The shortlist has been announced for the 2017 Michelmores Property Awards, which celebrate outstanding property and construction projects in Bristol, Devon, Somerset, Dorset and Cornwall, across ten categories.

A panel of ten judges with expertise across the property and construction sector and in-depth knowledge of the region, came together for the judging day on 24 March 2017 to shortlist an impressive list of submissions.

The shortlisted projects for Category 4: Leisure & Hospitality Project of the Year are:

COACH, Taunton – submitted by SWH Build

COACH, located at French Weir Avenue in Taunton, is an outdoor activity centre offering a diverse range of adventure activities, outdoor education and personal development programs for community users of all ages. The facility offers canoeing and cycling facilities, a boat store, a café and meeting space for social events. It is supported and used by a number of local clubs and groups.

Gaia Spa, Boringdon Hall, Plymouth – submitted by Ward Williams Associates

Luxury spa retreat Gaia Spa is set within the grounds of Boringdon Hall – a Grade I listed 16^th century country manor hotel in Plymouth. The contemporary design of the spa’s pools, treatment rooms and social areas discretely span three floors, utilising nature to create spaces for relaxation and rejuvenation. The Spa also comprises gym facilities, heat and hydrotherapy experiences and a restaurant – which offers outdoor terraces overlooking views of Dartmoor.

Pavilions Teignmouth, Teignmouth – submitted by Devon Contractors

Pavilions Teignmouth is a new multi-functional arts and cultural centre located on the site of the old Carlton Theatre. It comprises an auditorium seating over 200 people, incubator offices for start-up businesses, gallery and exhibition space, fitness and dance studios, a café and a restaurant. The project has brought a new lease of life to Teignmouth Seafront and town, and aims to encourage further regeneration work for Teignmouth and other coastal towns in the region.

Seaton Jurassic, Seaton – submitted by East Devon District Council

Seaton Jurassic is a multi-use, community-led visitor centre. It allows visitors to enjoy an inspirational and educational time-travelling voyage – bringing to life the evolution of the Jurassic Coast, England’s first Natural World Heritage Site. The centre comprises various internal exhibitions, including a specially adapted time-ship and a human-sized rockpool, as well as external wildlife gardens, where habitats representing the wetlands, the harbour, the beach and Seaton Hole can be discovered.

The shortlist has been announced for the 2017 Michelmores Property Awards, which celebrate outstanding property and construction projects in Bristol, Devon, Somerset, Dorset and Cornwall, across ten categories.

A panel of ten judges with expertise across the property and construction sector and in-depth knowledge of the region, came together for the judging day on 24 March to shortlist an impressive list of submissions.

The shortlisted projects for Category 2: Public Project of the Year are:

City Hall, Bristol – submitted by Alec French Architects

City Hall is a Grade II listed building, commissioned by Bristol City Council as its corporate HQ in the 1930s. 2016 saw the comprehensive remodelling of the building to create a contemporary and agile working environment for staff and partner organisations, with increased access to the public. The refurbishment process comprised extensive redesigning to workspaces across five floors, including repairing original heritage building features and adapting building services in line with 21^st century working practices.

Met Office High Performance Computer Complex, Exeter – submitted by Met Office

The Met Office’s High Performance Computer Centre at Exeter Science Park is a £97m project,  housing the Met Office’s super computer which is capable of performing 14,000 trillion calculations per second – 13 times more powerful than its previous system. The building itself, classed a BREEAM excellent for sustainability, will also be used as collaboration space to enable partnerships between science, business and academia.

Pavilions Teignmouth, Teignmouth – submitted by Devon Contractors

Pavilions Teignmouth is a new multi-functional arts and cultural centre located on the site of the old Carlton Theatre. It comprises an auditorium seating over 200 people, incubator offices for start-up businesses, gallery and exhibition space, fitness and dance studios, a café and a restaurant. The project has brought a new lease of life to Teignmouth seafront and town, and aims to encourage further regeneration work on Teignmouth seafront and other coastal towns in the region.

The Cove Macmillan Support Centre, Truro – submitted by Kier Construction

The Cove Macmillan Support Centre, a joint project between Macmillan and The Royal Cornwall Hospitals NHS Trust, provides essential services to all those affected by cancer on Cornwall and the isles of Scilly. The Centre is a dedicated cancer support facility, offering treatment and therapy rooms, quiet rooms for patients and relatives, counselling and psychology rooms, training rooms and a café. The Centre opened to the public in November 2016.

The shortlist has been announced for the 2017 Michelmores Property Awards, which celebrate outstanding property and construction projects in Bristol, Devon, Somerset, Dorset and Cornwall, across ten categories.

A panel of ten judges with expertise across the property and construction sector and in-depth knowledge of the region, came together for the judging day on 24 March 2017 to shortlist an impressive list of submissions.

The shortlisted projects for Category 9: John Laurence Special Contribution Award are:

David Parsons, Pearce Construction

David is the Managing Director of Pearce Construction. With over 35 years in the construction industry, he has been the driver behind a range of diverse, quality development projects. Key projects include Passivhaus standard homes at Christow and regeneration projects in Barnstaple. David’s dedication to health and safety is second to none – he is a Director of The Building Safety Group Limited, the UK’s largest Independent health and safety advisory group operating within the construction industry.

Andrew Pearce, JLL

Andrew is a Director at JLL. In 2016, he celebrated 25 years in commercial property agency and consultancy in the South West. One of the region’s leading property advisors, he has assisted with the delivery of over 3m sq. ft. of new-build or refurbished offices, with a total value of over £0.5bn. Key highlights include the delivery of 1m sq. ft. of commercial space at Exeter Business Park and the creation of highly sustainable commercial buildings, including Gadeon House, Milford House and Oxygen House, Exeter.

