Under English law, it is possible to choose who inherits your assets following your death by making a will. If you die without having a will in place, there are set provisions known as the intestacy rules which dictate who gets what.

Whilst a will should be regularly reviewed to ensure it still reflects your wishes, this does not always happen. With the forthcoming changes to Business Property Relief (BPR), now is an opportune moment for any business owners to review the arrangements they have in place, in addition to considering any lifetime succession planning they may wish to undertake.

Under the current rules for BPR, 100% relief for inheritance tax can be claimed on death for qualifying business property. BPR is an extremely valuable relief and has been a way to ensure the family business remains intact when passing to the next custodian.

However, from 6 April 2026, the unlimited 100% relief from inheritance tax on qualifying business (and agricultural) property is due to be capped at £1 million per person, with qualifying assets above this value being subject to inheritance tax at half of the standard rate. For many business owners, this will significantly increase the inheritance tax due on their death and may mean that assets will need to be sold to raise funds to pay the tax.

Whilst we are awaiting the draft legislation, it is currently proposed that the £1 million will not be transferable between spouses/civil partners (unlike the nil rate band and residence nil rate band). In other words, if the £1 million allowance is not used and ‘banked’ on the first death, it will be lost.

Depending on how your will is currently drafted, it may be that your estate is not able to use the £1 million allowance on the first death, for example, if your will currently leaves everything to your spouse. Whilst it may be possible to vary someone’s will after they have died, this relies on the surviving spouse having the requisite capacity to do so. The prudent course of action is therefore to review your will now to ensure it is as tax efficient as possible in light of the upcoming changes.

Other important documents to review include partnership agreements and company articles. A partnership agreement, for example, can trump the wishes within your will and so it is important to ensure the documents dovetail to avoid any nasty surprises following your death. We work closely with our colleagues in Corporate/Commercial teams to ensure everything aligns.

If you would like any assistance reviewing your will or are not sure how these changes may affect you, please do not hesitate to contact a member of our Tax, Trusts & Succession team.

Planning documents to be published on planning portals

Most readers will be familiar with determining authorities’ planning portals or registers. Authorities use them to publish details of planning applications and record planning decisions. Authorities are in fact obliged to publish these details along with other decisions and approvals too (by the 2015 Development Management Order).

The requirement to publish  planning applications and applications to discharge reserved matters that are pending determination includes the following are documents, although to date authorities’ standard practice has meant they are typically absent:

• copies of draft section 106 planning obligations and section 278 highway agreements;
• copies of completed 106s and section 278s that have influenced the authority’s decision; and
• variations and discharges of such documents.

Judicial review threat

Following a Court of Appeal judgement in April this year this standard practice poses a clear and present judicial review risk.

The case (R. (on the application of Greenfields (IOW) Ltd) v Isle of Wight Council) considered the planning authority’s determination of a planning application for 473 new homes. The planning committee resolved to grant permission subject to a section 106 dealing with a contribution to highway improvements, an aspect of the development that was of keen interest to objectors. After two years’ of negotiation, this was concluded and the committee resolved again to grant permission. The permission was granted four months later. At no time was the section 106 made available on the planning portal.

The Court found the Development Management Order required that certain documents must be placed on the planning register in the period before an application for planning permission is finally disposed of in order to enable members of the public to know and comment on the terms of a proposed or agreed planning obligation, if they choose to do so (noting that this requirement is not a wider duty to consult).

The planning authority’s non-compliance with this procedural requirement of the Development Management Order was sufficient in this case to cause the Court to quash the planning permission.

It’s not black and white

The judgement was clear that it did not consider any and every failure to comply would invalidate the grant of a planning permission. It is necessary to evaluate the consequences of non-compliance on the facts of the case. Perhaps, despite the absence of publication, the key contents of the section 106 were already in the public domain. Perhaps, reporting in sufficient details of the heads of terms, would  amount to substantial compliance to discharge the publication duty. Perhaps, interested members of the public already had the opportunity to comment on an unpublished draft. Perhaps, there was nothing of contention in the obligations or in the development as a whole.

What is clear is that following the judgement, taking a view on these ‘perhaps’ is not for the faint hearted. Rather, it is better for determining authorities to ensure the engrossment draft section 106 is published before the permission is granted and ideally allow sufficient time for comment (what is sufficient time is still uncertain though emerging practice would suggest to allow between 7 and 14 days before proceeding to section 106 completion).

Managing the risk

Planning decision making is already fraught with judicial review opportunities. This is one more example. Managing the threat already requires the diligence of applicants, planning officers and decision makers.

Now the issue is in the limelight, planning professionals can manage it together. Officers can report on the heads of terms of the planning obligations to committees. Committee meeting minutes can record those terms. The applicant’s lawyers can prompt the authority to publish engrossment drafts and hold completion until they have seen evidence of that publication. Planning performance agreements can identify timely publication as a necessary step. Of course, this will cause delay. But better a week’s delay than a year’s battle through the courts.

Buyers of sites with the benefit of planning permission can build appropriate conditionality into their contracts such that the draft section 106 has to have been published prior to the grant of planning permission. They can request evidence this statutory requirement has been discharged and wait out the judicial review window if it has not (as insuring against this risk may not be supported by the insurance market). Frustrating though added delays might be to the section 106 negotiation process, the downsides could be worse.

As a final cautionary note, there are plenty of seemingly inconsequential statutory requirements in the planning system that are regularly overlooked. They are ignored by all parties as standard practice.

The assessment stages for training contracts and apprenticeship roles can be challenging, and knowing how to prepare effectively is not always straightforward.

In this article, our current trainees share their insights and tips for tackling common themes assessed during the application process. Each trainee has followed a unique path to reach their current position, so their experiences and advice offer valuable guidance, no matter which route you choose to pursue.

• Luke Harper is currently sat in his second seat, Commercial & Regulatory Disputes after competing his first seat in Agriculture. Luke spent three years working as a paralegal before applying for a training contract and joined Michelmores in September 2024.
• Ella Turner is a Graduate Solicitor Apprentice and is currently sat in Corporate for her first seat. Ella graduated last year and spent six months working as a paralegal in Children Law before joining Michelmores in February 2025.
• Ellis Arnold is currently sat in Transactional Real Estate, having completed his first seat in Asset Protection. Ellis spent three years working as a paralegal at Michelmores, before applying internally for a training contract. Ellis started his training contract in September 2024.

How did you stay on top of commercial awareness?

Luke: There is often a misconception as to what commercial awareness is. It is more important to have a commercial mindset, don’t focus so much on current events but instead look at how a legal business operates. Remember that there isn’t an expectation to understand every current event, this is something that comes later when you have more of a specialism and you know what your client needs and subsequently what events you need to understand. It is more important at the application stage to understand how law firms make money. Ask yourself questions such as how do people pay for lawyers, what does the firms pipeline look like and how would you deal with a client coming to you with a legal issue but they don’t have the capacity to pay. An understanding of the legal industry rather than current events is more impressive.

