The next phase of the Data (Use and Access) Act 2025 (DUAA) came into force on 5 February 2025, marking a major milestone in the reform of the UK’s data protection framework. DUAA introduces some of the most significant changes since GDPR was adopted in 2018, aiming to simplify compliance, modernise rules, and support responsible innovation. It also introduces new obligations on UK businesses.

Below, we outline the key changes that now apply and what organisations should be doing to prepare.

1. New lawful basis: recognised legitimate interests

Organisations can now rely on a new lawful basis for processing personal data without undertaking the traditional balancing test and legitimate interests assessment but only for specific purposes such as safeguarding national security, preventing crime, responding to emergencies, safeguarding vulnerable people, or assisting public bodies.

For all other processing, legitimate interest assessments (LIAs) are still needed though DUAA introduces a non-exhaustive list of activities that may qualify, such as direct marketing, intra-group administrative data sharing and information security measures.

2. More flexible cookie rules – but higher fines for non-compliance

Consent is no longer required for certain low‑risk cookie uses, such as analytics used solely to improve website service performance, functional cookies to enhance user experience or security/fraud prevention cookies. Controllers must still provide clear information about cookies and a prominent opt-out mechanism. Cookies used for profiling and advertising will still require consent.

The new rules align with the ICO’s 2025 cookies enforcement focus, reminding controllers to ensure that users are provided with clear, unambiguous, and meaningful choices about how their data is tracked. The ICO is expected to continue to focus on the use of cookies and will expand its focus beyond websites to apps and connected TVs.

Potential fines for cookie violations are now aligned with fines under UK GDPR (see below).

3. DSARs and complaints handling

DUAA brings into law earlier ICO guidance confirming that controllers may “stop the clock” while awaiting further information from the individual in order to identify the information or processing activity to which a DSAR relates.

Although the statutory complaints procedure will not come into force until 19 June 2026, organisations should now begin preparing by updating privacy notices to explain how complaints can be made, creating an electronic complaints form and ensuring that they can acknowledge complaints within 30 days.

4. Relaxed rules on automated decision making (ADM)

The new ADM rules simplify previous restrictions, which were considered too complex for organisations to navigate and hindered responsible use of ADM which might otherwise enhance efficiency.

The new rules allow solely automated significant decisions involving special category data only where:

• the individual has given explicit consent;
• the decision is necessary for entering into or performing a contract between the individual and a controller;
• the decision is required or authorised by law; or
• the decision is necessary for reasons of substantial public interest.

The new rules also specify safeguards which must be implemented by a controller making significant decisions based entirely on automated processing of personal data.

The safeguards include providing individuals with information, enabling individuals to make representations, enabling individuals to obtain human intervention, and enabling individuals to contest significant decisions.

5. Strengthening protection for children

Organisations which provide online services likely to be accessed by children must consider children’s higher protection matters by design and default of the services which includes:

• how children can best be protected and supported when using the service;
• the fact that children merit specific protection with regard to their personal data, because they may be less aware of the risks and consequences associated with processing of personal data and their rights in relation to such processing and
• the fact that children have different needs at different ages and stages of development.

These changes align with the ICO’s Children’s Code. The ICO has provided updated guidance on data protection by design and default to reflect considerations in product design governance, age assurance mechanisms and data protection impact assessments.

6. Enhanced ICO powers and new guidance

The ICO can now compel witness attendance, request technical reports and issue significant fines under the Privacy and Electronic Communications Regulations 2003 (PECR) of up to £17.5 million or 4% of global turnover, whichever is higher (aligning those fines with those possible under the UK GDPR, and a significant increase from fines of £500,000 possible under PECR previously).

The ICO has published updated guidance on default design, DSARs and law‑enforcement codes, with further consultations planned.

7. Recommended action points for organisations

• Assess whether any processing activities now fall within the recognised legitimate interests
• Update LIAs where required, consider internal data protection governance and the non-exhaustive list of legitimate interests examples set out in DUAA.
• Review all cookies practices, ensure prominent information and opt-outs. Consider using a reputable cookie consent management platform.
• Update DSAR procedures to incorporate “stop-the-clock” mechanics.
• Prepare a complaints-handling framework ahead of commencement of the new requirements.
• Evaluate use cases for automated decision making and ensure appropriate safeguards are implemented, update the privacy notice accordingly.
• Reassess whether your services may be accessed by children and apply Children’s Code-aligned protections. Consider use of age assurance mechanisms and data-minimisation practices.
• Review direct marketing practices to ensure they are PECR-compliant in light of increased fines.
• Update policies, privacy notices, DPIAs, and Records of Processing Activities as needed.
• Make use of ICO guidance.

Anne Todd, Emily Aggett and our wider team of expert data protection and privacy advisors are on hand to assist you with any queries relating to the new rules.

Two years after mandatory Biodiversity Net Gain (BNG) came into force, environmental obligations have shifted from being a technical planning issue to central commercial drivers in land transactions. Developers, promoters and landowners increasingly need option, promotion and other land agreements to address natural capital obligations early and explicitly to protect viability and avoid unpredictable planning‑related costs.

BNG: the requirement reshaping every agreement

Under current legislation, all major developments must achieve a minimum 10% net gain in biodiversity measured against the site’s pre‑development baseline. This uplift must be secured through planning conditions and a long-term (typically 30-year) habitat management and monitoring plan.

The BNG hierarchy continues to shape commercial strategy. Promoters and developers need to be able to demonstrate they have followed the BNG hierarchy of preferring on-site BNG first.

On-site delivery may be unviable where developable area is valuable, where baseline conditions are high, or where on‑site habitats would sterilise land. Off‑site solutions include:

• acquisition of additional land by the developer,
• agreements or conservation covenants with third‑party landowners, or
• the purchase of biodiversity units from habitat banks.

