Data-driven opportunities for businesses are clearly strategic and significant, whilst the associated risks – if not identified and managed – can be complex and costly. Understanding your own risk appetite in this area, as well as maintaining clear visibility of what’s going on in the wider world from a data perspective is key to realising and maximising the potential of your data. Please read on to see how legal changes in this area can affect you and your business.
Utilities & Infrastructure
Our horizon scanner provides clarity on what legal and regulatory changes lie ahead for utility and infrastructure companies so that you can plot your course with confidence.
Times are tough enough without the extra burden of not knowing what’s coming around the corner so this resource is for you and it’s one that we’ll make sure is up to date for you to refer back to throughout the year.
Move through each area to see the key dates and upcoming changes you need to know to support your business and plot your course.
Disputes are an inevitable part of any business but Foot Anstey’s award winning despite resolution team can minimize the distraction that can be caused. Early legal advice can resolve issues and avoid disputes before they become critical and our experts specialise in assessing the risks your business may face and providing tactical, pragmatic and effective advice to achieve the best results at the right time. The team has a proven track record of pursing, defending and resolving claims across all commercial sectors. This is a continually developing area and we are looking ahead with the hope of assisting businesses to be well-prepared and well-equipped to deal with these changes.
Foot Anstey understands the practices, processes and policies that underpin the corporate legal framework driving business in the UK. We work with regulated businesses providing contentious and non-contentious advice and commercial support. Corporate law is poised for noteworthy changes, requiring companies to prioritise transparency, tackle increasing administrative burdens, and adapt to evolving societal expectations. Please read on for updates to the Economic Crime and Corporate Transparency Bill and how this underscores the need for robust governance frameworks and how changes to the Payment Practises Reporting Regulations and growing ESG obligations indicate a wider effort to foster ethical business practises. Together we can ensure your business remains headed in the right direction.
The planning and construction of infrastructure and property across the UK is the backbone of a successful modern economy providing the support for the environmental, social and economic outcomes that our society requires through resource management and energy production. Foot Anstey can provide the focussed, clear and pragmatic legal advice that is needed to successfully navigate the transition to the green economy and to benefit from the change which this affords.
We are heavily immersed in the Energy & Infrastructure sector and involved with conversations at a policy level, ensuring we stay ahead of market trends.
Our experts always look at the bigger picture to provide you with the best possible advice in line with your strategic goals.
It is hugely important to keep the employment relationship healthy on both the employer and employee sides. We can help you understand the risks and opportunities this regulation presents. We are providing the latest employment law updates below to help you keep your business abreast of key changes and developments, to allow timely and proactive intervention where required and to enable you to plan for a positive future.
Our regulatory team is a dedicated, specialist group of lawyers who have significant experience of energy and utility work as well as being active in all key sectors and industries. Foot Anstey offers a comprehensive and responsive service which aims to protect your business by working with you to prevent issues, to resolve problems if they arise and to anticipate any difficulties on the horizon so that they can be managed efficiently. We are setting out below some important areas of change for you to consider and would welcome the opportunity to discuss these with you.
Agriculture and rural business can be highly specialised with unique commercial and legal challenges. Ensuring the protection of natural capital whilst pursuing the energy transition is becoming increasingly important. Knowledge and understanding of the different regulation, approaches and priorities in this area are key to facilitating positive, smooth and efficient transactions and prudent management of natural resources. Foot Anstey has a team of lawyers dedicated to this work. See their podcast “Experts in the Field” for insights and practical advice on important issues.
Data
Summary
The EU’s Data Act entered into force on 11 January 2024 and will become enforceable by mid-2025. It requires affected entities to make personal and non-personal data accessible to other parties for repurposing. Affected entities include i) manufacturers of physical connected products which collect or generate data concerning their use, where such products are placed on the market in the EU, ii) suppliers of related digital services and software in the EU, iii) data holders which make data available to data recipients in the EU; and iv) providers of data processing services in the EU.
Comment
Whilst the Act’s formal enactment appears in the far distance, affected organisations should begin assessing their compliance strategies as the Data Act’s obligations may require significant time to implement. Although the Data Act will not directly apply to the UK as a result of Brexit, organisations should continue to pay heed to their content regulation obligations in overlapping policy initiatives and legislation, including the Online Safety Act 2023.
(Applicable UK-Wide)
Summary
The Act makes companies that operate a wide range of online services legally responsible for keeping people, especially children, safe online. Ofcom will give guidance and set out codes of practice on how in-scope companies can comply with their duties in three phases, as set out in the Act.
Comment
To find out more, please see our article: The Online Safety Bill – An overhaul to the rules on marketing to children online | Foot Anstey
(Applicable UK-Wide)
Summary
The Digital Government (Disclosure of Information) (Identity Verification Service) Regulations 2024 came into force on 8th February 2024, and cover the disclosure of information between government departments.
Comment
These Regulations expressly permit the disclosure of information between a number of Government Departments and other public bodies, with a view to making it easier and safer for people to provide their identity when seeking to access public services digitally.
