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.

Cancer Research UK is the world’s leading cancer charity dedicated to saving lives through research, influence and information. It’s the only charity fighting all 200+ types of cancer and its pioneering work is saving lives on a global scale.

Over a third of the charity’s life-saving research is funded by legacies, which help shape the future of medical research. This vital income source enables the charity to plan research funding long term and accelerate progress so that three in four people survive their cancer by 2034.

With the legacy market set to be worth £4.7bn by 2029, this is a pivotal time for Cancer Research UK to partner with philanthropists and their advisors to facilitate impactful gifts that will create a step-change in cancer research, driving progress and bringing hope to millions. 6% of the gifts the charity receives annually in Wills make up over 60% of their legacy income, emphasising the importance of attracting visionary philanthropists to their mission. 

And of course, legacy giving is just one way Cancer Research UK works with wealth advisors and the philanthropists they serve. The charity partners with visionary supporters to fund a range of innovative activities across Cancer Research UK and has a team of philanthropy experts to help supporters choose the right destination for, and timing of, their gifts – whether that’s during their lifetime or in their Will.

In our latest article for theView, we speak to Samantha Devlin, Head of Product: Legacy Giving at Cancer Research UK, to find out more.

What led you to work at Cancer Research UK and what does your role entail? 

I was attracted to work for Cancer Research UK after my partner was diagnosed with cancer. I was working in marketing in financial services at the time and really wanted to use my skillset to help make an impact. Knowing Cancer Research UK was the largest funder of research into cancer in Europe, I was pretty tunnel-visioned in that I stalked the website and secured a role managing the Free Will Service.

My current role safeguards the income generated from gifts in Wills. That is, realising income today through our case management team who work with executors (both lay and professional) to maximise the value of any charitable gifts. As per Charity Commission guidelines, the team are very experienced in tax efficiencies to maximise the income for all beneficiaries, not just Cancer Research UK.

The other part of my role is to look to the future and encourage more people to consider including Cancer Research UK in their Wills. This will provide the organisation with a sustainable source of income to allow us to plan and make decision around long-term funding into cancer research.

We sow the seeds of legacy giving at an early stage, with many of our wealthy legacy pledgers having given substantial lifetime gifts, for example, after the sale of their business. We want to engage people at the beginning of their philanthropic journey, inspire them to give regularly and help them see the huge impact they can have in leveraging life-saving science. We do this through tailored marketing and events, as well as one-to-one relationship building with supporters, solicitors, Will-writers and wealth advisors.

What does legacy giving mean to Cancer Research UK and why is it so important? 

Over a third of our life-saving research is funded by legacies. Our legacy pledgers are visionaries, helping to create a brighter future for people with cancer across the globe. By leaving a legacy, you’ll power discoveries that lead to new and better ways to prevent, diagnose, and treat cancer.

Last year was incredibly tough – the pandemic continued to disrupt the lives of people affected by cancer, and significantly hamper our mission, our research, and our people. Legacies moved from funding over a third of our research to almost half as events were cancelled and fundraising in the community made impossible. Never has the value of gifts in Wills been more fundamental to our mission.

Every year, more than 125,000 people with cancer in the UK are treated with drugs linked to our scientists’ research – that’s three in four people who receive cancer drugs on the NHS. This incredible impact would not be possible without the generous supporters who share in our vision. The philanthropists who support us with both lifetime and legacy gifts understand that no other UK charitable organisation is as well-placed as we are to welcome major donations to convene global excellence, deliver transformational insights and drive radical change to drastically improve outcomes and quality of life for people facing cancer.

How can someone ensure they have all the necessary processes in place when considering legacy giving?  What does Cancer Research UK do to help?  

We would always recommend that you consult with a professional advisor regarding your personal circumstances however, we’re always happy to discuss the different ways we can accommodate donations to fund our research.

Our Gifts in Wills guide contains all the information you’ll need to write a new Will or amend an existing one. You can request a copy via our website: cruk.org/pledge and if you have questions, we have a dedicated team of local Legacy Relationship Managers who you can reach over phone or email at LPMs@cancer.org.uk

We partner with solicitors and will-writers across the UK who can provide independent advice tailored to your individual situation.

