The Supreme Court recently considered the extent of an exclusive fishing right owned by prescription (the acquisition of a right through long use or enjoyment), over part of the foreshore located in the Wash, Norfolk in Lynn Shellfish Limited and others v Loose and another [2016] UKSC 14.

It is well established that the landward limit of the foreshore is the mean high water mark, but it may come as a surprise that there is no equivalent consensus in relation to the seaward limit of the foreshore. The Le Strange family had exclusive rights to take cockles and muscles from the foreshore (the “Right”) in an exclusive (or ‘several‘) fishery. Mr Loose had been granted a lease of the Right by the Le Strange family in 1970 and had brought legal action against Lynn Shellfish Limited alleging infringement of this exclusive Right.

Whilst it was common ground that the Le Strange family had a prescriptive Right (within living memory, they had excluded the public from at least part of the area), the area over which this extended was disputed in relation to (1) the seaward boundary and (2) the attachment of previously unconnected sandbanks to the Foreshore.

The seaward boundary

The Supreme Court rejected the argument for a fixed seaward boundary and instead found that the Right would have been exercised over an area which was limited by a shifting low tide mark:

“The Estate has exercised a prescriptive exclusive Right to take shellfish from the foreshore for a substantial period, during which the low water mark fluctuated to a significant extent over time, in circumstances where the evidence clearly established that the only way in which the shellfish were gathered was by individuals walking from the land where the tide was out.” (paragraph 58).

The first issue was whether the relevant area extended to mean low water, mean spring low water or the lowest astronomical tide as the most extreme low water mark. The Supreme Court agreed with the Court of Appeal’s judgment that in this particular case, the appropriate measurement was the lowest astronomical tide: a rare event which occurs once every 18.6 years and exposes the greatest possible area. The Court also noted that the lowest astronomical tide was an actual rather than an artificial tide mark (such as mean low water and mean spring low water). This was intended to produce the least arbitrary result so as to encompass all parts of the Foreshore which are at any time uncovered by the sea.

The attachment of previously unconnected sandbanks

In addition, as channels had silted up there were various sandbanks that had previously been unconnected to the Foreshore that had since become attached. The second issue was whether the Right extended to a sandbank simply because it had become attached to the Foreshore.

The Respondents argued that their Right extended over the additional sandbanks and had been acquired as the sandbanks had gradually built up over time towards the foreshore (the ‘doctrine of accretion’). However, the Supreme Court did not agree and considered that whilst the silting up of the channel would have occurred over time, there would have been a specific moment when the sandbank suddenly became attached to the foreshore.

Furthermore, since the Magna Carta in 1215, the Crown has not been able to exclude the rights of the public to fish and gather shellfish from the foreshore (the right of piscary) by granting new private rights of fishery. The Supreme Court held that the public would previously have been entitled to fish and gather shellfish from the sandbanks in question before they became attached to the foreshore.

In order to establish that he has obtained a fishery by prescription, a person must show that he has physically enjoyed the fishery ‘as of right’ for the requisite period (i.e. to the exclusion of others). The Court concluded that there was insufficient evidence to demonstrate that the sandbank had been acquired by the Le Strange family estate by way of prescription so as to exclude the public right to fish. Therefore the appeal was successful in part in relation to this issue.

This article, authored by barrister Nicola Canty and paralegal Abigail Tancock, from the Firm’s Marine Regulatory team, has been featured in the February edition of Marine and Maritime Gazette.

Since our earlier article on Marine Conservation Zones (MCZs) was featured in the September 2015 issue of the Marine & Maritime Gazette, the Department for Environment, Food and Rural Affairs (DEFRA), has now announced the designation of the second tranche of MCZs, taking the current total to 50 protected sites. This announcement has been heralded by the Government as furthering their objectives of achieving a so-called ‘Blue Belt’ of Marine Protected Areas.

