Utilities & Infrastructure

(Applicable to EU and UK)

Summary

The EU Commission has said it continues to assess UK data protection standards as being “essentially equivalent” to those in force in the EU. It has proposed to renew its UK adequacy decisions for a period of six years enabling the continuing free flow of personal data between the EEA and the UK.

Comment

News that the EU Commission proposes to renew the adequacy decision is positive for any UK businesses transferring personal data to/from the EU. The UKs ongoing adequacy status avoids the need for otherwise costly compliance or transfer mechanism requirements.

The adequacy decisions will now need to approved by various other EU institutions.

(Applicable to EU)

Summary

The new Regulation introduces additional rules to speed up the cross-border enforcement of the GDPR and clarify the relevant procedures and rights.

Among other things, the new regulation will:

• Set clear deadlines: Once a lead authority is designated, investigations must conclude within 15 months, extendable by 12 months for complex cases.
• Simplifies co-operation: A streamlined procedure applies when the case scope is clear, no objections arise, and similar cases exist. The deadline is 12 months, with possible extensions due to national procedures.
• Strengthens complainants’ rights: Complainants can express their views before decisions are made and gain better access to case information, with member states free to offer broader access.

After 17 November 2025 the Regulation will be published in the Official Journal of the European Union and enter into force 20 days after its publication.

15 months after this, (i.e. March 2027) the regulation will enter into force.

Comment

Utility and Infrastructure operators / providers should review their internal procedures now to ensure they are prepared for the new enforcement landscape.

The greater predictability and efficiency with which GDPR will be enforced cross-border represents a significant step for multinationals operating across several EU member states.

(Applicable globally)

In April 2025 the Royal Institution of Chartered Surveyors (RICS) closed its public consultation on its “Responsible Use of Artificial Intelligence (AI) professional standard”. Following this consultation, the RICS published a global standard on responsible use of AI in surveying which is set to take effect on 9 March 2026.

This initiative aims to provide clear guidance for RICS members and regulated firms on integrating AI into surveying practices, and to promote accountability across all RICS-regulated sectors.

The key provisions of the standard include:

• Governance & Risk Management – requirement to implement clear policies around data use, AI system governance, and risk documentation.
• Professional Judgment & Oversight – requirement that Surveyors assess the reliability of AI outputs and remain accountable.
• Transparency & Client Communication – inform clients in writing of when and how AI will be used in service delivery.
• Ethical Development of AI.

Comment

This standard will help ethically integrate AI within the built environment. Organisations which are looking to use AI to support asset management, monitoring infrastructure and delivering projects should familiarise themselves and make use of this standard as a framework for using AI transparently and with the necessary accountability.

(Applicable to England & Wales)

In a recent decision, the Upper Tribunal (Land Chamber) (“UT”) has dismissed an appeal made by the landlord and two leaseholders (appellants) against a First-tier Tribunal (FTT) decision to vary leases of long flats in Spire House, London.

A right to manage company (“RTM”) had previously acquired a right to manage the property in question and sought variation of the leases under section 35 of the Landlord and Tenant Act 1987. It sought variation to demand the necessary funds in advance, for urgent repairs to the tower and spire of the property.

The service charge provisions limited interim payments to half the previous year’s expenditure, with reserve fund contributions capped at 30% of the previous year’s costs. The RTM company argued that it had no assets to pay for the work except for the tenants’ service charge contributions.

(Applicable to England & Wales)

At its annual strategy meeting in January 2025, the Civil Justice Council agreed to set up a working group to examine the use of AI by legal representatives for preparing court documents.

This working group has now been established and will produce a consultation paper (to be followed by a final report), which will seek to address whether “rules are needed to govern the use of AI by legal representatives for the preparation of court documents, including pleadings, witness statements, and expert reports”.

(Applicable to England & Wales)

Hertfordshire County Council has formally called on national Government to raise the penalties on utility companies responsible for poorly managed or unauthorised roadworks.

Under current legislation, utility firms may be fined just £80 for breaching permit conditions and £300 for unauthorised works — levels the council says are ineffective against large companies.

Since April 2022, more than 10,000 fines have been issued under these rules. The council argues that these minimal sanctions are viewed as ‘a cost of doing business’ by some utilities.

In a letter to the Secretary of State for Transport, the council’s Executive Member for Highways is urging a review of the current regime.

Proposed reforms include higher fines, powers to charge for inspection, and authority to penalise companies for failing to maintain road and pavement assets.

Summary

In a recent judgment, the High Court has ruled that MVL Properties (2017) Limited (MVL) was not in breach of Article 1 of the First Protocol to the European Convention on Human Rights (A1 P1 ECHR) in opposing the grant of a new tenancy to The Leadmill Limited (Leadmill) under s.30(1)(g) of the Landlord and Tenant Act 1954 (LTA).

