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.

In our previous article Gene Editing Consultation: UK Government announces plans to relax the rules and regulations surrounding gene-edited crops, we set out the government’s plans for reforming the regulatory landscape for gene editing.

The government has now progressed those plans with the introduction on 25 May 2022 of the new Genetic Technology (Precision Breeding) Bill 2022-2023.

The new Bill makes provision about the release and marketing of, and risk assessments relating to, precision bred plants and animals – and also the marketing of food and feed produced from such plants and animals and for connected purposes. The Bill aims to move away from legal interpretation governing this area and to give more power to science.

Once enacted, the Bill shall enable research in gene editing (GE) which (together with genetic modification), was previously prohibited in the UK under EU law. It will give farmers and producers greater power to develop plant varieties and animals with beneficial traits (which can be produced through more traditional methods) but in a more efficient and potentially environmentally friendly way.

The Bill

The Bill is split into 5 parts:

• Part 1: Precision Breeding: Definitions;
• Part 2: Precision Breeding Organisms: Release, Marketing and Risk Assessments;
• Part 3: Food and Feed Produced from Precision Bred Organisms;
• Part 4: Enforcement; and
• Part 5: General.

In broadest summary, the Bill applies to “precision bred organisms” (PBO) (i.e. gene edited organisms). That is defined in section 1 of the Bill as any organism if any feature of its genome results from the application of modern biotechnology, if such feature is stable and if every feature of its genome could have resulted from:

1. traditional processes, whether or not in conjunction with selection techniques, or
2. natural transformation.

Readers should refer our earlier article (Gene editing – UK government announces post-Brexit consultation | Michelmores) for more information on what GE is.

The Bill then makes provisions to enable the release and marketing of PBOs in England (see sections 3 to 5). Certain steps must be taken in order to do so, which includes certain notification requirements. The Bill includes added safeguards, such as the ability to refer matters to relevant advisory committees/bodies and also the requirement for welfare declarations and risk assessments for certain animals (as defined). The Bill also requires certain registers to be kept by the Secretary of State.

Provision is then made in the Bill for regulations to be made for regulating the placing on the market in England of food and feed produced from PBOs (see Part 3 of the Bill). The wording of Part 3 sets out matters, that such regulation might address (e.g. requirements for prior authorisations from the Secretary of State and requirements for traceability) – all aimed at safeguarding products released into the market for consumption by humans and other organisms.

The Bill further sets out enforcement powers for breaches of certain obligations which largely comprise the ability to issue compliance notices, stop notices and monetary penalty notices (see Part 4).

In large, the legislation is intended to apply to England (and Wales) only with a small number of exceptions (see section 47). The Bill predominantly addresses GE of plants.

The Bill follows earlier relaxation of the rules in respect of gene-edited plants under the Genetically Modified Organisms (Deliberate Release) (Amendment) (England) Regulations 2022.

The Parliamentary process

The full text of the Bill is on the UK Parliament website. It is at the very early stages of its passage through Parliament. Following the first and second readings, it is currently at the committee stage in the House of Commons, but there will doubtless be much debate on, and amendment to, its text, both in the Commons and in the Lords.

The Bill, nevertheless, represents a significant milestone in the UK in its move away from the GE prohibitions, that have long existed in EU law. The Bill seeks to facilitate GE with certain safeguards in place. There are powers for further regulations to be made to increase control and safeguarding in this area, so it waits to be seen what further regulations are indeed introduced.

Impact of the Bill

These developments have been hailed by some as removing unnecessary barriers to research into new gene editing technology, which for a long time have hindered the UK’s agricultural development and world leading agricultural research institutions. It is considered a key step in bolstering the UK’s food security – especially in the wake of the Ukraine conflict. There are ambitions to produce higher yields from land, improve food quality and reduce wastage. Biodiversity benefits are also noted.

Defra itself has hailed the benefits GE could bring – including (according to Defra): more efficient and precise breeding; production of crops with fewer inputs (e.g. pesticides and fertilisers); improving sustainability, resilience and productivity; boosting climate change resilience; creating safer food (by e.g. removing allergens); and creating plant varieties and animals, which have improved resistance to diseases (reducing reliance on products such as antibiotics).