Developers do not need to identify the BNG land at application stage, but must do so before commencement, meaning early control of any off‑site land becomes critical to avoid delays.

Nutrient neutrality: Subject to ongoing change

Alongside BNG, projects in sensitive catchments must ensure development does not increase phosphate or nitrate levels in watercourses. Residential development is a key contributor due to the additional load on wastewater infrastructure.

Where baseline nutrient levels are already exceeded, developers must demonstrate nutrient neutrality. If this cannot be achieved on-site, mitigation may include purchasing nutrient credits or securing off-site land-use changes such as wetland creation or fallowing agricultural land, typically secured via S106 or s.33 agreements. Many protected catchments have limited credit supply, creating competition and upward pressure on costs.

The 2024 Spring Budget introduced a new Nutrient Mitigation Fund to accelerate mitigation project delivery, and further reforms are expected through the Planning Infrastructure Bill, which may overhaul how nutrient obligations are administered and funded.

Water neutrality: the next major constraint

Water‑stressed regions—particularly parts of the South East—are increasingly requiring water neutrality assessments before granting permission. New development must not increase overall water consumption unless mitigation measures (on-site efficiency, off‑site offsetting, water recycling infrastructure etc.) can balance demand.

Water neutrality can significantly affect scheme viability and may require early integration into planning and land‑assembly strategies, particularly where off‑site water‑saving measures or partnerships with water companies are needed.

Reviving and revitalising agreements amid changing environmental requirements

Given the layered nature of BNG, nutrient neutrality and water neutrality, parties to development transactions must agree early how these obligations will be addressed. Agreements now routinely include bespoke natural capital clauses. Common areas include:

1. Strategy:

Agreements often require a strategy setting out how BNG, nutrient neutrality and water neutrality will be achieved efficiently and cost‑effectively. This may be part of the planning strategy or a separate document.

Documents may set out certain parameters for dealing with natural capital. For example, is it feasible to deal wholly on-site or will the landowner agree to make nearby land available. This may be at low cost on agreed terms, with the benefit being achieving a greater return on the development land.

Landowners may want to incentivise developers to identify land to use as a receptor site whereas developers may prefer purchasing biodiversity units which may be more costly but will be a one-off payment. A strategy can help to agree a route map of options.

Contracts may be conditional not only on the grant of planning permission but potentially on the securing of off-site BNG or other natural capital land. A planning permission will only become implementable when the BNG plan has been approved by the LPA, so the developer may want to have secured any necessary third party interests before completing the purchase of a development site.

2. Cost Allocation:

Natural capital costs are increasingly deductible when determining price or calculating promoters’ fees. These may include:

• Conservation covenant costs,
• Habitat creation works,
• Ecological monitoring costs,
• Off-site land acquisition or lease premiums,
• Purchase of statutory credits or units.

Landowners commonly require approval rights, open‑book visibility and assurances against double counting (e.g., where costs are already reflected in residual valuations). Parties may include cost‑minimisation obligations and caps on expenditure, or require the promoter to obtain competitive quotes.

3. On-site Open Space and Pricing

Where on‑site open space or habitat creation is required, this land is usually excluded from the net developable area (NDA), impacting minimum land values and return calculations.

Developers may require viability‑linked flexibility to adjust the NDA target or price formula where natural capital obligations reduce developable capacity. Agreements can include mechanisms to re‑run viability appraisals if environmental requirements materially change pre‑consent.

4. Ownership and Management:

Where the landowner retains freehold title of natural capital land, the agreement may seek to clarify: whether the land is transferred, leased or managed for 30 years or longer; responsibility for establishment, management and maintenance of habitats; whether the landowner has pre‑emption rights to reacquire land post‑obligation; and liability flows for monitoring reports and remediation if habitats fail.

It is increasingly common to include obligations preventing the landowner from enhancing biodiversity value independently (which could inadvertently raise the site’s baseline).

5. Additional Value Generation

Natural capital land may produce more biodiversity units or nutrient credits than required for the associated development. Agreements should state:

• Who owns the surplus credits,
• Whether they can be sold and by whom,
• Whether proceeds fall inside or outside development value calculations.

This area is becoming commercially significant as markets mature.

6. Timing

Long‑stop provisions increasingly allow extra time to secure planning permission, secure or register off‑site BNG land, negotiate conservation covenants, and obtain units or credits. Given third‑party negotiations can be lengthy, parties must agree a realistic buffer.

7. Disclosure and Good Faith

As guidance and legislation are continually evolving, agreements often include good‑faith obligations, open‑book ecological reporting, and requirements for promoters/developers to share ecological surveys, environmental assessments and technical advice with the landowner.

What’s next?

Natural capital regulation is evolving. Forthcoming developments likely to influence future agreements include:

• Environmental Delivery Plans and new frameworks for monitoring long‑term obligations,
• Nature Restoration Fund payments and how they interact with private markets,
• Further reforms under the Planning Infrastructure Bill, potentially streamlining mitigation credit systems,
• Greater enforcement of the BNG Register, including penalties for non‑compliance,
• Continued rise of private habitat banks and nutrient‑credit markets, influencing valuation and negotiation dynamics.

Agreements must now build in flexibility, clear cost‑sharing, early collaboration and express natural‑capital governance to remain commercially workable as the regulatory landscape evolves.

Michelmores property and natural capital teams are working closely with developers, promoters and landowners to help them navigate these evolving requirements and preserve both value and negotiating position.

We are supporting clients from the earliest stages of land assembly through to planning, ensuring natural‑capital obligations are understood, strategically managed and reflected appropriately in commercial terms. This includes advising on structuring option and promotion agreements, assessing the viability impact of BNG, nutrient and water neutrality measures, securing off‑site solutions, and safeguarding long‑term management responsibilities. By combining property expertise with specialist natural capital insight, we help clients approach transactions with clarity, identify opportunities for value uplift and ensure their interests are protected as environmental regulation continues to evolve.