If you leave a gift in your Will, you may be able to reduce your inheritance tax liability. Gifts to charities are 100% tax-free and are taken out of your estate before tax is calculated. Since April 2017, if you leave 10% of your net estate to charity, after certain deductions your inheritance tax rate will be reduced from 40% to 36%.

Our philanthropy and planned giving teams can also provide further advice on a variety of ways to boost your lifetime donations; with a Gift Aid declaration, we can claim a further 25p from the Government for every £1 donated. And if you are a higher rate taxpayer, you can claim back the difference between the rate you pay and the basic rate on your donation.

We also run a nationwide Free Will Service which is available to write a simple will online, over the phone or face to face with a local solicitor free of charge. There is no obligation to leave Cancer Research UK a gift, although we hope, and most people do, consider this as an option.

Do you have any high-profile donors who have pledged a legacy donation for Cancer Research UK?

We have some very generous donors, and 6% of the gifts we receive annually in Wills make up over 60% of our legacy income.

Whilst some supporters prefer to keep their pledge private, we have some donors who have shared details to help support our vital research into beating cancer, one of which is philanthropist Alec Catt.

Alec left a generous gift left in his Will which supported Professor Ian Tomlinson, whose research group discovered that gene mutations could increase the risk of bowel, breast and prostate cancer. They identified that these genes were involved in repairing DNA damage, an insight that helped build our understanding of how genetic faults can cause cancer.

This discovery is now helping scientists develop methods to accurately predict cancer risk, so that people at high risk can be monitored more closely to detect cancer sooner if it develops. Detecting cancer early is a powerful tool to improve survival, as it allows doctors to intervene in the early stages when treatment is more likely to be successful.

Alec’s legacy not only allowed us to improve our understanding of how genetic faults can cause cancer, but also helped support Professor Tomlinson become a world-leading expert in his field and train the research leaders of tomorrow.

Why do you think legacy giving is increasing? 

More and more we are hearing from supporters how they view philanthropy and donations are ‘social investments’ and like any investment, want to understand the impact their money can have on social outcomes. Particularly with gifts in will, supporters are literally looking at their own personal legacy and the impact on future generations.

We want to accelerate progress and see three in four people surviving their cancer by 2034. As the world’s leading cancer research charity, we are at the forefront of the global fight against cancer, bringing together millions of people who share our determination to beat it.

What is a residuary gift and how do I set one up to give to Cancer Research UK? 

A residuary gift is a percentage of someone’s estate once fees and administrations are deducted. This type of gift is the most beneficial because it’s a percentage of your estate, rather than a fixed amount. This means it will retain its value and won’t be affected by inflation. Additionally, you might be able to reduce your inheritance tax liability. We advise supporters to work with their wealth advisors and/or solicitors to calculate the total value of their assets and then divide between their desired beneficiaries, always looking after family and friends first.

Is there anything else I should consider when setting up a legacy donation? 

It’s really important to talk through your assets with a professional to ensure any tax allowances e.g. IHT, are recognised and the correct wording is always used so your wishes are correctly and clearly represented. At Cancer Research UK, we always advise that provision for family and friends are considered first before any charitable bequest and this is discussed with your advisor. This will minimise the risk of any challenges to a will and as such potentially deplete the amount available to distribute to beneficiaries.

What do you do with all the money that is gifted to Cancer Research UK? 

All money bequested to Cancer Research UK goes towards our core purpose of beating cancer. We want to bring about a world where everybody can lead longer, better lives, free from the fear of cancer. A world where:

1. Some types of cancer are effectively eliminated and many more are prevented from developing in the first place
2. People who do develop cancer are diagnosed at the earliest possible stage so they can be successfully treated
3. Treatments are more effective, kinder and more targeted, so people can lead better, more fulfilling lives
4. Everyone shares in this progress equally, regardless of who they are, where they’re from or what type of cancer they have

What’s next for Cancer Research UK and your fundraising efforts?  What other ways can I get involved to help your charity efforts?   

As with many charities, Cancer Research UK has been impacted financially by the pandemic as many of our fundraising activities and events were cancelled. We had to reassess our research priorities and make some difficult decisions. The only restrictions around advancements in cancer research is the funding, not our capabilities. We have an ambitious yet realistic new strategy which looks to make discoveries, drive progress and bring hope to those affected by cancer.

