It includes information you provide when you register on our website, participate in our social media, post messages on our website and report a problem with our website. The information you give us may include names, addresses, email addresses and phone numbers.

4.3 Information we collect about you: With regard to each of your visits to our website we will automatically collect the following information:

4.3.1 technical information, including the Internet protocol (IP) address used to connect your computer to the internet, your login information, browser type and version, time zone setting, browser plug-in types and versions, screen resolution, operating system and platform; and

4.3.2 information about your visit, including the full Uniform Resource Locators (URL), clickstream to, through and from our website (including date and time), page response times, download errors, length of visits to certain pages, page interaction information (such as scrolling, clicks, and mouse-overs) and methods used to browse away from the page.

A number of our offices are protected by CCTV. We also collect information relating to office visits in our meeting booking software. As such, your personal data may be recorded by us when you visit our premises. Our CCTV policy provides more information about our use of CCTV.

4.4 Information we receive from other sources: We may receive information about you:

4.4.1 when you use our site. We are also working closely with third parties (such as business partners, sub-contractors, advertising networks, analytics providers, hosting providers and search information providers) from whom we may also receive information about you;

4.4.2 from third parties as part of any potential or actual purchase of a property, including sales agents;

4.4.3 from our identity, anti-money laundering and / or credit checking providers.

4.5 We may process special categories of personal data, meaning personal data revealing:

4.5.1 racial or ethnic origin;

4.5.2 political opinions;

4.5.3 religious or philosophical beliefs or trade union membership;

4.5.4 genetic or biometric data that uniquely identifies you;

4.5.5 data concerning your health, sex life or sexual orientation; or
We will only do so (1) with your explicit consent; (2) where the processing is required by law; or (3) where the processing is necessary for the establishment, exercise or defence of legal claims.

4.6 We do not collect data relating to criminal convictions or offences or related security measures unless legally obliged to do so, in other limited circumstances in connection with legal advice or where our CCTV recordings contain evidence of criminal activity.

5 Categories of Recipients of Personal Data

5.1 The details in our privacy policy relating to third parties other than Michelmores are for your information only. We are not responsible for the privacy policies or practices of third party recipients of your personal data. Where third parties are recipients of your personal data from us, please ensure that you read any information those third parties provide you about how, why and the legal basis for, their processing of your personal data and make your own enquiries in respect of them.

5.2 Your personal data may be shared by us with external third parties for the purposes set out in section 3. Section 5.3 below details our main third party recipients of personal data.

5.3 Your personal data may be shared by us with external third parties who provide support integral to the provision of our services and enable us to operate our business. These include:

• Service providers or consultants acting as processors based in the UK who provide IT, marketing, software and system administration services, who onboard clients digitally or who otherwise protect the security or integrity of our business.
• Various cloud service providers.
• Suppliers who provide email marketing, our CRM system, meeting booking software in the event you are scheduled to attend a meeting at our offices, out of hours and overflow client assistance or external IT support.
• Payment processors.
• Professional advisers acting as processors or joint controllers including lawyers, barristers, mediators, arbitrators, bankers, auditors, insurers and employment and recruitment agencies based in the UK (or other relevant jurisdictions) who provide consultancy, banking, legal, insurance, accounting and recruitment services.
• Companies providing identity, anti-money laundering and / or credit checks.
• HM Revenue & Customs, regulators and other authorities acting as processors or joint controllers based in the UK (or other relevant jurisdictions) who require reporting of processing activities in certain circumstances.
• Law enforcement bodies and emergency services where the CCTV recordings we make contain evidence of criminal activity, accidents or fire.
• Third parties who provide staff screening and identification services in relation to prospective Michelmores employees, officers and contractors.
• Other third party companies where we have an agreement in place and only where you have agreed that we may share their personal data with them.

5.4 If we are instructed by a client to transfer their file to another legal adviser, we will do so in accordance with our policies for secure transfer of files.

6 Cookies

6.1 Our website uses cookies to distinguish you from other users of our website. This helps us to provide you with a good experience when you browse our website and also allows us to improve our website. By continuing to browse the website, users are agreeing to our use of cookies.

6.2 A cookie is a small file of letters and numbers that we store on your browser or the hard drive of your computer. We only use (and store) non-essential cookies on your computer’s browser or hard drive if you provide your consent.

6.3 Please note that third parties (including, for example, advertising networks and providers of external services like web traffic analysis services) may also use cookies, over which we have no control. These cookies are likely to be analytical/performance cookies or targeting cookies.

6.4 You can block cookies by activating the setting on your browser that allows you to refuse the setting of all or some cookies. However, if you use your browser settings to block all cookies (including essential cookies) they may not be able to access all or parts of our website.

6.5 Please see our full Cookie Policy for more information on the cookies we use. Except for essential cookies, all cookies will expire as outlined in the Cookie Policy.

7 Uses made of the Information

7.1 We will combine the information you provide to us with information we collect about you. We will use this information and the combined information for the purposes set out above (depending on the types of information we receive).

7.2 The transmission of information via the internet is not completely secure. Although we will do our best to protect your personal data, we cannot guarantee the security of your data transmitted to our website; any transmission is at your own risk. Once we have received your information, we will use strict procedures and security features to try to prevent unauthorised access.

8 Where we store Personal Data

8.1 Our clients or individuals who access our website may be based outside the United Kingdom so the processing of their personal data will involve the transfer and storage of data outside the United Kingdom. Some of our suppliers are based outside the United Kingdom. For example, in the European Economic Area (EEA) so their processing of your personal data will involve a transfer of data outside the United Kingdom.

8.2 Whenever we transfer personal data out of the United Kingdom, we ensure a similar degree of protection is afforded to it by ensuring at least one of the following safeguards is implemented:

8.2.1 We will only transfer personal data to countries covered by UK adequacy regulations. This is currently countries in the EEA, Gibraltar, countries that are deemed to provide an adequate level of protection for personal data by the European Commission and EU or EEA institutions, bodies, offices or agencies.

8.2.2 Where we use certain service providers outside the United Kingdom, we may use specific contracts approved for use in the United Kingdom which give personal data the same protection it has in the United Kingdom.

8.3 If further information on the specific mechanism used by us when transferring your personal data out of the combined area of the United Kingdom and EEA is required please contact us directly (please see section 13).

8.4 All information you provide to us is stored on secure servers. Where we have given you (or where you have chosen) a password which enables you to access certain parts of our website, you are responsible for keeping this password confidential. You must not share your password with anyone.

9 Data Security

9.1 We have put in place appropriate security measures to prevent personal data from being accidentally lost, used or accessed in an unauthorised way, altered or disclosed. Any personal data we store (including payment transactions) will be stored encrypted at rest and via SSL technology during transfer. We have ISO27001, ISO9001 and Cyber Essentials Plus certifications. In addition, we limit access to your personal data to those employees, agents, contractors and other third parties who have a business need to know. They will only process personal data on our instructions and they are subject to a duty of confidentiality.

10 Data Retention

10.1 Where you use our services, we will retain your data for a period of up to twelve (12) years, after the services are performed, depending on the type, to ensure that we are able to assist you should you have any questions or feedback in relation to our services, or to protect, or defend our legal rights. Where our services consist of property related work, we will retain your data for a period of twelve (12) years. Where our services consist of wills related work, we will retain your data until the will is proven.