Michelmores is pleased to announce it has acted for long-standing client St Austell Brewery in relation to its increased investment in Harbour Brewing Co, supporting the Cornish craft brewer’s next phase of growth and strategic development.

St Austell Brewery, the South West’s leading brewing, hospitality and drinks wholesale company, has expanded its stake in Harbour Brewing Co, deepening its commitment to the brand and enabling accelerated growth.

The Michelmores team advised St Austell Brewery on legal structuring and documentation for this strategic investment, helping navigate the complexities of the transaction to support both parties’ commercial objectives. The team was led by Head of Corporate, Richard Cobb, alongside Stephen Morse, Partner, Victoria Miller, Senior Associate and Ellis Arnold, Trainee Solicitor, in the Corporate team with additional support from Danielle Collett-Bruce, Managing Associate in the Banking Team.

Richard Cobb comments:

“We are delighted to have advised St Austell Brewery on this investment, continuing our long-standing relationship with the business. St Austell has a strong track record of supporting independent, high-quality brands, and this transaction reflects both its confidence in Harbour Brewing Co and its thoughtful, strategic approach to growth. It has been a pleasure to work alongside the St Austell team on a deal that aligns so closely with their values and long-term vision.”

Paul Harbottle, Commercial Director at St Austell Brewery, adds:

“Michelmores has worked with us for many years and has a deep understanding of our business, our values and the way we approach growth. Their team provided clear, pragmatic advice throughout the transaction and worked seamlessly with our internal team to help us achieve the right outcome. Their knowledge of both our business and the wider market was invaluable.”

Michelmores’ award-winning Corporate team of 35 specialist lawyers advises clients across the UK, US, and beyond – on capital markets, mergers and acquisitions, share options, management buyouts, impact investing, energy projects and more. For more information, please visit our website.

This article is the first in a series of articles about the Renters’ Rights Act 2025. To read the full series, see the list below.

Providing accommodation for employees remains common practice on many farms and rural estates. In England, this can currently be done in several ways, including as:

• an Assured Shorthold Tenancy (AST)
• an Assured Tenancy
• an Assured Agricultural Occupancy (AAO) or
• a Service Occupancy.

The housing of agricultural workers needs to be approached differently from housing for other rural workers. This is because an AAO can arise where a qualifying agricultural employee occupies accommodation provided by the employer, and this will give the agricultural worker long-term security of tenure. For that reason, employers will want to avoid service occupancies for agricultural workers, but they can be used for other rural workers such as gamekeepers.

Since the creation of ASTs by the Housing Act 1988 (HA 1988), many lettings to agricultural workers have been via ASTs (with the employer landlord having served a Form 9 Notice in advance to avoid the creation of an AAO). This has given employers the ability to regain possession of the accommodation using the section 21 process when an agricultural worker’s employment terminates.

The Renters’ Rights Act 2025 (RRA 2025) will abolish ASTs and end section 21 ‘no fault’ evictions and these provisions are due to come into force on 1 May 2026. All ASTs will automatically become assured tenancies, with landlords having only limited grounds to regain possession from their tenants.

After 1 May 2026, the two key means of providing accommodation to rural workers will be Service Occupancies and Assured Tenancies. For agricultural workers, employers will want to grant Assured Tenancies alongside the relevant advance opt out notice.

Service occupancies

A service occupancy is a type of licence with no security of tenure. It is designed for use where an employer requires a worker to live in a property owned by the employer for the better performance of that worker’s duties. There is a strict test to qualify for a service occupancy. An agreement will only be a service occupancy if either:

• it is necessary/essential for the worker to occupy a particular house or
• the worker can perform their duties better by living at the property and it is an express term of the employment contract that they do so.

The courts have demonstrated that this is a high bar to meet. The need must be genuine and not merely convenient for the employer. Examples of a true service occupancy may be a boarding- school teacher, hotel manager or on-site security guard.

Service occupancies are a useful mechanism to provide accommodation for rural workers such as gamekeepers and housekeepers. A service occupancy offers flexibility for employers who will be able to terminate the agreement in one of several ways:

• employer terminating the employment contract without the need to first serve a notice to quit
• employee moving out of the accommodation or
• service of a notice to quit by the

However, service occupancy agreements will never be appropriate for agricultural workers because of the risk of inadvertently creating an AAO. Where there is a tenancy or licence capable of protection and the “agricultural worker condition” has been met, security of tenure will be obtained under the HA 1988 with the tenancy or licence becoming an AAO.

The “agricultural worker condition” can be met not only if a workers’ proposed employment is agricultural but also if an employee’s work prior to moving into the dwelling was agricultural. An AAO will continue long after the tenant’s employment because it confers lifetime security on an occupant and includes one succession to their spouse or a member of their family. For more information on AAOs, see Farm cottages: Finding a way through  the statutory maze.

Assured tenancies

Once the relevant sections of the RRA 2025 come into force, ASTs will no longer be an option for landlords and instead the default form of tenancy will be an Assured Tenancy. When granting an Assured Tenancy to an agricultural worker, landlords will still be able to avoid granting an AAO by serving an ‘opt-out’ notice on the worker before they go into occupation.

Terminating an Assured Tenancy for landlords will not be as easy as terminating a service occupancy or an AST. The RRA 2025 varies the existing grounds that landlords may use to obtain possession. Ground 5C expands on the old Ground 16 introducing a specific mandatory ground for reclaiming possession where the dwelling was let because of the tenant’s employment. It covers two scenarios:

• where the employment has come to an end or
• where the tenancy was not meant to last the duration of the employment and the dwelling is required to house a new employee.

This ground can be used where there is an agreement between a landlord and an employer for the landlord to house the employee – it will cover both agricultural and other rural workers. Ground 5C provides flexibility for estates and rural businesses where the employing entity is different to the landowning entity; this is unlike service occupancies where the employer must own the property.