Ralph Collison, Alder King

Ralph, a Consultant at Alder King, has become a well-established figure in Devon’s business community over the past 29 years. He has been involved in many high-profile developments which have been fundamental in changing the landscape of the South West, including advising Land Securities on the development of Princesshay in Exeter City Centre and buying the Science Park site at Exeter for Eagle One.

The shortlist has been announced for the 2017 Michelmores Property Awards, which celebrate outstanding property and construction projects in Bristol, Devon, Somerset, Dorset and Cornwall, across ten categories.

A panel of ten judges with expertise across the property and construction sector and in-depth knowledge of the region, came together for the judging day on 24 March 2017 to shortlist an impressive list of submissions.

The shortlisted projects for Category 6: Sustainble Project of the Year are:

Cornwall Energy Recovery Centre (CERC), St Austell – submitted by Cornwall Energy Recovery

The CERC is central to an integrated waste management strategy for Cornwall, which uses innovative methods to reduce and reuse waste – developing facilities to allow for more recycling, composting and energy recovery to take place. CERC plays an important role in reducing Cornwall’s Carbon Footprint by recovering energy, both heat and electricity, from the waste left over after recycling and composting, and reducing the reliance on landfill sites.

Cranbrook & Skypark District Heating Scheme, Exeter – submitted by EON Energy Solutions and  Exeter & East Devon Growth Point

Cranbrook & Skypark is the first and largest low-density district heating scheme in the UK. All units in the scheme are connected via an energy centre, which serves as a hub for a state-of-the-art district heating network that provides a sustainable, cost-effective source of heat to business units at Skypark and homes in Cranbrook. The Energy Centre will house heat and energy turbines, providing heat and hot water 24 hours a day to both developments – with surplus electricity fed back into the national grid.

Severnside Energy Recovery Centre, Bristol – submitted by West London Energy Recovery

The Severnside Energy Recovery Centre is the key component of an integrated waste management strategy for the West London Waste Authority. It utilises ground-breaking technology to maximise the extraction of usable renewable energy, whilst dramatically reducing the volume of residual waste sent to landfill. The facility makes use of rail as its key transportation measure, helping to further reduce emissions, as well as congestion on the public highway.

Stafford Close, Christow, Devon – submitted by Pearce Construction

Stafford Close is a development of 18 highly energy efficient Passivhaus standard homes – the first of its kind based within Dartmoor National Park. Amongst other sustainability measures, the homes feature solar panels, rainwater harvesting and Passivhaus certified triple glazed windows – to generate estimated annual heating and hot water bills of just £60 per year. Fourteen of the homes are designated as affordable rented housing for local people, managed by Teign Housing.

This article was first published in Solicitors Journal on 7 March 2017 and is reproduced by kind permission.

It is for the law to keep up with changing relationship formats and social attitudes to reflect reality and protect those involved, writes Pippa Allsop.

I have previously discussed the myth of ‘common law marriage’: the popular misconception that living with your partner for a lengthy period of time gives rise to some sort of legal protection in the event the relationship breaks down, akin to that afforded by marriage and civil partnerships. I am still strongly of the opinion that with couples in the UK increasingly opting to cohabit without getting married, this is an area of the law which needs to maintain pace with societal realities.

It was with interest, therefore, that I recently reviewed the judgment handed down by the Court of Appeal in the matter of Steinfeld and another v Secretary of State for Education [2017] EWCA Civ 81.

Charles Keidan and Rebecca Steinfeld are a heterosexual couple who both hold ‘deep-rooted and genuine ideological objections to the institution of marriage, based on what they consider to be its historically patriarchal nature’. As UK law currently limits the ability to enter into a civil partnership to those who are in a same-sex relationship, the couple claimed that this equated to an infringement of their human rights, being discriminatory on the basis of their sexual orientation.

‘Wait and see’

Following previous consultation, the government took the decision to ‘wait and see’ what effect extending marriage to same-sex couples has on civil partnerships before permitting opposite-sex couples to enter into civil partnerships, or indeed abolishing or phasing out civil partnerships altogether. Accordingly, Keidan and Steinfeld also sought to challenge this previous refusal to extend civil partnerships to heterosexual couples.

The upshot was that although the couple’s appeal was ultimately dismissed, it was accepted that the ‘future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully’. Essentially, although it was accepted that the current position did create a difference in the way same-sex and opposite-sex couples are treated by the law, the Court of Appeal felt this was justified in light of the ‘wait and evaluate’ approach the government was taking.

Cohabiting couples

I would be very interested to see whether opening up civil partnerships to heterosexual couples would actually result in a large number of cohabiting couples taking advantage of the option to enter into a civil partnership.

Undoubtedly, there are many people who share the feeling that the concept of marriage does not accord with their values and, as such, does not provide them with the outcome they desire in ‘formalising’ their relationship. Many others, though, may well still not wish to ‘formalise’ their relationship at all and still chose to live with one another without any label attached. My feeling is that it is for the law to keep up with relationship formats and social attitudes, so as to not only reflect reality, but also to protect people’s positions as far as possible when a relationship breaks down – whatever family format they chose to adopt as autonomous adults.

For more information please contact Pippa Allsop, Associate in the Family Law team.

The High Court has considered trade mark infringement/passing off in the context of Google AdSense for the first time.

Google AdSense offers website operators the opportunity to contract with Google for it to place adverts on their website and pay a fee per user’s click on the adverts.

In this case, UK retailer Argos claimed that Argos Inc.’s use of Google AdSense on its website www.argos.com (which was registered prior to www.argos.co.uk) amounted to trade mark infringement.  Argos argued that Argos Inc. was ‘free riding’ on its reputation.