Summary
This new Bill, which is intended to support the roll-out of smart data schemes and strengthen ICO’s powers, was set out by the new government and introduced in the King’s Speech of 17 July 2024.
Comment
The Bill proposes to support the roll-out of smart data schemes beyond just the banking sector, and support the establishment of secure and trusted digital identity products and services from certified providers to assist with, for example, buying age-restricted goods and services. The Bill will also strengthen the powers of the ICO.
(Applicable to the UK)
Summary
The National Infrastructure Security (NIS) 2 Directive aims to enhance the security of network and information systems within the EU by requiring operators of critical infrastructure and essential services to implement appropriate security measures and report any incidents to the relevant authorities.
Comment
Building on the original Network and Information Security Directive, regulators are mandating that entities in highly critical sectors (including water suppliers) regularly engage with and report to authorities regarding cybersecurity.
The requirements will revolve around: cybersecurity incident response and crisis management processes, incident reporting, vulnerability management and disclosure, testing of cybersecurity controls, and data protection.
This legislation may be relevant to an Energy, Waste or Utilities company where it has non-UK suppliers in their IT supply chain.
EU Member States have until 17-Oct-24 to transpose the Directive into national law.
To find out more, please see our article: The EU’s NIS2 Directive: key points you need to know | Foot Anstey
(Applicable UK-Wide)
Summary
The Digital Markets, Competition and Consumers Act 2024 (“DMCCA”) received Royal Assent in May this year and the new regimes will come into force in Autumn 2024.
Comment
The DMCCA establishes a new pro-competition regime for digital markets by giving the CMA the power to designate undertakings as having strategic market status in respect of a digital activity. The CMA will be able to impose conduct requirements on designated undertakings and, following investigation, make pro-competition interventions. Further, the DMCCA amends aspects of the mergers, markets and antitrust regimes whilst also providing for co-operation with overseas regulators, disclosing information overseas and a duty of expedition.
To find out more, please see our article: UK Government Draft Bill Proposes Significant Reforms for Consumer Protection and the Digital Sector | Foot Anstey
Summary
This new Bill, which is intended to reform the cyber-security regulatory regime, was set out by the new government, and introduced in the King’s Speech of 17 July 2024.
Comment
The Bill proposes to reform the existing regulatory regime by extending its scope to protect more digital services and supply chains, enhancing the power of the regulator, and mandating increased incident reporting. As is the case with product safety, cyber security and cyber resilience legislation are legacies of EU law. While the EU has legislated to update its regimes, the UK has not yet done so. The Bill is yet to be published.
Disputes
(Applicable to England and Wales)
Summary
Remote hearings are set to change in 2024 and the Law Society has published guidance to help practitioners to prepare.
Many Court hearings are now run remotely via the Cloud Video Platform introduced during the Covid-19 pandemic.
In 2024, HMCTS will introduce a new Video Hearings service which will be designed specifically for court hearings. The service will produce virtual private meeting rooms for pre-hearing consultations, on-demand support from trained assistants, simultaneous interpretation to broaden access and participation of users.
The service is being used nationally in tax and property tribunals as well as pilots in Birmingham Civil and Family Justice Centre and Bristol Employment Tribunal amongst others. Local courts will inform users at the time of listing about how to join a virtual hearing.
Comment
This move signals a welcome step in the right direction towards a better digital experience of the Civil Justice System.
It is hoped that the VHS amongst other transformations will improve the accessibility of hearings for clients and reduce excessive costs for travel and attendance. We are encouraged as more courts adopt a virtual or AI enabled approach and hope that this may be the beginning of the end for hard copy bundles having to be served at court!
More broadly, we anticipate further innovations in the justice system that take advantage of AI. Currently, whilst it is clear there will be change coming, the substance of future developments remains unclear.
(Applicable to England and Wales)
Summary
Reforms to grid connection ‘queue management’ process means disputes arising under the process must be referred to arbitration under the Electricity Arbitration Association (EAA) Rules.
The reformed grid connection process (Ofgem decision CMP376) enables NGESO to eject projects that fail to achieve eight milestones. To appeal rejections, the projects must now go through the EEA rules.
Comment
Arbitration is well suited to handling the types of disputes that will likely arise but, given the EEA does not seem to have much of a track record, it remains to be seen how it deals with a potential uptick in cases.
(Applicable England and Wales)
Summary
On 1 October 2024, the Civil Procedure (Amendment No. 3) Rules 2024 will enter into force. This statutory instrument will amend the procedure which governs how disputes are conducted in the Civil Courts in England and Wales (the CPR).
Changes include a suite of amendments to the Alternative Dispute Resolution (ADR) requirements which promote the use of ADR in light of a recent Court of Appeal judgment. These include a new amendment to clarify that judges may order as well as encourage parties to participate in ADR, and that failure of a party to comply with an order for ADR or unreasonable failure to participate in ADR proposed by another party would come under the consideration of the conduct of the parties when a judge is deciding on costs.
Comment
These changes are unlikely to be seismic given the general perception is that a party is considered unreasonable if they refuse to mediate and/or engage in ADR.