Opposition to the Bill

Others (such as the Landworker’s Alliance), consider the changes to be unnecessary; noting that there are existing methods to address these matters – or that the focus should be on developing more natural methods. There are also currently deep concerns about the lack of requirements around labelling of products which contain PBOs – albeit those may be addressed in further regulations. Others (including the RSPCA) continue to have concerns regarding animal welfare and ethics.

As has been shown in the media, the Scottish government has also pushed back strongly on the application of any part of the new legislation to Scotland. It therefore remains to be seen what bearing the Bill will have on the Scottish position; no doubt this will be addressed in any further revisions of the Bill.

There are then others who still take the view that the Bill remains overly prescriptive with too many hurdles to overcome, which may prevent investment and innovation in this area.

Clearly, there remain split views within the industry as to the benefit and appropriateness of the proposed Bill. We will see how the Bill progresses through Parliament and what changes are made to the initial draft. Come what may, the success of the GE industry and the GE market will doubtless be driven by consumer attitudes towards GE – irrespective of the details of the legislation.

For more information, please contact Seema Nanua.

The associated guidance produced by the NEC provides a detailed background to the project as well as a thorough description of how each sub-clause is intended to be used.

The consultation period ended on 13 May 2022.

The clause follow the introduction of ‘Climate Change Requirements’ into the scope of a project’s contract, that provide objectives for levels of recycling, use of renewable power on-site or electric vehicles, reducing waste generation, designing out waste, and designs that reduce carbon emissions. A failure to meet the Climate Change Requirements is expressed to constitute a defect which the contractor will be required to correct. Detailed targets in respect of these objectives may be specified in a performance table to benchmark the contractor’s performance, and the parties can agree positive and negative financial incentives in relation to them being met, or not, as appropriate.

The clause is split into the following headline areas:

• collaboration with partnering bodies to achieve the Climate Change Requirements;
• early warning of a threat to such requirements not being met;
• a requirement for a climate change plan to be drafted and agreed at the outset of the project and adhered to throughout;
• mechanics regarding the operation of the performance table. This includes both ongoing target monitoring and compensation for not reaching such targets; and
• incorporating a mechanism for proposals for climate/environmental related changes to the works to be put forward to the contractor(s).

The NEC hopes that adoption of the standard clause will result in ‘tangible sustainability and net-zero commitments between clients and suppliers’. It is encouraging to see instrumental bodies tackling climate change head on in the industry and providing developers with teeth to contractually enforce commitments. It is awaited whether the clause will be amended substantially as a result of the consultation, and whether there will be widespread uptake of the clause throughout the construction market once it is finalised.

Many former full time office workers have been shown by lockdowns that they need not commute daily into towns and cities; a variety of different working options work equally well. For some this involves, on a part or full-time basis, being in (or in the curtilage of) their homes in the countryside or in a small rural office nearby. Some have converted former garages or outbuildings into personal office spaces, or have built sheds in their gardens, while others are renting small offices within easy commuting distance of their homes. There is increasing demand for small local offices to rent.

Opportunity for redundant or under-used buildings

This presents farm and estate owners with a potential opportunity for the reuse of redundant or under-used buildings. In planning terms, there are various routes available to authorise the office use of such buildings, depending on the details of the proposal. Generally, these routes include those where:

1. a planning change of use is not necessary,
2. a change of up to 500m² of agricultural space is allowed under the prior approval General Permitted Development Order or
3. planning permission could hopefully be obtained.

If the building is listed, then listed building consent would be necessary for any structural changes or changes which affect its character as a listed building and permitted development rights would not apply.

Class E existing use

Where the last or current use of such buildings falls under what is now Class E business use (including a gym, restaurant or shop), then it may be possible to change the use from that previous use to office, without planning consent, as such uses are now within the same class (Class E). The conditions of the previous consent would however need to be checked, as would restrictions in any planning agreement or any planning restrictions affecting the area.

It might also be appropriate for owners of empty or underused buildings to consider the potential for someone to open a shop or maybe a gym there. As many people are staying closer to home more in the working week than they did pre-Covid and are choosing to buy more local produce, the need for more local facilities is increasing. Similar rules to the above would again apply, as both shops (except those (mostly) selling essential goods, including food, where the shop’s premises do not exceed 280m² and there is no other such facility within 1,000m) and gyms fall within the same Use Class E. If it is to be a small shop, then permission for the change of use to a local shop under class F2 might be possible.