A key (and highly unusual point) was that most UK visitors visited Argos Inc.’s website by mistake and bounced off the page almost immediately. However, as www.argos.com was (1) registered in 1992 and pre-existed Argos’ 2004 domain name and (2) targeted customers in the USA only, Argos accepted it could not complain about the use of the domain name alone.

Argos complained that its paid-for adverts appeared on Argos Inc.’s website and Argos Inc. therefore received revenue from Google for user clicks. Argos argued that it was indirectly paying Argos Inc. to infringe Argos’ rights (via Google AdWords).

Argos Inc. raised the defence that it was a US focused site and produced evidence to show that 85% of UK visitors to the website left after a median time of 10 seconds.  Argos Inc. also argued that Argos had signed Google’s AdWords terms and conditions and consented to the use of its adverts on Argos Inc.’s and third party websites. Crucially Argos had not excluded any particular website from showing its advert.

The High Court agreed with Argos Inc. To infringe a trade mark, its use must have been made without consent but here Argos consented to the use of the domain name argos.com and the use of Argos’ adverts on the Argos Inc. website. The sign was also not used in the UK so did not amount to trade mark infringement in the UK.

The Judge made it clear that it was not the case that wherever an adviser entered into an AdWords contract with Google, it would consent to the use of the trade mark by any third party in any context.

The real issue for Argos in this case is that the domain had been registered by Argos Inc.. in 1992, prior to Argos’ 2004 registration and it accepted it could not complain about it.

This is a useful reminder for new businesses to register domain names early to avoid being in a position where a third party legitimately owns a domain name which consumers are likely to mistake with their brand.

Another key point when signing up for AdWords is to carefully consider excluding some third parties from using your adverts, to avoid being deemed to have consented to a potential infringement.

For more information please contact Charlotte Bolton, Associate on charlotte.bolton@michelmores.com or +44 (0)1392 687745

With the judging day for the 2017 Michelmores Property Awards now just under a month away, we are pleased to introduce the judging panel for this year’s event.

We are delighted to welcome five new judges to the 2017 awards: Mike Lea, Graham Norwood, Sarah Buck, John Beauchamp and Chris Curling.

We are also pleased to welcome back five of last year’s judges: Nick Hole, Mike Leece OBE, Will Mumford, Peter Lacey and Thelma Sorensen OBE. The full panel will all come together on Friday 24 March 2017 to select the very best buildings, projects and businesses from across the South West.

Meet the judges

Mike Lea

Mike is the Senior Partner of Smith & Williamson’s Bristol office, with responsibility for around 190 people and for the strategic direction of the office across the South West and beyond.

He is also lead partner of business tax in Bristol and has built up a vast amount of experience, with over 32 years in the profession. He is a trustee of several charities, covering areas as varied as education, theatre, care homes, youth clubs, drugs treatment and sports.

Graham Norwood 

Graham is a freelance property journalist, writing on residential markets and housing. He is a regular contributor to The Sunday Times, Daily Telegraph and Daily Mail property pages, appears in lifestyle magazines such as Country & Town House, edits the online trade titles Estate Agent Today and Letting Agent Today, and frequently writes for Estates Gazette. He has also written four books on residential property. Outside of work, Graham lives in Topsham, Devon. He claims to spend too much time in the cinema and, a few times a year, at F1 motor races. You can follow Graham on Twitter @propertyjourn.

Sarah Buck 

Sarah Buck is a Chartered Civil and Structural Engineer and was the first female President of Institution of Structural Engineers in 2007. She is currently Director of BSW Consulting, an Exeter-based company which she co-founded 20 years ago. She has been involved in the design and supervision of a wide range of civil and structural projects during her career, both in the UK and overseas and has developed a particular interest in historic structures and sustainable construction. Sarah is involved internationally with structural engineering ethics and nationally with degree accreditation. Sarah was awarded an honorary degree (DEng) by the University of Exeter in 2008 and an OBE in the 2015 New Year Honours for services to Engineering and Education.

John Beauchamp 

John established benjamin +beauchamp architects in Wedmore, Somerset ten years ago. He has over 25 years’ experience in the conservation and repair of historic buildings, as well as the adaptation of existing buildings and the construction of new buildings within an historic context. John is involved in ongoing work on major medieval buildings including Cathedrals and churches throughout the South West and in the Republic of Ireland. He is a member of the Bath and Wells Diocesan Advisory Committee (DAC) and an RIBA and AABC conservation accredited architect.

Chris Curling 

Chris Curling is a lawyer, business leader and environmentalist. As a corporate finance lawyer and 15 years as either Chief Executive or Executive Chairman, he led the development of Osborne Clarke from a Bristol-based provincial firm into a national and international law practice with offices throughout Europe and in Silicon Valley.

For the past 14 years he has sat on the Boards of a range of listed and private companies. Chris has also been Chairman of several environmental bodies, including Wildscreen, the External Advisory Board of Bristol University’s Environmental Research Institute, Sustrans, and a Trustee of Avon Wildlife Trust. He has been a member of the governing body of Bristol University, and he now chairs the committee responsible for the oversight of nine Bristol schools under the umbrella of the Society of Merchant Venturers of Bristol, of which he was Master in 2015.

Nick Hole

Nick Hole has over 30 years’ experience in the property development sector. He is a director of Exeter-based property company Eagle One, which he first joined as a Chartered Surveyor in 1987.  He is also Managing Director of Eagle One company Blue Cedar Homes, which specialises in the luxury retirement market in the South West.