Ella: Every morning, I listen to the financial times daily briefing and read the news headlines. When applying for training contracts, I researched law firm websites and considered what articles they had recently posted, this indicated what current changes were impacting them and their clients most. Applying whilst still at university was also helpful because I could utilise my commercially relevant modules, the day to day teaching I received allowed me to stay up to date with changes in the law.

Ellis: I read the headlines each morning to get a gist of what was happening in the world. This would give me a basic idea of any breaking events that were ongoing. When I could find the time, I would look to read further about specific issues which interested me or where I wanted to find out more information. It is always worth having the thought process of how this might impact businesses (as a law firm is also a business at heart) but also the impact it might have on your potential seats. For example, as a Transactional Real Estate trainee, there is currently a particular interest over the Government’s plan to build £1.5m new homes.

How did you make yourself aware of the sort of work the firm was undertaking?

Luke: The first steps is to look at the firm’s website, as well as legal publications and the rankings for each team. It is also useful to look at which awards the firm is up for and what they have previously won. This will indicate which teams are strong in the firm. There is no expectation to know everything, you just need to demonstrate that you are passionate about the type of work the firm specifically undertakes.

Ella: The firm’s website and recently published articles were a great starting position. Michelmores often acted on the other side when I was working at my previous firm, so this was a great opportunity to gain a strong insight to the type of work they were doing. I was also lucky to have some friends at the firm who I could speak to ahead of any assessments.

Ellis: I was somewhat fortunate in this respect as I was a paralegal at the firm for three years prior to commencing my training contract. This gave me a hands-on insight into the work within the Real Estate team and arguably I was in the best position to find out about the firm’s other initiatives. I think that the publications on firm’s website is a great place to start as we are regularly posting about recent matters and the website itself provides a variety of information about the work Michelmores does.

What research did you carry out to know Michelmores was the right firm for you?

Luke: I knew that I wanted to train at a full service law firm as this would give me an opportunity to experience a variety of areas. Michelmores also struck a good balance between work and social life which was another important factor for me when applying to firms. Websites such as Legal Cheek and Chambers Student are useful before any assessments. It was during in the assessment period that I really realised Michelmores was the right firm for me.

Ella: Michelmores did a lot of marketing at my university (University of Exeter). They always made you feel very comfortable and even partners would make the effort to attend open days and interact with perspective trainees. It was a very relaxed atmosphere during the assessment centre, it felt more like a chat instead of an assessment. I was also looking to train at a mid-sized full service firm with a strong private client sector and I wanted to stay in South West; Michelmores fit these criteria.

Ellis: I was fortunate to be able to work at the firm as a paralegal which confirmed my choice. I appreciate that not everyone will be able to work at the firm before they decide to apply so the next best option is the vacation scheme if you can. This allows you to spend a week within the firm whilst doing your assessments which gives you the perfect opportunity to experience the culture of the firm and speak to people here and understand what they value most about working for Michelmores. On a general note, you need to ask yourself what you want from a law firm; is it a specialism in a specific area? Is it location? Or is it ambition? For me, I was looking for a progressive and ambitious firm with national quality work, but with a southwest location.

How did you make yourself stand out throughout the assessment process?

Luke: I utilised my paralegal experience, this included engaging with clients and counsel directly. Even if you don’t have legal work experience, working in a team or in an office shows you have the skills to engage and be competent. Any previous work that evidences these skills will be very useful. Try to be your authentic self, talk about your interests, try and engage naturally with people and be confident but not cocky.

Ella: I focused on being polite, friendly and tried to come across relaxed. Sometimes it’s helpful to imagine you’ve already got the job and the assessments are just a formality, this will bring out your true personality.

Ellis: I would say that you need to play to your strengths and use your unique experience to your advantage. This allows you to be authentic and genuine with your responses and I believe that this goes a long way, as opposed to trying to be someone that you are not. Everyone has different experiences whether legal or not that they will be able to use to demonstrate the skills required. Don’t be afraid to use your own experience as I am sure there are numerous skills that you can evidence.

What is your #1 top tip for the assessment process?

Luke: Show a genuine engagement with everything you do and that you have a passion to build your knowledge. Going a little bit under the surface to show that level of engagement really stands out.

Ella: Be yourself because if you haven’t been yourself and you get offered a place, it probably won’t be the best place for you. They are assessing how well you will do at this specific firm. It’s not luck that you got the job, it’s luck that you found the right firm.

Ellis: It is a cliché but it leads on from my answer to the last question – be yourself. I personally believe that the best applications come from a place of authenticity.

You don’t need to be wearing a hard hat to know that the construction sector is dealing with more curveballs than ever. Between legal and regulatory changes, new governmental policies and the unstable global economic climate, it has been a bit of a rollercoaster. Recent headlines suggested that the UK was the fastest growing G7 economy in Q1 of 2025, but when you delve into the detail you will see that construction output hasn’t grown at all.  In this article, we explore some of the trends that we have seen more recently affecting our clients, the challenges arising from those trends and what we can do to help.

Uncertainty around Building Safety Levy

Expected to be introduced from Autumn 2026, the Building Safety Levy confers the government the ability to impose a levy on all new residential developments, with some exceptions for internal refurbishments, smaller developments and community facilities.

The levy will be calculated using the internal area of floorspace within developments, with the rates per square metre to be determined by each local authority, accounting for the geographical variation in house prices. Over the next 10 years, the government has set a revenue target for the levy of £3.4 billion in order to fund the remediation of safety defects, a key tenet of the government’s housing commitments.

Importantly, the levy will apply to all developers, regardless of whether the developer had responsibility for historic building safety failures; additionally, the levy will be chargeable on top of  the residential property developer tax. With the government acknowledging in its recent Consultation Response that ‘the levy may have a small impact on housing supply’, it is clear that the levy will impose a financial burden on developers and potentially limit development opportunities, particularly in geographical areas where the levy is considered too costly.

Further, the introduction of the levy coincides with the government’s ambitious targets to deliver 1.5 million more homes by 2029. It is therefore unclear how the tension between the government’s housebuilding targets and the introduction of the building safety levy will pan out; developers will have more answers when the levy regulations reach Parliament later this year. Michelmores will observe any new developments and issue guidance where necessary when further changes are published.

Handback issues on PFI schemes

As of March 2025, there were 540 legacy Private Finance Initiative (PFI) infrastructure projects in England with original asset values of £42bn (estimated to be £105bn in current terms). It is anticipated that there will be a total of around £123 billion unitary charge payments to be made before all projects reach expiry, with a peak number of 61 projects expiring in 2036.