Leadmill occupied the premises as a nightclub and had gained a distinctive reputation as a music venue in Sheffield. MVL wished to occupy the premises themselves as a nightclub and music venue under a different name. Leadmill argued that Section 30(1)(g) should not apply to cases where a landlord intends to carry on the same business as the tenant because MVL’s new venue would mislead customers into believing that the new venue was associated with Leadmill’s “goodwill” (an intellectual property right associated with reputation) and this “goodwill” was a “possession” under A1 P1 ECHR.

The High Court decided that Section 30(1)(g) did not breach A1 P1 ECHR and awarded MVA possession of the premises because:

• While “goodwill” can be a “possession” under A1 P1 ECHR, the tenant must prove and evidence the presence of goodwill; a stated value is not enough.
• Even if a tenant can prove “goodwill”, the LTA only provides a tenant with a contingent right to renew; therefore, a tenant cannot be lawfully deprived of their “possession”.
• It is not in the public interest to prevent a landlord from recovering their property.

Comment

This High Court judgment confirms that tenants who trade on their name and reputation are not entitled to rely on “goodwill” alone to displace the landlord’s statutory right to regain possession of their property, even if the tenant’s business benefits from a notable reputation and longstanding history. The public interest is in maintaining the integrity of commercial property law without eroding its predictability and disrupting a landlord’s right to their property.

Read our article here.

(Applicable to England and Wales)

Summary

The Upper Tribunal’s (UT) decision in BNPPDS(J) Limited and Bci Limited V Amanda Hitchings (Valuation Officer) [2025] has reiterated key principles regarding the rateable value of properties undergoing refurbishment.

This dispute involved a warehouse in Newcastle undergoing substantial refurbishment from 28 November 2022 to 24 March 2023. The works involved fitting out the property as a “dark kitchen” for use by McDonalds.

The issue in question was whether the property was capable of beneficial occupation during the refurbishment period, impacting its rateable value (the value ascribed to a domestic or commercial building based on its size, location, and other factors, used to determine the rates payable by its owner).

The UT held that the property was not capable of beneficial occupation during the refurbishment, and consequently its rateable value should be reduced to £1 during this period.

Comment

This decision provides clarity for property developers and owners, confirming that substantial refurbishment rendering a property unoccupiable can justify a temporary reduction in the rateable value.

(Applicable England and Wales)

Summary

This case concerned service of a notice of claim to acquire the right to management under the Commonhold and Leasehold Reform Act 2002 (the Act) by Tudor Studios RTM Company Limited (Tudor). The Act required Tudor to serve a notice of claim on each person who was a landlord under a lease of the whole or part of the premises.

Tudor did not serve a notice on A1 Properties (Sunderland) Limited (A1) who held 4 leases of the common parts. The reason Tudor did not do so was that A1 did not have any management responsibilities in relation to those leases as it had underlet all the areas to a management company who was responsible for the whole estate.

The management company served a counter-notice on Tudor objecting to it acquiring a right to manage on the basis it had not served the claim notice on A1.

The Supreme Court ultimately held that failure to serve a claim notice on one landlord did not automatically prevent the transfer of the right to manage to under the Act.

The Supreme Court decided that, as the Act didn’t set out the express consequences for non-compliance, the Court needed to consider what consequence of non-compliance fit the Act as a whole.

Comment

The Court held the failure to give notice of the claim to the landlord in this case made the transfer of the right to manage voidable but not automatically void from the outset, and noted that, as in this case, A1 had been joined to proceedings at an early stage, A1 had already had an opportunity to object to the acquisition of the right to manage.

The decision has wider importance in that it has set out the approach courts should use in deciding on the consequences of parties failing to comply with a statutory framework where Parliament hasn’t expressly set these out.

Issues around procedural compliance are quite common in property matters. Whilst this case does clarify the test to be applied in certain cases of non-compliance; it is a further reminder to Stakeholders of the need to comply with all statutory requirements when serving notices or taking other action under property legislation. The consequences of not getting this right could be expensive and time-consuming.

(Applicable England and Wales)

Whether a restructuring plan which satisfied all the jurisdictional requirements of Part 26A of the Companies Act 2006 should nevertheless have been declined sanction by the court on the basis that the ‘public interest’ would be better served by the entry of Thames Water Utilities Limited into a special administration regime, notwithstanding that this view was not shared by the Secretary of State or OfWat.

The First Respondent’s operating subsidiary, Thames Water Utilities Limited (“TWUL”), is appointed as a water and sewerage undertaker by the Secretary of State and is the largest water and sewerage company in the UK. The First Respondent’s corporate group has been facing serious financial difficulties for some time. On 21 February 2025, the High Court sanctioned a restructuring plan (“the Plan”) for TWUL proposed by the First Respondent. In the High Court, the judge found that the Appellant had standing to appear at the sanction hearing as an intervener to assist the Court with public interest and customer interest objections to the Plan.

The Appellant and certain opposing creditors subsequently appealed the High Court’s decision to sanction the Plan. The Appellant objected to the Plan on the basis that it was not in the public interest because the Plan would load an unwarranted further debt burden onto TWUL. He argued that the customers of Thames Water and the wider public would be better served by TWUL going into a special administration regime (“SAR”), as the costs associated with a SAR would be lower than the costs of the Plan.