The new sites are relevant not just to the Marine Management Organisation (MMO), but also to the many Local Planning Authorities with catchment areas extending to the shoreline and Inshore Fisheries and Conservation Authorities (IFCAs), all of whom have a duty to exercise their functions to further, or where if that is not possible, to least hinder, the conservation objectives of a particular MCZ.

New Sites

The list of new sites covers areas in the North Sea, the South East, the South West and the Irish Sea. It notably includes new MCZ’s for Lands’ End, Dover to Folkestone and The Needles. In addition, a new site has been designated 200 metres from Cromer, Norfolk which will protect Europe’s longest chalk reef providing homes to harbour porpoises, seals and the intermittent basking shark and sunfish. This second tranche of MCZs covers approximately 10,760km2 of seabed and increases the total coverage to over 20% of English waters.

The Government’s plan has always been to designate these sites in tranches to be able to introduce those sites that were supported most strongly by independent scientific advice without undue delay. Some critics consider that the initial two tranches have left a number of large gaps in the United Kingdom’s network of sites, particularly when only 50 sites have been designated to date, against the original 127 MCZ’s envisaged. This has raised concerns that the current numbers of sites do not afford sufficient protection, with the Joint Nature Conservation Committee (JNCC) also highlighting the need for appropriate management of MCZs to ensure their effectiveness.

The Third Tranche

The final ‘gap filling’ exercise is set to take place in 2017, for designation in 2018. These will be considered from the remaining 127 MCZs originally put forward, although there are a small number of additional sites to be added to this pool.

Whether or not a site is designated will depend on the strength of the evidence that relevant marine flora and fauna, geological features or geomorphology are present. In a region where the evidence does not support its presence, a designation will not be made and importantly, this will not be considered a gap in the network.

Where evidence is weak, stakeholders may wish to offer up new evidence as to the benefits and impacts of the designation of a particular site, although this must be in accordance with Defra’s Evidence Investment Strategy.  Thus, at this stage, it would seem that if there are concerns as to the evidence supporting the designation of a site, it may be possible to submit further evidence in the required format.

Enforcement and monitoring

Once an MCZ has been designated, responsibility for its management falls upon the MMO and, at a local level between 0-6 nautical miles, Inshore Fisheries and Conservation Agencies (IFCAs). The MMO will work together with the local IFCA and agree how to manage the sites located in an IFCA area and those that overlap the 6 nautical miles boundary.

Management options available range from voluntary measures where appropriate, to the granting of byelaws to protect MCZs from activities that may harm them or where a non-compliance issue has been identified. Such byelaws are based on evidence and must help to further the conservation objectives of the site and may even be used to restrict activities on the seashore.

The procedure requires full consultation and it can take as long as 12 months to make a permanent byelaw. However, where an activity which harms the MCZ is identified and where necessary, the IFCA or the MMO may introduce an emergency byelaw where it is urgent and could not have been reasonably foreseen. Similarly, an interim byelaw may be introduced in relation to MCZs which have not yet been designated.

The rules in relation to non-UK domiciled individuals are due to change in April 2017 and we are advising clients in relation to the steps they should take in advance of these changes.

The Government published further responses, draft legislation and explanatory notes on 5 December 2016. While the Government has made it clear that there is further draft legislation to come, the overall scheme of the reforms now seems clear and the Government intends to bring these changes into force in April 2017.

Read more

The EU-US Safe Harbor Framework, used to legitimise transfers of data from the EU to the United States of America (US), was declared invalid by the Court of Justice of the European Union on 6 October 2015. Any business established in the EU that relied on Safe Harbor is now exposed to claims that transfers of data to the US are unlawful.

What happened?

Following the Edward Snowden revelations highlighting the depths of the US surveillance programmes, an Austrian citizen filed a complaint with the Irish data protection regulator. A key point of the complaint was that the citizen’s personal data, when transferred to the US whilst using Facebook, was not being adequately protected as required by European data protection legislation because it was potentially accessible by the US intelligence agencies.

The case, originally filed in 2013, worked its way up to the European level and culminated on 6 October, with the decision publicised with a Court press release stating:

“The access enjoyed by the United States intelligence services to the transferred data constitutes an interference with the right to respect for private life and the right to protection of personal data.”