However, the option for a judge to order the parties in a dispute to participate in ADR is a significant departure from the previous position.
It is not yet known whether this change is likely to slow down the speed of proceedings or the extent to which it may lead to earlier settlements and therefore reduced costs.
Stakeholders who find themselves in the unfortunate position of facing a potential dispute may want to explore ADR in more detail prior to formally issuing proceedings.
Only time will show the full extent of these changes, and potential resultant shift in the practice around the conduct of disputes.
(Applicable England & Wales)
Summary
On 1 August 2024, in response to a question regarding whether the government plans to reintroduce the Litigation Funding Agreements (Enforceability) Bill and other related issues, the Ministry of Justice confirmed that the government “will take a more comprehensive view of any legislation to address issues in the round” once the Civil Justice Council (CJC) concludes its report on third party civil litigation funding (anticipated in summer 2025). The Bill was originally introduced in the last Parliamentary session, but could not be completed before Parliament was prorogued on 24 May 2024 for the General Election.
Comment
The effect of this legislation would be to make it easier for the public and consumers to obtain third-party financial support for complex litigation, thus improving access to class action funding. However, the government also want to set up “adequate safeguards” to protect claimants from unfair terms.
(Applicable to the UK)
Summary
In 2023 the Law Commission conducted a review of Part II of the Landlord and Tenant Act 1954 (the Act), saying it was inflexible, bureaucratic and out of date, causing extra delay for both landlords and tenants.
This is the part of the Act which presently applies to all business leases except for those of 6 months of less and those which have been expressly contracted out. It provides security of tenure to tenants where it applies. Security of tenure means that when the fixed term of a lease ends the tenant has a statutory right to remain in occupation and apply to the court for the grant of a new lease.
The landlord has limited specified grounds to object to the tenant’s renewal in order to obtain possession of the property.
The UK Government appears keen that after any reforms the legislation is more widely used and that fewer parties contract out of it, and it is fit for purpose in today’s commercial market.
Comment
The Act has been criticised for some time.
Proposed reforms are likely to consider:
(1) whether commercial tenants require security of tenure protection in the current day;
(2) whether the current process of contracting out can be further streamlined; and
(3) whether grounds of opposition should be extended or limited amongst other matters.
Reforms appear to be on the horizon and these will affect any parties who are currently a party to, or enter into business leases as part of their business as landlord or tenant.
(Applicable to England and Wales)
Summary
In August 2023 a class action lawsuit was brought under the Consumer Rights Act 2015 against Severn Trent for its alleged breach of environmental obligations. The claim is brought in the Competition Appeals Tribunal (CAT) and the claim value is £330m. The claimant, Professor Carolyn Roberts (represented by Leigh Day), accuses Severn Trent of under-reporting sewage spills and overcharging customers.
Specifically, the accusation is that the company have misled regulators about the number of sewage discharges, this should have led to more penalties paid by the company and reduced customer bills (because the company had not meet their environmental targets), therefore, it is claimed that Severn Trent unfairly overcharged customers by under-reporting sewage spills.
Although the claim is currently only brought against Severn Trent, the claimant has indicated an intention to bring further claims against several other water companies.
Comment
This claim is likely to be of relevance to utilities companies and their competitors. It remains to be seen whether the claimant will widen the scope of their claim to include other companies, however, the fact of this claim alone will be of significance to our utilities clients and competitors.
(Applicable to England and Wales)
Summary
This High Court ruling dated 26 March 2024 impacts the validity of ‘secret-commission’ claims against energy brokers
The High Court has held, among other things, that the scope of a broker’s fiduciary duty does not extend to an obligation to disclose the amount of commission in a “half secret” commission claim. However, the judge accepted that different facts may produce different results, for example where the claimant was unsophisticated or vulnerable or it could not have ascertained the amount upon enquiry.
Comment
In this instance, there was equality of bargaining power, the claimant had the opportunity to enquire about the commission amount and there was no evidence that the rate was not a customary rate of reward in the energy market. Even if the judge was wrong, he concluded obiter that the claimant had given informed consent. In fact, adding commission to the unit price was a known industry practice which, to the extent it reflected trade usage and custom, obviated the need for informed consent. The judgment clearly impacts on the validity of future ‘secret-commission’ claims, which are often brough at volume against brokers via template claims.
(Applicable England & Wales)
Summary
On Friday 24 May 2024, judgment was handed down by Foxton J in Gordiy v Dorofejeva & another [2024] EWHC 1273 (Comm). The underlying claim (concerning an abortive share purchase agreement) was valued at £650,000 to £900,000 and issued in the Commercial Court by a litigant in person.
Comment
The Court warned legal practitioners that claims valued under £1 million should not be commenced in the Commercial Court. The Judge commented that the commencement and/or continuation of proceedings in the correct court is equally the responsibility of all parties. Where judges discover that hearings have been listed in cases inappropriately commenced in the Commercial Court, those cases will be transferred out.
(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.