The Court of Appeal dismissed the appeals (save in one respect) and refused to grant permission to appeal. The relevant parts of the Court of Appeal’s judgment are to be found between paragraphs 170 and 223. The Appellant now appeals directly to the UK Supreme Court. The opposing creditors do not seek permission to appeal.

(Applicable England and Wales)

The UK’s Competition Appeal Tribunal “misinterpreted” key water industry regulation when rejecting a landmark abuse of dominance mass lawsuit targeting six water utilities, a proposed class representative argued in an appellate court challenge.

A ruling of the Tribunal:

1. refusing permission to appeal the Tribunal’s judgment on certification in [2025] CAT 17;
2. refusing an application to stay the determination of costs;
3. that the Proposed Class Representative shall pay each Defendant 20% of its reasonably incurred joint expert costs and one third of its legal costs of solicitors and counsel;
4. that the Defendants shall pay certain of the Proposed Class Representative’s costs relating to the engagement of experts in proportions set out in the ruling;
5. that the Proposed Class Representative shall pay Ofwat’s costs; and
6. that the Proposed Class Representative shall make certain interim payments to the Defendants.

(Applicable to England & Wales)

Companies House has launched a new voluntary online service which enables individuals to verify their identity directly through its platform. This identity verification scheme is set to become compulsory for all users from 18 November 2025.

The Government has confirmed that mandatory identity verification (“IDV”) requirements will be extended beyond directors and people with significant control (“PSCs”) of UK registered companies, now applying to members of Limited Liability Partnerships (“LLPs”), directors of unregistered companies (under Part 24 of the Companies Act 2006), and managing officers of overseas companies registered in the UK.

Companies House has also confirmed that the requirement for companies to keep certain internal statutory registers will be abolished with effect from 18 November 2025.

From that date, companies will no longer be required to keep a register of directors, a register of directors’ residential addresses, a register of secretaries or a PSC register. In replacement, companies will simply file details of their directors, secretaries and PSCs at Companies House.

Comment

This development follows the introduction of identity verification measures under the Economic Crime and Corporate Transparency Act 2023 (ECCTA 2023). ECCTA 2023 is a significant legislative reform to UK company law aimed at tackling financial crime and improving corporate transparency.

Please see Foot Anstey’s previous commentary on the Economic Crime and Corporate Transparency Act.

(Applicable to England & Wales)

Summary

In April 2025, the Institute of Directors (IoD) announced the establishment of a new commission to examine the role of non-executive directors (NEDs) and how it may need to evolve to meet the current and future needs of businesses in the United Kingdom.

The Commission ran between February and July 2025 and report is due to report its findings in the Autumn.

(Applicable UK-Wide)

Summary

The report outlines the staged plan by which paper share certificates will be eliminated and all shareholders will hold shares through the intermediated securities chain. This will allow them to exercise their shareholder rights more effectively, while also reducing costs for issuers.

(Applicable to England & Wales)

Summary

The FCA approved the London Stock Exchange to operate a PISCES (Private Intermittent Securities and Capital Exchange System) platform, a new type of private stock market.

The PISCES sandbox is a new framework to allow sophisticated investors to buy and trade securities in public and private companies in a controlled environment away from the primary capital markets, subject to a more proportionate disclosure and market manipulation regime.

(Applicable in England and Wales)

Summary

The government has published a consultation on draft regulations to implement changes to the valuation framework for calculating rent on the renewal of agreements that confer rights under the 2017 Electronic Communications Code. The consultation focuses on the draft regulation to implement sections 61 to 64 of the Product Security and Telecommunications Infrastructure Act 2022.

This consultation closes on 2 July 2025.

(Applicable to Wales)

Summary

Last year, the Welsh Government conducted a consultation on the implementation of the Infrastructure (Wales) Act 2024, which was granted Royal Assent on 3 June 2024. As the Act provides Welsh Ministers with powers under a new process to determine applications for developments of significance to Wales and in Welsh water, it simultaneously aims to make the decision-making process more certain.. This consultation sought views on the Welsh Government’s proposals for the new consenting process, and for a system to administer and determine applications under the Act.

In June 2025, the Welsh Government published an official document summarising the responses obtained under this consultation with a number of initial comments which provide indication of how the Welsh Government intends to implement the Act.

In these comments, the Welsh Government clarifies that:

• It is in the process of considering an appropriate length for the time period needed between the passing of the Act and the point at which the infrastructure consenting process under it comes into force, and considers that whilst a period of 5 years for this is too long, a longer period will enable all parties to prepare for the system.
• It will provide guidance to support the introduction of the new consenting process.

The projects that will be directed into the new consenting system governed by the Act will remain largely based on subordinate legislation associated with the Act (as reflected in the initial consultation document) but the Welsh Government will seek to widen the scope of this following consultation responses that identified additional projects which may warrant direction.

The Welsh Government published a statement in July 2025 confirming that the regulations now in place means they are able to progress towards the new infrastructure consenting process becoming operational from the 15 December of this year. Guidance is currently being prepared on a number of areas to supplement the new consenting process. This will include guidance setting out further detailed advice on pre-application requirements, making an application, and how communities can get involved.