10.2 Where we have processed your personal data to provide you with marketing communications with your consent, we may contact to ensure you are happy to continue receiving such communications. If you tell us that you no longer wish to receive such communications, your personal data will be removed from our lists.

10.3 Where we have processed your data for any other reason (such as where you have contacted us with a question in connection with our services), subject to section 10.1, we may generally retain your data for up to twelve (12) years and for certain departments a longer retention period may be necessary. Our CCTV policy sets out the retention period for CCTV recordings.

10.4 In some circumstances you can ask us to delete your data: see section 11.1.3 below for further information.

10.5 In some circumstances we may anonymise your personal data (so that it can no longer be associated with you) for research or statistical purposes in which case we may use this information indefinitely without further notice to you.

11 Your Legal Rights

11.1 Under certain circumstances, you have rights under data protection laws in relation to your personal data. You may have the right to:

11.1.1 Request access to your personal data (commonly known as a “data subject access request”). This enables you to receive a copy of the personal data we hold about you and to check that we are lawfully processing it.

11.1.2 Request correction of the personal data that we hold about you. This enables you to have any incomplete or inaccurate data we hold about you corrected, though we may need to verify the accuracy of the new data you provide to us.

11.1.3 Request erasure of your personal data. This enables you to ask us to delete or remove personal data where there is no good reason for us continuing to process it. You also have the right to ask us to delete or remove your personal data where you have successfully exercised your right to object to processing (see below), where we may have processed your information unlawfully or where we are required to erase your personal data to comply with local law. Note, however, that we may not always be able to comply with your request of erasure for specific legal reasons which will be notified to you, if applicable, at the time of your request.

11.1.4 Object to processing of your personal data where we are relying on a legitimate interest (or those of a third party) and there is something about your particular situation which makes you want to object to processing on this ground as you feel it impacts on your fundamental rights and freedoms. You also have the right to object where we are processing your personal data for direct marketing purposes. In some cases, we may demonstrate that we have compelling legitimate grounds to process your information which override your rights and freedoms.

11.1.5 Request restriction of processing of your personal data. This enables you to ask us to suspend the processing of your personal data in the following scenarios: (a) if you want us to establish the data’s accuracy; (b) where our use of the data is unlawful but you do not want us to erase it; (c) where you need us to hold the data even if we no longer require it as you need it to establish, exercise or defend legal claims; or (d) you have objected to our use of your data but we need to verify whether we have overriding legitimate grounds to use it.

11.1.6 Request the transfer of your personal data to you or to a third party. We will provide to you, or a third party you have chosen, your personal data in a structured, commonly used, machine-readable format. Note that this right only applies to automated information which you initially provided consent for us to use or where we used the information to perform a contract with you.

11.1.7 Withdraw consent at any time where we are relying on consent to process your personal data. However, this will not affect the lawfulness of any processing carried out before you withdrew your consent. If you withdraw your consent, we may not be able to provide certain products or services to you. We will advise you if this is the case at the time you withdraw your consent.

If you wish to exercise any of the rights set out above, please contact us directly.

You have the right to make a complaint at any time to the ICO, the UK supervisory authority for data protection issues (www.ico.org.uk). We would, however, appreciate the chance to deal with concerns before you approach the ICO so please contact us in the first instance.

11.2 No fee usually required

You will not have to pay a fee to access your personal data (or to exercise any of your other rights). However, we may charge a reasonable fee if your request is clearly unfounded, repetitive or excessive. Alternatively, we may refuse to comply with your request in these circumstances.

11.3 What we may need from you

We may need to request specific information from you to help us confirm your identity and ensure your right to access personal data (or to exercise any of your other rights). This is a security measure to ensure that personal data is not disclosed to any person who has no right to receive it. We may also contact you to ask for further information in relation to your request to speed up our response.

11.4 Time limit to respond

We try to respond to all legitimate requests within one month. Occasionally it may take us longer than a month if your request is particularly complex or you have made a number of requests. In this case, we will notify you and keep you updated.

12 Changes to Our Privacy Policy 

Any changes we make to our privacy policy in the future will be posted on this webpage and, where appropriate, notified to you by email. Please check back frequently to see any updates or changes to our privacy policy.

13 Contact

Questions, comments and requests regarding this privacy policy are welcomed.

Our full details are:

Full name of legal entity: Michelmores LLP

Partnership Number: OC326242

Email Address: service@michelmores.com

Postal Address: Governance & Risk

Michelmores LLP

Woodwater House

Pynes Hill

Exeter EX2 5WR

Telephone Number: +44 (0) 1392 688688

Last Reviewed: 28/02/2023 V#3

Review due: 28/02/2024

Controlled by Head of Governance and Risk

It is often the case that prospective candidates looking to enter the legal sector are inundated with information around possible career opportunities. It is also important to know what exact options are available at the different stages to maximise your chances of succeeding in such a competitive sector.

Michelmores encourages and welcomes applicants who hold a wide range of experience and those who wish to pursue a non-traditional route. I have set out below the specific opportunities we have at the Firm as well as other considerations that a prospective candidate may want to explore.

School leavers

If you would like to pursue an alternative route into a career in law, Michelmores offers an apprenticeship route – the School Leaver Solicitor Programme. This will allow you to become a fully qualified solicitor in 6.5 years and start a career in the legal industry straight from school.

You may also register your interest to apply to one of our two upcoming Insight Sessions on Thursday 19 January and Tuesday 24 January. These will give you an opportunity to hear first-hand from those working at the Firm and get a better sense of our friendly and open culture.

Separately, you may seek out work experience in a range of areas (yes, that weekend part-time job does really matter!) which will enable you to develop several transferrable skills that not only will help you in your future working career but should also be showcased in applications. Michelmores also offers work experience for school students and leavers, more information will be found on our website later this month (January 2023).

First year university student

In addition to the above, you may want to start obtaining legal work experience at this stage. It can seem difficult to obtain legal experience this early on but Michelmores will be launching a work experience programme this month (January 2023). You might not be sure of which areas of law interest you yet and this is a great opportunity to get your foot in quite early on. Further details and dates for this programme will be added to our website shortly.

At this initial stage of your university life, there will also be various activities, clubs and sports that you can partake in alongside your degree. Future employers will see that you are a well-rounded applicant and have other interests outside of law.

Second / third year university student

Further to the opportunities mentioned above, prospective applicants at this stage may have the option to include a year-long industrial placement as part of their degree (usually taking place between the second and third / final year). This is also offered by the Firm and is another great chance to become fully embedded into a team to learn more about the different types of work.

For a more typical route into law, Michelmores continues to offer Vacation Schemes and Training Contracts. Further details can be found here and deadlines for applications are as follows:

• Spring Assessment Day – 31 January 2023
• Summer Assessment Day – 31 May 2023
• Summer Vacation Scheme – 31 January 2023

For Training Contracts, non-law degree applicants may apply in their final year and law degree applicants in their penultimate year. It should be noted that via this route, applicants are to complete the SQE before commencing a training contract with the Firm.