Governance
(Applicable to England and Wales)
Summary
This legislation is aimed at tackling various issues which threaten UK’s risk management credibility. Key reforms include: (i) corporate criminal liability of a company will be easier to prove by focusing on the role and responsibility of senior manager(s) who commit the relevant crime; (ii) introduction of a strict liability offence for the failure to prevent fraud for large corporates (a total defence will apply if an organisation can demonstrate it had in place reasonable procedures at the time of the offence); (iii) modernisation of Companies House to give Companies House power to query filings, remove information from the register, investigate effectively by cross-checking data at other public and private bodies and grant Companies House with enforcement powers; (iv) strengthened identify verification for people of significant control and directors, and (v) requirement to register limited partnerships.
Comment
The provisions of the Act will continue to come into force during 2024 and 2025. We will continue to monitor the progress of the Act.
(Applicable to England and Wales)
Summary
This is non-mandatory guidance which is split into sections, that align with the UK Corporate Governance Code and there are some new sections on board performance reviews, audit committee and the external audit minimum standards and a section covering good practice for the successful management of board committees. The guidance is not prescriptive and should not be used as a tick-box exercise, boards should decide on the governance arrangements most appropriate for their company’s circumstances applying the Principles of 2024 Code to comply or where appropriate, explain why the board has chosen to depart from the Code’s provisions.
Comment
FRC will be keeping the guidance under review to ensure it is relevant for boards and kept up-to-date.
(Applicable to England and Wales)
Summary
Mandatory code for listed companies in UK which operates a “comply or explain” regime, recognising that one approach does not necessarily suit all companies.
The 2024 Code applies to financial years beginning on or after 1 January 2025 however, Provision 29 applies to financial years beginning on or after 1 January 2026.
Comment
Key amendments from 2018 Code are that boards must make a declaration in relation to the effectiveness of their material internal controls and companies are encouraged to report on outcomes and activities.
2025 The Financial Reporting Council’s UK Corporate Governance Code 2024 for listed companies applies from 1 January 2025, please see the note above for more details.
(Applicable to England and Wales)
Summary
Ministerial review of call for evidence response and setting out next steps, consider technical exemptions to the mandatory notification requirement (approx. Autumn 2024) and improve the operation of the NSI system.
Summary
From 1 September 2024 VAT needs to be accounted for on certain trades of voluntary carbon credits at the standard rate. HMRC will allow the VAT relief granted under the Terminal Markets Order to apply to contracts in taxable voluntary carbon credits traded on terminal markets, within the terms of the relief.
Comment
The following activities are still outside the scope of VAT: the first issue of a voluntary carbon credit by a public authority; the holding of voluntary carbon credits as an investment, where there is no economic activity; donations made to voluntary carbon credit projects; and sales of voluntary carbon credits from self-assessed projects with no independent or third-party verification.
(Applicable UK-Wide)
Summary
In May 2024, the Government published an implementation update on the UK’s Sustainability Disclosure Requirements: Sustainability Disclosure Requirements: Implementation Update 2024 – GOV.UK (www.gov.uk)
Comment
The implementation update was published under the 2022 to 2024 Conservative Government. It was expected that a timeline and details of updates and a consultation process would be published in late 2024, however it is yet to be seen whether the new Labour Government will continue with this approach.
(Applicable UK-Wide)
Summary
The International Sustainability Standards Board (ISSB) delivers further harmonisation of the sustainability disclosure landscape as it embarks on new work plan announced on 24 June 2024. The International Financial Reporting Standards (IFRS) Foundation will assume responsibility for the disclosure-specific materials developed by the Transition Plan Taskforce (TPT).
(Applicable UK-Wide)
Summary
On 6 June 2024, the Institute of Directors launched a Code of Conduct for directors with 6 ‘Principles of Director Conduct’, a proposed voluntary Code of Conduct for directors of all types of corporate entity.
(Applicable UK-Wide)
Summary
The Financial Conduct Authority (FCA) introduced a Consumer Duty requiring companies to “act to deliver good outcomes for retail customers” – rules came into force in relation to products or services from 31 July 2024
Comment
The 31 July 2024 is the first deadline for companies to prepare and approve a first Report, with the duty applying from 31 July 2023 and ongoing obligations from this point.
Infrastructure
(Applicable to the UK)
Summary
The current voluntary Climate Change Agreements (CCAs) scheme provides a mechanism for energy-intensive, participating businesses to obtain a discount on the Climate Change Levy (CCL) tax by improving their energy efficiency or reducing CO2 emissions. DESNEZ has published a consultation on a new 6-year scheme for CCAs to begin in 2025. The scheme will introduce 3 new target periods from 2025 to 2030 and 3 new certification periods from 2027 to 2033. The consultation sets out aspects of the current scheme that will be retained and new proposals for the future scheme.
(Applicable to the UK)
Summary
The Economic Crime and Corporate Transparency Act 2023 makes some changes to the requirements for registration of Overseas Entities (OE) owning UK property. Secondary legislation will bring the relevant changes into force but the date they will take effect is currently unknown. The main changes are a requirement to provide a full list of all title numbers owned by the OE, reporting on changes in the update period and the Land Registry requirements to satisfy that an entity is still a registered OE.