(Applicable to England & Wales)

Summary

As part of the Planning and Infrastructure Bill 2024/25, the government are seeking targeted NSIP reform with an emphasis on streamlining the process and removing barriers to delivery. This is to help the government reach its target aim of at least 150 Development Consent Orders (DCO) during the current Parliament.

The Bill aims to achieve this in a number of ways:

Updates to National Policy Statements

National Policy Statements provide policy guidance on how NSIP applications are prepared and determined. Under the current system they are taking a long time to update meaning that some of the provisions are out of date by more than 10 years which fails to capture technological, sector and policy developments. Under the new Bill they will need to be updated every 5 years and there will be routes to make changes outside of the 5 yearly cycle where required.

Flexibility on Consenting Routes

The Secretary of State will have the power to direct projects out of the NSIP regime on a case-by-case basis where an alternative consenting route may be more suitable.

Streamlining Consultation

• Changes will be made to enable more concise consultation reports;
• The acceptance criteria in the Planning Act 2008 will be changed to enable the Planning Inspectorate to require corrective action ahead of examination (rather than having to withdraw/reject an application);
• The requirement to consult category 3 persons (those who might have a relevant claim under the Compulsory Purchase Act) will be removed. Instead, they will be notified at acceptance stage;
• A new duty will be introduced for statutory consultees and Local Authorities to have regard to guidance;
• The disincentive to engage in the DCO process between acceptance and preliminary meetings will be removed for statutory consultees, Local Authorities and those affected by compulsory acquisition.

Judicial Review

• The Bill removes the paper permission stage for Judicial Reviews of NPSs and DCOs.
• The right to appeal will be removed for cases deemed totally without merit at the oral permission hearing at the High Court.

Comment

The DCO process as it currently stands is thought to be delaying large scale infrastructure development and consequently the proposed reforms to NSIPs have generally been welcomed as a means to unlock development. The approach to dealing with these projects holistically, strategically and at a national level is a positive step towards ensuring key infrastructure decisions are not being stifled at the local level.

In terms of the National Policy Statements (NPs) which underpin NSIP consenting, it has long been understood that the current NPSs are out of date and in need of reform if the government is going to achieve its mission of making Britain a ‘Clean Energy Superpower’. The consultation on the new NPSs closed on 29 May 2025, so this area is one to watch.

(Applicable to England & Wales)

Summary

The new Planning and Infrastructure Bill was introduced to the House of Commons on 11 March 2025. The bill has 5 overarching objectives aimed at improving the speed, the efficiency and the consistency of the planning process, plus removing barriers to development:

1. Delivering a faster and more certain consenting process for critical infrastructure;
2. Introducing a more strategic approach to nature recovery;
3. Improving certainty and decision-making in the planning system;
4. Unlocking land and securing public value for large scale investment;
5. Introducing effective new mechanisms for cross boundary strategic planning

Some of the key reforms in the bill include:

Spatial Development Strategies (SDSs)

Spatial planning is back on the agenda, as the government looks to re-introduce cross-county co-operation on planning throughout the country.

Delegation of Planning Decisions (England only)

In an effort to improve national consistency, the Secretary of State will be able to direct which planning decisions are made by planning committees and which can be made by planning officers, and in some cases the Secretary of State may limit the size of planning committees.

Sub-delegation of Planning Fees (England only)

Under the new Bill, the Secretary of State will have the power to sub-delegate the setting of planning fees to LPAs. The fees will be ringfenced to the costs of the LPA of determining the application and cannot be used for cross-subsidisation of other services. The Secretary of State will have the power to intervene where fees appear excessive or unjustified.

Planning Committee Reforms (England only)

Continuing the theme of national consistency, there will be a national scheme of delegation that will dictate which decisions are to be made by planning committees and which are to be made by officers.

Committee members will also be required to undertake mandatory training before they can make planning decisions.

Comment

The Planning and Infrastructure Bill is currently awaiting its third reading in the House of Lords as of 4 November 2025

On 28 May 2025 the government launched a technical consultation calling for input into its proposed reforms for planning committees which ran for 8 weeks. This consultation looked for input on, most notably, creating a national scheme of delegation and introducing mandatory training for committee members.

Under the consultation proposals, planning decisions would be split into two ‘tiers’ with one tier (containing the more simple applications) to be dealt with by a planning officer in every instance, while the other (containing the more complex or controversial applications) to be dealt with by an officer, unless the Chief Planner of Chair of Committee agree it passes a ‘gateway test’ to go to committee.

The consultation was light on detail as to what training committee members should undertake, or how this would be enforced in practice.

The results of this consultation will be keenly awaited, due to the effect these changes will have on the approval process for planning permissions.

In July 2025, the Government proposed amendments to Part 3 of the Bill to address concerns that the original draft would weaken environmental protections, as can be seen from the statement made by Wild Justice and their solicitors.