An alternative to the usual Training Contract set out above is to apply for our Graduate Solicitor Apprenticeship. This essentially combines the Training Contract with the added benefit of studying (the SQE) whilst developing your career in one of our practice areas in Private Wealth, Litigation or Real Estate. Both non-law degree and law degree applicants may apply in their final year of study. This will give you the benefit of working, earning and learning at the same time. For more details and FAQs, please see here.

Graduates

As set out above, graduates may also apply for a Vacation Scheme, Training Contract (note that you would start in two years’ time) and the Graduate Solicitor Apprenticeship (to start in the same year).

In addition to the different entry routes into a legal career, you may also consider applying to one of the paralegal roles at Michelmores (as available). Paralegal experience is often invaluable in helping you to shape your decision around areas of interest and further developing your skills. Please have a read of the trainee blog written by Dan O’Sullivan here covering the benefits of acquiring paralegal experience prior to becoming a Trainee Solicitor.

For more information relating to Michelmores’ career offerings please email gradrecruitment@michelmores.com and please see relevant career opportunities here. 

The long-awaited Environment Act 2021 (the “Act”), was hailed by the Environment Secretary as “the most ambitious environmental programme of any country on earth…setting an example for the rest of the world to follow”. But does it live up to the hype?

The Act is broken down into seven key parts:

• Parts 1 and 2: Environmental governance, principles, targets and improvement plans
• Part 3: Waste and resource efficiency
• Part 4: Air quality and environmental recall
• Part 5: Water
• Part 6: Nature and biodiversity
• Part 7: Conservation covenants

PARTS 1 AND 2: Environmental governance, principles, targets and improvement plans

Historically, environmental law, standards and principles have primarily derived from European Union (EU) and International law. With the UK exiting the EU it was essential to introduce a legal framework for environmental governance at UK level.

Environmental principles

The Act transposes five internationally recognised environmental principles into UK legislation:

• the precautionary principle;
• the polluter pays principle;
• the integration principle (ensuring environmental protection is integrated into all areas of decision making);
• the prevention principle; and
• the rectification at source principle.

The principles are notoriously fluid, making them difficult to enforce. In recognition of that, the Act imposes a statutory duty on ministers (but not all) to have “due regard” to the principles when formulating policy and making decisions.

Whilst the integration of the principles is a step in the right direction, further detail is required to ensure that the Act’s aims are achieved. The secondary legislation consultation by DEFRA closed on 11 March 2022 and further details is expected to follow.

Target setting

The Act requires the Sectary of State to set at least one long term target in each of the four key priority areas: air quality; biodiversity; water; and waste. This will be achieved by a set of measures targeted at UK businesses and supply chains.

The Act also targets four key areas for the recovery of habitats. Further, it empowers ministers to set legally binding long-term targets, the progress of which they are required to report to Parliament.

Office for Environmental Protection (OEP) 

A central feature of the Act is the introduction of the Office for Environmental Protection (the “OEP”).

The OEP is independent from government and is, essentially, an environmental watchdog charged with monitoring and reporting on the compliance of government, its agencies and other public bodies in relation to environment laws. In June 2022, the OEP published its strategy and enforcement policy following a consultation in January 2022. The policy emphasises that OEP’s role is to investigate the most serious breaches where it can make the most difference as opposed to investigating every alleged breach.

The OEP also has an enforcement role, which is required to plug the gap of governance in the UK following its exit from the EU and the consequent loss of the enforcement powers of the European Commission. However, the OEP will not replace the Environment Agency, which will continue to regulate private actions.

The Act confers various powers on the OEP against public authorities, including information notices, decision notices and the ability to apply to the Court for an “Environmental Review” or Judicial Review.

Some businesses may seize the opportunity to level the playing field by whistle-blowing to the OEP on competitors that have previously secured market advantages by cutting corners.

PART 3 – Waste and resource efficiency

The Act has far-reaching implications to the way in which waste is dealt with. This is in line with both the ambition to have more circular economy and the UK’s 25-year plan to improve the natural environment by eliminating avoidable plastic waste by the end of 2042.

New powers are introduced, and existing legislation amended (for example the Environment Act 1995 and the Environmental Protection Act 1990), to ensure that the new commitments in the Resources and Waste Strategy are delivered.

The highlights from Part 3 of the Act include:

• The Act makes it clear that producer responsibility includes an obligation to reduce waste, including food waste;
• The Act introduces charges for any single-use plastic item and efficiency standards for non-energy related products;
• Producer responsibility has been extended by requiring producers to pay the full net costs of managing their products at ‘end of life’;
• The Act introduces the standardisation of waste and recycling across local authorities, stipulating specific materials that must be collected individually from households and businesses, including food waste;
• The Act introduces deposit return schemes (DRS): an initiative where consumers pay a deposit when purchasing an item, which is then redeemed on return of the used item; and
• The Act introduces electronic waste tracking with ambition of deterring waste crime.

It has not been confirmed what changes will be made and when they will take effect. The Act simply provides that national authorities may make regulations relating to the above.

PART 4 – Air quality and environmental recall 

The Act aims to deliver cleaner air by requiring the government to set targets on air quality and by updating its National Air Quality Strategy. The Act set a legally binding duty on the government to bring forward at least two new air quality targets by 31 October 2022. However, the government failed to meet that deadline. No targets have been set within the Act itself.

Local Authorities are required to work more cohesively to tackle air quality issues and action plans are required where local air is in breach of air quality standards.

The Secretary of State has the power to make regulations for the recall of products if they do not comply with environmental standards, for example ensuring that vehicle manufacturers recall vehicles if they do not comply with environmental standards.

PART 5 – Water

The Act clamps down on water companies that discharge sewage into rivers, waterways and coastlines.

A new duty is enshrined in law providing that water companies must secure a reduction in the adverse impacts of discharges from storm overflows.

The Act imposed a requirement on government to publish a plan to reduce sewage discharges from storm overflows by September 2022 and report to Parliament on the progress towards implementing that plan. The plan was published on 26 August 2022.

PART 6 – Biodiversity

Part 6 of the Act introduces a mandatory minimum 10% biodiversity net gain requirement for all new developments that are subject to the Town and Country Planning Act 1990. A biodiversity net gain plan must be established and approved at the planning application stage. Developers must established and approved at the planning application stage. Developers must establish that at least a 10% gain in biodiversity value will be achieved.

From 2025, it is also expected that biodiversity net gain requirements will begin to apply to Nationally Significant Infrastructure Projects.

The duty of public authorities to have regard for the conservation of biodiversity under the Natural Environment and Rural Communities Act 2006 extends to both conserving and enhancing. The Act introduces the folowing:

• Local Nature Recovery Strategies to support a Nature Recovery Network
• Duty upon Local Authorities to consult on street tree felling
• The strengthening of woodland protection enforcement measures
• Conservation Covenants
• Protected Site Strategies and Species Conservation Strategies to support the design and delivery of strategic approaches to deliver better outcomes for nature
• The prohibiting of larger UK businesses from using commodities associated with wide-scale deforestation
• That regulated businesses are required to establish a system of due diligence for each regulated commodity used in their supply chain and report on due diligence.