Mike Leece OBE

With a background in engineering, Mike Leece became CEO for Devonport Management Limited (DML) in 1987, where he led the company’s transition from a public sector organisation into a commercial entity. Subsequently, Mike was appointed CEO of the National Marine Aquarium – a position he held for over ten years.  He was also Non-Executive Director of Ireland’s largest house builder, Governor of the University of Plymouth, and Director/Chair of Plymouth Chamber of Commerce. Mike is a self-employed business consultant and is currently a NED of Plymouth Hospitals NHS Trust.

Will Mumford

Before joining LocatED as the Assistant Director of technical and planning, Will worked as the Operations Director at NPS South West – a multi-disciplinary property consultancy. Will has been based in the West Country for over 20 years working in retail, property and local politics.

LocatED is a property company which buys and develops sites in order to realise the government’s manifesto commitment to open 500 new free schools in England by 2020. LocatED is wholly owned by the Secretary of State for Education.

Peter Lacey

A highly experienced architect, Peter Lacey co-founded the Exeter and Plymouth based Architecture and Urban Design practice, Lacey Hickie Caley in 1992 – later becoming Chairman of the LHC Group. Since retiring from the business, he has been Non-Executive Chair of property consultants Vickery Holman Ltd. and Pro-Chancellor at the University of Exeter where he held the infrastructure and environmental sustainability portfolios. He retired from both last year and is currently Chair of the Green Infrastructure Board reporting to the Exeter and Heart of Devon Growth Board and a director of Exeter Golf and Country Club.

Thelma Sorenson OBE

A well-known champion of the Cornish business scene, Thelma Sorensen has a wealth of experience in the construction sector, holding the position of Regional Administration Officer for Devon and Cornwall for the Chartered Institute of Building for many years. She is also Hon. President of the South West Women in Construction group, an organisation she is extremely passionate about. Thelma is currently Chairman of the Cornwall Business Partnership and Vice Chair Cornwall for the Devon and Cornwall Business Council and now also a Director of the Architecture Centre Devon and Cornwall.  In 2010, Thelma was awarded an OBE for her contribution to economic regeneration in Cornwall.

With the ever increasing variety of websites and apps, social media cannot be ignored. More and more children are using mobile phones and opening their own accounts, so parents and schools need to understand the risks and opportunities in this ever changing area.

From a legal perspective, the key is to have a policy that works, make sure everyone knows what the policy is, to follow the policy and to have an audit trail to demonstrate that it has been followed. The single most important factor to keep in mind with any policy is safeguarding. Keeping Children Safe in Education (KCSIE) expressly state that policies should include: ‘acceptable use of technologies, staff/pupil relationships and communications including the use of social media.’ Policies need to be both taught to and accessible to students, parents and teachers. Whilst it will be for individual schools to develop their own policies, the starting point has to be to make sure that it includes the key points contained in KCSIE.

KSCIE makes it clear that ‘Governing bodies and proprietors should ensure children are taught about safeguarding, including online, through teaching and learning opportunities, as part of providing a broad and balanced curriculum.’ The sad reality is that while social media provides many opportunities for instant communication and sharing ideas, it has also become a tool used by people seeking to groom children. This can include online gaming as well.

For Governing bodies and parents, keeping up to date with the latest app is very difficult, which is why regular training is important. In addition, policies should include what the expectations are around aspects such as use of mobile phones at school and set out potential disciplinary consequences in relation to cyber bullying.

While social media does carry risks, it is also an opportunity to provide a forum for the school community to come together to share good news, celebrate success and get information out to people quickly and easily. But, again, having a policy is key.

If you require any further information about the risks of social media in schools, please do not hesitate to contact our specialist Education Law team.

The lotting of a farm for sale can be a lucrative method of realising its value. However the recent case of Baker v Craggs [2016] EWHC 3250 (Ch) shows how careful all parties and their professional advisors must be to ensure that rights of way and other easements affecting the various lots are properly granted and reserved and any plans used are detailed and accurate. If mistakes do occur, the registration gap is always lurking to catch out the unwary.

The Case

On 17 January 2012, Mr and Mrs Charlton sold off part of their farm, comprising 18 acres of fields with barns and an adjacent yard to Mr Craggs. The transfer did not reserve any right of way over the yard in favour of the sellers.

Mr Craggs’ solicitor applied to H M Land Registry to register Mr Craggs as the new owner of the farm. Unfortunately, however, the plan attached to the transfer was missing various details so the Land Registry requested a replacement and gave a deadline by which it had to be returned. The new plan was not submitted by the deadline, so Mr Craggs’ application for registration was cancelled. His solicitors subsequently reapplied for registration and Mr Craggs was eventually registered as proprietor on 16 May 2012.

In the meantime, on 20 February 2012, Mr and Mrs Charlton sold off a barn on their farm to Mr and Mrs Baker (‘Bakers’), who were also granted a right of way over the yard, already sold to Mr Craggs. The transfer of the Bakers’ Barn was lodged with the Land Registry and the Bakers were entered on the register as its proprietors with effect from 14 March 2012. The registered title for the barn showed it had the benefit of the rights granted by the 20 February transfer of the Bakers’ Barn (including the right of way over the yard). When registering Mr Craggs as the proprietor of the Farm in May 2012, the Land Registry recorded his yard as being subject to the rights granted in the transfer of the Bakers’ Barn.

Proceedings were issued on 26 March 2015. They principally raised the question of whether the Bakers had the benefit of a right of way over the yard at the farm.

The registration gap

The period between completion of the transfer of a property and registration of the new owner as registered proprietor at H M Land Registry is known as the registration gap. During this period the buyer is the beneficial, but not the legal owner of the property. The seller retains the legal ownership as registered proprietor, until the register is updated. The buyer of property is usually protected during this period from being bound by interests created after the date of completion by a ‘priority period’ given by the Land Registry. As long as the application for registration of the purchase is submitted within the priority period the buyer is usually protected.