Read more about our new strategy here.

We are looking to engage and partner with individuals and organisations to discuss how they can help whether that’s volunteering their time and expertise, making a donation or partnering in a number of ways such as joining our Free Will Service or attending one of our CPD events for professional will-writers.

To find out more about legacy giving at Cancer Research UK, please visit our website.

In early February the Supreme Court heard three appeals (Compton Beauchamp, Ashloch & ON Tower cases¹) concerning the grant to operators of rights under the Electronic Communications Code (“the Code”) on land not owned by them.

We have previously explored the issues in two articles – Telecoms: Ashloch appeal confirms lease renewal status and Telecoms: A realistic rent for rural mast sites.

The Supreme Court decision was published last week – we now explain the judgment and consider the impact on landowners.

The occupier issue

The main issue was whether and how an operator who has already installed electronic communications apparatus (“ECA”) on a site can acquire new or better Code rights from the site owner.

The issue stems from the interpretation of the word “occupier” in paragraph 9 of the Electronic Communications Code (the “Code”) and whether this includes an operator who is presently on site as a result of having installed and operated ECA there. Paragraph 9 reads:
“A code right in respect of land may only be conferred on an operator by an agreement between the occupier of the land and that operator”

the point being that if the operator already on site is deemed to be the “occupier” for the purposes of paragraph 9 of the Code, then it cannot obtain new Code rights, because it cannot grant them to itself. This was the conclusion of the Court of Appeal in both Compton Beauchamp and Ashloch.

Reasoning for judgment on occupier issue

The Supreme Court started from the position that “occupier” has no fixed meaning, but instead takes its meaning from the context in which it appears and the purposes of the provisions within which it is used. The context here is the Government’s policy to encourage the roll out of new digital infrastructure across the UK and that this is an industry in which technology develops rapidly.

The Supreme Court held that an operator, that is already a party to a Code agreement, can only apply to the Tribunal to modify the terms of existing Code rights it already has, once Part 5 of the Code becomes available i.e. after the date on which the Code agreement would, contractually, have come to an end (although nothing prevents a consensual variation of the agreement under paragraph 11 of the Code). However, this does not prevent an operator from obtaining additional Code rights in respect of the same land.

The Supreme Court reviewed the Code as a whole and considered other provisions which assume that an operator can apply for new Code rights, even if it already has ECA installed on site (for example paragraph 26 (interim rights) and paragraph 27 (temporary rights)). On these provisions, the Supreme Court found that an operator, that has ECA installed on a site, is not to be regarded as the occupier of that site for the purposes of paragraph 9 of the Code. As a result, an operator can agree new Code rights with the occupier of the site, identified in accordance with paragraph 105 of the Code. This also means that the operator may apply to the Upper Tribunal under paragraph 20 for an order imposing an agreement to confer those Code rights on it.

Upper Tribunal’s Jurisdiction – the Code v Landlord and Tenant Act 1954 

All three cases here involved leases for sites with ECA, installed by operators, which pre-dated the Code coming into force. The rights initially conferred were by way of business leases within the Landlord and Tenant Act 1954 Act (“1954 Act”) with the operator either benefiting from, or contracting out of, security of tenure.

Instead of applying the Code retrospectively, transitional provisions were introduced in the Code to deal with agreements entered into before it came into force. The transitional provisions dealing with the relationship between the Code, the old telecommunications legislation and the 1954 Act are complex and are beyond the scope of this article. However, the key issue surrounding the operation of these transitional provisions, that determines whether the Upper Tribunal has jurisdiction, is whether there is a “subsisting agreement” between the landowner and occupier. It was held by the Upper Tribunal in the ON Tower case that this meant the agreement had to be in writing.

On this point the Supreme Court found that the transitional provisions meant that an operator with a subsisting agreement, protected under the 1954 Act, does not have the option of renewing the rights under the Code. An operator in this position must instead apply to the County Court for the grant of a new tenancy under Part 2 of the 1954 Act; the Upper Tribunal has no jurisdiction to grant a Code agreement.

It is important to note that if there is no written agreement, it cannot be a subsisting agreement within the meaning of the transitional provisions and therefore the transitional provisions do not apply.