On 1 April 2025, a new National Infrastructure and Service Transformation Authority (NISTA) was formed by the government when it brought together the functions of the National Infrastructure Commission and the Infrastructure and Projects Authority (IPA).  NISTA will oversee the underlying strategy of public-private infrastructure development – central to the government’s 10-year infrastructure plan.

A vast number of project companies are still holding an asset which they must ‘hand back’ to the public authority; in many cases, sooner rather than later, with the majority of contracts expected to expire in the next 15 years. It may be the case that the relevant Project Agreement is left in a drawer and not picked up again until handback is imminent, thus leaving insufficient time to consider the condition of the assets and carry out any necessary work to bring them up to the required contractual standard prior to commencement of the formal handback mechanics at the end of the concession period, and potentially resulting in a right for the public authority to make significant retentions from the project company’s income stream.

The IPA issued its Asset Condition Playbook in March 2025, just weeks before its merger with the National Infrastructure Commission to form NISTA.  The Asset Condition Playbook is intended to provide a practical guide for carrying out asset condition surveys in preparation for contract expiry, against the backdrop of the handback obligations in the underlying project agreement. We have seen a significant increase in the use of consultants acting for public authorities in relation to asset condition surveys, both throughout the term of the project agreement and in preparation for handback.

It will be important for project companies and facilities management contractors to work with the relevant public authority to ensure that appropriate asset condition surveys are carried out in good time to establish the extent of any defects or maintenance issues, allowing sufficient time to rectify them in advance of handback. The Asset Condition Playbook recommends that asset condition surveys are carried out as early as possible but in any event not later than five years prior to expiry of the project agreement, with preparation for the survey commencing two years before that. This is significantly in advance of the timescales contained in most project agreements, many of which require a final asset survey to be carried out just one or two years prior to expiry but the intention is that early involvement of all parties should make the handback process less risky and facilitate a smoother handover of the assets and associated services.

Project companies should also undertake an early audit of project documentation to establish the extent to which there may be gaps in any documentation and information that the public sector will expect to receive to enable it to operate the assets following expiry of the project agreement might be, allowing adequate time to remedy any documents that are missing or incomplete.

If any dispute arises from the project or if there are question marks surrounding termination, Michelmores can provide advice from an early stage up until handback. We are able to work closely with our nationally recognised Projects & Infrastructure team to consider the state of the asset prior to handback, including reviewing the contractual documents and, as far as possible, determining the objective criteria to be applied. We can also assist with the appointment of surveyors and other construction consultants, both in circumstances where there is a mutually agreed joint appointment between the public authority and project company (as envisaged by the Asset Condition Playbook and the handover provisions in many project agreements), or where it may be beneficial for appointments to be made through solicitors, which in turn may allow the resulting reports to be protected by privilege and as a result not be disclosable in future litigation.

Insolvency and the Procurement Act 2023

It is no secret that the rate of insolvency in the construction industry is especially high. Delays in supply chains, a shortage in labour and increasing material costs are only propounded by the general instability of the political-economic climate, resulting in many contractors facing cash flow issues in an already highly competitive sector.

One of the reasons for the introduction of the Procurement Act 2023 is to alleviate some of these problems. Commencing towards the end of February 2025, the Act simplifies the tendering procedures by streamlining the mechanisms involved and confers flexibility on contracting authorities to design their own procedures for the contract being procured. It also widens the transparency obligations of contracting authorities; in turn, this aims to widen the scope of procurement, allowing smaller contractors to tender for more contracts.

It doesn’t stop there; the Act implies into all public contracts (with some exclusions) a term providing that a sum due by the authority must be paid within 30 days from the day the authority is invoiced. It all rather sounds promising, and we hope that these legislative changes help address cash flow and supply chain issues in the Construction industry.

Whilst we hope that the Act is successful in relieving cash flow concerns and lowering insolvency rates, there are other protections that can be sought by parties to help mitigate insolvency risk. Whether you need a hand with drafting collateral warranties, retention bonds, procurement of vesting certificates or general advice in taking protective measures, Michelmores can help.

Modern Methods of Construction

Despite being the poster boys for the government’s housebuilding targets, MMC contractors are facing insolvency at an alarming rate. Findings from a House of Lords Built Environment Committee report suggests that MMC contractors are struggling to actually demonstrate cost savings, one of the cornerstones of the MMC deliverables. In fact, one housing association reported that MMC estimates could be 30-50 percent higher than traditional construction methods.

This has led to a struggle for some MMC contractors generating and securing work streams, with some developers and Registered Providers hesitant to engage with them until they have a visible pipeline of work and have begun to turn a profit. Naturally, the concern is insolvency before any contract between consumer and MMC builder is fulfilled.

Off-site IP issues do not help MMC contractors, nor does the risk averse nature of insurers and lenders – we are seeing insurers restricting the uptake of residential properties for MMC’s due to issues in quality from modular homes being noticed several years later. Whilst the quality problems may relate to older designs and MMC contractor may have made improvements since, until insurers’ concerns are allayed, this will be a live issue in this sector.

If you are an MMC contractor, navigating these issues is no mean feat. Lining up the legals early is key; Michelmores acts for several MMCs across different sectors and we are able to provide creative and customised solutions to the challenges you are facing, depending on your objectives.

Conclusion

The Construction industry is undoubtedly navigating something of a rough patch, but we hope that some of the regulatory and legal changes can help ease some of the symptoms that many are currently facing. The future? Still very much under construction – time will tell how well the sector will stand up against the government’s targets and policies. In the meantime, please do not hesitate to get in touch with a member of our team if you need any Construction related advice.

The shortlist for the prestigious Michelmores Property Awards 2025 has been unveiled, showcasing the best property, construction, and development projects across the South West of the UK. The Awards, which celebrate excellence and innovation, bring together professionals from the region to highlight the outstanding achievements in the property sector over the past year.

Now in its 22^nd year, the Michelmores Property Awards continue to champion the most sustainable, impactful and creative developments. This year’s shortlist, which includes 10 high profile projects from Bristol, Somerset and Gloucestershire, represents a wide range of impressive projects across various categories, from regeneration and education to residential and leisure developments.