Permitted development rights

Where redundant or under-used buildings are in agricultural use, the change to office could be authorised for up to 500m² under the prior approval Permitted Development right. The conditions and restrictions under the Order would need to be met in full, as again would conditions in any planning consent.

Class Q

Another option to consider could be a change of farm buildings into ancillary residential use, under the General Permitted Development regime (Class Q). Class Q allows the conversion of agricultural buildings to homes, subject to various conditions and limitations. Whether the right applies or not will partly be determined by the date when the agricultural use started. The building must have been in agricultural use on 20 March 2013, or if the agricultural use started after that date, the agricultural unit must have been in that use for ten or more years before an application may be submitted to the local authority. However, even where the building has been there for more than the requisite time, a Class Q application cannot be made if it is in certain protected areas.

Please do contact us or your planning consultant if you would like to discuss potential building conversions. We could run through the relevant qualifying criteria with you. We could also discuss existing agricultural or other tenancies or other hurdles which would need to be overcome, before any change of use could occur.

For more information, please contact Helen Hutton.

As a post COVID-19 trainee, whether I am working from one of our offices, working from home or attending networking or knowledge events, my days are always varied. I was recently fortunate enough to attend Michelmores’ Sustainable Agriculture Conference. The theme of the conference was “Restoring Habitats and Feeding a Nation”.

Agriculture partner Rachel O’Connor kicked off by highlighting several challenges faced by the agriculture sector, such as the Russian invasion of Ukraine, inflation, trade liberalisation, Brexit and of course COVID-19, which have brought the need for sustainability as well as food security in agriculture into a sharper focus than ever before.  These events are always a good opportunity for trainees to keep up their commercial awareness!

Trainees at Michelmores have the opportunity to take one of their seats in the Agriculture team which offers practical and commercial advice to landowners, entrepreneurs, farming businesses, landed estates, institutions and others with interests in land and the wider rural economy. The team is the national specialist in agricultural law and a trusted advisor ranked as a top tier firm by independent legal guides, the Legal 500 and Chambers and Partners. So you’re in good company …

Commercial awareness for prospective applicants

Our guest speakers presented various ways in which they are encouraging sustainable agricultural practices and definitely gave plenty of ‘feed not food’ for thought. Speakers included:

‘Less and better’

Founder of Farm Wilder, Tim Martin, discussed how sourcing meat from farms with more sustainable farming practices can improve biodiversity, soil health and reduce pollution. Farm Wilder’s mission is to bridge the disconnect between consumers and factory farmed meat products which negatively impact our wildlife and planet.

‘Feed not food’

Founder of InsPro, Richard Small, discussed his mission to increase local nutrient circularity. By feeding food surplus to insects, which in turn will be used as a high-quality protein source for livestock, we can reduce carbon emissions created by importing soya from Brazil.

Michelmores’ Agricultural Team has contributed to the UK’s first report on the future of insect protein in pig, poultry and aquaculture feed: ‘The Future of Feed: a WWF roadmap to accelerating insect protein in UK feeds’, produced by WWF and Tesco. Please see Ben Sharples’ article here for more information.

‘Understanding nature’s assets’

Chief Scientist at Natural Capital Research Beccy Wilebore explained how measuring the baseline of your natural capital assets presents an opportunity to understand and enhance the natural value of your land. Natural Capital Research can help improve biodiversity, achieve greater carbon sequestration, pollination and recreation opportunities.

‘Banking on habitats’

Alexa Culver of the Environment Bank and Ben Sharples of Michelmores discussed an opportunity to create leases over low-yielding parcels of land to cultivate biologically diverse habitat banks.

Please also see the below articles by Ben Sharples and Sophie Walker, for an introduction to all things biodiversity and nutrient neutrality:

1. Biodiversity Net Gain: the basics
2. Nutrient Neutrality: the basics

More about Michelmores

Michelmores’ trainees are fortunate enough to be offered a full and diverse range of seat options across our three departments, giving us plenty of opportunities to attend excellent events like this one.

Find out more about opportunities for graduates at Michelmores.

Recently the online dating app giant, Match Group LLC (owner of Tinder, Match and Hinge) (Match) took on Muzmatch Limited (now Muzz Limited) (Muzmatch) as it sued them for trade mark infringement and passing off in the UK Intellectual Property and Enterprise Court (IPEC).