Mr Craggs faced two problems: first, the mistake on the transfer plan meant the Land Registry required a replacement plan; and secondly, the solicitors failed to provide the new plan before the extended deadline set by the Land Registry. The registry therefore cancelled the application altogether. When a second application was submitted, it was outside the priority period.

Agreed issues

Both parties to this dispute accepted the following:

• If Mr Craggs’ application for registration had not been cancelled, but registration had been completed within the priority period, the grant of the right of way over the yard to the Bakers would have been ineffective. Mr Craggs would not have been bound by the right of way
• At the point when the Bakers applied for registration of their barn, Mr Craggs only had an equitable interest in his property, because registration at the Land Registry had not been completed
• As a result of section 29 of the Land Registration Act 2002, Mr Craggs’ equitable interest could not prevail over the grant of a right of way over the yard, unless it was ‘protected’ when the Bakers’ barn was registered. On the facts, the equitable interest could only be protected if it fell within a paragraph of Schedule three to the Land Registration Act 2002
• Paragraph 2 of Schedule 3 to the Land Registration Act 2002 identifies one of the rights traditionally referred to as ‘overriding interests’. Paragraph two sets out exceptions as to when a person in actual occupation is deemed not to be in actual occupation. And none of the exceptions to paragraph two applied
• Mr Craggs must be bound by the right of way granted to the Bakers unless:
  • Mr Craggs was in ‘actual occupation’ of the yard; and
  • his interest was not overreached

Overreaching, under the Law of Property Act 1925 s.2, conventionally involved the transfer of an interest in property from the property itself to any money or asset acquired in exchange for the property. The key effect in this case would be to subordinate Mr Craggs’ interest.

Actual occupation

On the question of whether Mr Craggs was in ‘actual occupation’ of the yard, the Judge found that although Mr Craggs was not sleeping at the property (there was no residential accommodation), he carried out substantial works to a barn at the farm and visited the farm more or less daily. It was relevant that the barn was immediately adjacent to the yard and could only be reached through it. The judge found that he was therefore in ‘actual occupation’ of the yard on the date of the transfer of the Bakers’ barn.

The judge explained his reasoning as follows:

“Where, say, someone buys and moves into a house with a drive, he can plainly be in ‘actual occupation’ of the drive as well as the house even though he does not spend much time on the drive itself or keep possessions on it.  Mere use of an access may not amount to occupation, but, where the person using a drive owns it and the house it serves, it may be proper to consider him to be occupying both house and drive as an owner-occupier. Similarly, it seems to me that Mr Craggs will have come to be in ‘actual occupation’ of the yard as well as the Craggs Barn.”

The fact that Mr Craggs was held to be in ‘actual occupation’ meant that he would not be bound by the right of way granted to the Bakers unless his interest was overreached.

Overreaching

The Judge found that the Bakers had paid the purchase price for their barn to two trustees and this meant under the Law of Property Act 1925 that any interest of Mr Craggs arising from his occupation was automatically transferred from the land to the purchase money paid to the Sellers. As a result Mr Craggs’ yard was bound by the right of way granted to the Bakers.

Conclusion

As highlighted in our article in the Autumn edition of Agricultural Lore (click here to download), the registration gap can cause a number of difficulties. In addition to a number of legal issues, there are several practical lessons from this case; first, great care must be taken when dividing a farm into several lots for sale. Plans showing the extent of each lot and the location of any rights of way or other easements must be detailed and accurate; secondly, where rights are proposed to be granted to one lot over another, the description of the burdened property should include full details of the rights to be created; rights and corresponding reservations should be included in the transfers of the affected properties; and finally it goes without saying that priority period deadlines must also be met if buyers are to be protected from being bound by unexpected interests created after completion of their purchase.

The European Commission has proposed a new Privacy and Electronic Communications (e-Privacy) Regulation (the draft e-Privacy Regulation) which would replace the current e-Privacy Directive (2002/58/EC). This is part of the EU’s Digital Single Market Strategy to increase trust in and the security of digital services. The draft e-Privacy Regulation would update current privacy laws in line with technological developments and extend its scope to all electronic communications providers. The draft e-Privacy Regulation would also align the e-privacy rules with the EU’s General Data Protection Regulation (GDPR) (as discussed in a previous article).

Currently, online privacy across the EU is covered by the e-Privacy Directive (2002/58/EC) which was implemented into our national law by the Privacy and Electronic Communications Regulations 2003. If implemented, the draft e-Privacy Regulation would be directly applicable in all Member States, ensuring that individuals and businesses in the EU would benefit from a single set of rules rather than relying on national legislation implementing the Directive.

What changes would the draft e-Privacy Regulation bring?

Extended scope

The draft e-Privacy Regulation seeks to extend the scope of protection to all electronic communications service providers, which would include WhatsApp, Facebook Messenger, Skype, Gmail, iMessage and Viber. It would also extend to interpersonal communications services that are ancillary to another service, for example a gaming app that allows users to talk to each other.

Increasing protected content

The draft e-Privacy Regulation not only extends who the rules apply to, but also what is protected. Whilst the e-Privacy Directive protected the concept of traffic data, the protected content would extend to the metadata derived from electronic communications, such as the location or time of a call. This metadata must be anonymised or deleted unless users consent otherwise or the data is required for specific purposes such as billing.

Cookies

The draft e-Privacy Regulation aims to reduce the amount of consent requests that internet users experience when visiting different websites and generally provide an easier way for users to accept or refuse the tracking of cookies.

It provides that non-privacy intrusive cookies that either (i) improve internet experience (such as saving the contents of a shopping cart) or (ii) measure the number of visitors to a website will no longer require consent from the user. This will replace the current approach which only allows “strictly necessary” cookies to be placed without user consent.