The revised provisions place greater emphasis on nature recovery, the safeguarding of sites of special scientific interest (SSSIs) and the promotion of biodiversity net gain in rural development.

We will have to wait to see the final form of the Bill once agreed by Parliament, and consequently we are still some way off from seeing the effect of these reforms, should they be implemented.

Nevertheless, concerns have already been raised that the ringfencing of planning fees may have the effect of restricting, rather than increasing, the available fees as LPAs will have less ability to cross-resource where needed.

(Applicable to England & Wales)

The Levelling Up and Regeneration Act 2023 (LURA) remains only partially in force. As part of a series of working papers that seek to bring forward some of the outstanding provisions and speed up housing delivery, on 25 May 2025, the government published a working paper entitled Planning Reform Working Paper: Speeding Up Build Out.

One key proposal of this paper is to implement s113 which will permit local planning authorities to decline planning permissions where they have been made by a developer who is connected to a previous planning permission that has not yet been build out at a reasonable rate. The local planning authority will do this by serving a notice indicating it will not accept a new planning application. The working paper indicates that this ‘sanction’ is designed to target “developers who persistently fail to build out quickly and tackle the problem of unscrupulous speculators making repeated applications that they have no intention of ever building out.”

The paper also proposes implementation of:

• Section 111 (Commencement Notices) – Developers must submit commencement notices to the local planning authority, detailing the expected start date of the development as well the anticipated rate of delivery (this is a provision already found in a lot of Section 106 Agreements). Developers face fines of £1000 for non-compliance.
• Section 112 (Completion Notices) – Allows the local planning authority to serve a notice where it believes the development will not be completed by the date of expiry of the relevant planning permission or within a ‘reasonable time’. This mechanism already exists but LURA will update the current provisions to allow local planning authorities to serve the completion notice without requiring Secretary of State approval.
• Section 114 (Annual Progress Reports) – Developers will have to submit an annual progress report to the local planning authority, outlining the number of homes built that year and the projected future delivery schedule.

(Applicable to England & Wales)

The Corry Report (an independent review of DEFRA’s regulatory landscape) was published on 2 April 2025 and set out 29 recommendations to improve economic growth and nature recovery. Some of the key recommendations include:

• Publish new Strategic Policy Statements for all regulators, requiring s renewed focus on ‘constrained discretion’ and ‘place-based dynamics’
• Establish a DEFRA Infrastructure Board to accelerate delivery of significant projects, which will include a rolling forward-looking pipeline of NSIPs.
• More frequent risk-based monitoring, with information more accessible to the public
• Tougher penalties for deliberate non-compliance and persistent offenders, notably in the waste sector, with regulators able to issue speedy fines for minor offences
• Reform Farming Rules for Water and provide a new approach to slurry application and management to address diffuse water pollution
• Review and reform of the permitting system and more use of District Licensing.

Comment

The government confirmed in a minister statement on 2 June that they were committed to implementing the report recommendations. No dates have been given yet regarding implementation but considering the government’s drive towards economic growth, we expect to see some fundamental reform to DEFRA coming down the track in the next year.

(Applicable to England)

Network Rail is going to be releasing currently unused brownfield land which it owns for housing development.

This aims to generate £1bn of development and the creation of 40,000 new homes over the next decade.

Network Rail has set up a new development company (Platform4) which will combine the operations of London and Continental Railways Ltd and Network Rail’s Property Team (who both manage surplus rail land in the UK) in order to create a more strategic approach, reducing inefficiencies and duplication.

The developments will be focused in Manchester, Newcastle, Nottingham and Cambridge.

(Applicable to England)

The newly announced English Devolution and Community Empowerment Bill is currently progressing through the House of Commons, having just had its second reading in Parliament on 2 September. The bill is set to introduce some far-reaching reforms including:

• Introducing strategic mayor-led authorities across the entirety of England. These Strategic Authorities will have planning powers that span localities, in a return to strategic planning. The government hope this will speed up approval of significant infrastructure projects.
• All mayoral authorities (outside of London) will have mandatory Local Growth Plans (LGPs) which will set out their areas of focus for economic growth and investment projects.
• There will be new planning powers for the new elected mayors. They will be able to ‘call in’ strategic planning applications as is currently done by the GLA in London to try and streamline essential regeneration projects.
• Restructuring the two-tier council system to create combined unitary authorities across the country.
• Introduction of a Mayor’s Community Infrastructure Levy which will sit alongside existing CIL schedules. It is currently unclear how the two will operate side by side.

The Bill also proposes a ban on upwards-rent review as it argues that it favours landlords and puts tenants in an unfavourable position. Tenants are said to absorb increases in the rental market while landlords and investors are shielded from rental market downturns. This ban would affect investors’ appetite at this exposes landlords to a higher risk should during market downturns.

(Applicable to England)

Summary

The mandatory BNG regime for all TCPA (Town and Country Planning Act) developments came into force on 12 February 2024. Since this date, developers have had a statutory obligation to ensure a 10% improvement in biodiversity per development. On 14 March 2025, the government published its first annual report around the income taken from statutory BNG credits. This is the first time data has been published which gives an overall picture of the market for statutory BNG credits. Statutory BNG credits are the third rung of the biodiversity hierarchy, with developers having a duty to firstly consider mitigation on site, followed by purchasing off-site units from third parties such as habitat banks, and only if neither of the first two options are available can they purchase statutory credits.