Press Release, Maximillian Schrems v Data Protection Commissioner C-362/14, 6 October 2015

The US’ self-certification scheme had been in place for over fifteen years and, as at the date of the decision, was relied on by 5,479 US businesses; not to mention the many EU businesses contracting with them).

Why does this matter?

This decision is likely to have a significant impact because European data protection legislation requires that the transfer of personal data from Europe, to a business based in the US (or anywhere else outside of the EEA) only takes place if the business receiving that data can prove it offers an adequate level of data protection.

One of the most straightforward ways a US business was able to prove it had sufficient data protection measures in place was to self-certify on the basis of its country’s Safe Harbor status. US based businesses are now unable to do this.

Following the decision, any UK based business processing, or using sub-contractors to process personal data in the US, can no longer rely on the Safe Harbor to evidence their compliance with the European data protection requirements.

How do I know if my business is affected?

This decision is likely to impact European businesses if they, or their subcontractors:

• outsource services to the US which involve the processing of data;
• use any form of cloud based system which processes personal data in the US; or
• operate a website which keeps user databases in the US.

How can I protect my business?

Relying on a US business’ Safe Harbor status has previously been a highly convenient way of complying with data protection requirements, and many UK and European organisations made use of this. The Safe Harbor exemption, however, has never been the only way to evidence compliance with data protection legislation.

In the absence of the safe harbour, compliance can be secured by, for example, carrying out an independent assessment of a US business’ data protection measures, implementing the EU-approved “Model Contract Clauses” or taking advantage of any other available exemption under the data protection legislation, such as establishing an approved set of binding corporate rules.

In the UK at least, the regulator has recognised the significance of this decision and that it may take “some time” for businesses to ensure they are compliant with data protection legislation. In almost every case though, a sensible first step if you may have been affected by this decision is to contact your suppliers and ask how they intend to remain compliant and then ensure that the appropriate measures are put in place.

At any rate, if there has ever been a time to review your data protection clauses, it is now!

For more information please contact Tom Torkar, Senior Associate in the Technology, Media & Communications team on tom.torkar@michelmores.com or 01392 687626

Michelmores LLP is delighted to have been re-appointed by the Mayor’s Office For Policing And Crime to provide legal services to the Metropolitan Police Service, as well as to over 60 other police and public bodies throughout the country.

Michelmores LLP advised on property/PFI and commercial/procurement issues under the previous framework. This resulted in high-profile instructions of considerable complexity and value, including the £370 million sale of New Scotland Yard and the disposal of the 19 hectare Peel Centre site in Hendon.

With significant additional success in the area of Employment law advice, the new agreement sees the Firm appointed to 3 lots covering respectively:  procurement, contract & commercial, and governance; employment; and property (commercial, residential property and PFI).

The tender process was led by Real Estate Partner Richard Honey who said: “

We are looking forward to building on our relationship with the police service. The team worked incredibly hard to meet the challenging timescales and delivery criteria required to win a place on this prestigious framework.”

“We were particularly pleased that, in the rankings awarded by the Mayor’s Office For Policing And Crime, Michelmores LLP once again topped the list for Property and PFI services and came second for both Procurement & Commercial and Employment advice, despite tough competition from other major national law firms.”

Michelmores LLP is a full-service Top 100 Law Firm with offices in London, Bristol and Exeter.

This article was first published in Solicitors Journal on 12 January 2016 and is reproduced by kind permission

Pippa Allsop asks whether the exam is removing one barrier and replacing it with an economic hurdle

The Solicitors Regulation Authority (SRA) opened a consultation last month setting out its proposals in relation to the solicitors qualifying examination (SQE), a ‘new standardised system for assessing trainees… based on the competencies required to do the job’. The SQE would supposedly manage the current inability to ‘measure the quality of students who emerge from the [training] process’, which for the SRA is a cause of increasing concern.