If either of the scenarios in Ground 5C are made out, i.e. the worker’s employment has ended or the early employment requirement applies, the employer landlord would need to serve at least two months’ notice to terminate the Assured Tenancy.

Next steps

Employers should consider existing and future housing arrangements of employees to ensure that they are appropriate and do not limit their ability to recover possession. In particular landlords should:

• consider if they need to serve any s.21 notices before the ability to serve one ends on 1 May 2026
• maintain comprehensive written records documenting the accommodation arrangement and the employment contract of employees (this will be particularly important where a landlord wishes to rely on new grounds such as Ground 5C to reclaim possession)
• once the RRA 2025 comes into force – where housing agricultural workers – ensure they have served the requisite opt out notice in advance
• seek legal advice if they are concerned that they may have a service occupancy agreement housing an agricultural

For more insights in our series on the RRA 2025 see:

Part 2: Renters’ Rights Act 2025: which tenancies are not caught?

Part 3: Renters’ Rights Act 2025: practicalities for landlords of dealing with new and existing tenancies

Three months into my client secondment at Natural England feels like a good time to reflect on how working in-house differs from life in private practice. While both roles rely on the same core legal skills, the day-to-day experience, expectations and level of responsibility can feel significantly different. The contrast has given me the opportunity to see how the same profession operates in two very distinct environments.

Client relationships

In private practice, you act for external clients who choose the firm and can move their work elsewhere at any time. The role involves advising across a broad range of industries, which provides exposure to varied legal issues. At the same time, this diversity brings the challenge of managing competing deadlines and balancing the expectations of multiple clients.

In contrast, working in‑house means advising the organisation as your sole client. This gives you the opportunity to build long‑term, collaborative relationships and gain a deeper understanding of how the business operates. You become involved in a wider range of issues and must consider the company’s commercial priorities and appetite for risk in every piece of advice you give. I have really enjoyed this aspect of the secondment, and it has taught me to think not only as a legal adviser but also as part of the organisation’s decision‑making process.

Practice areas

When you undertake a seat in private practice, it is usually within a specific department, allowing you to focus on one area of law. This provides a valuable opportunity to develop specialist knowledge, which can be particularly beneficial for long‑term career progression.

In contrast, working in‑house often requires you to operate as a generalist, handling a broad mix of legal issues that arise across the business. During my secondment, I have gained experience and provided advice on commercial contracts, technical IP provisions, procurement, planning law, protected sites, species licensing, and Judicial Reviews. This variety has enabled me to develop a wide‑ranging skill set and has required adaptability and a willingness to engage with unfamiliar topics, always with a focus on delivering practical and commercially workable solutions. This has been one of the most rewarding aspects of my secondment, giving me the opportunity to explore niche areas of law and collaborate with specialist colleagues across the organisation.

Responsibility

In private practice, trainee responsibility is typically more tightly controlled, with a strong emphasis on supervision. Emails, letters, and advice are usually reviewed before they are sent out, and tasks are often broken down into discrete pieces to ensure accuracy and consistency for clients. This structure provides valuable guidance but can limit the extent to which trainees independently run matters.

In-house, the dynamic is quite different. Legal teams are often smaller and operate with fewer layers of supervision, meaning trainees are trusted to take ownership of work at an earlier stage. During my secondment I have communicated directly with clients and external law firms, managed queries, and progressed matters independently. This level of responsibility demands confidence, but it has also accelerated my learning and helped me develop a practical, solution‑focused approach to legal work.

Billable hours vs. business priorities

Billable hours are a core part of a training contract and assist in shaping how trainees structure their day. You quickly learn to record your work in six‑minute units, balance competing deadlines, and justify how long each task takes.

In‑house teams tend to operate differently. There are no billable targets, and success is measured by how effectively the legal team supports the organisation’s commercial objectives. As a trainee you focus on delivering pragmatic, risk‑balanced advice that helps the business move forward, even if the solution is not the most technically perfect on paper. This contrast offers an opportunity to experience legal work through a more commercial, outcome-driven lens.

Michelmores has advised Frobishers, the premium Devon-based juice and soft drinks business and a long-standing client of the Firm, on its acquisition by AG Barr plc, the UK-listed soft drinks group that owns brands such as Irn-Bru, Funkin, Rubicon and Boost recently also announced the acquisition of Fentimans.

The transaction forms part of AG Barr’s strategic expansion into the premium and adult soft drinks market and sees Frobishers join a portfolio of established and well-known beverage brands.

Michelmores has acted for Frobishers and its shareholders for many years, supporting the business across a range of Corporate and Commercial matters as it has grown and evolved. Advising on this transaction marks a significant milestone in that long-standing relationship and reflects the strength of the Frobishers brand and management team.

The Michelmores team advising on the deal was led by Chris Cook, Managing Associate, alongside Head of Corporate Richard Cobb and Tax Partner, Cathy Bryant with Partner David Thompson providing Commercial advice.

Chris Cook comments:

“We’re pleased to have supported Frobishers throughout this exciting chapter in its growth story. The acquisition by AG Barr recognises the strength of the brand and its potential in the premium soft drinks category.”

David Thompson adds:

“This deal reflects the continued strength of the UK consumer brands sector, particularly in premium food and drink. We work with a wide range of businesses in this space, from founders and management teams to investors and acquirers, and transactions like this highlight the value of long-term, strategic legal support.”

David Pearce, Frobishers’ Managing Director, says:

“This is an exciting milestone for Frobishers and the next chapter in the brand’s development. Michelmores has supported the business for many years and their deep understanding of our company, combined with their commercial and legal expertise, has been invaluable throughout Frobisher’s journey, and particularly the recent transaction.”

Michelmores’ award-winning Corporate team of 35 specialist lawyers advises clients across the UK, US, and beyond – on capital markets, mergers and acquisitions, share options, management buyouts, impact investing, energy projects and more. For more information, please visit our website.