The report showed that £247,416 had been received for credits in the year from 12 February 2024 – 11 February 2025.

In addition to the recent fiscal report, Dr Nick White of Natural England has confirmed that Natural England are currently working on a monitoring and evaluation framework – the first report of which is expected shortly (precise date not given). The report will look at how the BNG system has been working so far and whether it has been smoothing planning processes as intended.

Comment         

Amongst the developments we expect to see in BNG:

• Securing off-site BNG requires either a Section 106 Agreement or a Conservation Covenant to be agreed. Where a Section 106 is agreed with the LPA, a Conservation Covenant is agreed with a ‘responsible body’ of which there are, at the date of writing, 28 recognised institutions, several of them also being local authorities.
• BNG is currently only mandatory for developments subject to the TCPA, which means that NSIPs (Nationally Significant Infrastructure Projects) are exempt. This will change in May 2026, when the mandatory regime is due to extend to NSIPs. We can expect to see a surge in interest in BNG leading up to November, with the possibility that demand may drive down the overall price of the off-site credits.

(Applicable to England and Wales)

Court of Appeal sheds light on the extent to which S73 applications can alter developments

Summary

In a recent decision of the Court of Appeal the court provided clarity on the scope of section 73 planning permissions in a case that found against the solar farm developer who had sought to change the size and location of a substation after the original planning permission had been granted.

Section 73 of the Town and Country Planning Act 1990 can be used to vary the conditions of planning permission after it has been granted, usually where various details about the site have changed over time. However, a central feature of section 73 is that it is used to vary the conditions of a planning permission and not operative part (the main description of the permitted development). In fact, a section 73 application stands as its own separate planning permission, with developers entitled to choose which permission to implement, as a section 73 application does not supersede a previous application.

The developer in the case had obtained full planning permission in 2017, and the operative part of that permission included in its description reference to a ‘substation’ in accordance with the approved plans, which included a drawing detailing a 33kV substation. Consequently, this 33kV substation was understood to form part of the main ‘operative’ part of the planning permission. The developer later sought to vary the conditions using section 73, introducing a new 132kV substation and omitting reference to the original substation. A challenge was brought against the council’s decision by a local resident, Mrs Chala Fiske, that section 73 had been mis-applied. The High Court agreed with Mrs Fiske, stating that section 73 could not be used to make fundamental changes to a planning permission. Test Valley Borough Council consequently appealed to the Court of Appeal resulting in this judgement.

The judge in the case dismissed the appeal on the basis that the developer had sought to use section 73 to alter the operative part of a full planning permission and that this was not possible under the legislation. Consequently, because the developer had chosen to specify the inclusion of the 33kV substation in its description of the development, it was not possible to retrospectively change this.

Crucially, the judge also confirmed that it is possible to make both substantial and fundamental changes under section 73, as long as they do not alter, or conflict with, the operative part of the planning permission. This has provided much needed clarification to the legal position, as the High Court decision in Fiske stood in contradiction to other recent judgements, such as Armstrong v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 142 (KB), by asserting that substantial changes could not be made to a planning permission using section 73. This recent Court of Appeal decision confirms that substantial changes can be made, providing they are not inconsistent with the operative part of the planning permission.

Comment

The cautionary tale for developers is to ensure that the description of the development when submitting a planning application is as broad and flexible as possible in order to allow greater scope for changes down the line. Specificity, in this case, could be costly.

It is also particularly relevant for developers to bear in mind that with the increase in development across the country, spearheaded by the government, they are likely to run into increased opposition from highly motivated local residents scrutinising applications for anything that may be used to de-rail the development. Consequently, to avoid the cost and delay of challenge, the planning process will need to be followed to the strict letter of the law.

This ruling has extended the growing body of evidence addressing the extent to which section 73 applications can change the ambit of an existing permission grant. This question has been litigated in a number of different ways in recent years and Foot Anstey has kept track of these developments here, here and here.

(Applicable UK-wide)

Are costs incurred investigating damage recoverable, even is no damage is found?

Summary

In the recent case of Sky UK Limited & Anor v Riverstone Managing Agency Limited & Ors, the Court of Appeal provided some welcome clarification on:

1. What constitutes “damage” in a construction context.
2. Whether insurers are liable post period of insurance (“POI”) for deterioration and damage development.
3. Whether costs incurred investigating potential damage are recoverable, even if no damage is subsequently found.

Comment

Please see Foot Anstey’s fuller update on this case here.

(Applicable to England and Wales)

Court will not take an overly legalistic approach to notices under a construction contract where communications between parties have occurred more informally.

Summary

In the recent case of Jaevee Homes Limited v Mr Steve Fincham (trading as Fincham Demolition) the Technology and Construction Court considered:

• the principles of formation of contract made through informal communications; and
• whether a simple invoice could be considered an application for payment.