While welcoming the development of new pathways to qualification, such as apprenticeship and ‘equivalent means’, the SRA says these changes ‘would ensure consistent high standards of entry into the profession.’

One of the criticisms levelled at the plans so far has been that the SQE would give non-graduates access to the profession. Clearly this is in line with improving diversity within the legal profession through lowering the currently extortionate costs of the route to qualification.

Confusingly, the SRA has stated that ‘the standard for qualification will be set at least at graduate level or equivalent’, while also claiming ‘there are likely to be some intending solicitors who are able to demonstrate this level of ability without obtaining a graduate degree’.

It does seem strange to use the measure of ‘graduate’ while also saying that people can achieve the requisite level without actually being one, which to me would indicate the measure of ‘graduate’ does not mean anything. The president of the Law Society, Jonathan Smithers, has argued that ‘a degree-level qualification is essential – academic rigour underpins the commercial success of the profession’.

This point also bridges the second criticism, in relation to whether costs will actually be decreased and diversity improved. The SRA has made it clear that it anticipates employers will still expect a degree and the completion of the legal practice route (around £42,000 of fees altogether), and so the question is, will the SQE simply create another layer of costs involved in the route to qualification? Other commentators have raised the issue of resits and the associated costs of the same, giving those with greater resources an advantage and creating another potential economic hurdle in achieving the SQE’s ‘potential to remove barriers’.

Similarly, there has been criticism of the optional SQE preparation courses, which, if not compulsory, would arguably be hard to achieve funding for. This would result in only those with the available finances benefiting from such courses and would further increase the associated costs involved in becoming a solicitor. On this point, at least, it appears that the potential positive impact on improving diversity in the profession will largely depend on training providers taking a decision to offer cheaper training.

The consultation period ends on 4 March 2016, with any new regulations coming into force no earlier than the start of the academic year 2018/19, and the SRA will be publishing a further consultation on specific proposals for entry requirements for the SQE and pre-qualification work experience in 2016.

While it is unquestionably right that the issue of people coming into the legal profession from diverse routes and backgrounds should be proactively addressed, it remains to be seen whether the SQE is the right tool for the job, or whether, as I strongly suspect, it will be part of the more multi-faceted approach that will ultimately be required.

For more information please contact Pippa Allsop at pippa.allsop@michelmores.com

The British Chamber of Commerce’s (BCC) third quarterly economic survey of 2014 has sent out a cautious note in relation to the economy’s growth rate, and the manufacturing sector in particular. This is reflected in the survey’s comments regarding manufacturing in 2015, which suggest that the share of manufacturing as a total of UK output may shrink further, continuing the downward trend of recent decades.

There are some positive prospects, including those contained in the speech of the BCC Director General John Longworth earlier this month, which highlighted growth opportunities overseas. The Director General’s message is that whilst challenging for businesses, those that do focus on increasing exports grow on average 20% more than businesses that do not export.

There are therefore opportunities for growth, even in the face of the BCC quarterly report, and now may be a good time to consider future requirements for additional space. This is particularly so due to the introduction, on a temporary basis, of a relaxation of restrictions on permitted development rights.

Permitted development rights allow certain types of development to occur without the need to obtain planning permission beforehand, with resulting savings in both time and expense. This is not to be underestimated given the well-publicised criticism of both costs and delays to development brought about by the planning system.

Industrial and warehouse development benefit from a number of permitted development rights. The majority of these had been in force for some time and are well known. They include:

• the erection, extension and alteration of industrial buildings or warehouses (subject to certain parameters)
• the installation of additional or replacement plant or machinery
• the provision, rearrangement or replacement of a sewer, main, pipe, cable or other apparatus or the provision, rearrangement or replacement of a private way, private railway, siding or conveyor
• the provision of hard-standing within the curtilage of industrial building or warehouse or the replacement of such a surface
• the construction of a refuse or cycle store within the curtilage of an industrial building or warehouse

As noted above, the Government has recently relaxed the floor space restrictions on the first of these permitted development rights in order to encourage development. This relaxation will apply to development that takes place before 30 May 2016, hence the need to consider future space requirements now. The remaining numerous restrictions, for example on the height of any new building, remain unchanged.