Conclusion

These decisions have clarified matters somewhat for landowners in two ways:

1. If an operator already has ECA on site it can apply for new Code rights in respect of that same piece of land, notwithstanding the fact it may already exercise Code rights over that land. However, it is still worth landowners checking which company actually has the existing agreement and who is applying for the rights.
2. If the subsisting agreement is a protected business tenancy under the 1954 Act, then, if the landowner does not want to grant new Code rights, the operator cannot apply to the Upper Tribunal for an agreement to be imposed under paragraph 20 and must therefore apply for a renewal under the 1954 Act.

This will be a relief for a number of landowners not wanting to lose their higher rents for the time being, as it means the leases will continue to be assessed at market value in accordance with the 1954 Act. However, if landowners do choose to go down this route, they should take action sooner rather than later. This is because the Product Security and Telecommunications Infrastructure Bill is currently making its way through the Houses of Parliament and it includes amendments to the Code, that may apply Code valuation to 1954 Act renewals.

For more information please contact Solicitor, Dani West.

¹Case details:
The three cases were:

1. Compton Beauchamp (Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Ltd
2. Ashloch (Cornerstone Telecommunications Infrastructure Limited v Ashloch Ltd and AP Wireless (UK) Ltd)
3. On Tower (On Tower UK Ltd (formerly know as Arqiva Services Ltd) v AP Wireless II (UK) Ltd)

The judgement on these three cases was handed down on 22 June 2022.

Decisions 

Cornerstone’s appeal was dismissed in the Compton Beauchamp case because Vodafone was the occupier and not Compton Beauchamp and therefore was not able to confer any Code rights on Cornerstone. As it was Vodafone with ECA installed on site, not Cornerstone who was applying for the Code rights, Vodafone’s ECA was not to be disregarded and Vodafone was therefore considered the occupier under paragraph 9 of the Code.

On Tower’s appeal was allowed because it already had ECA on site and therefore was not deemed to be the occupier for the purposes of paragraph 9 and so could apply for new Code rights under paragraph 20.

Further submissions are required in the Ashloch case for that matter to be decided.

Facts:

Decision: 

The seller’s argument in the FTT was that it was carrying on both a property development and a property lettings business, and that both of these were transferred to the buyer as a going concern. The FTT found that there was no TOGC, and that as a result VAT was due on the sale price of the property.

The seller could not have been carrying on a property development business because the commercial reality was that the buyer wanted to be in sole charge of a fresh development project from completion; in this case the buyer was not taking over a development project that had been started by the seller. Indeed the FTT noted that the seller’s intention as to development only got as far as securing planning permission for development (which made the property much more valuable), while the parties’ agreement specifically forbade the seller from implementing any development since this was to be the preserve of the buyer.

Significance:

An increasing number of high-profile data breaches and regulatory incidents have been capturing headlines in the UK. As a result, a claims culture in relation to data breach claims in particular, is springing up against organisations of all sizes and across a variety of sectors.

We have summarised some of the types of claims your organisation may receive and have set out our top tips for dealing with one, should you receive one in your in-tray.

What is the nature of the claim?

The most common form of claim we are seeing, particularly within the domain of group action claims, are data breach claims. As an example, these may result from:

• personal data made public or disclosed to a third party from emails or documents sent to the incorrect recipient, or information disclosed in error, by cyber-attack or a rogue employee;
• failure to take steps to prevent malign actors within an organisation or third parties with whom an organisation works, from illicitly acquiring data; or
• misuse of personal data or using data in a way not stated as a purpose in an organisation’s policies. This includes claims against companies for using cookies and other tracking software against a user’s consent.

Identify the claimant(s)

Once you have identified the nature of the claim, you should ascertain whether a claim is being brought against you by either an individual or by a class of individuals. Common claimants with data protection claims are:

• Customers;
• Employees and contractors;
• Website users (who may or may not become customers).

As actions by groups or classes of individuals can be significantly more complex than actions by individuals, the rest of this point (2) is devoted to these claims.

Claims from classes of individuals generally fall into two categories: so called “opt-in” and “opt-out” actions.