The Awards encompass nine categories, and the judging panel comprises esteemed professionals from various sectors within the property industry. The 2025 Shortlist Includes:

Category 1: Project of the Year (under £10m)

• Pixel – Cornwall Council, Kier Construction, Ward Williams Associates, Stride Treglown, Hydrock, Mace
• Sarah Turvill Multifaith Centre – Willmott Dixon
• Space2Work Redruth – The Park – Bauer Group
• Tithebarn Green Local Centre – LHC Design, Devon Contractors

Category 2: Project of the Year (over £10m)

• EQ – BAM Construction
• McArthur’s Yard – Nash Partnership, Guinness Partnership, Hill Group
• Purdown View – Stride Treglown
• The Forum – Reef Group
• The Park – Plymouth Crematorium – Kier Construction

Category 3: Regeneration Project of the Year

• Babbage Building – BAM Construction, University of Plymouth
• Crescent – Kier Construction, CEG
• McArthur’s Yard – Nash Partnership, Guinness Partnership, Hill Group
• Rolle Gardens – Acorn Property Group
• The Forum – Reef Group

Category 4: Education Project of the Year

• Ashcombe Primary School – John Perkins Construction
• Babbage Building – BAM Construction, University of Plymouth
• Baytree School – Rio Architects, North Somerset Council, Willmott Dixon
• Combe Pafford School – Rud Sawers Architects

Category 5: Leisure and Tourism Project of the Year

• SeaSpace – We Are Ease, Dynargh Design, Kay Elliot, Airey & Coles
• The Lookout – DDMH Developments
• The Mole Resort – Savills UK
• voco Zeal Hotel – RED Construction Group

Category 6: Heritage Project of the Year

• Paternoster House – NooKo
• York House – Vistry Group, Bailey Partnership

Category 7: Residential Project of the Year (36 homes and over)

• Gwel Basset – Treveth
• One Lockleaze – Goram Homes
• Quintrell Rise – Classic Builders, Coastline Housing
• Rainbow Way – Classic Builders, Somerset Council
• The Orchards – Edenstone Homes

Category 8: Residential Project of the Year (35 homes and under)

• Broadland Gardens – Clifton Emery design, Plymouth City Council
• Paternoster House – NooKo
• Rolle Gardens – Acorn Property Group
• The Haw Wood – Autograph Homes

About Michelmores Property Awards

The Michelmores Property Awards present some of the South West’s most prestigious accolades, recognising achievements in property development, construction and regeneration. Now in their 22^nd year, the Awards celebrate projects that contribute to the region’s economy and community, with a particular focus on environmental sustainability and innovative design.

The Awards continue to place an emphasis on sustainability, innovation, and the broader positive impact of projects within their communities. With categories designed to capture the diversity and excellence of South West development, the Awards reflect the increasing importance of sustainable and socially responsible architecture.

The Awards Gala Dinner and Ceremony will take place on Wednesday, 2 July 2025, at the Sandy Park Conference Centre in Exeter. For the full list of shortlisted projects and table bookings, visit the Michelmores Property Awards website.

Special thanks to our panel of judges: Iestyn John from Bell Cornwell, Glayne Price of LHC Architects, Nathan McLoughlin from McLoughlin Planning, Jo Davis from Avison Young, Mike Leece OBE, Ron Persaud of Change Real Estate, Lucinda Mitchell from Legal & General, Ajay Sharma from KTA Architects, Thelma Sorensen OBE, Honorary President of South West Women in Construction.

Sponsoring the Awards

The Michelmores Property Awards’ reach extends throughout the region’s property, real estate and construction sectors. Sponsoring the Awards is an excellent opportunity to raise your organisation’s profile in front of this audience and the ideal corporate hospitality opportunity. As a sponsor, you will be part of a bespoke networking event. Your brand will benefit from exposure from a prestigious and well-regarded property-focused campaign that reaches over 1,300 engaged real estate companies in the South West.

Email events@michelmores.com to request a 2025 Awards sponsorship brochure to find out more about our opportunities.

Michelmores is pleased to announced the appointment of Anna Parker who joins its Tax, Trusts & Succession team as a Partner based in the Bristol office.

Anna joins the Firm from Foot Anstey LLP and brings extensive private wealth expertise, including complex estate planning, wealth structuring, and inheritance tax advice for high-net-worth individuals and families. Her practice spans both domestic and international matters, with a particular focus on cross-border estate planning, trusts, and succession planning.

Anna is listed in the Legal 500 rankings for the South West region, where she is noted as a key lawyer in the Private Client: Personal Tax, Trusts, and Probate sector.

Anna comments:

“I am excited to be joining Michelmores at this time of strong growth for the Firm and the Private Wealth group. I look forward to working alongside such a highly regarded team in sector and supporting our clients in navigating the ever-changing private wealth landscape.”

Dhana Sabanathan, Head of the Tax, Trusts & Succession team at Michelmores, adds:

“We are absolutely delighted to welcome Anna to the team. Her private wealth expertise, coupled with her reputation for providing exceptional client service, will be a great asset to our clients.“

“Anna’s appointment further strengthens our commitment to delivering outstanding legal solutions for high-net-worth individuals and families, and we look forward to the valuable contribution she will make to the team.”

Read more about our Tax, Trusts and Succession offering on our website.

Since February 2024, ensuring Biodiversity Net Gain (BNG) has been a statutory prerequisite for most planning applications in England. Introduced by the Environment Act 2021, the BNG regime requires new developments to deliver a minimum 10% uplift in biodiversity, secured for at least 30 years. The policy was designed to help reverse the UK’s declining biodiversity by ensuring that development not only mitigates ecological harm, but contributes to nature recovery.[1]

Following a phased roll-out for planning permission under the Town and Country Planning Act 1990, BNG baselines will be extended to Nationally Significant Infrastructure Projects (NSIPs) from November 2025 through amendments to the Planning Act 2008.[2] With implementation drawing closer, and much of the underlying policy still in development, it is an appropriate time to take stock of what we know so far, and consider the implications for NSIP planning now.

What is changing in November?

NSIPs were originally excluded from the Environment Bill due to their “fundamentally different characteristics to other development types”.[3] However, following an independent review of the ‘economics of biodiversity’, the Lords committed to bringing NSIPs within the Bill’s scope.[4]

This was achieved by adding provisions which (once implemented) will require the Secretary of State to refuse applications for Development Consent Orders (DCOs) where proposed developments do not meet the “biodiversity gain objective(s)” in any applicable “biodiversity gain statement”.[5]

Due to the scale and complexity of NSIPs, the Government delayed commencement of the new provisions by two years, to provide NSIP developers time to incorporate BNG into their designs.[6]

Biodiversity gain statements – a closer look

At first blush, the biodiversity gain required of NSIPs largely reflects that of developments approved under the Town and Country Planning Act 1990. The default biodiversity gain objective is that the biodiversity value attributable to a development exceeds the pre-development biodiversity value of the onsite habitat by at least 10%.[7] Likewise, the maintenance period for biodiversity gains will initially be set for a minimum of 30 years,[8] and onsite provision of biodiversity must be favoured over offsite provision or statutory credits.[9]

The NSIP regime differs in the mechanism by which BNG requirements are imposed.