Currently, the Act only restricts forest risk commodities that are produced illegally under producer country laws. There is a concern that this does not capture global tropical deforestation, if considered legal under certain producer countries’ laws. Countries that water down protections for forests therefore have the potential to undermine the very purpose of the Act as it could result in the UK’s supply chains being linked to on-going global deforestation, despite the Act’s ambition to clamp down on it.

PART 7 – Conservation covenants

The Act introduces conservation covenants: private, voluntary agreements between landowners and a responsible body such as a conservation agency or public body which are intended to provide conservation for the natural environment and assets for the public good.

The agreements can bind successors of the land so have the potential to deliver long-term benefits.

Conservation covenants came into existence as a legal structure on 30 September 2022.

Looking forward

The Environment Act 2021 (Commencement No.3) Regulations 2022 was published on 13 May 2022 to bring into force provisions of the Environment Act 2021. This is the third set of commencement regulations issued under the Act. Some of these provisions came into force on 10 May 2022 and some on 30 September 2022.

The provisions that came into force in September to be aware of include:

• Section 109 establishes species conservation strategies and requires local planning authorities, as well as any other public authority specified in regulations, to work with Natural England to develop and implement a strategy, as well as to consider any relevant strategy as they carry out their functions.
• Section 111 modifies that Wildlife and Countryside Act 1981 licensing scheme to be complaint with the requirements of the Conservation of Habitats and Species Regulations 2017.
• Section 116 and Schedule 17 are being introduced to make rules that would impose restrictions on designated firms who use forest risk commodities in their UK commercial activity.

The government are also expected to publish various plans and reports in the upcoming year covering topics such as air quality and the reduction of sewage discharges from storm overflows.

Keep an eye out for future articles providing updates as the implementation of the Environment Act 2021 continues.

This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.

As a trainee you will be given the opportunity to be involved in many different departments at Michelmores. I have thoroughly enjoyed my time in Projects, Corporate, and my current seat in Employment.

Some trainees may find that as they edge towards the end of each seat, they have acquired the knowledge and confidence to succeed within their team. However, this is sometimes replaced by apprehension and uncertainty as they approach a new seat. Each seat brings with it new challenges as well as the opportunity to develop your skillset. As I approach my final seat in my training contract, I have started to reflect upon what I have learnt and what my goals are as I approach qualification.

Reflections

• Communication skills

In each seat, I have learnt the value of communication skills. This applies both to clients and colleagues. Many clients will be busy with their day-to-day jobs, and it is helpful to give them clear information or questions to ensure they can prioritise urgent queries relating to current transactions or matters.

To work well with others, it is necessary to be able to communicate effectively. Many of your colleagues will be busy with their own workload, so you should aim to ask any questions clearly and be conscious of their time. You should be able to articulate any problems you may have. During my training, I tried to consider solutions rather than solely noticing a problem.

• Networking, networking, networking

I have attended various events at the Firm. Some notable highlights include attending a client site visit, the Litigators’ Conference in Bristol with other members of the Firm, and the business department away day at Kenton Park Estate, sampling different cakes, scones, and wine.

As a trainee you should start to build these networks internally and externally. I have found that the nervousness of changing seats has been reduced by getting to know colleagues in different teams at events around the Firm. At Michelmores, you will be trained in building your personal brand which will help with your progression towards becoming a qualified solicitor.

• Collaboration

I have enjoyed working in different teams on projects. I have also enjoyed working with colleagues in support of internal events. Last year, I worked with a fellow trainee to organise the Michelmores Wellbeing Spectacular to encourage everyone to get outside and be active. Recently, I organised the Trainee Winter Social with another trainee where we will be meeting up to attend a cocktail and mocktail masterclass. I look forward to future events, as these are a great way to get to know other members of the Firm.

• Wellbeing

Michelmores is very supportive of wellbeing in the workplace. The Firm’s charity of the year is the Charlie Waller Trust, and we recently hosted the Michelmores 5k Charity Run raising over £22,000. The Firm also organised an internal charity football sweep stake for the Charlie Waller Trust. I have attended training on mental health and wellbeing and workshops on building resilience in the workplace. Michelmores recently received accreditation for the City Mental Health Alliance Thriving at Work framework. This will underpin and inform the Firm’s wellbeing strategy to create a healthy workplace.

I find exercise helps me manage my wellbeing. There are some beautiful walks and runs outside of the Exeter office, and I find getting outside during my lunch break or after work invigorates me for the rest of the day. The Exeter office also provides free exercise classes and has an on-site gym.

Introduction

The Court considered the legal and commercial context in which the relevant documentation was agreed when it held that there was no real dispute over a debt which arose under a letter of credit entered into by a trade finance company.

Background

A was a German based fabric manufacturer, who agreed to sell an order of fabrics to B (a company based in the United Arab Emirates). C provided an irrevocable letter of credit (“Letter of Credit”) to A as an economic guarantee for payment of the order. The letter of credit incorporated the Uniform Customs and Practice for Documentary Credits, UCP 600, standard terms.

When A did not receive payment from B, A’s bank presented the documents to C to enforce the Letter of Credit and seek payment from C. C then asserted that the documents were not compliant as they had not been “signed by all sides of the Letter of Credit”. C continued to deny liability under the Letter of Credit.

A served a statutory demand on C relating to non-payment under the Letter of Credit. A winding up petition followed.

Issues

C sought to oppose the winding up on the basis that the liability under the Letter of Credit was disputed.

The key issues allegedly in dispute were:

1. Whether C was the issuer of the Letter of Credit or whether it was in fact its parent company.
2. Whether the Letter of Credit was compliant or discrepant. In determining this, the court would need to assess what was meant by “signed by all sides of the Letter of Credit”.
3. Whether C’s normal credit terms were incorporated into the Letter of Credit, and if so, what their effect would be?

As these points were raised in response to the petition, the issue before the Court was whether the debt on which the petition was based substantially disputed in good faith.

Decision

The Court found that there was no real or substantial dispute and accordingly the petition was successful. The Court’s decision was based on the following findings.

1. Clear evidence before the Court showed that C was the issuer of the Letter of Credit (C was referred to throughout as the issuer and its parent was referred to only in its capacity as B’s bank);
2. The Letter of Credit was compliant, because “signed by all sides of the Letter of Credit” could not be read as requiring C to sign as a party.  The latter interpretation would make the letter of credit revocable (not irrevocable) which did not fit with the commercial purpose of the transaction.
3. C’s normal credit terms were not incorporated. The normal credit terms would have represented a departure from UCP 600 and would have fundamentally changed the nature of the agreement.  Such terms would have required clear notice to have been given, which it was not.

Conclusion

It will be well known to many of our readers that the evidential threshold required in order to satisfy the Court that a debt is disputed on substantial grounds is low.  This case is specific in its facts but highlights the type of circumstances in which a Court will be content to hold that a dispute does not have the requisite substance.  It also serves as a reminder that a contractual agreement should be carefully drafted, especially where one or other party seeks to introduce unusual terms.

This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.

Michelmores’ Commercial team has advised client South West Grid for Learning Trust (SWGfL) on its recent partnerships with TikTok and Bumble as the two platforms join StopNCII.org as industry partners.