Comment
The provisions may impact you if there is an OE involved in your transactions. Further amendments to the Register of Overseas Entities are expected to come into force through 2024.
(Applicable to the UK)
Summary
The current obligations in relation to end-of-life recycling / disposal of batteries provide that the ‘producer’ (which is widely defined as “any person in the United Kingdom that, irrespective of the selling technique used, including by means of distance communication, places batteries, including those incorporated into appliances or vehicles, on the market for the first time in the United Kingdom on a professional basis”) is responsible for ‘taking back’ the battery when it reaches the end of its life and procuring the treatment / recycling of the same.
There are also upcoming changes to the regulations, starting in August 2024. These rules will reflect the EU regulation on end-of-life obligations adopted in June 2023. One of the key changes will be the separation of the definitions of “manufacturer” and the “producer”. Manufacturers will have additional obligations (mostly to do with electronic registration and ensuring compliance). The changes will also introduce “extended producer responsibility” which will include:
- Financing the costs of collecting, treating, recycling batteries;
- Carrying out compositional surveys of mixed collected municipal waste;
- Reporting on batteries and waste batteries; and
- Providing end users with information and waste operators and appropriate re-use of batteries.
However, the idea appears to be that producers can exercise these obligations collectively by way of “producer responsibility organisations” which are subject to authorisation, such that producers do not necessarily have to undertake this work themselves.
Comment
Relevant to clients producing/using/disposing of batteries in the UK. The obligations have not been tested in practice as of yet due to the batteries not having reached the end of their lives. The obligations will become more important as the assets age, so it’s something that clients will need to bear in mind.
The changes to regulations will be important to consider when contracting, particularly supply/installation and O&M agreements.
(Applicable to England and Wales)
Summary
The UNEZA was launched by 31 partners including 25 global utilities and power companies with the pledge to advance electrification and renewables-ready grids and increase the deployment of clean energy.
UK organisations such as EDF, the National Grid, Octopus Energy joined the collaboration which aims to overcome obstacles to the net zero pathway set out by the International Renewable Energy Agency and cited in the 2030 Breakthroughs led by the UN Climate Change High-Level Champions.
UNEZA will develop an action plan to address supply chain de-risking, capital mobilisation and skills development, and facilitate policy and regulatory support.
(Applicable to England and Wales)
Summary
In 2021, the Government proposed to raise the minimum energy efficiency standard to C by 2027 and B by 2030. On 23 September 2023, Rishi Sunak announced that ““…new policies forcing landlords to upgrade the energy efficiency of their properties will be scrapped…”. The Government has since abandoned the requirement for an increasing minimum energy efficiency standard for domestic properties but the position for commercial property is less clear.
Comment
Whilst the Government is yet to confirm whether these plans will be implemented, it is important our clients prepare for these changes. Landlords will want to be aware whether their property is exempt under the proposed changes and may consider undertaking works to their property to improve their EPC rating in the long term.
(Applicable to England and Wales)
Summary
The Planning Inspectorate (“PINS”) has published new guidance on Nationally Significant Infrastructure Projects (“NSIPs”) and Development Consent Orders (“DCOs”) and procedure under the Planning Act 2008 (the 2008 Act”). The new advice pages provide advice on NSIPs / DCOs the following topics:
For applicants:
- advice on making changes to a NSIP/DCO application once submitted to PINS;
- advice on compiling a consultation report;
- advice on preparing and submitting application documents.
For Local Authorities:
- advice on their role in the NSIP process;
- advice on the Environmental Impact Assessment process;
- advice on the NSIP process in Wales;
- advice on taking part in the NSIP process at each stage.
For people and organisations involved in the NSIP process:
- advice on how to make representations or comments on an NSIP;
- advice on the NSIP process more generally.
Comment
Whilst this is only guidance and is non-statutory, the guidance is to be read alongside the Planning Act 2008 and is drawn from good practice. The government notes that applicants and others should follow recommendations when engaging in the NSIP process. For further advice on NSIPs or DCOs, please contact Foot Anstey’s planning team.
(Applicable UK-Wide)
Summary
The government have committed to bring forward legislation to modernise the investment powers of the Crown Estate.
Comment
The Crown Estate Bill should allow significant investment in public infrastructure such as offshore wind farms by the Crown Estate. The amendments to the Crown Estate Act 1961 will grant power to the Crown Estate to borrow from the Exchequer which will free up the Crown Estate’s large cash reserves for investments in future projects. The Bill is currently at committee stage in the House of Lords.
(Applicable UK-Wide)
Summary
In the King’s Speech published on 17 July 2024, the Government committed to publishing a draft Leasehold and Commonhold Reform Bill. The bill would:
– enact remaining Law Commission recommendations to strengthen leaseholders’ rights to extend their lease, buy their freehold, and take over management of their building.
– modernise the framework around Commonhold in keeping with recommendations put forward by the Law Commission in 2020 and abolish the sale of new leasehold flats so Commonhold becomes the default tenure.