Background

Muzmatch owns a registered trade mark for the word “muzmatch”. However, back in 2018, Match opposed the application and Muzmatch reduced the services covered by the Trade Mark in order to successfully register it. However, Match then complained that Muzmatch had continued to use “muzmatch” for services not covered by its registration.

In July 2020, Match issued legal proceedings against Muzmatch, for trade mark infringement and passing off through its use of “match” in its name and its use of “match” and “tinder” as part of its search engine optimisation strategy.

In June 2021, Muzmatch accepted liability in relation to its use of “tinder” and gave undertakings, however, it denied liability in respect of its use of “match”.

After a two-day trial, the Court held that Muzmatch had infringed by using “match” and took an “unfair advantage” which could lead consumers to believe the two businesses were connected.

Key points

Distinctiveness

Muzmatch argued that it did not infringe on the basis that “match” is not distinctive and is a descriptive word when used in the context of dating services. Match, however, submitted brand awareness reports up to May 2011 (when Muzmatch’s infringing activities started) to show how well known the Match brand was at the time.

The reports showed “top of mind” awareness (where the brand is the first name which is said when asked spontaneously without any list) and “aided awareness” (where a brand is recognised from a list provided). The judge agreed that this evidence, (particularly the significant “top of mind” awareness) demonstrated that there was a substantial degree of distinctiveness and reputation in the brand.

Crucially the judge was satisfied that by early 2011, the average consumer would have associated uses of “match” in the context of online dating with Match.

Likelihood of confusion

In order to show trade mark infringement, Match had to show that Muzmatch’s use of “match” gave rise to a likelihood of confusion under section 10(2) Trade Marks Act 1994. On reviewing the evidence, the judge concluded that the average consumer would have thought Muzmatch was a sub-brand of Match.

In this case, there was very limited evidence of actual confusion. Muzmatch argued that if there was a likelihood of confusion, then there would be credible evidence of actual confusion since Muzmatch’s alleged infringement in 2011, but there was none. The judge acknowledged that the absence of actual confusion evidence was likely to be because both parties offered their services via mobile apps and websites, rather than because there was no relevant confusion. The judge stated that “it is hard to see how or why any confusion… would come to light”. Going forward, as more services are offered via mobile app or online, we may well see less reliance on evidence of actual confusion.

Unfair advantage

The judge decided that, even if there was no likelihood of confusion, Muzmatch had taken unfair advantage of the reputation of Match’s trade marks. By 2011, Match had a very strong reputation and had invested substantial sums in building it. By using the name in a way that created a link to Match, Muzmatch was taking some of the benefits of that reputation and investment without paying for it. Whilst the judge accepted that the CEO did not originally pick the name with this intention, the Search Engine Optimisation strategy used by Muzmatch was clearly intended to benefit from the use of “match” and took unfair advantage in doing so.

Suitability of IPEC

The judge set out in his introduction to the judgment that both sides had said the case was “simple and straightforward”. He noted that there were 21 lever arch files of documents, four lever arch files of authorities and opening submissions of over 70 pages each. He made clear in a postscript to the judgment that the case was not “the simple or straightforward case the parties had suggested”.

The judge cautioned that, if the parties wished to use the streamlined IPEC process, they should have attempted to narrow down the issues before the Case Management Conference and the case should have been transferred to the High Court to allow for a longer trial if that was not possible.

Breach of embargo

On 4 May 2022, the judge handed down a further judgment as a result of a breach of the embargo on the draft judgment sent to the parties on 12 April 2022. The judge sought a full written explanation from Muzmatch and their solicitors after Muzmatch acknowledged that they had spoken to journalists prior to the embargo being lifted. The judge did not take any further action but indicated it may well order Muzmatch to pay Match’s costs on an indemnity basis.

The judge did not lay down guidance on the approach to be taken by the press in relation to draft judgments but was clear that “the courts are likely to look with a very critical eye at any case where a party’s wish to manage the publicity surrounding litigation has led that party to breach the embargo imposed”.

Observations

This case was not simple or straightforward but was particularly interesting on several points (to IP lawyers)! It shows that an arguably descriptive word can become distinctive in the market over time and be protected as a trade mark so these should not be dismissed “out of hand” by brand owners or trade mark applicants considering a new brand name. Applicants should, however, be cautious of registering descriptive marks themselves as, without evidence of distinctiveness, these are liable to be challenged if not refused.