A website and tool for reporting non-consensual intimate image abuse, StopNCII.org was set up and is operated by SWGfL. Since its inception in December 2021, the free resource has helped over 12,000 individuals remove and prevent further sharing of intimate images online, including so called ‘revenge porn’. TikTok and Bumble join existing industry partners, Facebook and Instagram, as well as over 70 global NGOs.

StopNCII.org works by creating a unique digital fingerprint (or ‘hash’) from an image using on-device hashing technology – a world-first technology. Duplicate copies of the image all have the same hash value and so when shared with industry partners the hash value can be used to detect and remove the image from the industry partner’s platform. Those at risk or threatened with the abusive use of their images can use the StopNCII.org website to create hashes of their images and, once created, SWGfL shares each hash with its industry partners.

The Michelmores team was led by Technology and Innovation Partner, Tom Torkar with support from Associate Philippa Collison. Of the deal Tom said:

“It was a pleasure to act for SWGfL in its negotiations with new partners TikTok and Bumble. These two platforms add even greater weight to the StopNCII.org campaign, enabling it to help more people to take back control of their images online.” 

David Wright, Chief Executive Officer of SWGfL said:

“StopNCII is an extraordinary application of technology to discharge the catastrophic distress that victims experience when having their intimate images threatened to be posted online. In the UK alone, our Revenge Porn Helpline, supported over 4,400 victims in 2021.  We welcome TikTok and Bumble in integrating StopNCII, joining Facebook and Instagram, to prevent the sharing of these images. Tom and Pip at Michelmores were a vital part of the team agreeing details with TikTok and Bumble to enable their integration”.

The Government has responded to calls from developers to reduce the nutrient neutrality burden, which has been hampering development in some areas of the country. These areas comprise the catchment areas of internationally important and protected watercourses, that have been deemed to be in an unfavourable condition as a result of nitrate and phosphate pollution.

We have explained this nutrient neutrality issue in our previous article Nutrient Neutrality: the basics | Michelmores, which should be read in conjunction with this article.

Upgrading of treatment works

A number of amendments have now been tabled to The Levelling Up and Regeneration Bill (see Levelling-up and Regeneration Bill publications – Parliamentary Bills – UK Parliament), which will see the onus to tackle nutrient neutrality problems switched from developers to the water companies. They will be required to upgrade wastewater treatment works, which discharge into the protected watercourses, to ensure that effluent is within acceptable limits (being not more than 10mg/l for nitrogen and 0.25mg/l for phosphorus). The deadline for upgrading is 1 April 2030.

It is anticipated that these upgrading works will be factored into any Habitats Regulation assessments, thereby reducing or eliminating, in time, the need for additional mitigation through the purchase of nutrient credits or other measures.

Nutrient Credits

Developers have, until now, been tackling this problem by striking deals with private landowners for land to be taken out of agricultural production, thereby creating a number of nitrate and phosphate credits (“Nutrient Credits”). These can then be ascribed to a development, so that nutrient neutrality is maintained.

The Government has made it clear that such private arrangements can continue and will exist alongside a new Nutrient Mitigation Scheme. The emphasis as with other environmental schemes is working together and not crowding out. Private schemes are likely to fulfil an important role in providing Nutrient Credits as the Nutrient Mitigation Scheme is established and thereafter, so as to ensure a competitive market-place.

Nutrient Mitigation Scheme

This new scheme will see DEFRA providing initial funding to establish wetlands and woodlands, which will lead to the creation of “Nutrient Mitigation Credits”, accredited by Natural England. Developers will then be able to purchase these credits. That accreditation will presumably follow the same guidance and calculations already published by Natural England and being used to validate Nutrient Credits from private schemes.

The timetable for implementation looks, by Government standards, to be fairly rapid with the first mitigation sites in the Tees catchment area currently being negotiated. Natural England will invite applications for Nutrient Mitigation Credits from developers in the Tees catchment from March 2023.

Feasibility studies are being conducted in a further five catchments to identify the next tranche of mitigation sites and landowners will be approached from next month to invite them to offer land as potential sites for nutrient mitigation.

Options for developers

So where does this leave a developer with an urgent requirement for Nutrient Credits to progress a planning application? The answer is perhaps to continue with the private deal currently being negotiated. There is the obvious choice of waiting to see if Nutrient Mitigation Credits are cheaper but that may not be an option in urgent cases or considered too much of a risk given the economic headwinds already blowing.

It is worth noting that section 101 (4) of the Environment Act 2021 makes it clear that statutory credits for biodiversity net gain must be priced at such a level so that the registration of land in the biodiversity gain sites register is not discouraged. As this registration is the only way to create a private market for credits, the price of statutory credits will inevitably need to be higher than their private equivalent.

It remains to be seen whether Nutrient Mitigation Credits come with a similar price control mechanism. Regardless of that, however, developers are likely to benefit from the greater competition in the market, which will result from the increased availability of mitigation options, whether they be public or private in nature.

The long-awaited judgment from the Supreme Court in the case of Guest and another v Guest [2022] UKSC 27 was handed down recently. We summarise the key issues and highlight relevant points for farming families and rural practitioners.

In summary, Andrew Guest’s parents had provided their son with assurances for over 30 years that he would inherit a sufficient interest in the farm, which Andrew had relied upon to his detriment for little financial return. The parents then repudiated that assurance and effectively disinherited Andrew. Fuller details are set out in our previous articles (Proprietary Estoppel: Habberfield and Guest confirm the direction of the Courts | Michelmores) on the High Court decision and (Proprietary Estoppel: Two cases – two different outcomes | Michelmores) on the Court of Appeal decision.

Focus on remedy

It had been hoped that the Supreme Court would provide clear guidance on what the Appellants’ barrister referred to as the ‘lively controversy’ about how proprietary estoppel claims should be remedied:

1. by compensating claimants for the detriment they have suffered in reliance on the promise made; or
2. by enforcing the defendant’s promise so as to fulfil the claimant’s expectations.

Some ten months after the hearing, however, the five Justices of the Supreme Court who heard the case could not themselves agree and instead handed down a split judgment on a 3/2 basis.

The outcome

The leading judgment was delivered by Lord Briggs, with whom Lady Arden and Lady Rose agreed. Lord Briggs allowed the appeal in part, determining that the High Court Judge had been correct to award the claimant his expected inheritance, despite that effectively meaning that the farm had to be sold; but that he had been wrong not to apply a discount for the claimant’s early receipt of the award.

The aim of proprietary estoppel

In his judgment, Lord Briggs emphasized that the debate about whether the aim of the remedy is to fulfil the expectation or to compensate for the detriment suffered is ‘misconceived’. Rather, the aim of proprietary estoppel is and always has been to prevent or undo unconscionable (or unfair) conduct. The starting point for the court, once a claimant has successfully established that an estoppel has arisen, should therefore be to enforce the promise.

However, while the court should start with the assumption that the promise should be fulfilled, ‘considerations of practicality, justice between parties and fairness to third parties may call for a reduced or different award.’ Flexibility remains key, and remedies will continue to be fact specific.