– regulate ground rents for existing leaseholders.
– strengthen the rights of freehold homeowners on private or mixed-tenure residential estates.
– end the ‘injustice’ of forfeiture so leaseholders are protected against losing savings they have in their homes for potentially small unpaid debts.
Comment
The Government intends to publish the draft legislation in the 2024-25 parliamentary session to allow it to be subject to broad consultation and additional parliamentary scrutiny.
The proposed Leasehold and Commonhold Reform Bill is intended to make very significant changes to the legislative framework governing property in England and Wales.
Stakeholders are encouraged to follow the developments closely and engagement with consultations as and when these arise.
(Applicable England & Wales)
Summary
The Leasehold and Freehold Reform Act 2024 (LFRA 2024), came into effect on 24 May 2024. The LFRA 2024 has the principal aim of improving the rights of residential long leaseholders of houses and flats in England and Wales. Some of the amendments include: 1. Banning the grant of long residential leases of houses unless they are within a permitted exception, 2. Extending the right to manage, 3. Requiring landlords and estate management companies who manage their property or estate to sign up to a mandatory redress scheme.
Comment
Clients in the private rental sector should consider the changes to the leasehold regime when looking at new development projects.
Clients who work in the residential housing sector should consider the potential impacts of the Bill when looking at their next development projects since leaseholder rights have grown stronger.
(Applicable England & Wales)
Summary
The RRB 2024 builds on the Renters (Reform) Bill 2023. Key proposals in the RRB 2024 include the abolition of fixed-term assured tenancies and assured shorthold tenancies (ASTs) and therefore the abolition of “no-fault” evictions under section 21 of the Housing Act 1988. The RRB 2024 also amends the grounds for possession, to provide tenants with more security (a 12 month protected period, where the tenant cannot be evicted in the first 12 months for the landlord to either move in or sell the property). However, the provision of ‘reasonableness’ remains to ensure that in certain circumstances the landlord can remove the tenant. ‘Awwabs Law’ has also been extended to the private sector, to ensure that landlords are required to investigate and fix reported health hazards. Bidding wars have also been banned in the RRB, as well as blanket bans on tenants with children or those on benefits.
Comment
This new Bill has already come into force, and landlords and tenants alike should be aware of the changes.
It is important for developers who are wishing to rent out properties to be aware on these tighter laws and restrictions.
(Applicable England & Wales)
Summary
Phase 2 of the Grenfell Public Inquiry report was released which looked at the wider circumstances that contributed to the disaster on 14 June 2017. The report consists of 19 pages of recommendations, notably covering central and local government, the fire service and the construction industry.
Comment
No specific dates, but clients should be aware of how this can affect building safety in England and Wales.
Developer and construction clients should be aware of the report’s recommendations as they will shape government policy regarding building safety in England and Wales.
(Applicable England & Wales)
Summary
This note on HMRC’s SDLT manual adds to the two previous notes published in November 2022 and August 2023. This new guidance largely reflects the previous notes, however amendments include: rule changes to bare trusts, clarification or rules relating to major interests in dwellings and specifications over first time buyer relief.
Comment
On 30 July 2024 this new guidance was posted, so clients should stay up to date and informed. This is useful for first time buyers.
(Applicable to England and Wales)
Summary
The Law Commission is reviewing Part 2 of the Landlord and Tenant Act 1954 (‘the Act’) with a view to ensuring it is suitable in for the modern commercial leasehold market. The purpose of the Act was to address the disparity in bargaining power between landlords and tenants arising from the scarcity of commercial property following the Second World War. The legislation is nearly 70 years old and whilst it has been updated in the past to provide some flexibility to Landlords and Tenants it has not been significantly updated for nearly 20 years. As a result, it is not up to date with the current commercial leasehold market and the emphasis on environmental sustainability.
Comment
The report is currently held up in the pre-consultation step, but we will monitor this closely and provide updates as and when required.
There are concerns surrounding the potential reform of the Act but on the whole it is agreed that it requires modernisation. One of the most likely targets of modification by the Law Commission will be the procedure for contracting out of the security of tenure provisions under the Act which can be a cumbersome process and does not take into account advancements in technology. Changes to Part 2 of the Landlord and Tenant Act 1954 could reshape future business tenancies as current standard practice is for landlords to exclude the right for tenants to automatically renew their lease upon lapse of their lease term.
Applicable England & Wales
Summary
The Levelling Up and Regeneration Act 2023 (“LURA 2023”) included requirements for disclosure of contractual rights over land in England and Wales. Secondary legislation will determine how the information will be requested but the requirements for disclosure will include key information such as the type of agreement, the parties involved, the date of the agreement and details of the solicitors involved in the transaction. This will impact certain land agreements including option agreements, conditional contracts and promotion agreements. The Government consulted on draft regulations seeking views on the implications of collecting and publishing information on contractual control agreements. The consultation closed in March 2024.