Once enacted, a new Schedule 2A to the Planning Act 2008 will require all applications for DCOs to be decided in accordance with any relevant national policy statement (NPS),[10] which must incorporate a biodiversity gain statement on its first statutory review.[11] Where developments have no associated NPS, or the NPS does not yet provide for BNG, the government may publish a supplemental biodiversity gain statement, subject to consultation.[12]

Primarily, a biodiversity gain statement sets out the biodiversity gain objective for the development type, and prescribes that DCO applications must be determined according to whether the proposed development meets that objective.[13] Biodiversity gain statements must also specify whether and how the objective applies to irreplaceable habitats; specify evidence that must be produced in support of an application; and may confirm how biodiversity value is to be calculated, with reference to a specified biodiversity metric.[14] Though unconfirmed, it has been suggested that Natural England’s Environmental Benefits from Nature Tool and/or Biodiversity Metric 3.0 will be used, initially.[15]

BNG and compulsory acquisition

The Government has responded to uncertainty over whether the new regime will permit DCOs to be used for the purpose of securing BNG. Although its response to the 2022 consultation confirmed that no new compulsory purchase powers would be introduced for this purpose, it did state that the Government (of that day) would:

“…consider providing guidance or reference in biodiversity gain statements that outlines the reasonable alternatives developers should explore to deliver net gain before they consider compulsory acquisition of land.”[16]

This essentially confirmed the ordinary principles of compulsory purchase, that it should be used as a last resort. We expect it will be necessary to show that the promoter has  applied the Biodiversity Gain Hierarchy in site selection, as well as made all of the usual reasonable efforts to reach an agreement on purchase.

The point was made more explicitly in updates to the Government’s CPO Guidance (October 2024), which states that “it may be necessary for an acquiring authority to acquire land for BNG purposes”, and refers to the usual conditions for compulsory purchase (e.g. the compelling case in the public interest).[17] Though the CPO Guidance relates to the BNG regime under the Town and Country Planning Act 1990, it indicated that the Government does not intend to create a separate standard for compulsory land acquisition for BNG purposes.

This is reflected in the NPS framework for energy NSIPs. The Overarching NPS (EN-1) states that applicants may seek to acquire land where it is needed to provide “mitigation and landscape enhancement”, with applications to be considered under established DCO principles. The NPS for Electricity Networks (EN-5) adds BNG to the list of legitimate bases for acquisition,[18] and was explicitly relied on in a recent decision approving acquisition of land for this purpose. The decision stated that compulsory acquisition “for the provision and maintenance of the BNG elements of the Proposed Development is consistent with policy and guidance”.[19]

Where is the new policy?

Despite assurances that a biodiversity gain statement would be consulted on in March 2024 and finalised in September 2024,[20] no draft statement has been published. If the Government intends to honour its commitment to apply BNG to NSIPs by November 2025, we should expect to see a raft of revised NPSs (or standalone biodiversity gain statements) published in the coming months.

The Government opened a consultation on three revised NPSs for energy infrastructure on 24 April 2025.[21] The updates are helpful, in that they consolidate and clarify much of what is published elsewhere, but contain no biodiversity gain statements. The overarching NPS for Energy confirms that statements will be published separately for NPSs that are already under review. It is not yet clear how this sits with the Government’s announcement in December that “all relevant” NPSs will be updated by summer 2025.[22]

What should we be doing now?

Though the changes described above have yet to take effect, the policy is clear that DCO applicants should already be accounting for BNG.

The suite of Energy NPSs published since November 2023 “encourage” applicants to use the latest biodiversity metric to calculate BNG outcomes, which “should be presented in full as part of their application”.[23] Meanwhile the Secretary of State “should give appropriate weight” to BNG, and consider what requirements should be attached to any consent to ensure that BNG measures, if offered, are delivered and maintained.[24] The draft revised NPS (April 2025) reiterates these points, and adds that “where possible”, development proposals should seek opportunities to provide BNG, and the Secretary of State should use planning obligations to maximise such opportunities.[25]

Voluntary adoption of BNG – Bramford to Twinstead

The principle that BNG measures “if offered” must be delivered and maintained was borne out in the recent DCO for the Bramford to Twinstead Reinforcement Project.

The National Grid sought consent to reinforce the transmission network between the existing Bramford substation and Twinstead Tee. As part of its application, the National Grid offered to deliver a 10% uplift in biodiversity, in line with a voluntary commitment within its 2021-2026 Environmental Action Plan. The Secretary of State’s Decision Letter (Sept 2024), while noting that BNG was not yet mandatory for the application, supported this proposal, granting compulsory purchase powers to obtain the land needed for the National Grid’s BNG commitment, and requiring that it submit written evidence to demonstrate how the 10% increase would be delivered.

Another lesson to take from this project is that applicants must clearly distinguish between BNG proposals from other proposals for habitat mitigation, reinstatement and compensation.

Key takeaways

• In November 2025, amendments to the Planning Act 2008 will require DCO applications to meet biodiversity gain objectives set out in biodiversity gain statements.
• The default biodiversity gain objective is that NSIPs deliver an increase in the biodiversity value of the onsite habitat by at least 10%, secured for a minimum of 30 years.
• Land may be acquired for BNG purposes alongside the primary purpose of the scheme, but developers must demonstrate a compelling case, following the ordinary principles of compulsory purchase.
• Though BNG is not yet mandatory for NSIPs, it is clear that DCO applicants should account for BNG while NSIP planning. There is a policy expectation that developers seek opportunities to provide BNG, and the Secretary of State will use planning obligations to support this.
• Voluntarily adopting BNG may strengthen an application, but developers must clearly distinguish BNG from other environmental measures, and must evidence the proposed biodiversity gains.

If you need assistance with any of the issues raised by this article, Michelmores has a wealth of experience in land acquisition law, and all aspects of environment, property, planning and strategic land use. Please get in touch with  Mark Howard, Fergus Charlton, Helen Hutton, or Adam Corbin, who will be happy to help.

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

[1] For a detailed overview of BNG, see our Ben Sharples’ contemporary article, “BNG: the basics”.

[2] Environment Act 2021, s 99, Sch. 15(1); Planning Act 2008, ss 103(1A), 104(3) and 105(3)-(4), Sch. 2A.

[3] Defra, Net Gain – Summary of Responses and Government Response (July 2019), p 5.

[4] HL Deb 7 July 2021, vol 813, col 1351; The Dasgupta Review: Government Response (July 2021), paras 2.11-12.

[5] Environment Act 2021, s 99, Sch. 15(1). Planning Act 2008, ss 103(1A), 104(3) and 105(3)-(4); Schedule 2A.

[6] Defra, Consultation Outcome: Government Response and Summary of Responses (Feb 2023), Para 4.3.

[7] Planning Act 2008, Schedule 2A(3)(2).

[8] Defra, Understanding BNG (Feb 2023); DESNZ, Draft: Overarching NPS for Energy (EN-1) (Apr 2024), para 5.4.40.

[9] For more on the Biodiversity Gain Hierarchy, see our articles on Dealing with BNG Land Acquisition Agreements and off-site BNG solutions available to developers.