Minimum equity

The idea that the appropriate remedy is the one that is cheapest for the promisor – i.e. does the least to satisfy the equity – was rejected. Following a detailed review of the relevant case law, Lord Briggs determined that this oft-quoted dictum from 1976 has developed out of context, and what remains key is that the injustice of the promisor going back on his word is rectified.

Detriment & proportionality

Lord Briggs confirmed that although detriment is a fundamental element in establishing an equity, quantification of the detriment is not relevant when it comes to the remedy. This is welcome news given the difficulties of quantifying detriment where the ‘harm’ suffered by claimants in farming cases like this is often vague, speculative and non-monetary.

The expectation will not always be proportionate to the detriment:

there is nothing in principle unjust in a full enforcement of the promise being worth more than the cost of the detriment, any more than there is in giving specific performance of a contract for the sale of land merely because it is worth more than the price paid for it.

However, Lord Briggs clarified that the remedy should not be ‘out of all proportion to the detriment’ and confirmed the continuing relevance of the proportionality test set out in the 2002 Court of Appeal case of Jennings v Rice. However, this test is only relevant where the detriment can readily be identified and should always be applied with caution.

Accelerated receipt of the promised property

The High Court’s award saw the claimant receive his promised inheritance while his defendant parents were still alive. Lord Briggs determined that in failing to apply a discount, the High Court award had given the claimant more than he was promised and had thus exceeded the ambit of the Court’s discretion.

The Supreme Court held that the correct remedy to avoid unconscionability was either:

• that the claimant receive the awarded sum now but with an appropriate discount applied to take into account the accelerated receipt (to be agreed or determined); or
• the claimant’s share of the farm be held on trust by his parents for their lifetimes.

It was for the parents to choose which of these alternative forms of relief to give, as either would avoid an unconscionable result.

Five Key Points

1. The aim of proprietary estoppel is to prevent or undo unconscionable (or unfair) conduct.
2. The now well-established principles of establishing a proprietary estoppel claim continue to be necessary for a successful claim: i.e. a sufficiently clear promise or assurance of a future interest in property which is relied on to the detriment of the promisee, so that it would be unconscionable for the promisor to later rescind their promise.
3. The starting point for the remedy is the satisfaction of the promise, as it is the going back on that promise which is unconscionable.
4. Each case is fact specific, and there are in practice a variety of relevant factors which may mean that something other than fulfilment of the promise in full is the appropriate remedy.
5. The remedy should not be out of all proportion to the detriment suffered, where that detriment can readily be identified.

The Other View

The dissenting judgment given by Lord Leggett and supported by Lord Stephens demonstrates a fundamentally different approach to proprietary estoppel. The established rules of contract law and the legal requirements for valid transfers of land are clearly preferred to the uncertainty of this ‘potent legal doctrine’. The aim of avoiding an unconscionable result is acknowledged but criticised for failing to provide practical guidance on remedy.

The key difference between the judgments on remedy is Lord Leggett’s view that what should be avoided is the claimant suffering detriment if the promise is not kept. It follows that this can be done either by enforcing the promise or by putting the claimant in the position he would have been in had he not relied on the promise – i.e. by compensating his loss. The correct remedy is whichever of these two options ‘imposes the least burden on the defendant’. Lord Leggett’s conclusion was that he would allow the appeal and give an award based on the detriment suffered by the son in reliance of his parents’ promise.

Summing Up

The fundamentally different approaches and attitudes to proprietary estoppel between the leading and dissenting judgments is evidence of the continued uncertainty over how these cases will be resolved by the courts.

However, it is Lord Briggs’ leading judgment which the lower courts are to follow. There is therefore some clarity in what a potential claimant might expect to receive if he/she can make out a claim successfully. What it means in practice, however, given the broad scope for variations, dependent on the facts of each individual case, is yet to be seen.

Interestingly, there is discussion in both the leading and dissenting judgments about how uncertainty in this area of the law is a potential barrier to constructive settlement discussions between disputing parties. Our experience is the opposite: when the outcome at trial is so unpredictable, our view is that parties should seek to reach their own settlement agreement as early as possible.

In the recent case of Mill Strand Developments Ltd -v – James & Susan Tapp and others [2022] before the Upper Tribunal (Lands Chamber), the Tribunal considered the factors for and against granting an application to modify a restriction under section 84 Law of Property Act 1925 (“1925 Act”).

The case

The case involved a 1.24 acre patch of land adjoining the village of Lower Moor, Pershore in Worcestershire (“Site”). In 1972, the Site was conveyed with a restrictive covenant in favour of the adjoining landowner, the Defendants’ predecessor in title. The restrictive covenant prevented: (1) the construction of buildings on the Site which were not of an agricultural nature and (2) the commission of activity which would be a nuisance to the adjoining landowners or lead to the depreciation in the value of their land.

The applicant, a developer who had secured an option over the Site, was granted outline planning consent in December 2016 for the construction of five detached dwellings on the Site and land to the south of the Site. The applicant’s proposals were objected to by five adjoining landowners.

The agricultural use of the Site had reduced significantly over the years due to increasing residential development in the surrounding area and access issues to the Site. Although there were five objectors, the judgment considered the owners of No.4 Old Manor Close to be the only owner substantially affected by the application.

Legal test

The developer brought its application primarily under the grounds set out in section 84(1)(aa) and (c) of the 1925 Act. These were alternative grounds.

Under s.84(1)(aa), the Tribunal may order the modification of a restriction if it is satisfied that:

1. The continued existence of the restriction would impede a reasonable use of the Site for public or private purposes or would do so unless it was modified;
2. The restriction did not secure any practical benefits ‘of substantial value or advantage’ to the adjoining landowner or, alternatively, was contrary to the public interest. To determine this, the Tribunal shall consider “the development plan and any declared or ascertainable pattern for the grant or refusal of planning permission in the relevant areas as well as the period at which and context in which the restriction was created or imposed and any other material circumstances” (s.84(1B) of 1925 Act); and
3. Money was adequate compensation for the modification of the restriction.

Under s.84(1)(c), the Tribunal would need to ensure that a modification would not injure the restriction’s beneficiary.

Tribunal’s decision

The Tribunal held that the applicant had satisfied s.84(1)(aa).

First, the proposed use of the Site was a reasonable one and the planning proposals had been subjected to scrutiny through the planning process. All parties had agreed that the restriction would impede the development.

Secondly, although the restriction did secure practical benefits for the owners of No.4 as it protected the setting of No.4 on the edge of the village and prevented the property from being surrounded by residential development, these benefits were not assessed to be ‘substantial’. The Site had changed over the years to ‘scrubby grassland’ and was likely to remain ‘essentially redundant’ for the purposes of agriculture.

Thirdly, money was likely to be adequate compensation and the Tribunal held that £25,000 should cover any disadvantage to the owners of No.4.

Fourthly, the Tribunal noted the practical context. The restrictive covenant was entered into 50 years ago when an agricultural use was still ongoing and when the planning policy framework would have been different. The Tribunal acknowledged the importance of considerations of housing supply and sustainable development on the policies of local authorities.