The case concerned a contract for demolition of a nightclub but as with any case law, the principles can be applied more widely. Although the parties met in person and the contractor issued a written quotation, they then discussed further by email and Whatsapp message exchange. The Court found that:

• clear signals to go ahead with the work for the agreed price can demonstrate that an agreement has been reached at this point; and
• where communications between the parties have been less formal, the Court will not take an overly legalistic approach to applications and notices under a construction contract.

Comment

This case signals the importance of negotiating “subject to contract” and ensuring contract terms are settled before work commences (unless a suitable pre-construction agreement is in place). It also highlights how informal communications can be evidence of contract terms, a reminder to ensure staff/agents exercise due caution when communicating on behalf of a party.

(Applicable to England and Wales)

In EE Ltd and another v AP Wireless II (UK) Ltd (BIR/00CN/ECR/2024/0623 and others), the First-tier Tribunal Property Chamber (Residential Property) considered whether telecommunications agreements were validly contracted out from Part 2 of the Landlord and Tenant Act 1954.

In the recent case, the First-tier Tribunal held that:

1. the wording in a lease that makes clear that the security provisions of Part 2 of the LTA 1954 are not to apply may satisfy the statutory purpose of alerting third parties to the exclusion of the LTA 1954 protection without an express reference to an agreement under section 38A. Perfection is not required.
2. the endorsement included in a tenancy that the tenant received the warning notice and made the appropriate declaration is sufficient evidence that it was done. Production of the warning notice and declaration themselves are not required.
3. Although the transitional provisions that apply to telecommunications agreements subsisting on 28 December 2017 only refer to contracting out under the RRO 2003 regime, agreements that were contracted out under the previous regime (by court order) are within the transitional provisions by virtue of section 17(2)(b) of the Interpretation Act 1978. Therefore, Part 5 of the Code applies.
4. Code notices served prior to 07 November 2023 that were valid when served remained valid, despite section 69 of the Product Security and Telecommunications Infrastructure Act 2022 introducing a requirement for notices to include ADR (Alternative Dispute Resolution) information. A notice cannot be retrospectively invalid.

(Applicable to England and Wales)

This recent judicial review case saw the High Court decide to what extent the deliverability of a development should be taken into account by the local planning authority as a ‘material consideration’ when determining whether permission should be granted. Expect developments into next year as the losing side have already sought permission to appeal so this is unlikely to be the end of the story.

Background

The case concerns Wimbledon’s plans to expand its facilities to build a new 8,000 seat stadium and an additional 38 grass courts and ancillary facilities, which the club states is essential in order to adequately provide for its thousands of tennis players and fans who attend the event every year.

The site in question lies next door to the current Wimbledon venue, and it falls across two different London Boroughs – Merton and Wandsworth. As the Boroughs disagreed about whether to approve the permission (Merton was in favour while Wandsworth was not) this meant the scheme was called into the GLA, who approved it. A local interest group, Save Wimbledon Park Ltd, brought a JR claim in the High Court.

The substance of the claim was that, due to other restrictions that would prevent development at the site (including restrictive covenants and the existence of a statutory public recreation trust under s164 of the Public Health Act 1875), Wimbledon could not realistically deliver on its proposed expansion, and this should have been taken into account by the GLA in reaching its decision.

The judgement

The court dismissed the appeal, stating that obstacles to development that concern other land use rights (those that are not matters of planning law) are not a relevant consideration in determining a planning application in most cases, even where the obstacles are ‘apparently insuperable’. While weight can be given in some circumstances to deliverability, the court concluded that the GLA had acted rationally in concluding that the other land restrictions were not a material consideration. Wimbledon was therefore entitled to take forward its plans for expansion (the other matters concerning the land are still to be addressed by the club).

In short, the court concluded that even if the scheme is a non-starter and cannot be implemented due to the other restrictions on the land, this did not mean the GLA had erred in its decision making, nor did it make the permission invalid.

Outcome

This decision aligns with the generally accepted position in planning law that non-planning restrictions are not usually relevant considerations when determining a planning application (there are some exceptions where you may have two similar competing developments, and one has a higher chance of deliverability). However, we should watch this space because Save Wimbledon Park have already applied for permission to appeal to the Court of Appeal and, if granted, will see this case run into next year in what is likely to continue to be a high profile and hotly debated case.

(Applicable to England, Wales and Northern Ireland)

Summary

DESNZ are seeking feedback from organisations in the Energy & Infrastructure sector on its proposal to mandate the introduction of solar canopies on new outdoor car parks in both public and private ownership.

This call for evidence closed on 18 June 2025 and we are awaiting the governments published response.

(Applicable England and Wales)

Summary

This case followed Surrey County Council’s decision to approve the expansion of an onshore oil extraction site in 2019. Finch applied for judicial review of the decision on the basis that the Council had not considered the environmental impact of burning the oil once extracted (the “Downstream Effects”) in addition to the greenhouse gasses emitted directly from the extraction site.