Michelmores has advised funds managed by Triple Point on the acquisition of a 28MW solar photovoltaic project in Essex from IG Renewables Ltd and Anglo Renewables Ltd, further strengthening its longstanding relationship with the purpose-led investment manager.

The ready-to-build project, located at Toot Hill, received full planning approval in February 2025 and spans approximately 26 hectares. In addition to generating clean, renewable energy, the scheme includes a comprehensive programme of environmental enhancements designed to deliver biodiversity net gains in excess of 60%, alongside the establishment of a £25,000 community benefit fund to support local initiatives in the surrounding area.

This transaction builds on Michelmores’ ongoing work with Triple Point across its energy transition and sustainable investment portfolio, including advising on lending to a battery energy storage portfolio and the successful sale of investments within its sustainable infrastructure strategies.

The acquisition aligns with Triple Point’s strategy to accelerate the delivery of renewable energy infrastructure by securing projects with near-term grid connections, located close to centres of high energy demand.

The Michelmores team advising on the deal was led by Corporate Partner, Alexandra Watson, alongside Partners Stephen Newson and Ian Holyoak, Senior Associate Rachel Paddon and Trainee Ellis Arnold.

Jonathan Hick, Head of Energy Transition at Triple Point, said:

“As the energy transition accelerates and the market continues to evolve, securing high-quality, ready-to-build sites such as Toot Hill is critical. Michelmores supported us in navigating change across the transaction with clear, commercial and pragmatic advice, helping us deliver an asset that combines strong fundamentals with significant biodiversity and community benefits.”

Alexandra Watson added:

“We are pleased to continue supporting Triple Point and its  managed funds on the delivery of its energy transition strategy. Our work together spans a range of transactions, including financing for battery energy storage projects and the successful disposal of investments, and this acquisition reflects the continued strength of that relationship and shared focus on high-quality, sustainable infrastructure.”

Michelmores’ award-winning Corporate team of specialist lawyers advises clients across the UK, US, and beyond – on capital markets, mergers and acquisitions, management buyouts, impact investing, energy projects, microfinance initiatives and more. For more information, please visit our website

Water supply and the management of waste and surface water are increasingly critical considerations for developers. Water scarcity, aging infrastructure, and environmental requirements need to be anticipated and addressed in good time. Planning and regulatory rules also need to be navigated.

It is encouraging to see that reform is finally being mapped out and is now on our doorstep, but as always, challenges remain.

A new vision for water: the White Paper

In 2024 the Conservative Government commissioned Sir Jon Cunliffe to take a “hard, honest” look at what had gone wrong with the water sector and how to put it right. In July 2025, after significant engagement across the whole system, he set out his 88 recommendations for reform in the Independent Water Commission’s final 464-page report.

In January 2026 the Labour Government has published its long awaited White Paper in response to the Cunliffe Report. The White Paper sets out the Government’s action plan for reform of the water sector to make sure it delivers the most critical outcomes – “safe and secure supplies of water, a protected and enhanced environment, a fair deal for customers and investors – in a way that is more efficient and integrated”.

The overhaul of the sector outlined in the White Paper is far reaching. In particular the White Paper outlines plans for the creation of a new regulator to take the place of Ofwat and the DWI and take on the water and waste water responsibilities of the Environment Agency and Natural England, the creation of a new Water Ombudsman, and the condensing of 20 fragmented planning processes into two core frameworks: one for water supply and one for the water environment.

In the first of a series of articles covering this critical sector for developers, the key themes in the White Paper of relevance to developers are outlined below.

Key themes and reforms of relevance to developers

Plan-making and mandatory consultation: In November 2025, the Government confirmed details of a new local plan-making system. Under this new system, the Government intends to specify that water and sewerage companies will be made aware of key consultations and obliged to assist with plan-making, where reasonably requested.

The question of whether water and sewerage companies should become mandatory consultees in planning applications is currently under consultation. Given there are already concerns over bottlenecks in the system caused by the statutory consultee process, developers will be watching this consultation with interest.

Competition and NAVs: smaller, statutory water companies that operate in place of the regional incumbents for specific sites (NAVs) have grown rapidly in recent years, from around 100 sites in 2018 to more than 2,000 in 2025. The Government intends to make the framework for regulating the NAV market more “proportionate”. This may mean reducing elements of unnecessary burden, given their relative size and risk to customers, while still ensuring statutory duties are fulfilled.

These plans will be welcome to developers in view of an increasing reliance on the NAV market and the welcome competition which it creates.

Right to Connect: the Government are working together with MHCLG to review the “right to connect” to a water supply and to the sewerage system. The Cunliffe Report recommended that the right to connect should be reviewed to address concerns over new developments adding disproportionate and unexpected pressure to water supply and sewerage systems. Instead, it recommended that focus should be placed on water companies being involved at an earlier stage in the planning system so that any required infrastructure can be planned and delivered in a timely way.

Developers should be mindful of the direction of travel. The current near-automatic “right to connect” may become diluted and subject to capacity being available in the system.

Tighter water efficiency standards and reuse models: Even with action to deliver critical new infrastructure and improve resilience, the UK’s current water consumption is not sustainable. Improvements in water efficiency are integral to the reforms proposed in the White Paper and are already being consulted on by DEFRA in September 2025.

Themes identified in the White Paper of relevance to developers include:

• Household water reuse and rainwater management. Whilst the principle of water reuse is promoted, current interpretation of Regulation 4 of the Water Supply (Water Quality) Regulations 2016/2018 requires supplied water to be “wholesome” (potable), which prevents the supply of lower-quality, recycled water to homes. A reappraisal of this interpretation and potentially new legislation will be required to enable non-potable, recycled water to be supplied in residential settings. The White Paper does not address this.
• The roll out of smart metering. Water companies are currently undergoing a major rollout of smart water meters, with plans to install over 10 million devices by 2030. The aim is to reduce leakage, manage water scarcity, and provide accurate, real-time consumption data to customers.
• Incentives for businesses and homes to adopt water efficiency. Already Ofwat’s Environmental Incentives Common Framework (EICF) requires water companies to provide financial incentives to developers for building water-efficient properties.