Direct Marketing

The European Commission also aims to protect users further from unsolicited electronic communication by any means.

Under the draft e-Privacy Regulation, in addition to current consent rules for unsolicited marketing, marketing callers would now also be required to display their phone number or use a pre-fix which would indicate a marketing call.

Enforcement

As with the GDPR, enforcement of the draft e-Privacy Regulation would be the responsibility of national data protection authorities. Fines for breaches of the draft e-Privacy Regulation would be significantly higher than current thresholds and would be in line with those under the GDPR as follows:

• Up to the higher of €10 million or 2% of worldwide turnover for breaches in relation to notice and consent, unsolicited communications and default privacy settings.
• Up to the higher of €20 million or 4% of worldwide turnover for breaches of confidentiality of communications, processing of electronic communications data and limits on time periods for data erasure.

What now?

The current aim is for the draft e-Privacy Regulation to enter into force on the same date as the GDPR on 25 May 2018.  One can see the benefit of aligning the two related Regulations.  This is, however, a very aggressive timescale for Euorpean legislation and there is a possibility that it will not be achieved.

What action should businesses take?

A review of marketing practices in light of the proposed changes is essential. Businesses should look out for any updated guidance from the Information Commissioner’s Office and also generally have this draft e-Privacy Regulation on their radar when reviewing their plan for complying with the GDPR. If businesses are unsure or have any particular concerns, they should seek further legal advice.

For more information please contact Tom Torkar on tom.torkar@michelmores.com or +44 (0)1392 687626

A recent judgment handed down by the Upper Tribunal has provided guidance in relation to the legal status of short-term lets out of leasehold property through Airbnb.

Although the precedent will not apply universally to all tenancies, the clause in question is a relatively common user covenant in long leases such as those commonly taken on by investors who sub-let their interest to management companies which, in turn, sub-underlet to residential tenants.

In Nemcova v Fairfield Rents, it was agreed in the lease that the property was only to be used as a ‘private residence’. The Upper Tribunal held that this covenant was breached by using the property for short-term lets that were advertised as an alternative to hotel accommodation on the internet.

Although Airnbnb refers to its arrangements as ‘home-sharing’, it is difficult to see how this sort of arrangement could overcome a lease term which prohibits use other than as a private residence. The Upper Tribunal gave guidance that a ‘degree of permanence’ is required in order to establish use as a private residence which is not met by short-term, Airbnb style lets.

Airbnb, a company that uses an online platform for users to provide travel accommodation, has established itself as one of the biggest companies in the world in recent years and has been a figurehead in the rise of the ‘Sharing Economy’.

However, public opinion on the benefits of the company has been divided. Some champion the organisation for its use of technology to cater to modern consumer demands and others deride it, both for contributing to upward pressure on house prices and for attracting loud, disreputable guests to the detriment of helpless neighbours and landlords.

The recent case has potentially given the former an opportunity to address the situation as it provides authority that Airbnb style letting will be a breach of a user covenant of this kind. Landlords now have a clear argument to prevent such use or, alternatively, have strong bargaining power to secure a premium for amending the lease.

Despite the Upper Tribunal’s emphasis that this decision was based mainly on the facts at hand, the application of this case could well be widespread. Thousands of tenants who use sites such as Airbnb to advertise their properties as holiday accommodation are undoubtedly at risk of having their leases forfeited for breach of covenant.

In light of the news, landlords and tenants alike would be well advised to check their leases for this sort of restriction and seek professional advice if clarification is needed.

This article was first published on Lexis®PSL Commercial on 5 January 2017. Click for a free trial of Lexis®PSL.

Commercial analysis: Our panel of experts considers what lies ahead for commercial lawyers in 2017.

The experts

David Thompson (DT), partner at Michelmores

Freya Lemon (FL), associate at Michelmores

Bruce Potter (BP), chairman at Blake Morgan

John Davidson-Kelly (JDK), partner at Osborne Clarke

Joanne Frears (JF), partner at Blandy & Blandy

Legal developments and practical impact

What are likely going to be the most important cases in 2017 and why?

DT & FL: Arguably the most talked-about case at present, and one that will potentially have far-reaching consequences for the field of commercial law, will be the government’s appeal to the Supreme Court in the ‘Brexit’ case, R(Miller) v The Secretary of State for Exiting the European Union). The Supreme Court has been asked to give a ruling on the following question—does the government have power to trigger Article 50, to withdraw the UK from the EU, without an Act of Parliament providing prior authorisation to do so?

In November, the High Court ruled that no such power exists ([2016] EWHC 2768 (Admin), [2016] All ER (D) 19 (Nov)). While the appeal has been heard in December 2016, judgment is unlikely to be delivered until early 2017.

The significance of this case is reflected, not least, by the record 11-strong panel of Supreme Court judges (the largest to hear a single Supreme Court appeal) drafted to hear the appeal. The outcome will influence how, when and, indeed, if Article 50 can be triggered by Theresa May’s administration. [For more information, see News Analysis: Article 50 litigation—examining the government’s appeal.]

In another landmark case, MasterCard is facing a multi-billion pound claim in the Competition Appeal Tribunal (Walter Hugh Merricks CBE v MasterCard Incorporated and Others) for damages arising on the back of a decision by the European Commission in 2007. MasterCard was held to have infringed EU law by imposing unfairly high multilateral interchange fees on cross-border MasterCard transactions.

This claim will be one of the first class-actions brought under the Consumer Rights Act 2015 (CRA 2015), which introduced a new ‘opt-out’ mechanism for claims (similar to the US model). This model allows any person (within the defined class of those who may have suffered a loss) to be automatically included in an action, unless they specifically opt-out.