In the normal course of events, any new building erected under permitted development rights must have a gross floor space of not more than 100 square metres. However, until 30 May 2016 up to 200 square metres of gross floor space is permitted. This is provided the building is not on Article 1 (5) land (land in particularly sensitive locations such as a national park, or an area of outstanding natural beauty) nor is in a site of special scientific interest (SSSI).

In relation to extensions the ‘standard’ position is that the gross floor space of the original building must not be exceeded by more than:

• 10% in respect of developments on Article 1(5) land or 25% in any other case; or
• 500 square metres in respect of development on any Article 1(5) land or 1000 square metres in any other case.

Whichever is the lesser.

In a similar move, until 30 May 2016 the first of these restrictions is relaxed so that the gross floor space of the original building may be exceeded by up to 10% in respect of development on any Article 1(5) land, 25% in respect of development on a SSSI and 50% in any other case. The second limb remains the same.

As touched upon above, the ability to extend a premises or erect new buildings without the need for planning permission is a real advantage, and before starting down the process of applying for planning permission you should always consider whether permission is needed at all, or whether what you require in development terms can be fit around existing permitted development rights.

This matter concerned a company in liquidation in Russia and a challenge made against the recognition of those proceedings in Great Britain under the Cross-Border Insolvency Regulations 2006 (‘the CBIR’). The company’s liquidator (and ‘foreign representative’ for the purposes of the CBIR) had failed to make full and frank disclosure to the court on his application for recognition, and accordingly the court set aside the order ab initio.

This is of particular relevance to readers who have followed recent events in Salisbury and the escalation of tensions between UK and Russian governments, and have an interest in whether the UK will adopt the Magnitsky Act.

Please click here to view the full article produced in Corporate Rescue and Insolvency

Following the successful pilot, of the Adoption Support Fund (ASF) on 15th November 2014, the Government confirmed that the £19m ASF is to be rolled our nationally from May 2015. Up until now, ten Local Authorities have been piloting the Fund which we are told by Government has been successful.

This is great news but what does the ASF mean, in practice, to adopters? How will the money be allocated? How much is each adoptive family allowed? How challenging do things have to be – before the fund is made available to you? What sort of services will the ASF fund?

By was a background, adoption support is a big issue at the moment. The highly publicised and influential research report, published earlier this year by Department of Education, from Professor Julie Selwyn, University of Bristol (Beyond the Adoption Order: April 2014) stated:

“Given what we know of the challenges and impact on adoptive parents and the pain and distress of young people who struggle to live in a family, the spotlight now has to be shone onto post adoption support”.

Within this article we turn the spotlight on some of the issues within adoption support that we see as fundamental.

Before the Adoption Order

Immediately following a child being placed for adoption with a family (up until the granting of the Adoption Order) there is likely to be a reasonable amount of support from the Local Authority. Visits perhaps from the child’s Social Worker and from the adoption Social Worker who assessed the adopters. Those early days with an adopted child, are both exciting and challenging. Support and advice from the Local Authority are usually to hand.

Once the prospective adoptive family are feeling settled, they are encouraged to apply for an Adoption Order. This Court application cannot be made before the child has been placed with the prospective adopters for ten weeks and is usually made several months after placement.

The effect of the Adoption Order makes the adopted child legally the child of his or her adopted parents. The parental responsibility of the birth parents and the Local Authority is terminated. In law, the child is treated as if born to its adoptive parents. The journey of adoptive parenthood truly commences.

One of the criticisms of the ASF is that you can gain access to the Fund until the Adoption Order has been granted. This could be perceived as pressure to apply for a very significant Adoption Order, in order to get access to services for your child. Some adoptive families may require a much longer period than a few months until they are feeling settled and wanting to make the child legally a member of their family; particularly if the child’s behaviour is very challenging.