Sustainable Drainage (SuDS):  the White Paper outlines a shift towards managing waste and surface water at source by prioritising “pre-pipe” solutions. These are strategies to reduce the volume of waste and surface water entering the sewerage system in the first place, rather than treating it at the end of the pipe. SuDS are an example of a pre-pipe approach. The Government intends to ensure legislation, funding streams, and regulatory mechanisms support the delivery of pre-pipe solutions.

This will be generally welcome to developers. The key issue is how management and maintenance of SuDS is to be achieved, which we will cover in a later article in this series.

Conclusion

For developers, while the reforms indicate stricter environmental requirements, and a push for better water efficiency, they also introduce a significant expansion to modernize sewers, secure supplies against climate change and improve water quality. These investment plans aim to unlock housing development across England and Wales by addressing water scarcity and upgrading network capacity and will be welcome to developers.

Our cross-firm expertise in this area is considerable. We regularly advise on these issues across many different development scenarios and for a range of stakeholders. If you have any questions or would welcome a discussion please do contact Lucy Smallwood, Fergus Charlton, Noel Beale or your usual Michelmores contact in the first instance.

Landowners in England will likely already know that if they want to build or extend an agricultural building for agricultural purposes on their farm, they can seek to rely on permitted development rights (“PDRs”). PDRs grant planning permission for developments that would otherwise require a successful, costly and time-consuming planning application.

A recent High Court case has highlighted the pitfalls of not considering the potential impact of the development on ancient woodland and listed buildings at the prior approval stage.

PDR Rights

For farms of 5 hectares or more the relevant PDR for these types of developments is Class A in Part 6.

To rely on a PDR, applicants must ensure that the facts of the proposal align with the requirements of the PDR and must comply with the PDR restrictions and the planning conditions that will apply.

A key condition is that prior approval for design, appearance and siting must be sought from the local planning authority before starting work. The recent High Court decision of Rickards v East Hertfordshire District Council set out some practical takeaways when submitting a prior approval application.

Background

The local planning authority gave prior approval in April 2024 for three large polytunnels on agricultural land of at least 5 hectares. A neighbour challenged the Council’s decision on various grounds, notably the Council’s failure to take account of the potential impact of the development on Bayford Wood (an ancient woodland) and on the setting of a nearby Grade II listed building.

The High Court concluded that the polytunnel’s impact on the listed building and ancient woodland were material considerations that must be addressed by the authority in their determination of the prior approval, so the court quashed the decision.

Key takeaways

There are various practical implications of the Rickards decision for applicants seeking to rely on Class A Part 6 PDRs.

The key lesson is proactively to identify and address any nearby constraints when preparing prior approval submissions, including the presence of and impact on any heritage assets, conservation areas, or ancient woodland. For this, the prior approval application should be supported by the following:

A Heritage Statement

A clear statement showing the applicant has identified the presence of and assessed the development’s impact on any proximate heritage assets (the listed building and its curtilage).

This should include analysis of the significance of the asset and its setting and, where relevant, how this has informed the development of the proposals. The level of detail should be proportionate to the asset’s importance and no more than is sufficient to understand the potential impact of the proposal on its significance. Planning Policy Guidance, the National Planning Policy Framework and advice provided by Historic England make clear that too much information is not welcome.

If a heritage building is close to the proposed agricultural building, consider either relocating it or appointing a heritage specialist to prepare the heritage statement and to maximise chances of securing prior approval.

An Ecological survey

According to Natural England’s ‘standing advice’ on ancient woodlands, it is advisable to obtain a specialist tree survey and an ecological survey to address the impact of proposed development on ancient woodland, depending on the level of impact.

A qualified arborist should be appointed to advise on the impact and propose mitigation measures to avoid and reduce harm on ancient woodlands, ancient and veteran trees.

The detail in the report should be proportional to the development and the proximity to the ancient woodland.

Other practical considerations

One administratively interesting aspect of this case was that the site notice alerting the public to the submission of the prior approval application had not been properly displayed which allowed the challenge to be made ‘out of time’. If a notice is required, it should be left in place for at least 21 days.

On the plus side, the claimant also raised the applicant’s failure to include appropriate plans to substantiate the agricultural unit was at least 5 hectares (a requirement for Class A PDRs). However, the court accepted that declarations of agricultural unit size (supported by a planning statement) were sufficient to establish eligibility under Class A and the officer did not need to carry out a site visit to satisfy themselves.

Common land is a frequently overlooked constraint in the early stages of development due diligence. Yet, failure to identify it can delay, complicate, or even derail a project entirely. Understanding its legal status, protections, and practical implications is essential for landowners, developers and promoters.

What is common land?

Common land in England and Wales is privately owned land over which third parties – known as commoners – hold long‑established legal rights to use the land or to remove certain resources from it. This may include:

• Grazing livestock
• Turbary (cutting turf or peat)
• Estovers (taking wood for fuel, bedding or minor repairs)
• Pannage (allowing pigs to forage for acorns)

In addition to these rights, the public generally has a right of access over registered common land.

Why does common land matter?

Despite its significance, common land is often missed during initial site investigations. However, its presence introduces strict statutory controls which do not fall away simply because planning permission has been granted. Failure to obtain additional approval under the Commons Act 2006 can lead to enforcement action in the county court – action that any person may initiate, irrespective of their legal interest in the land.