Opt-in

An “opt-in” claim is brought by a group of individuals who have actively agreed to take part in a claim. In the more high-profile examples, the claims are usually managed by law firms acting for the claimants or by claims management companies and such claims tend to be actively marketed (including on social media and television adverts) to encourage affected individuals to take part. A good example of this is the data breach claim against EasyJet, where allegedly millions of customers’ data was accessed by unauthorised actors in May 2020. In this case, affected customers needed to elect to participate in the group action by proving their personal data was affected.

Many of these claims will be brought by claims management companies on the basis of a conditional fee arrangement i.e., a “no-win, no fee ” for the client.  For these types of organisations costs recovery is key. Invariably this means that any settlement will involve significant costs in addition to the compensation sought. We have seen claims for compensation in the region of £750 – £1,000 per claimant for minor breaches. This figure could increase substantially if the claimant claims they have suffered particular distress or damage in terms of their mental health as a result of a data breach.

Opt-out

The second type of claim is an “opt-out” claim, whereby an action is brought on behalf of a class of affected individuals who may not be aware of the claim. Unless an individual has taken active steps to withdraw, they will be included in the action. In the United Kingdom, unlike other jurisdictions such as the USA, these types of actions are not common.

Indeed the recent, seminal case of Lloyd v Google [2021] reduced the likelihood of such claims being used. The Supreme Court considered whether to allow an opt-out group action against Google on behalf of affected iPhone users for alleged data privacy breaches relating to the Safari software. The Court found that it was not possible to bring a class action for damages relating to the loss of control of data under the GDPR’s predecessor legislation (to which this claim pertained) as the individual claimants needed to show damage stemming from the infringement and this would need to be considered for each claimant. On that basis, the Court held that the “opt out” group action was not the appropriate vehicle in this situation.

However, later cases such as Stadler v Currys Group [2021], relating to a claim for compensation for a data breach under s168 of the Data Protection Act supplementing Article 82 of the UK GDPR, have suggested that damages are likely to be available under the UK GDPR for “non-trivial claims” where there is proof of damage or distress on the part of the claimant.

Though specific to its facts, Lloyd v Google was a reassuring outcome for businesses that may otherwise have been subjected to a wave of opt-out claims inspired by Lloyd. However, it should be noted that the Supreme Court did not rule out other “opt-out” claims being brought and elected to demonstrate how future claims could be actioned. Therefore, the risk of “opt-out” claims does remain a possibility and the future of these actions will largely depend on whether claims management firms consider such claims to be financially viable.

Top tips for dealing with a data protection related claim

• Be organised, ensure you have internal processes that allow claims to be spotted, escalated and dealt with. Even though some of the above claims may be opportunistic in motivation, failure to properly respond to communications from or address the concerns of claimants may later prejudice a defence if a claim is filed in the courts.
• Some communications received from claimants will identify themselves as “letters before action”. It is important that you diarise any deadlines for reply specified in the letter. More formal pre-action approaches (likely from professional claimant organisations, as discussed in point 2 above) will follow the Pre-action Protocol for Media and Communications. As such you will need to ensure you are aware of and able to respond within the set deadlines. Failure to do so, may negatively impact your position if your case does go to trial and runs the risk of an adverse costs order.
• Where no date for a reply is included in a letter of claim, you should aim to acknowledge receipt as soon as possible. It may also be appropriate for you to send a holding response to state that you are reviewing the claim and will respond more fully by a certain date.
• Carry out an internal fact-find and a search for any relevant documents, to establish the factual background to the claim and compile relevant information to create a timeline of events around the time of the alleged breach and to assist with your defence of that claim.
• It is important that from an early stage, your organisation provides robust, prompt responses to protect your position against any threatened claim being issued at court (but only once you are in possession of all the facts regarding the incident leading to the threatened claim).
• Carefully consider how you respond substantively to any allegations. We understand that in many cases, organisations will want to defend claims on a point of principle. However, this should always be weighed against the potential reputational and financial costs if the claim does proceed to court and increased public attention from such an action. Fighting a claim on a point of principle may not be advisable, particularly if you establish that the data breach complained of did indeed take place and in light of its severity (based on the risk to the rights and freedoms of the individual whose personal data was breached).
• Factor in the likely costs of a claim into your decision making. The longer the dialogue between your organisation and the claimant continues, the more costs will accrue which the claimant will likely seek recovery of as part of any pre-action settlement. Seek advice from specialist solicitors at an early stage for strategic input in this respect.
• Put your insurers on notice that you have received a claim and/or consider taking out further insurance to mitigate against any potential losses. You will need to check your insurance policy carefully to see if these circumstances apply. The financial risks posed by claims (particularly group action claims) can be punitive and failure to follow the required notification procedure could prejudice your ability to rely on the insurance.