Requests from adopters for help

For some adoptive parents, there may be no real difficulties throughout the child’s minority and thus never a need to contact the Local Authority for support. But many children do require additional support – from education, health and social services. Accessing this help can be very frustrating and at a time when assistance is most needed and family life is, at times, unbearable.  These challenges may arise many years after the granting of the original Adoption Order.

Many adopters begin their journey of post adoption support, where they started, by contacting their Local Authority Social Services Department. Perhaps the named workers they previously had relationships with have left. Responses received from stretched Local Authorities to meet the complex needs of adopted children can be very mixed – some adopters able to access the right help immediately and others very much unable.

So how will it now work post May 2015 for adoptive families?

How will the ASF money be allocated? How much is each adoptive family allowed? How challenging do things have to be – before the fund is made available to you? What sort of services will the ASF fund?

Amongst the pilot, their experiences are very positive – for the last 12 months. Unlike their other Social Work colleagues, these post adoption support workers have access to unlimited funding with fantastic results for adopted children. But how long can this last?

The initial plan is for central Government funding but then joint funding with the Local Authority. Is this when we will see a change? We simply do not know the answers to these questions.

Know your rights as an adoptive parent

The new Children and Families Act 2014 places a strong positive duty upon Local Authorities to provide the following information about;

• the adoption support services available in the authority’s area
• the right to request an assessment
• the Authority’s duties.

It is deemed insufficient for this information to be made available on a website and this information must be provided to

• anyone who has contacted the authority to request information about adopting a child;
• any person who has informed the authority that he or she wishes to adopt a child;
• any person within the authority’s area who the authority are aware is a parent of an adopted child and
• anyone who contacts the local authority requesting information about post adoption support.

The 2014 Act places a strong duty upon Local Authorities to inform adoptive parents about their rights and an entitlement to an assessment of post adoption needs.

Then what happens?

The procedure for an assessment includes interviewing the adoptive parents and preparing a written report. There is no timescale within which the assessment must be completed. The assessment may identify a number of things that meet the needs of the adopted child, some of which costs money – what happens then?

The Adoption Support Fund applies and bites.

As stated, reports from the some of the Local Authorities who have been piloting the ASF have been positive.

The Fund has provided access to specialist services that have previously been unavailable because of limited resources. The market has been opened up to private providers who can perhaps be more flexible to the individual needs of families. The piloted Fund has stimulated a post adoption support market which offers more choice.

It remains to be seen as to how the Fund will be managed to ensure fair access for all adoptive families. Assessments will need to be standardised. Budgets will have to be controlled. As stated, the Government has only committed to funding the ASF for one year and after that there is to be joint funding by Councils and government.

Exactly how post adoption support will look from May 2015 is uncertain but, at the very least, if you are an adoptive parent – ask your Local Authority about the Adoption Support Fund and your family’s entitlement to it.

Summary

• If you are interested in adoption and/or you are an adoptive parent, you should be provided with comprehensive written information about post adoption support services.
• Upon your request, an assessment of the post adoption support services you need should be completed by the Authority where you live
• From May 2015 (unless you live in a pilot area) you are entitled to access the Fund, meaning that money will be available enabling an adopted child to access relevant services.

In this Part 3 we examine the key changes that the Consumer Rights Act (CRA) brings in, in relation to the provision of services.

Part 1 and Part 2 of this series of articles can be found by clicking on Part 1 here and Part 2 here.

Part 4 of this series of articles can be found by clicking on Part 4 here.

Terms governing the supply of services to consumers

As with the previous law, under the CRA services to consumers must be:

• carried out with reasonable care and skill
• in consideration for a reasonable price
• performed within a reasonable time.

The latter two terms are implied where no statement about price or time for performance of services (or a way of determining it) is included in the contract or in the information provided about the service to the consumer before the contract is concluded.

But what is “reasonable skill and care” and “reasonable time“? The CRA does not define either other than, in the latter case, stating it is a question of fact.  This means that both standards can vary on a case-by-case basis.