The question was whether it was lawful for the Council to ignore the Downstream Effects in its environmental impact assessment carried out under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the “2017 Regulations”). In the judgment, Lord Leggatt determined that the burning of oil was a direct consequence of extraction and so causation could be established. As a result, the Downstream Effects of the project were relevant for the purpose of the 2017 Regulations and needed to be considered. Consequently, the Supreme Court found the Council’s decision was unlawful and must be made again.

Comment

Though a significant decision, this case does not mean that local authorities cannot approve oil extraction or other projects which may lead to increased greenhouse gas emissions. Instead, the judgment signifies that planning consents must take account of and consider the environmental impact of developments and ensure that Downstream Effects (or scope 3 emissions) are included as part of their assessments. The wider impact on individual local authority decisions will be seen in due course.

(Applicable UK-Wide)

Summary

On 3 September 2025, the Employment Rights Bill passed its third reading in the House of Lords. The Bill is now in its final stages prior to Royal Assent.

During the Bill’s consideration in the House of Lords, the Lords proposed several key amendments to the Bill. However, the Government has confirmed that it will overturn amendments from the Lords that would weaken the Bill. Consideration of the Lords’ amendments is currently in progress.

The Bill is expected to gain Royal Assent in Autumn 2025; however, the exact date will depend on the Bill’s progress through these final stages.

Comment

We will continue to publish updates on the Bill’s progress for clients and recommend that employers monitor these developments closely to prepare for the upcoming changes. Please also see our update on the “Roadmap to the implementation of the Employment Rights Bill” below.

(Applicable UK-wide)

Summary

Effective from 1 September 2025, the “Failure to Prevent Fraud” offence holds large organisations criminally liable if an employee, agent, subsidiary, or other associated person commits fraud intended to benefit the organisation, and the organisation lacked reasonable fraud prevention procedures at the time.

Comment

The failure to prevent fraud offence significantly impacts large organisations, including those in the utilities and infrastructure sectors. This offence holds companies criminally liable if they fail to prevent fraud committed by employees, agents, or subsidiaries intended to benefit the organisation, regardless of whether they were aware of the fraudulent activity.

The utilities and infrastructure sector, which often involves large, complex supply chains, joint ventures, and public-private partnerships, will be inherently vulnerable to fraud risks. Infrastructure projects (especially those funded by public money) will come under greater scrutiny, and failure to comply could result in reputational damage, prosecution, and financial penalties.

(Applicable UK-wide)

Summary

In April 2025, The Environment Agency (EA) has launched a consultation which proposed changes to its enforcement and sanctions policy in order to extend its regulation to manufacturers of fossil-fuel based boilers and heat pumps identified under the Government’s Clean Heat Market Mechanism (CHMM) scheme.

The consultation sought views on its penalty-setting approach for CHMM financial civil penalties; types of CHMM civil penalties; when and how the EA will apply discretion to CHMM penalties; how the EA calculates the penalty amount; and the procedure for imposing penalties.

The consultation closed at 23.59 on 15 July 2025 and the results are expected imminently.

(Applicable to England & Wales)

Summary

The Nuclear Regulatory Taskforce was established to overcome the regulatory obstacles slowing down the rollout of nuclear projects in the UK. On 11 August 2025, they released an interim report outlining the key objectives of the taskforce and timeline for reform.

The taskforce was expected to release its final recommendations in Autumn 2025 and we are still awaiting release as of 4 November 2025. These recommendations will be submitted to the Prime Minister, Energy Secretary, Defence Secretary, and Chief Secretary to the Treasury.

Comment

The taskforce will impact key stakeholders in the Utilities and Infrastructure sector as they plan to streamline the regulation implemented by multiple regulators, align with international standards, and improve the practicability of safety regulation.

(Applicable to England and Wales)

Summary

A recent ruling in the Court of Appeal has upheld Morrisons’ £3.5 million fine for health and safety related breaches. The court held that an employer should be taking reasonably practical steps to mitigate against health and safety risks arising out of an employee’s specific circumstances, even where no such risk would have arisen had it not been for such circumstances.

Comment

For further discussion on this case, please see our article here.

(Applicable to England & Wales)

Summary

The Water (Special Measures) Act 2025 received Royal Assent on 24 February 2025. The Act strengthens the power of the water industry regulators and delivers on the government’s commitment to put failing water companies under special measures.

Comment

Water companies must begin publishing their Pollution Incident Reduction Plans (PIRPs) by 1 April 2026 and from 23 June 2025, water companies are required to consider nature based solutions within their Drainage and Wastewater Management Plans (DWMPs). In 2026, scrutiny and enforcement around these plans will likely increase.

(Applicable to England and Wales)

Summary

The mandatory requirement for developers to provide biodiversity net gain (BNG) came into force on 12 February 2024. As a reminder, this requires developers to demonstrate at least 10% BNG gain for new planning applications for development under the Town and Country Planning Act 1990 that results in loss or degradation of habitat.

It is expected that these BNG requirements will begin to apply to Nationally Significant Infrastructure Projects in England from May 2026.