We are experienced in assisting organisations to deal with such claims and reach a positive outcome. We are able to advise you on how to best balance the various risks involved and can also assist with interpretation and negotiation with insurers if required. If you require further advice or assistance in relation to a claim resulting from a data breach claim, then please do get in touch with Tom Torkar or Emily Aggett.

On 16 March 2022, Natural England issued new nutrient neutrality guidance to Local Planning Authorities (LPAs). Natural England has advised that in areas where protected sites are in ‘unfavourable condition’ due to nutrient pollution, LPAs can only approve a proposal for development if they are certain that it will have no negative effect on the protected site. The advice was issued to the 32 LPAs, that had previously received advice, as well as to 42 new LPAs, bringing the total LPAs affected to 74.

The guidance includes a new generic nutrient neutrality methodology, catchment specific calculators and an updated catchment map. The new catchment map includes 27 new catchment areas.

Previous guidance

When the previous advice was first issued back in 2019, Natural England focused on areas in the south and west of England. The new guidance now also catches several areas in the Midlands and the North. Developers in these catchments will need to demonstrate nutrient neutrality before planning permission can be granted. Not only will a developer have to satisfy the LPA that mitigation is sufficient and nutrient neutrality is secured (either on-site or off), but Natural England will also need to sign-off. As part of the appropriate assessment stage of the Habitats Regulations Assessment (HRA), there is a statutory 21-day consultation with Natural England.

We explain the original guidance and the methodology stages in more detail in our article ‘Nutrient Neutrality – the basics‘.

New variables

The four-stage process for determining a nutrient budget remains largely the same. However, the new generic methodology introduces the following new variables at stages two and three of the methodology in relation to leaching rates:

1. operational catchment;
2. soil drainage type;
3. average annual rainfall; and
4. whether the site is within a Nitrate Vulnerable Zone (NVZ).

These new variables impact hugely on the leachate kg/ha of nitrate and phosphate for each of the individual land use types. Therefore, the land use nutrient export coefficient for both existing and future land use differs from the previous methodology calculations.

The Government’s Planning Advisory Service has confirmed that these updated tools will change some of the figures used in nutrient budgets and developers will need to rerun their calculations using the new relevant calculators.

Worked example

For example, under the previous guidance for the Stodmarsh SAC and Ramsar:

Fig.1

Under the new guidance:

Fig 2.

With significantly less average annual rainfall and impeded drainage:

Fig. 3

This not only affects developers and LPAs but also those providing off-site mitigation. Using the example in figure 3, under the new guidance the mitigation site will have:

• 1,730.33 kg/yr of nitrogen credits available; and
• 39.19 kg/yr of phosphate credits available

In comparison to:

• 2,765 kg/yr of nitrogen credits; and
• 16 kg/yr of phosphate credits

under the old guidance.

Impacts

LPAs are taking stock to understand the implications of the new guidance. Since different LPAs are affected to varying degrees, there have been a variety of responses to the new guidance.

Havant Borough Council has issued a statement saying that they have “temporarily paused the approval of any residential developments in the face of updated terms and conditions for dealing with nutrient neutrality as defined by Natural England.”

Norwich City Council has stated “ until these matters are resolved, the city council will not be able to grant planning permission for developments comprising overnight accommodation in Norwich”.

Although the new methodology is more sophisticated than the previous iteration, the wider scale roll-out is likely to result in severe delays to development across England. We have already seen considerable delays in catchments already affected by the previous advice.

LPAs that had already made good progress towards developing strategic mitigation solutions based on the previous guidance, such as the Solent Nutrient Market Pilot, will now have to recalculate.

Natural England has pledged to give £100,000 to each affected catchment to support LPAs. This is in addition to a collective series of pledges from Severn Trent Water, United Utilities, South West Water and Yorkshire Water totalling £24.5m.