Comment
Given the change in the Government, it is not yet clear whether these proposals will still be implemented. Potential disclosure requirements in relation to contractual control agreements will mean that parties to such documents will have to supply more potentially sensitive commercial information. This will also cause further administrative steps for developers and their advisers to correctly file information in line with regulations. If information is not provided or false information is given knowingly or recklessly, this could constitute a criminal offence under LURA 2023 which carries a maximum of 2 years imprisonment and an unlimited fine.
(Applicable to England and Wales)
Summary
The Law Commission is reviewing Part 2 of the Landlord and Tenant Act 1954 (‘the Act’) with a view to ensuring it is suitable in for the modern commercial leasehold market. The purpose of the Act was to address the disparity in bargaining power between landlords and tenants arising from the scarcity of commercial property following the Second World War. The legislation is nearly 70 years old and whilst it has been updated in the past to provide some flexibility to Landlords and Tenants it has not been significantly updated for nearly 20 years. As a result, it is not up to date with the current commercial leasehold market and the emphasis on environmental sustainability.
Comment
There are concerns surrounding the potential reform of the Act but on the whole it is agreed that it requires modernisation. One of the most likely targets of modification by the Law Commission will be the procedure for contracting out of the security of tenure provisions under the Act which can be a cumbersome process and does not take into account advancements in technology. Changes to Part 2 of the Landlord and Tenant Act 1954 could reshape future business tenancies as current standard practice is for landlords to exclude the right for tenants to automatically renew their lease upon lapse of their lease term.
(Applicable UK-Wide)
Summary
The Digital Information and Smart Data Bill, which is currently at committee stage in the House of Lords, is intended to permit the establishment of a National Underground Asset Register, which will allow planners and excavators to access data regarding the installation and maintenance of underground pipes and cabling.
Comment
The Digital Information and Smart Data Bill will look to implement certain provisions of the previous Government’s failed Data Protection and Digital Information Bill. The form of the smart data proposals is yet to be established however the creation of a digital map for maintenance of underground networks of pipes and cables could prove a useful tool for the construction and utility sectors.
(Applicable UK-Wide)
Summary
This Bill, which was announced in the King’s speech on 17 July 2024, is intended to streamline critical infrastructure project delivery by simplifying the consenting process for large infrastructure projects. It is intended to introduce new National Policy Statements with a review process every five years. The Bill will also aim to reform the compulsory purchase compensation rules.
(Applicable England & Wales)
Summary
Coming into force on 09 December 2024.
Under the 2024 Order:
Fees for HM Land Registry information services will increase by £4 per application (Parts 2 and 3 of Schedule 3).
The definition of “electronic means” (in Article 1(1)) has been updated to exclude email, which will result in higher fees for applications submitted via email. This is subject to an exception for applications made under rule 140 of the Land Registration Rules 2003, which continue to qualify for the lower fee.
Comment
It is important for clients to be aware of changes in prices as a result of these new rules. General paper based applications have increased to £6 for searches and £5 for official copies, to incentivise and reduce reliance on paper being used and sent.
(Applicable to England)
Summary
On 3rd October 2024, the Ministry of Housing, Communities and Local Government published new guidance setting out in detail the compulsory purchase process and compensation rules in England. The guidance explains the process and procedural requirements as well as providing advice on the exercise of compulsory purchase powers. The guidance was published together with a model compensation claim form which sets out the information to be included when making a claim for compensation and guidance notes on filling out the form.
Comment
Related guidance has also been published on the following topics:
- Crichel Down Rules;
- Purchase notices;
- Compulsory purchase: Rates of interest;
- Compulsory purchase compensation: Power to remove hope value.
(Applicable to England)
Summary
The government have consulted on proposed reforms to the NPPF in a consultation running from 04 August 2024 to 24 September 2024. Changes to the NPPF are expected to be introduced in early 2025. The proposed changes to the NPPF are part of Labour’s strategy to unlock the planning system for housebuilders, renewables, and infrastructure to grow the economy.
(Applicable to England and Wales)
Davies (Respondent) v Bridgend County Borough Council (Appellant) [2024] UKSC 15
Question considered in the Supreme Court:
Were the lower courts correct to decide that loss suffered by the Respondent, in the form of diminution in value of the Respondent’s property as a result of the encroachment of Japanese knotweed from the Appellant’s land, was caused by the Appellant’s breach of duty in failing to treat the knotweed, in circumstances where the encroachment first arose before the Appellant’s breach?
Comment
Judgment handed down 8 May 2024. Supreme Court overturned decision of Court of Appeal. Held that no damages should be awarded to the claimant as here was there was no evidence the breach between 2013 and 2018 increased the diminution in value of the Respondent’s property.
(Applicable to the UK)
Summary
The Supreme Court is passing judgment on an appeal concerning a long-running dispute between Manchester Ship Canal Company and United Utilities (UU) regarding the discharge of untreated foul water from sewers operated by UU into Manchester Ship Canal. UU argues that any private law claim of nuisance and/or trespass are impliedly offset by the Water Industry Act 1991. The Act provides an enforcement mechanism for breaches of duty by sewerage undertakers; the argument was successful in the first instance and now we await judgment concerning MSCC’s appeal.