The proposed class in this case is around 46 million UK consumers, meaning MasterCard is at risk of having to pay out an estimated £14bn in damages (if the claim is successful). [For more information, see News LNB News 24/11/2016 81: Specialist tribunal to hear £14bn MasterCard case in January 2017.]

2017 is also likely to see a number of other CRA 2015-based ‘test’ cases, with a number of consumer groups (including transport and passenger groups) preparing to hold businesses to account for consumer rights breaches.

JDK: The following are key:

Digital Single Market

The EU’s Digital Single Market initiative is going to have an effect on certain existing contractual agreements. For example, the proposed Cross-Border Portability Regulation would make unenforceable any contractual provisions between content owners and service providers that prevent portability.

Equally, the Commission’s Pay TV investigation may deem anti-competitive any agreements which require territorial exclusivity to be observed via implementing technical measures.

The draft Geoblocking Regulation [see LNB News 28/11/2016 96] proposes that companies cannot have different terms and conditions for consumers in different Member States for electronically provided services (such as cloud storage agreements), delivery of physical goods and services provided in the Member State of the trader (such as hotels and car hire). In addition, certain proposals require companies to enter into agreements with one another, for example the copyright proposals require information society services to enter into agreements with rightsholders. [For more information on the proposals, see News Analysis: New geo-blocking regulation on its way.]

Consumer contracts

We also expect the current trend of enforcement to continue across Europe, which has recently seen companies such as Virgin Media Ireland fined up to €225,000 for breaches of consumer law.

JF: The below cases will prove important:

• new cases around the sharing economy are likely to feature large in 2017—on the back of the Uber decision and the government’s review of working practices in the new sharing economy (due in Q1 of 2017) there will inevitably be changes to the law which will impact on businesses and commercial legal practice. [For more information, see News Analysis: Driving forward workers’ rights—Uber drivers prevail in holiday pay ruling.]
• the ICO might seem to be having a hard time keeping up with the plethora of cyber-breaches lately—it is likely that in 2017 big questions will be asked about contractual obligations imposed on companies to keep information secure and what level of privacy expectations data subjects are entitled to.

What are likely to be the most significant legislative and regulatory developments and why?

DT & FL: Significant developments include:

Brexit

In October 2016, Theresa May announced plans for a ‘Great Repeal Bill’. This is intended to repeal the European Communities Act 1972 and incorporate EU law into UK domestic law. The Bill is due to be introduced in May 2017 and will need to be ready to take effect from the day the UK formally leaves the EU. [For more information, see News Analysis: The Great Repeal Bill—a copy and paste approach to Brexit?.]

There are a number of other ‘Brexit’-based Bills in the pipeline (with numerous more to follow, no doubt). For example, the Withdrawal from the EU (Article 50) Bill in its present form will require Her Majesty’s government to notify the European Council by 31 March 2017 of the UK’s intention to withdraw from the EU. [For more information, see Practice Notes: Brexit timeline and Brexit—exiting the EU under Article 50.]

Brexit-based legislation will, inevitably, be influenced by the outcome of the Supreme Court appeal (see above) and also heavily dictated by wider political agendas. These legislative and regulatory changes will shape commercial considerations throughout and beyond 2017 —not least due to the extent to which EU and domestic trade and business laws intertwine. Many UK laws and regulations, including those relating to international movement of goods and workers, product labelling and packaging, workplace health and safety and competition restrictions, are closely linked to EU law and regulation.

GDPR

Departing from Brexit, 2016 marked one of the largest movements in data protection regulation, with the introduction of the EU General Data Protection Regulation (EU) 2016/679 (GDPR). As of 25 May 2018, the obligations set out in GDPR will be directly applicable to all EU Member States, including the UK. GDPR is more stringent that the UK’s current data protection laws (namely, the Data Protection Act 1998) and is far-reaching. Therefore, throughout 2017, anyone offering goods or services, or monitoring behaviour on anyone in the EU, will need to be aware of the changes and take steps to ensure compliance in readiness for the ‘go-live’ date in 2018. [For more information, see Practice Note:The General Data Protection Regulation.]

Modern slavery

The Modern Slavery Act 2015 (MSA 2015) is a relatively recent piece of UK legislation designed to tackle slavery, exploitation and human trafficking. It mandates for larger companies (over £36m annual worldwide turnover) to increase supply chain transparency and due diligence. In 2017, the Modern Slavery (Transparency in Supply Chains) Bill will be considered in the House of Commons—if enacted, this legislation is set to extend the MSA 2015 principles to public procurement by requiring contracting authorities to exclude economic operators who have not complied with their MSA 2015 obligations from public contract tenders. Companies who bid for public contracts will, therefore, have even more reason to adhere to the MSA 2015 requirements, or risk missing out on contract bidding opportunities.

BP: The Digital Economy Bill will be looking to increase access to fast digital services alongside enhanced protection for consumers from direct marketing, including possible personal liability for directors of nuisance calling companies. Taken together, that promises increased corporate responsibility, support for digital infrastructure and better consumer protection, all important, post Brexit, themes.

Also if you look at support for SMEs through the Small Business, Enterprise and Employment Act 2015 (SBEEA 2015) and the Enterprise Act 2016 (EA 2016)—key provisions of SBEEA 2015 became stalled after the general election, but regulations about payment practices and policies, including publication of payment performance in business to business contracts have been rescheduled for early 2017. Further regulations under SBEEA 2015, to nullify arcane bans on invoice assignment, to support funding of small businesses, also stalled after the election, but are expected to come through in late 2016/17. EA 2016 also looks to support small businesses and again has a heavy focus on redress to small businesses following late payment by big businesses, in the shape of a, still to be finalised, small business commissioner. These are measures which will encourage growth in key SME business sectors, a crucial part of a world trading post Brexit UK economy.