However, the alternative ground brought by the developer under section 84(1)(c) was not made out. S.84(1)(c) was not satisfied as the modification would cause injury to the owners of No.4. In this case, this had no effect on the final ruling of the Court as the developer had already been successful in establishing that the modification should be made under section 84(1)(aa).

Points for the future

This case provides useful guidance to parties with an interest in open areas of agricultural land adjoining residential settlements who are considering either making or opposing an application for modification of a restrictive covenant on residential development.

S.84(1)(aa) requires the Tribunal to consider the factual context. In particular, issues of local policy, the current use of the land and the pattern of the grant/refusal of planning permissions in the locality will need to be considered.

The recent High Court case of Davies-Gilbert v Goacher [2022] EWHC 969 (Ch) sets out the general principles to be followed when determining whether the refusal of consent by a landowner whose land benefits from a restrictive covenant is unreasonable.

The Facts

The claimant owned a significant area of land in East Sussex (the “Estate”), part (but not all) of which benefitted from a restrictive covenant (“Covenant”). The defendants’ land was burdened by the Covenant.

The Covenant provided as follows:

”… NOT to erect upon any part of the property hereby conveyed any other messuage erection building or wall whatsoever without such previous written licence as aforesaid such licence not to be unreasonably withheld” (emphasis added).

The defendants wanted to construct two detached dwellings on their land. However, the claimant refused to consent to this for two reasons, namely that if the development were to proceed:

1. it would have a detrimental impact on the amenity value of the Estate; and
2. it could threaten the future use and commercial value of the neighbouring land.

A number of considerations contributed to the claimant’s reasons including the:-

• impact of the proposal on his neighbouring land;
• impact on future anticipated use and value of that land;
• impact on the amenity value of the Estate in the locality as a whole; and
• effect on boundary treatment and maintenance.

Despite the claimant’s refusal to consent to the proposal, the defendants proceeded to commence works in the belief that the claimant’s refusal was unreasonable.

The Issue

The main issue in the case for the Court to decide was whether the claimant’s refusal to consent was indeed unreasonable. In arguing that it was not, the defendants essentially claimed (amongst other matters) that the claimant’s decision-making process was flawed for taking into account irrelevant considerations.

Reasonableness – General Principles

In reaching a decision, the Court helpfully distilled a number of general legal principles which can be applied in any given case where the reasonableness of consent under a restrictive covenant is in question.

In summary:-

1. There is no authority to support the proposition that a refusal will be automatically unreasonable if is based on a concern which could be neutralised by imposing a condition.
2. Where a refusal is based on aesthetic grounds, it is insufficient for the proposal to simply not be to one’s taste.
3. The primary finding of fact the Court must make in a case like this is the actual reason or reasons (at the time of the refusal) which resulted in the covenantee refusing consent.
4. There was no magic in use of the word “reasons” in case law. However, reasons and considerations were not the same thing. The latter category is potentially a broader category than the former.
5. The process of reaching a decision and the reason itself must be reasonable applying the two-limb test comprised in the “Wednesbury principle”.
6. It will be unreasonable for a covenantee to refuse consent for the purpose of achieving a collateral or uncovenanted advantage.
7. As part of a reasonable decision-making process, a decision maker must exclude extraneous/irrelevant considerations whilst taking into account relevant considerations. However, not all decisions will be automatically rendered unreasonable as a result of an irrelevant consideration being taken into account. That will depend on whether the consideration contributed to/influenced the reason – as considerations can be given a “zero-weighting”.
8. Where there is a refusal for a mixture of good and bad reasons, the refusal would still be reasonable if there was at least one “free-standing” good reason and the decision would have been the same absent the bad reasons.

Reasonableness – the Claimant’s refusal

Applying those principles to the claimant’s refusal, the Court held:

• The first reason for refusal of consent was not reasonable.

Amongst other matters, it took into account the impact of the proposal on the Estate (which included non-benefitted land) – an irrelevant consideration. Covenantees are not entitled to take account of matters that did not affect the benefitted land. Applying the above legal principles, as irrelevant considerations contributed to the first reason, that reason was unreasonable (or a “bad” decision).

• The second reason was, however, reasonable.

That reason considered the effect of the scheme on the future use and commercial value of neighbouring land (which did benefit from the Covenant). That was a “free standing” reason not influenced by any irrelevant considerations. The Court concluded the claimant had followed a reasonable decision-making process and reached a reasonable conclusion (i.e. a “good” decision).

Overall, therefore, the claimant’s refusal of consent was reasonable. The claimant was awarded a declaration to that effect and injunctive relief (or such undertaking in lieu).

Comment

This case serves not only as a useful summary of the existing legal principles applicable to qualified covenants and dealing with reasonable decision-making – it also helpfully clarifies the approach to be taken with the concept of “irrelevant considerations” in the field of restrictive covenants.

For anyone advising in connection with applications for consent under covenants, this case will emphasise the importance of scrutinising not only the principle headline reasons for a refusal, but also the underlying considerations which may have influenced those. If challenged, those considerations will be of utmost importance for determining whether a decision is reasonable. It is therefore better to grapple with those at the outset.

A refusal will still be reasonable provided there is one “good” free-standing reason. From a practical perspective, the case therefore also highlights the benefit of giving several reasons for refusal.

The Judge in this case particularly welcomed the opportunity to undertake a site visit which the Judge comments had inevitably influenced the Court’s findings. Those advising in this area might also seek to introduce the same where appropriate to give greater context to the subject matter.

The principles in the case are likely to be relevant whether dealing with freehold or leasehold property.

A recent High Court decision (R(Harris) v Environment Agency & Natural England [2022]) has confirmed that European conservation laws remain enforceable despite Brexit.

The case

The claimants sought to challenge by judicial review both the legality and rationality of a decision taken by the Environment Agency in relation to its management of water abstraction licences in the Norfolk Broads.

The EA has a duty to promote the conservation of flora and fauna that are dependent on an aquatic environment. It is also responsible for granting, revoking and varying licences for the abstraction of water; in the Broads, such licences are chiefly for agriculture. The Broads is one of the driest parts of the country, and the claimants – themselves farmers on the Broads – were concerned that water abstraction was causing irremediable damage to the environment, including to ecosystems that were legally protected under European Law.

Specifically, this case was brought against the EA’s decision to limit a programme undertaken to review the impact of water abstraction on the Broads to just three of the 28 individual SSSIs which together make up The Broads Special Area of Conservation (”SAC”).  The claimants’ case also applied to the 25 SSSIs which make up the Broadlands Special Protection Area for birds and the Broadland Ramsar site, both of which are also protected under article 6 of the EU Habitats Directive (92/43/EEC) (“Habitats Directive”), but the Judge determined that it was sufficient to focus on the SAC to resolve the claim.

The disputed programme – known as the Restoring Sustainable Abstraction Programme – began in 1999, and was intended to identify, investigate and resolve environmental damage caused by unsustainable water abstraction. By 2012, approximately 500 sites had been identified across the country as being at risk, at which point the EA decided to close the programme to new sites to enable it to take action.

Key points

The key points in dispute included:

1. The meaning of the obligation under regulation 9(3) of The Conservation of Habitats and Species Regulations 2017(“Habitats Regulations”), to “have regard” to the requirements of the Habitats Directive; and
2. Whether article 6(2) of the Habitats Directive was otherwise enforceable by the UK courts.