If overlooked, common land can create real risks to a project including:

• Local opposition and reputational impact, given the cultural and community value of common land
• Costly redesigns as well as the need for alternative routes or additional land to be factored in
• Consent risk, as section 38 applications require a merits‑based assessment of the varied interests of commoners, neighbours and the wider public interest in nature conservation

Case Study: Snow Capel, Gloucestershire

A recent example illustrates these challenges. The Snow Capel scheme south of Gloucester was significantly delayed when Gloucestershire County Council’s planning inspectorate refused consent for access works across Sneedham’s Green, a registered common. The refusal was based on a failure to provide suitable replacement land, as well as concerns regarding the impact on existing grazing rights in the absence of protective measures such as cattle grids.

The result: a delay of at least a year – demonstrating how failure to address common land issues early can have material consequences.

Identifying common land

The legal position with respect to common land is recorded on commons registers, which are kept by the local commons registration authority; the UK Government’s database of registered common land and Natural England’s Access to Evidence viewer also serve as helpful tools.

On-site inspections remain essential, helping reveal active common rights (e.g. grazing or public access routes). A review of title documents may also disclose manorial rights or other potentially adverse entries.

Practical strategies for landowners and land agents

• Identify potential issues early on: check the commons registers prior to finalising access strategies and wider development plans
• Design for commoners and the public: once identified, factor in the continuity of any existing local use or access, as well as any impacts the development is likely to have on common land
• Negotiate and engage: liaise with known commoners and concerned open spaces organisations to address concerns regarding the impact of the proposed development
• Choose the right consent route: the ‘section 38’ path may suffice for low-impact works. However, the ‘section 16’ route (involving the deregistration and exchange of land) may be more appropriate for more substantial interventions.

Summary

Unaddressed questions around common land can introduce delays, costs and objections that are entirely avoidable with early due diligence and meaningful engagement. By anticipating issues, preparing mitigation strategies and selecting the correct consent pathway, landowners and developers can significantly reduce the risk of schemes being delayed or frustrated.

On 16 December 2025, the Government published its draft revised National Planning Policy Framework (NPPF), alongside a consultation on the proposed draft, which runs until 10 March 2026. The draft revised document is much longer than the current NPPF and sets out proposed changes to housing delivery, Green Belt policy, affordable housing and the plan-making system. In this article, we set out the key changes for the planning industry.

Structural changes

The draft framework has been restructured to collect policies together in thematic chapters for ease of reference. The draft is reorganised into two main parts: plan-making policies (for development plans, spatial development strategies and neighbourhood plans) and national decision-making policies (NDMPs). The introduction explains that the objectives are for context only and should not be applied as policy, but the annexures are to be seen as national policy. It also confirms that Planning Practice Guidance is important, but it is merely to support national policy.

NDMPs

While Ministers Steve Reed MP and Matthew Pennycook MP both said in November that the new National Development Management Policies (which are now referred to in it as “national decision-making policies” (NDMPs)) are not going to be made statutory for the time being, the consultation document is not as certain. The policies could be given statutory status in the future (if the non-statutory status does not lead to the desired outcomes of i) supporting more effective decisions and ii) reducing generic or alternative policies in local plans).

Local plans

Local plans that conflict with the NDMPs from the time when the new NPPF takes effect must now carry very limited weight (unless examined and adopted under the new NPPF), encouraging greater consistency.

The “expectation” is set out that local plans will not repeat the NDMPs, which may go some way to mitigating the impact of NDMPs being non-statutory.

Despite the above, development plans which are being prepared today can continue to be judged against the policies in the existing NPPF, whereas any development plans which are progressed under the new system set out in Levelling Up and Regeneration Act 2023, which is due to be in force early this year, should use the new version.

Sustainable development, presumption and spatial strategy

The presumption in favour of sustainable development is now applied in relation to location-based needs, rather than applying the former ’tilted balance’ test. Local plans are required to identify a clear spatial strategy, setting out settlement boundaries or criteria that determine where the presumption applies.

The presumption distinguishes clearly between development within settlements and development outside them, and the circumstances in which the presumption applies are much broader.

Within settlements, all proposals are automatically supported unless the harms substantially outweigh benefits, meaning brownfield development is supported by default.

Outside settlements, a set of development types qualify for presumption under Policy S5, including where there is a failure to demonstrate a five-year housing land supply or scoring under 75% on the latest Housing Delivery Test. As expected, housing and mixed-use schemes within reasonable walking distance of railway stations now qualify for the presumption, provided they do not prejudice longer-term development plans in the same location. Developments in the Green Belt near rail stations may also benefit, subject to meeting the “Golden Rules”.

Support for SME & Medium Developers

The new NPPF introduces a new medium-site category for developments of 10–49 homes on sites up to 2.5 ha, and potential exemptions from the Building Safety Levy are also being explored in a bid to support SME developers. There is also provision for higher density developments on smaller sites.

One of the biggest surprises is the proposal in the consultation document that medium sized sites would be allowed to pay cash in lieu of providing affordable housing, replacing the current requirements such as pepper potting.

Affordable Housing

The draft NPPF proposes a series of changes to viability policies in development plans and sets out limited circumstances where a developer can justify providing a non-policy-compliant level of affordable housing as follows:

• where a development is significantly different from any typology assumed in the development plan viability assessment;
• where site characteristics differ substantially from the assumptions used initially to assess viability;
• where the development is burdened by unforeseen costs; or
• where there are significant changes in the site or economic circumstances since the development plan was prepared.

Green Belt

The draft document provides that green belt reviews should identify broad locations for strategic development, including new settlements and major urban extensions, covering large site allocations in adopted local plans.

Development plans should also outline measures to offset green belt releases through environmental and accessibility improvements to remaining green belt land, reinstating a requirement removed in the 2024 framework.

Heritage and Protected Landscapes

The revised draft redefines “harm to heritage assets” to three tiers: harm, substantial harm, and total loss, with “substantial harm” clarified as damage to an asset’s key significance. The term “valued landscapes” has been removed from the new draft, simplifying landscape protection policy.