Where that continuity gets harder to see is in areas like trade secrets where the EU Trade Secrets Directive 2016/943/EU was adopted in June 2016, to be introduced to domestic law by June 2018. It is designed to harmonise the protection of trade secrets across the EU. At one level it is exactly the kind of legislation that businesses in or trading with the EU would want. However in a post 2019 world does the government turn its back on an imposed EU solution and say we will take our chances in every jurisdiction we want to trade in? [See, News Analysis: Shining a light on the Trade Secrets Directive.] For commercial lawyers perhaps the biggest and most obvious area where the ‘in or out’ dilemma, and the sheer confusion of agendas in 2017 will be demonstrated is the mighty GDPR. This is due to come into force in May, 2018, so 2017 will be a key year for planning and changing all the structures of data protection and the contracts that underpin them, including critically enforceable information security measures even with data processors, the mandatory reporting of data breaches to DP authorities and data subjects. The government has recognised it will have to ensure the UK meets the overarching requirements of GDPR for adequate personal data protection—it really has no choice.

The Insolvency Rules are due to be revised from April 2017 and will be a massive change to what has been a settled process for almost 30 years. While rules will be simplified, it will be an area to watch carefully. [See News Analysis: New Insolvency Rules laid before Parliament.]

Elsewhere, the details of the apprenticeship levy are due to be finalised in 2017 and the controversial Investigatory Powers Bill is expected to come into force in 2017.

JDK: The Digital Single Market proposals will constitute the most significant reforms.

JF: If anything, in the short-term, we are likely to see more regulation around doing business with Europe, and not less, as the UK is forced to jump through some extra hoops to do business in the EEA.

How is Brexit likely to affect these predictions?

DT & FL: Brexit is already playing a pivotal role in case law and in legislative and regulatory developments heading into 2017. The numbers of legislative and regulatory changes, in particular, appear only set to increase on the back of the UK’s decision to leave the EU.

The extent to which Brexit will affect GDPR and data protection regulation in the UK will depend to a certain extent on the nature of the UK’s relationship with the EU after the split. However, it is highly likely that, even if the GDPR does not directly apply post-Brexit (and the UK does not bilaterally adopt its terms) UK businesses will, to a large extent, need to continue to conform to its principles if they wish to process data relating to any person within the EU. We have previously considered the impact of Brexit on data protection in the UK.

With regard to other key developments such as those relating to consumer rights and modern slavery, Brexit should have less impact. Both CRA 2015 and MSA 2015 are UK Acts and, as it stands, will continue apply to businesses trading in the UK, notwithstanding Brexit.

JDK: Brexit could have a significant impact on the Digital Single Market proposals but how exactly they will be impacted will ultimately depend on the ‘flavour’ of Brexit. Some of the initiatives will be implemented into UK law before the UK leaves the EU so there may be little or no change to those, but there will be a question of whether the remaining 27 Member States will give reciprocity. In an extreme example, the UK could implement the Geoblocking Regulation such that UK companies are not permitted to geoblock websites from the 27 Member States, but they are permitted to geoblock UK websites.

JF: EU law has a pervasive effect on all business we do in the UK but our legal principles of forming contracts and fitness of goods and services provided under them predate the EEA. If British businesses want to continue to trade with Europe, they will have to continue to abide by its rules—which the remaining EU Member States have made abundantly clear. This should not be problematic for UK businesses, but the reality of having to continue to comply with EU regulations will be galling for those who voted to leave the EU.

Clients and business developments

How do you think the practice of commercial law is going to develop in 2017?

DT & FL: The following are important points:

International trade deals

Trade deals are likely to remain at the forefront of commercial discussions and developments in 2017. The Comprehensive Economic and Trade Agreement (CETA) was adopted by the European Council on 30 October 2016. Although not yet applied, CETA is intended to offer EU businesses more and better trade opportunities in Canada—including by removing custom duties, enhancing intellectual property rights and enforcement of those rights and ending restrictions on public contract access.

While the UK government is restricted from negotiating alternative trade agreements with other countries until it has withdrawn formally from the EU, UK businesses will be watching with interest to see if and how CETA benefits will be afforded to UK businesses post-Brexit.

The Transatlantic Trade and Investment Partnership (TTIP) is the trade deal currently being negotiated between the EU and the US. TTIP is, again, intended to promote international trade by reducing tariffs and regulatory barriers between the two trade-zones. However, many commentators predict that, following the UK’s Brexit vote and Donald Trump’s election in the US, TTIP may become grounded. Trump has been notoriously vocal in his objection to international trade deals that risk diluting the strength of American businesses.

It is important to note that, despite some trade uncertainty resulting from the UK’s impending EU departure, the UK in its own right remains a member of the World Trade Organisation (WTO), which facilitates a global multilateral trade agreement between its member countries (currently totalling 164 globally).

Business contracts

In 2017, as Brexit draws ever closer, it will become increasingly important for all businesses to consider the potential impact of the UK’s withdrawal from the EU in their contracts and wider business arrangements.

A significant volume of contracts being entered into over the next year are likely to be intended to run beyond the UK’s ‘exit’ date (the current date looks to be around March 2019). As such, businesses (particularly those trading internationally) should be reviewing their contract arrangements—to ensure potential changes resulting from Brexit are facilitated. while most core contractual principles, where contracts are subject to English law, will not be affected, elements such as termination triggers, pricing, shipping and duties and jurisdiction for bringing claims and enforcing judgments should be reviewed.

[For further guidance, see Practice Note: Brexit—the implications for contract risk management.]

GDPR

As considered above, commercial focus in 2017 will also be on GDPR, and ensuring that businesses are ready for