Traders must note that any statement that is offered or written (about the trader or about the service) to the consumer by or on behalf of the trader, and which is taken into account by the consumer when deciding to enter the contract or make a decision about the service after the contract, is treated as a contractual term.

When it goes wrong…

As with goods (you can read more about goods here), there is a “tiered” approach to remedies for breach of the above terms.

If the service is not performed with reasonable skill and care or if the service is not provided in accordance with the information the trader gave about the service, the consumer has:

• the right to require repeat performance, or
• if repeat performance is (i) “impossible” (for example, if the services are time-dependant) or (ii) not done in reasonable time without significantly inconveniencing the consumer, the right to a reduction in price.

If the services have not been provided within a reasonable time, the consumer has a right to a reduction in price.

A reduction in price may be a full refund or an appropriate reduction in price.  However, any refund must be without a fee payable by the consumer.  The refund must be provided within 14 days of the consumer contract to refund using the same method that was used to pay the trader.

Such tiered remedies are not exhaustive and the consumer is entitled to seek other remedies that are available under other law (for example the right to terminate the contact or to seek damages).

What should I review?

Businesses should be reviewing all consumer facing terms and conditions. These may include:

• consumer sales contracts (for goods, services and digital content)  including website terms and conditions
• contractual clauses that limit your business’s liability
• any pre-contractual information provided to consumers including marketing material
• cancellation and returns policies.

Further guidance for businesses in relation to the CRA is available on the Business Companion’s website, accessible here.

Author: Noor Al Naeme

For further information on compliance with the CRA or any other matter, please contact Tom Torkar, Partner in the Technology & Innovation team at tom.torkar@michelmores.com.

In this Part 2 we examine the new regime for selling goods under the Consumer Rights Act 2015 (‘CRA‘).  Part 1 of this series of articles is available here.

Part 3 and Part 4 are available by clicking Part 3 here and Part 4 here.

Terms governing sale of goods

As with current law, under the CRA goods must be of satisfactory quality; fit for purpose; as described; and match a sample.  The trader must also have the right to supply the goods.

Key changes

• Fitness for purpose will only apply if the purpose for which goods were to be used was known to the trader before the contract is concluded.
• Goods must match any model that may have been seen/examined by a consumer, unless the differences have been brought to the consumer’s attention before the contract is made.
• When dealing with mixed contracts, the CRA has clarified that: the goods elements of a mixed contract will be subject to the statutory rights governing goods; the services element of a mixed contract will be subject to the statutory rights governing services and; the digital content elements of a mixed contract will be subject to the digital content provisions.  For more information on the supply of services and the CRA please click here or if you would like to read more on the supply of digital content and the CRA please click here.
• A contract which involves the manufacture of tailored goods is a contract for the sale of goods (rather than a contract for services).
• Any information that is required by the Consumer Contracts (Information Cancellation & Additional Charges) Regulations 2013 to be provided to a consumer BEFORE the contract is concluded will also be deemed to be implied terms under the contract and such information cannot change without both parties’ express consent.
• If a good is incorrectly installed, it will not conform with the contract.

When it goes wrong…

The CRA introduces the following remedies if the goods do not meet the statutory rights:

1. 30 days to reject the good (called the ‘short-term right to reject’).  This period generally starts from the date the goods are delivered and ownership to the consumer transfers.  If the goods will perish in less than 30 days then the time to reject is the lifespan of the perishable good.
2. The consumer can require the trader to repair or replace the good.  The trader is given one opportunity to do this.
3. If the repair/replacement fails or is impossible then the consumer has the right to a reduction in the price of the goods or a final right to reject the goods.

If the consumer exercises the final right to reject then there is no right for a trader to reduce the refund taking into account their use.  After 6 months, any refund to the consumer may be reduced taking account the use the consumer has of the goods in the period since they were delivered.  There is no remedy for a consumer if the breach of a contract is due to the materials provided by the consumer.

Further, the consumer is also entitled to recover costs incurred if a trader fails to provide the pre-contract information required under the Consumer Contracts (Information Cancellation & Additional Charges) Regulations 2013 and the information is not in relation to the material characteristics of the goods (where the remedies above would apply).