In summary, where an activity is known to pose a risk to the environment, article 6(2) imposes a requirement for proactive measures to be taken to prevent harm occurring.

Duty to “have regard”

The Judge (Johnson J) did not agree with the claimants’ argument that the obligation to ‘have regard’ to the Habitats Directive mandated compliance with article 6(2) of the Habitats Directive. The duty to have regard was differentiated from a duty to act in a specified way, for example. Johnson J agreed with the EA that by considering article 6(2) in its programme, it had satisfied the obligation to have regard to it.

Enforceability of EU Directives in UK Courts

The Habitats Regulations are retained EU law under the European Union (Withdrawal) Act 2018. In contrast, the Habitats Directive is not direct EU legislation, and so the obligations imposed under it only continue to be applicable in UK law if they were either recognised in domestic law or ‘of a kind’ recognised by the CJEU or any court or tribunal in the UK before 31 December 2020.

Article 6(2) has not been recognised by the courts as having direct effect in domestic law, but the claimants’ case was that the obligation it imposed was of a kind, which had been so recognised. Johnson J agreed: article 6(3) had been found to have direct effect in national courts by the European Court of Justice in 2005, and there is a close relationship between that article and article 6(2). Article 6(2) therefore continues to be recognised and is enforceable in domestic law post Brexit.

How the EA was in breach of Article 6(2)

The EA’s programme was not intended to be a comprehensive analysis of the impact of abstraction across every SSSI within the Broads. However, the EA accepted that the environmental risks from abstraction were not limited to the three sites it focused on. Johnson J found that whilst further studies of the other sites had not been ruled out, that was not adequate to discharge the duty imposed by article 6(2) to take proactive remedial steps in light of the accepted knowledge that water abstraction posed a risk of damage to the environment across the whole of the SAC.

Johnson J did not accept the EA’s case that its lack of resources provided a justification for its failure to take any proactive activity in relation to the other SSSIs, stating:

“Resources may be relevant to the decision as to how to discharge the article 6(2)/regulation 9(3) obligations, but they are not relevant to the question of whether to discharge those obligations [104]”.

Irrationality

Johnson J found that the EA had acted irrationally by not expanding the programme: the EA had committed to comply with article 6(2), yet in limiting the programme as it did, compliance was impossible.  A rational course of action to ensure compliance with article 6(2) would have been either to expand the programme or to undertake further work.

Conclusion

This case reaffirms the importance of the precautionary principle underlying environmental law; it is the starting point for the interpretation of legislation. More broadly though, whether provisions in EU directives are ‘of a kind’ that have been recognised in UK courts will depend on the specific provisions in question, when taken in context.

It is a common misconception that you must complete a law degree to be successful in a career in law. In fact, roughly half of all trainee solicitors recruited by most firms come from non-law backgrounds.

However, from experience, I know that it can feel daunting to enter the legal profession as a non-law graduate. If you are in the same boat, hopefully these tips will help prepare you for starting your career in law.

1. Discovering that a legal career is for you.

I was midway through an English degree when I decided to embark on a career in law. Some may have decided that they want to be a solicitor even before applying to university and others may be struggling to make their minds up as they come to the end of their undergraduate degrees. If you haven’t quite made your mind up, try not to panic.

Attend your university’s careers fair, seek guidance from your university’s career adviser, talk to your family, friends and network about their careers. The great thing about the law is how varied the type of work can be:

• meeting clients, finding out their needs and establishing how to help;
• researching relevant areas of law and advising clients of their options;
• drafting letters, contracts and other legal documents; and
• acting on behalf of clients in negotiations

Brainstorm the type of work that might be suited to you, your skill set and your interests.

2. Take the initiative

Once you have decided that you would be suited to a career in law, what’s next? Without the framework of a law degree, it is all the more important for you to take the initiative.

Many universities have ‘law for non-law’ societies that organise events specifically for students in your position. Look out for Facebook groups or memos popping up at your university and get involved with any events that will give you greater insight into the legal industry. It may also be worth asking your law student friends if you can tag along to any events to which they are invited to!

Networking events, Q&A panels and law fairs present an excellent opportunity to get to know the industry. You will learn more about the firms you would like to work for as well as different areas of the law. Be active at these sessions and always ask questions. Follow up with any key contacts that you make; you are already building your network!

3. Do your research

The more research you can do the better. Take a look at firm websites to get a flavour of who they are and the type of work that they do. Chambers and Legal 500 can also give you a snapshot of the firms you are interested in.

Keep up-to-date with the law and different sectors by reading reputable newspapers and articles published by law firms and the Law Society.  Recruiters look for graduates with great commercial awareness, so keeping your knowledge up to date will stand you in good stead when it comes to applications and interviews. I found listening to Radio 4 a useful and easy way to build up general knowledge. There are also many legal themed podcasts, such as ‘Law in Action’, many of which are only 30 minutes long. These can be a quick and efficient way to improve your commercial awareness.

4. Legal work experience

Once you have conducted your initial research, the best next step is to acquire real work experience in the industry.

It is never too early to start applying for vacation schemes as many firms hire trainees up to two years in advance. See Key Dates | Michelmores for Michelmores’ key deadlines. Alongside applying for vacation schemes, I would recommend attending the firm’s presentation evenings, shadowing solicitors or gaining informal work experience at local firms. The more experience you can get, the better positioned you will be when it comes to applying for formal vacation schemes.

Please see Events (michelmores.com) for Michelmores’ up-coming events. The Insight Session on the 3 November will offer invaluable advice on The Firm’s Graduate Solicitor Apprenticeship. Most events take place virtually so you can join from wherever you are in the world.

It can be difficult to juggle studying and applying for work experience so make a short list of your favourite firms and keep an eye on deadlines.

When applying, draw on your non-law experience as well to show valuable transferable skills. (See fellow trainee Annabel’s article for more tips: Trainee Blog: Work experience from all walks of life | Michelmores)

5. Keep an open mind

When applying for legal work experience, it is also important to keep an open mind. Even though you may want to be a solicitor, I would encourage you to seek out opportunities in chambers or in Court, such as a mini-pupillage. Not only will this give you more insight into how solicitors and barristers work together to bring a case to completion, but you will also learn valuable soft skills such as client care and professional conduct in Court.

6. Post-graduate study and beyond

Embarking on legal post-graduate study can be daunting. The GDL, or PGDL, can feel like treading water at times. Unfortunately, there are no shortcuts and you must put in the hours each week to prepare for the exams. However, remember that you will be in the same boat as your peers. Although it may take a few weeks to warm up to the style of teaching and learning involved in these conversion courses, your fellow students and tutors should be there to give you support throughout the year.

If you would like to find out more about post-graduate study please see Kate’s useful blog post Trainee Blog: Top Tips for Postgraduate Legal Study | Michelmores.

7. Enjoy it

Finally, it is a privilege to study a subject for three plus years simply for the love of it. My parting tips would be to focus on having a well-rounded university experience, build a solid support network, take every opportunity, and overall, enjoy the time you have at university.

If you have any questions following this post, please do not hesitate to get in touch with me.