Environment, Clean Energy & Water

A dedicated chapter supports clean energy infrastructure and water to support the Clean Power by 2030 agenda. The draft includes initiatives like incorporating swift bricks into developments unless there are ‘compelling technical reasons which prevent their use’ and chalk stream protection.

In addition, chapter 19 sets out that payments into the nature restoration levy (NRF) are offered as an alternative to Habitats assessments, reflecting Part 3 of the Planning and Infrastructure Act 2025. The government released a policy paper on Implementing the NRF on 18 December which sets out how the NRF will work in practice, implementation plans and milestones for the NRF.

Conclusion

Overall, the proposed changes to the NPPF form part of the government’s efforts to overhaul the planning system, meet the objectives of supporting economic growth and tackle the country’s housing crisis. We can help clients navigate these draft changes to the NPPF when approaching planning matters.

BNG Reforms

Alongside the tweaks to the BNG policies in the draft NPPF, the government also announced that it intends early this year to respond to last summer’s consultations on BNG. It has confirmed that the changes will modify the rules on BNG, including an exemption for developments on sites under 0.2 ha, various simplifications to the process of providing BNG on small and medium-sized sites and measures to make it easier to deliver BNG off-site than is the case currently. The government will also consult on a BNG exemption of certain brownfield sites, up to 2.5ha, from mandatory BNG provision. We will consider the detail of these changes once they are published.

Providence Building Services Ltd v Hexagon Housing Association Ltd [2026] UKSC 1

The Supreme Court has just handed down judgment in a case that it had to decide because it was a matter of general public interest (to those of us dealing with construction matters, anyway). It relates to contractual interpretation of a clause in the long-standing and widely respected and used standard form contract: Joint Contracts Tribunal 2016 Design & Build Form; moreover, it remains important and relevant since the new edition of the JCT D&B contract published in 2024 includes the same wording of the relevant clause as the 2016 version.

The actual clause in question (clause 8.9) relates to termination of the contract by the contractor. Clause 8.9.1 provides that if an interim payment was not made in the time prescribed by the contract, the contractor could give notice of a ‘specified default’.  If that specified default was not remedied within 14 days of the notice then under clause 8.9.3 the contractor could terminate the contract.

Clause 8.9.4 deals with what is to happen if a specified default is repeated.  It says:

“.4        If the Contractor for any reason does not give the further notice referred to in clause 8.9.3, but (whether previously repeated or not):

            .1         the Employer repeats a specified default; or

            .2         ….

…        then, upon or within a reasonable time after such repetition, the Contractor may by notice to the Employer terminate the Contractor’s employment under this Contract.”

The decision the court had to come to in respect of these terms therefore affects termination rights under clause 8.9 and impacts project risk, payment strategies, and dispute outcomes under both JCT 2016 and 2024.

Background

The facts of this case were that:

• The employer (using a slightly amended form of the standard form contract) had failed to pay a sum by the due date so the contractor duly issued a notice of specified default, citing the failure to pay a sum due.
• Nearly two weeks later, the employer paid the application sum in full. The specified default did not therefore continue for the requisite period which would have allowed the contractor to terminate the contract for the employer’s continuing the default.
• Four months later (and following four satisfactory payment application rounds) the employer again failed to pay a sum due in time. The contractor therefore served a termination notice under clause 8.9.4, referring back to the previous notice of default.
• Five days later the employer paid the sum due under the application in full and then disputed the lawfulness of the contractor’s termination notice, asserting that the contractor had repudiated the contract.
• A week later the employer wrote to the contractor purportedly accepting the contractor’s repudiation and terminating the contract.

The battle lines were therefore drawn on either side of a dispute that could be distilled into the discrete question which was ultimately considered by the Supreme Court:

“Can the contractor terminate its employment under clause 8.9.4 of the JCT 2016 Design and Build Form, in a case where a right to give the further notice referred to in clause 8.9.3 has never previously accrued?”

The litigation

The pendulum swung in each party’s favour as the question proceeded through the various levels of tribunal: adjudication, High Court, Court of Appeal, and Supreme Court.  Seeking to derive what is the natural meaning of the clause in question in order that an industry-wide contract can be interpreted consistently, the Supreme Court has settled on the view that it is only if the employer has failed to cure a specified default that the contractor can terminate immediately for a further late payment (having not terminated on the basis of the first notified default – in the words of the contract: “for any reason”). If the employer cures the specified default within the requisite period then the contractor’s right to serve a further notice based on it expires.

The court considered the different wording in the clauses relating to termination by the employer and termination by the contractor, but decided that the asymmetrical position was consequential to the differing contractual obligations of the parties. The difference did not justify doing violence to the natural meaning of the words to combat contractor’s cash-flow problems.

The judgment concluded that if and so far as the contractor does, or does not, have other satisfactory methods of combating cash-flow problems caused by late payment, that is a matter for the JCT to consider “in the light of this judgment” in a future draft of the standard form contract. Meanwhile, even if an employer is routinely late in payment of application sums under the relevant contracts, if the sums are paid before the expiry of the specified default period the contractor cannot terminate the contract under clause 8.9.

Lessons learnt

For contractors:

• You cannot rely on an earlier default if it was cured within the notice period.
• Each late payment is treated discretely unless the employer allows the “specified default” to run its course.
• You may need to adapt cash‑flow protection strategies (e.g., stricter payment monitoring, prompt issuance of notices, contractual amendments on new projects).

For employers:

• Paying within the cure period protects you from termination rights.
• However, repeated late payment still carries commercial risks (performance issues, disputes, suspension rights under the Construction Act, reputational issues).

For contract drafting going forward:

• Parties may wish to consider bespoke amendments allowing repeat defaults to be aggregated or providing stronger remedies for habitual late payment.