For further information and questions about nutrient neutrality, please contact Ben Sharples

The purpose of this article is to explain the basics of nutrient neutrality. Further and more detailed information about the specific elements of this topic can be found on our website.

What is Nutrient Neutrality?

Nutrient neutrality is the outcome achieved when a particular land use or a specific development, within catchment areas of vulnerable watercourses, does not result in an increase in phosphate and nitrate levels in those watercourses beyond current levels. Excess phosphates and nitrates contribute to the growth of algal blooms, leading to eutrophication, which causes oxygen levels for fish and other aquatic life to be reduced significantly.

Dutch N case

The issue arose following the European Court of Justice ruling in the landmark ‘Dutch N’ case in November 2018. This decided that projects or plans must not have a significant adverse effect on site conservation objectives.

In the UK, Natural England picked up on the problem and issued guidance to several Local Planning Authorities (LPAs) between 2020 and 2021 about the risk of permitting changes in land use and development in nutrient vulnerable areas.

In two previous articles, “Planning & nitrate neutrality: Legal challenge to Natural England’s guidance” and “Planning and nitrate neutrality: the High Court backs Natural England’s guidance”, we reported on legal challenges to the validity of the guidance applicable to the Solent, in the case of R(Wyatt) v Fareham Borough Council. The High Court decision in that case, to dismiss an application for Judicial Review of the decision to grant planning permission, has since then been appealed. The hearing in the Court of Appeal was held on 5 and 6 April 2022 and we are currently awaiting judgment.

The Natural England guidance focuses particularly on development within Special Areas of Conservation (SACs), Special Protection Areas (SPAs) and Ramsar Sites (i.e., wetlands of international importance), with an aim to achieve nutrient neutrality.

The key areas targeted by Natural England (amongst others) include:

• Cornwall – the Camel estuary;
• Essex – the Orwell and the Stour;
• Kent – the Great Stour;
• Hampshire and Dorset – the Solent;
• Herefordshire – the Wye and the Lugg;
• Shropshire – the Clun;
• Somerset – the Levels;
• Suffolk – the Deben estuary; and
• Wiltshire – the Avon.

Coastal and marine areas such as the Solent suffer from an excess of nitrates, whereas for inland freshwater environments such as the Somerset Levels it is phosphates that are of concern.

On 16 March 2022, Natural England issued a letter to a further 42 LPAs as well as the existing 32 LPAs, bringing the total number of affected LPAs to 74. Previously unaffected LPAs in areas such as Cumbria, Northumberland, Cheshire and parts of Yorkshire, for example, will now have to implement mitigation plans for new developments.

Natural England provided an updated national map showing the affected catchments. As a result, some existing areas have been assigned new catchments, that now need to be nutrient neutral. The new advice includes a ‘National Generic Nutrient Neutrality Methodology’ along with specific catchment calculators.

Types of development

Although evidence has demonstrated that residential development contributes to high levels of nutrients in the water, the nutrient neutrality obligation does not just affect residential development. All changes to land use or development that might cause additional nutrient loading are caught.

Habitats Regulations Assessments (HRA)

As a result of the Conservation of Habitats and Species Regulations 2017 (as amended), LPAs now require HRAs for proposed changes in land use or development in affected areas. This is to ascertain whether there will be any adverse effects due to the project’s location, size or nature. Mitigation solutions have been required where adverse effects have been found.

The ‘Appropriate Assessment’ (AA) stage of the HRA must be carried out before an LPA will grant planning permission. Natural England advises that the LPA must have practical certainty, that the nutrient neutrality measures, relied on in an AA, will be implemented and in place at the relevant time, when the AA is undertaken, e.g. secured and funded for the lifetime of the development’s effects. In addition, all HRAs must be undertaken in consultation with Natural England.

Previously consented, as well as existing schemes are caught. This includes LPAs discharging planning conditions, approving reserved matters or granting minor amendments to existing planning consents.

LPAs have embargoed granting planning consents or discharging conditions until clear HRA assessments or solutions have been put in place and are proven to work. The embargoes have created immense delays and additional expenses to residential development in affected LPA areas. The Housebuilders Federation (HBF) estimates that 50-60k new homes are currently held up. HBF also estimates that the cost of mitigating phosphate, for example, is around £5,000 per consented dwelling.