[10] Planning Act 2008, s 104(3).

[11] Schedule 2A, s 9(2). NPSs must be reviewed at least once every five years (Planning Act 2008, s 6).

[12] Schedule 2A, s 10.

[13] Environment Act 2021, Sch. 15, s 5; Planning Act 2008, Sch. 2A, s 2.

[14] Schedule 2A, ss 7, 8 and 4, respectively.

[15] DESNZ, Draft: Overarching NPS for Energy (EN-1) (Apr 2024), fn 103).

[16] Defra, Consultation Outcome: Government Response and Summary of Responses (Feb 2023), Para 4.3

[17] MHCLG, Guidance on the compulsory purchase process (Oct 2022, updated Jan 2025), paras 212.1-4.

[18] DESNZ, NPS (EN-1), para. 4.1.8–4.1., and NPS (EN-5), para. 2.6.6 (Nov 2023, updated Jan 2024).

[19] DESNZ, Secretary of State Decision Letter (Bramford to Twinstead) (12 Sept 2024), paras 6.15-15.

[20] Defra, The Biodiversity Net Gain Statutory Instruments – explained (Nov 2023), para 3.

[21] DESNZ, Planning for new energy infrastructure: 2025 revisions to National Policy Statements (Apr 2025).

[22] The Prime Minister’s Office, Plan for Change: Milestones for mission-led government (Dec 2024), p 25.

[23] DESNZ, Overarching NPS for Energy (EN-1 (Nov 2023, updated Jan 2024), para. 4.6.7.

[24] DESNZ, Overarching NPS for Energy (EN-1 (Nov 2023, updated Jan 2024), paras. 4.6.3, 5.4.44.

[25] DESNZ “NPS for Energy 2025 Update: Appraisal of Sustainability (Main Report)“, (April 2025), p 136.

On 17 and 18 February 2025, the Supreme Court heard the appeal in the case of C G Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities & Somerset Council, a landmark case on the issue of nutrient neutrality. Having observed the hearing from the public gallery whilst seconded to Natural England, I have provided a summary of how the proceedings unfolded while we await the Court’s final judgment.

Background to the case

The case concerns whether the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) required an “appropriate assessment” before a local planning authority decided whether to discharge conditions on the approval of reserved matters, having previously granted outline planning permission without this, for a major development of housing on land close to a protected site.

For more information about the history of this case, please see our previous articles covering the High Court case and the Court of Appeal case.

Appeal to the Supreme Court

In November 2024, C G Fry & Son Ltd was granted permission to appeal to the Supreme Court. The hearing took place over 1.5 days on 17 and 18 February 2025 before Lord Reed, Lord Sales, Lady Simler, Lord Hamblen and Lord Stephens. C G Fry & Son Ltd (the Appellant) was represented by Lord Banner KC. The Appellant’s appeal was in relation to two Grounds:

• Ground 1: that the Court of Appeal had erred in their construction of the Habitats Regulations. The Appellant submitted that the Respondents’ interpretation of the Habitats Regulations strayed from a purposive interpretation into “re-writing” the law, which was the responsibility of the government and the legislature rather than the Court. The Appellant also submitted that, in any event, the Appellant’s interpretation was not in conflict with the purpose of the legislation, and existing case law did not preclude the Appellant’s approach.
• Ground 2: the Appellant’s alternative argument was that the habitats legislation did not apply in law to the site (a Ramsar site), so the matters in question were legally irrelevant to the discharge of conditions, and government policy and the National Planning Policy Framework (NPPF) could not make these issues legally relevant.

The Secretary of State (the First Respondent) was represented by Sir James Eadie KC and Richard Moules KC. The First Respondent’s submissions in relation to Ground 1 included the submission that the Habitats Regulations were designed to transpose the EU Habitats Directive (92/43/EEC), whose purpose was to set out appropriate steps to avoid the destruction of habitats and enshrine the “precautionary principle” of environmental law. Sir James Eadie KC submitted that, if the Habitats Regulations were interpreted as narrowly as they were by the Appellant, this would be contrary to the purpose of the Directive and would be untenable.

Somerset Council (the Second Respondent) was represented by Luke Wilcox, who made short submissions in furtherance of the First Respondent’s more substantial submissions.

While these were not referred to in the hearing, the Supreme Court also granted permission for written interventions from the Wildlife and Countryside Link,[1] a coalition of environment and wildlife organisations in England, and also from the Office for Environmental Protection (OEP), who have published their written submissions in respect of Ground 1 on their website.[2]

Significance of the case

Lord Reed acknowledged at the conclusion of the hearing that there were plenty of issues for the justices to consider ahead of providing their judgment. The Supreme Court’s decision to allow written submissions from the OEP and the Wildlife and Countryside Link demonstrates the significance of this case and suggests that the Court recognises the wider implications for society and the environment beyond the facts of this case.

While this case relates directly to nutrient neutrality, the OEP’s written submissions warn that the arguments raised by the Appellant “have implications going far beyond nutrient neutrality” and would result in a “serious weakening” of the environmental protections afforded by the Habitats Regulations for protected sites. If local planning authorities could not require an appropriate assessment before discharging conditions on the approval of reserved matters, the OEP warns that competent authorities “would be compelled to agree to a project that has not been assessed and might well fail an assessment were one to be undertaken”, which would produce a result “at odds with ensuring environmental protection and the purpose of the Habitats Regulations”. Lord Banner KC’s submissions at the hearing indicated that, if this outcome was in line with the correct reading of the legislation, this would be “tough” and Parliament would need to update the legislation if they sought a different outcome.

Despite this case also having wider implications, the issue at the heart of it is the apparent conflict between nutrient neutrality obligations and the delivery of housing and infrastructure. The judgment will be given against the backdrop of the government’s efforts to resolve this conflict and achieve their commitment of building 1.5 million homes and advancing 150 major infrastructure project decisions by the end of this Parliament.[3] As part of the Planning and Infrastructure Bill, the government issued a policy paper on 15 December 2024 inviting views on their proposed new approach to development and nature recovery – this acknowledged that the current approach in relation to nutrient neutrality can be burdensome, and included proposals for Delivery Plans covering specific areas rather than multiple project-specific assessments.[4] The government’s view is that its reform can deliver a “win-win” for development and the environment. It will therefore be interesting to see whether C G Fry’s appeal, regardless of the outcome, contributes to further legislative reform in the context of nutrient neutrality.

We intend to provide an update on this judgment when it is handed down. In the meantime, further information about the case and recordings of the hearing sessions can be found on the Supreme Court website.