What should I review?

Businesses should be reviewing all consumer facing terms and conditions.  These may include:

• consumer sales contracts (for goods, services and digital content)  including website terms and conditions;
• contractual clauses that limit your business’s liability;
• any pre-contractual information provided to consumers including marketing material;
• Cancellation and returns policies.

Further guidance for businesses in relation to the CRA is available on the Business Companion’s website, accessible here.

Author: Noor Al Naeme

For further information on compliance with the CRA or any other matter, please contact Tom Torkar, Partner in the Technology & Innovation team at tom.torkar@michelmores.com.

On Friday 10 July the Chancellor George Osborne announced a number of further changes to the planning system aimed, as with previous proposals, at increasing the supply of housing. The proposals are set out in outline terms in chapter 9 of Treasury paper ‘Fixing the Foundations: creating a more Prosperous Nation‘.  The key elements of the proposals deal with both the release of land, and further trimming of the planning system.

Local plans

In what will be welcome news and perhaps long overdue, further action is planned to incentivise (to put it positively) the production of up to date local plans.  Whilst some house builders have been making hay while the sun shines where there have been long delays in getting new policies in place, I suspect that most of the industry would welcome coherent and succinct local planning policies.

League tables

The Government’s intention is to publish league tables setting out progress on providing a plan. For those that are lagging behind, the Government will intervene, even if it is not clear how.  The paper also sets out an intention to bring forward proposals to ‘significantly streamline the length and process of local plans‘ – but is light on detail. Again, this is likely to be welcomed on all sides, and cannot come soon enough for those planning authorities that are struggling to have their plans found sound by inspectors.

Duty to cooperate

Interestingly, there is also a commitment to strengthen and improve the duty to cooperate.  The difficulty in meeting this duty has been a recurring theme in local plan examinations, and so new measures are understandable.  It is not clear however whether strengthening the guidance will have the desired impact, and equally is not clear whether real and genuine enforcement of the duty is achievable.

Zonal system for brownfield land

The concept of giving preference in development terms to brownfield land is certainly not new.  However, clearly the Government is not satisfied with take up, as it proposes introducing a zonal system for brownfield land. Many other countries have a zonal planning system. This would mean that planning permission would automatically be granted, in principle, in relation to brownfield sites – subject to the approval of technical detail.  We may see here a further expansion of the prior approval process.  The level of technical detail, what would be covered, and how conditions and planning obligations would apply are yet to be explained. However, there will have to be a real incentive to get over the preference for greenfield development, and this may not be enough to offset the high clean-up costs that sometimes beset brownfield sites.

Compulsory purchase reforms

By way of headline points, note also the commitment to additional compulsory purchase reforms to further modernise the system. No detail is given other than that proposals will be announced in the autumn.  Again, reforms will be welcome by those having to grapple with the current form process, but what is really needed is a wholesale overhaul of the legislation governing compulsory purchase which is spread throughout numerous statutes and regulations.

Planning process improvements

In a section entitled ‘Improving the Planning Process‘ the Government repeats its refrain that it wants decisions made on time.  It therefore proposes that:

• It will legislate to allow major infrastructure projects with elements of housing to go through the nationally significant infrastructure (NSIP) regime.
• It will ‘tighten’ the planning performance regime so local authorities making 50% or fewer decisions on time are at risk of designation, and it will extend the performance regime to minor applications.
• It will introduce a fast track certificate process for establishing the principle of development for minor development proposals and tighten the planning guarantee, again for minor applications.
• It will repeat the target to reduce net regulation on house builders although perhaps disappointingly for some this largely seems to involve stepping back from seeking carbon reductions and energy efficiency.
• It will also introduce a dispute resolution mechanism for section 106 agreements (in addition to the previous proposals to appoint section 106 mediators?).

Also included in the chapter are suggestions regarding the devolution of more power, starter homes, right-to-buy and changes to tax relief on buy-to-let schemes.