Calculating the nutrient burden

The generic methodology produced by Natural England involves a four stage process for determining a nutrient budget for a given development; this takes into account the operational catchment, soil drainage type, average annual rainfall and whether the site is within a Nitrate Vulnerable Zone (NVZ):

A .Calculate the proposed development’s total nitrogen/phosphate that would be discharged into the catchment;

B. Calculate existing (pre-development) nitrogen/phosphate from the current land use of the development site;

C. Calculate nitrogen/phosphate for the non-built land uses proposed for the development site, such as public open space; and

D. Calculate the change in total nitrogen/phosphate due to the development: (A – B +/- C) including the 20% precautionary buffer.

If the result of Stage 4 is positive, then mitigation is required. If it is negative, mitigation is not required.

Each LPA has been provided with catchment-specific calculators to support a consistent approach to the assessment of nutrient neutrality across all affected catchments in England.

On-site options

It is possible to achieve nutrient neutrality on-site, via the creation of large-scale wetlands, woodlands and fallow habitats. However, in practice, this is unlikely, unless there is a significant open space provision within the development boundary, as neutrality measures are often very onerous and land-hungry. Solutions need to be available and work in perpetuity or at least for as long as the development is required, which is a heavy burden on developers. Packaged private water treatment plants are one solution, but require material investment in front end infrastructure before other development can take place.

Off-site options

Off-site options are emerging as more popular alternative mitigation solutions and one approach is to purchase nutrient ‘credits’. Third-party landowners are beginning to take agricultural land out of production and change the land use to woodland, heathland, saltmarsh, wetland, or conservation grassland to generate credits. For example, agricultural land used for poultry has a nitrogen leaching rate of 70.7 kgN/ha/yr, whereas woodland has a leaching rate of 5 kgN/ha/yr, creating a healthy nutrient deficit, which can be used to offset the effects of development.

Natural England advises that mitigation land is maintained for a minimum of 80-125 years. This significant obligation means that many developers may wish to buy credits from third-party landowners, in a one-time transaction, allowing the developers to move on without the need to maintain the habitat themselves.

Many landowners are exploring the ability to benefit from several positive environmental outcomes on the same piece of land. This may include the receipt of both public money, in the form of the new Environmental Land Management Scheme (ELMS) and private funds, such as those arising from nutrient neutrality.

Unlike the new mandatory biodiversity net gain requirement, Natural England has called for mitigation sites to be provided within the same local catchment area as the development. This greatly reduces the potential to find off-site land to deliver solutions at a viable cost.

LPAs are considering, or in some cases are already implementing, similar nutrient neutrality credit schemes of their own. For example, Havant Borough Council is the first LPA to develop its own nutrient neutrality scheme. Under this scheme, the proceeds of the credits go towards the creation of large-scale wetlands, woodlands and meadows to mitigate against the effect of development.

Example of credit calculation in the Itchen catchment of the Solent region

Nitrogen leaching values of land uses:

1. with freely draining soil drainage;
2. with an average annual rainfall of 750.1 – 800 (mm); and
3. within an NVZ.

Credit calculation

For this example, the total payment for converting 5ha of general cropping land to green space creates 466.25 credits and at £3,000/credit, this totals £1,398,750

We are seeing values fluctuating considerably, according to supply and demand, between different catchment areas. This is because in some areas, nitrates are the main problem, whereas in others, phosphates are the issue.

Securing land use change

Conservation covenants are introduced in the Environment Act 2021 and will officially come into force on 30 September 2022. These are private agreements between landowners and “responsible bodies”, such as wildlife trusts. They can be used to enforce future management of mitigation land by creating positive obligations, which bind successors in the title automatically. This accords with Natural England’s view that offsite mitigation land should ideally be maintained in perpetuity.

What does this mean for developers?

We discuss many of these issues in greater detail in our article “Nutrient Neutrality and the Impact on Development” In summary, however, all developers and landowners, with interests in projects or land in affected areas, should reconsider their legal and commercial positions. Prompt action may be necessary and collaboration with landowners and others will be vital in finding the most effective solutions.