[1] Supreme Court grants permission for charity to intervene

[2] OEP publishes written submissions in Habitats Regulations Supreme Court case | Office for Environmental Protection

[3] Plan for Change – GOV.UK

[4] Planning Reform Working Paper: Development and Nature Recovery – GOV.UK

In our previous article here, we reported on the growing use of commercial unmanned aerial vehicle (UAV) operations and looked at some of the legal issues involved. The widespread innovation of new UAV operations across the UK raises a number of questions for landowners in relation to issues such as overflying rights, trespass and nuisance and rights to privacy.

The announcement

This month the UAV industry has taken a step further towards greater commercial drone operations through the UK Civil Aviation Authority (CAA) and Ofcom announcement of the dedication of 978MHz as a radio frequency available for airborne transmission of UAV applications.

Greater autonomy for UAVs

The latest changes follow the CAA in November 2024 enabling new rules giving drones with much greater freedom to fly beyond visual line of site (BVLOS) restrictions. One of the big new beneficiaries of the new policy is the National Grid Electricity Transmission who will be able to use UAVs to conduct aerial surveys of grid infrastructure such as pylons and cables much more efficiently.

These latest changes are steps towards the CAA achieving its road map for the establishment of routine BVLOS operations across the UK by 2027. A market report provided by Business Gateway for the Scottish Government estimated the UK commercial drones market will grow rapidly to £2.2bn by the end of 2027.

The impact

Greater uptake in UAV usage is likely to result in more widespread issues for landowners and with legal enforcement. UK law enforcement agencies have already referred to preparations for new penalties and Unmanned Aerial Vehicles CAA and Ofcom announce new radio frequency for transmission controls on drone violations with a more rigorous set of exclusion operating restrictions around sensitive sites such as airports and military sites.

Conclusion

Whilst the opening up of UAVs creates new legal issues and risks for landowners, at the same time it presents opportunities. Commercial businesses looking to employ UAVs will have a requirement for new operating sites and locations. Many existing commercial premises will be unsuitable due to their existing planning or constrained legal rights.

As we have seen with telecoms and solar, there is likely to be a level of competition amongst commercial UAV operators to create hubs and networks of site locations.

It is set to be a busy time in employment law, with the most significant package of reforms in a generation expected over the next two years. We highlight below two key developments: the introduction of neonatal leave from April 2025, and a wider roadmap of changes under the Employment Rights Bill (ERB) anticipated from 2026 onwards.

Neonatal leave from 6 April 2025

From 6 April 2025, eligible employees will have a new statutory right to take up to 12 weeks’ neonatal leave without having to use existing leave.

Key points for employers:

• Entitlement arises where a child is admitted to hospital within 28 days of birth and remains in care for at least seven days.
• Leave is a day-one right – there is no qualifying period.
• Leave is in addition to other family leave (e.g. maternity, paternity or adoption leave).
• Statutory Neonatal Pay (SNP) is paid at the same rate as statutory paternity or shared parental pay (but only payable where the employee has 26 weeks’ service and meets earnings thresholds).
• Where multiple births occur, a maximum of 12 weeks applies across all children.

Employees taking neonatal leave will benefit from similar protections to those on maternity leave, including:

• Right to return to the same (or a suitable alternative) role.
• Protection from detriment and automatic unfair dismissal linked to their leave.
• In certain redundancy situations, priority access to suitable alternative roles.

Rural businesses should prepare for the introduction of neonatal leave and consider their internal family leave policies, provide suitable training for managers and ensure that payroll is ready to administer SNP where an employee is eligible.

Employment Rights Bill: roadmap of wider changes

Looking ahead, a raft of reforms under the ERB are expected to come into force from autumn 2026 onwards. These include several changes of note for agricultural employers:

1. Unfair dismissal rights from day one. The qualifying period to bring an ordinary unfair dismissal claim will be removed, although there will likely be a ‘light-touch’ dismissal procedure required during the first 9 months.

Implications: Managers will need to be cautious when dismissing new starters. Early documentation, robust probation processes and consistent reviews will be key.

2. Fire-and-rehire restrictions. Employers will be restricted from dismissing and re-engaging employees to force through contractual changes unless facing genuine financial distress.

Implications: This may limit flexibility for employers needing to respond quickly to seasonal or market changes. Contract reviews and early engagement with staff will be essential.

3. Sexual harassment reforms. Employers will be required to take ‘all reasonable steps’ to prevent workplace harassment, including by third parties.

Implications: Policy updates, staff training and a clear complaints process will be essential. This is especially relevant where employees interact with clients or the public (e.g. at farm shops or events).

4. Changes to collective redundancy thresholds. Redundancy thresholds will apply across a business, not per site.

Implications: For larger, multi-site operations, this may increase the chance of triggering collective consultation obligations.

5. Further changes to be aware of include:

• Flexible working requests: employers must give a reasoned refusal based on statutory grounds.
• Time limits for bringing tribunal claims set to extend from three to six months.
• Introduction of rights for zero-hours workers (including guaranteed hours in certain cases).
• Reforms to family leave, including enhanced protection for returning parents and earlier rights to paternity leave.

Although the changes are not coming into force immediately, early preparation will ensure that your organisation is ready for the more employee-focused legal framework on the horizon.

On 20 February 2025, the Upper Tribunal (Lands Chamber) handed down its judgment in Vodafone Limited v Icon Tower Infrastructure Limited and AP Wireless II Limited (Vodafone v Icon).

This case provides important guidance on the strict application of the termination provisions in the Electronic Communication Code (Code).

Background

The Claimant, Vodafone Limited (Vodafone), sought to renew its existing code agreement for a mobile communications site at Steppes Hill Farm.

However, the First Respondent and site provider, Icon Tower Infrastructure Limited (Icon), who had recently purchased the freehold from the Second Respondent, AP Wireless II (UK) Limited, sought the termination of the agreement and the removal of Vodafone’s apparatus.

The Preliminary Issues Icon sought to rely on the following three termination grounds within the Code:

1. Substantial breach: Icon alleged that Vodafone had substantially breached the existing agreement between the parties. In particular, it was alleged that Vodafone had breached the alienation provision (no assignment, transfer etc.) as a result of its relationship with Cornerstone Telecommunications Infrastructure Limited (Cornerstone)

2. Redevelopment: Icon presented the Tribunal with their plan for proposed works to the Vodafone site and a small parcel of neighbouring land (the Orange Site), some of which had already been completed. Icon claimed that their plan demonstrated an intention to redevelop the land which could not be achieved without the removal of Vodafone’s apparatus.

3. Public benefit (Paragraph 21 test): In accordance with paragraph 21 of the Code, a Tribunal can only grant Code rights where:

• the prejudice caused to the site provider by the imposition of the Code agreement is capable of being adequately compensated by money; and
• the public benefit likely to result from the imposition of the Code agreement outweighs the prejudice to the site provider.

Icon’s case was that neither limb of this test was satisfied.

The Upper Tribunal’s Decision

The Upper Tribunal held that Icon failed to establish any of the termination grounds and, therefore, Vodafone were entitled to renew the existing agreement. More specifically:

1. Substantial breach: There had been no breach of the alienation provision as Cornerstone managed the site as Vodafone’s agent.

2. Redevelopment: Icon could not demonstrate the requisite intention to redevelop the land. Broadly, this was because:

• Some elements of the works had already been completed. The Tribunal adopted a literal interpretation of the term ‘intends’, concluding that a person cannot intend to carry out works that have already been completed.
• The proposed demolition of the masts could not constitute redevelopment. The Tribunal clarified that ‘redevelopment’ requires the construction of something new.

The Tribunal also clarified that:

• ‘Neighbouring land’ is capable of including land which is not actually adjacent to the code agreement land. It is a question of proximity to be determined on the individual facts of each case.
• For the redevelopment ground to apply, the site provider must demonstrate an intention to commence the redevelopment work within a reasonable time of the Code agreement coming to an end.3.

3. Public Benefit (paragraph 21 test): To determine the first limb of the paragraph 21 test, the Tribunal assessed whether a renewal of the Code agreement would cause Icon reputational loss. Icon had constructed a new mast on the Orange Site pursuant to planning permission requiring the demolition of Vodafone’s apparatus and, therefore, if the existing agreement was renewed, they would be unable to use the new mast lawfully. Following a detailed analysis of historic case law, the Tribunal held that no reputational loss would occur. The only loss would be a financial one (i.e. a failed investment) which could be adequately compensated by money.

The Tribunal held that no reputational loss would occur. The only loss would be a financial one (i.e. a failed investment) which could be adequately compensated by money.

On the second limb of the test, the Tribunal considered the cost implications to the public of enabling Icon to terminate the agreement. Paragraph 24 of the Code governs the amount of rent payable by an operator. By terminating the agreement, Icon would be able to force Vodafone to migrate to their new mast and, without the limits of paragraph 24, charge higher, unchecked, open market rates. The Tribunal concluded that it was in the wider public interest to ensure that operators benefit from the protection of paragraph 24 as this guarantees the availability of mobile communication facilities to the public at a competitive price.

Comment

The Tribunal adopted a strict interpretation of the termination provisions in this case which is a welcome result for operators. However, site providers can take some comfort from a few small victories in the judgment, such as the broad interpretation of neighbouring land for the purposes of development and clarification on when development work should commence for the purposes of exercising the termination provisions in paragraph 31 of the Code.

Rachael Lloyd’s article first appeared in CIPD’s People Management, published here on 7 March 2025.

Individual consultation

An employer considering making redundancies must consult with affected employees when proposals are at the formative stage and when consultation can still make a difference to the outcome. Employers must approach the consultation process with an open mind and be capable of influence – this is not a tick box exercise.

The employer must provide affected employees with adequate information and time to consider the proposed redundancies, and then listen and consider the affected employees’ responses to the consultation.

Individual consultation will usually involve at least a couple of meetings with each affected employee. This allows the employee to consider and respond to the employer’s proposals, the employer time to consider the employee’s responses, and then for the employer to confirm its outcome.

The individual consultation process will usually involve providing employees with the opportunity to:

• suggest alternatives to avoid redundancies;
• comment on the pool and selection criteria;
• challenge provisional selection assessment;
• consider alternative employment;
• raise issues/concerns regarding the process.

During individual consultation, allow employees to express their views both on issues which are particular to them and which are common to the group as a whole.

There are no minimum timescales for how long individual consultation should last, but very short consultation periods suggest consultation was not carried out adequately.

Both the Employment Appeal Tribunal (EAT) and Court of Appeal have recently grappled with the issue of individual redundancy consultation. In De Bank Haycocks v ADP RPO UK Ltd, the EAT found that a small-scale redundancy process (involving two dismissals) was unfair because there had been ‘no general workforce consultation’ about the redundancy proposal. This was concerning to employers as it appeared to introduce a new obligation to consult the workforce in all redundancy exercises of any size.

However, the appeal court overturned this decision, finding the EAT had been wrong to suggest that, for smaller-scale redundancies in non-unionised workforces, it was a requirement for employers to conduct general workforce consultation.

Collective consultation

Where an employer proposes to make 20 or more employees redundant at one establishment within 90 days or less, they must collectively consult with appropriate representatives of the affected employees.

Collective consultation will happen with a trade union if recognised union; if no union is recognised, the employer will consult with an appropriate standing body of representatives, or elected employee representatives (note: there are prescriptive rules for the election process).

Where fewer than 100 redundancies are proposed, consultation must start at least 30 days before the first dismissal takes effect. Where 100 or more redundancies are proposed, the minimum consultation period is 45 days.

The process starts with the employer providing statutory information to the representatives (such as the reasons for the redundancies, the numbers, the proposed method of selection etc). Consultation must then be undertaken with a view to reaching agreement on ways and means of avoiding the dismissals, reducing the number of dismissals and mitigating their consequences.

It is crucial that the representatives understand the matters which are subject to consultation and are able to express their views on those subjects, with the employer considering those views. Similar to individual consultation, the consultation should happen at the formative stage by providing enough information and time for representatives to respond, and then the employer listening to those responses with a willingness to be persuaded.

Collective consultation is not a substitute for individual consultation. Even when collective consultation is necessary, an employer must still consult with individual employees (but this process may be curtailed/shaped by the preceding collective consultation).

Upcoming changes

Labour’s Employment Rights Bill (ERB) will introduce a number of changes to collective consultation. The headline points to note are as follows:

• Originally, the ERB proposed removing the wording ‘at one establishment’ from the collective consultation obligations, which would have meant that all redundancies across the entire business – even if they were at different sites – would have counted towards the collective redundancy thresholds. However, the latest amendments to the ERB will not remove the wording ‘at one establishment’, so that rule will remain the same. This is good news for employers.
• However, the ERB proposes introducing an additional threshold for redundancies over multiple establishments. Details of the threshold will be set out in further regulations, but are likely to  be either a set number over 20, or a percentage of the workforce. This is likely to mean that more multi-site redundancies will meet the threshold for collective consultation.
• The amended ERB proposes including a provision that, during collective consultation, the employer does not need to consult all employee representatives together or try to reach the same agreement with all of the representatives. This is likely to be particularly relevant for redundancies across multiple sites.
• The amended ERB proposes an increase of the cap on protective awards in collective redundancy situations, from 90 to 180 days, to encourage employer compliance. The consequence of this could be very costly for employers.
• Further guidance for employers on collective consultation processes will be produced in due course.

Complying with consultation requirements is a crucial part of a fair redundancy process. The changes under the ERB will result in more redundancy situations being caught by the collective consultation rules, which will likely increase legal risk. Coupled with the increase in protective awards, this could mean that employers not only risk facing more claims, but those claims may become more complex and expensive.