Comment
Example of private nuisance/ trespassing action against a Utility company.
(Applicable to England and Wales)
Summary
In this Judgment, handed down on 25 April 2024, the taxpayers owned a property portfolio and wanted to acquire another property using acquisition funding. The taxpayers and finance provider (S) entered into an ‘option agreement’ which granted S an option to buy three of the portfolio properties in return for the funding (which was a lot less than the value of the properties). S could exercise its right to buy at the end of a 12-month period, provided that the taxpayers had not repaid the deposit plus interest which would determine the agreement.
HMRC argued this agreement was a disposal subject to capital gains tax but the taxpayers argued it was a loan with the grant of security. Here, as the taxpayers had control over the event that the right to exercise depended on, the option would have only been granted if and when the taxpayers ceased to be able to determine the agreement by repaying the funding plus interest. If the grantor of the option has sufficient control to prevent an agreement being an irrevocable disposition (as opposed to one that is contingent on events outside its control) there is a risk that the agreement will not be considered an option for tax purposes.
Comment
When drafting an option agreement, it is important to check the events that will trigger the right to be exercised. If this is not drafted carefully, the parties may incur unforeseen tWhen drafting an option agreement, it is important to check the events that will trigger the right to be exercised. If this is not drafted carefully, the parties may incur unforeseen tax liabilities. Clients considering entering into an option agreement should seek legal advice to ensure their intentions are properly represented in the agreement.ax liabilities. Clients considering entering into an option agreement should seek legal advice to ensure their intentions are properly represented in the agreement.
(Applicable to England and Wales)
Summary
The High Court recently ordered compensation where there was misrepresentation in opposed lease renewal proceedings under the Landlord and Tenant Act 1954 (the Act).
The Act gives business who do not contract out of it, security of tenure which gives them a right to lease renewal at the end of their tenancy and the ability to remain in occupation at the end of a lease on the same terms as their old lease (unless a landlord can establish one of the grounds of opposition set out in section 30(1) of the Act).
The Defendant (Shirayama Shokusan) (SS) owns premises opposite the Houses of Parliament. Until March 2019, McDonalds (the Claimant), ran a restaurant from part of the premises. It was quite a high profile site. McDonalds sought a new lease of the property at the end of its tenancy. SS opposed this using section 30(1)(g), which allows for termination of a protected tenancy where the landlord intends to occupy it for its own business or residential purposes.
In the contested renewal proceedings, extensive evidence was provided of SS’ intention to operate a restaurant from the premises serving Japanese food by November 2019. However, this did not happen. SS briefly opened restaurants in parts of the premises in 2020 and 2021, though not the restaurant it had provided extensive evidence in respect of. McDonalds then sued SS for deceit and damages under section 37A of the Act (compensation obtained by misrepresentation).
SS accepted the restaurants it had opened differed from what it had told the court its intention was previously, but said it had genuinely changed its mind and that the delay was mostly due to the pandemic.
The Court dismissed the deceit claim, but did find SS liable to pay compensation to McDonalds under the Act.
Comment
Decisions which deal with the payment of compensation under section 37A are unusual.
The decision emphasises that, where landlords contest a tenant’s application for a new lease under section 30(1)(g) (i.e. the intention to use the premises for the purposes of its own business) it must have a fixed and settled intention to do so at the date of contested lease renewal proceedings.
In this case the court found SS had deliberately misrepresented to the court in the contested renewal proceedings its intention open a Japanese restaurant, and this had induced the court to refuse McDonalds the grant of a new lease. Compensation was therefore payable.
Landlords should take care to advance at contested renewal proceedings, only intentions which they genuinely intend to proceed with.
(Applicable to England and Wales)
Summary
A historic judgment was handed down in the UK Supreme Court. The case concerned whether a local planning authority was required to include in its environmental impact assessment an assessment of the impact of scope 3 greenhouse gas (GHG) emissions of a proposed project, in this case, downstream oil production, as well as scope 1 and 2 emissions. The Supreme Court held, overturning the decision of the Court of Appeal, that the authority was required to consider Scope 3 GHG emissions in these circumstances. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the “EIA Regulations”) require assessment of the ‘direct and indirect significant effects of a project’ on the climate. The Supreme Court held that this was a matter of causation and there was obvious causation that would arise from the combustion of fuel following refinement of crude oil which would give rise to effects on the environment.
Comment
The impact of this case is that new fossil fuel projects which require environmental impact assessment under the EIA regulations will require assessment of GHG emissions which arise from the use of the final product. It is yet to be seen whether this ruling will extend beyond fossil fuel projects to any project requiring environmental impact assessment under the EIA Regulations.
(Applicable England & Wales)
Summary
The Upper Tribunal considered the rent and break right in a lease renewal under Part 5 of the 2017 Electronic Communications Code (2017 Code). It granted the landlord a right to break on the 5th anniversary of the term commencement and each anniversary after that, if the landlord intended to develop all or part of the site for any purpose and could show that it could not reasonably redevelop while the lease continued. The policy of the Code is not to prevent redevelopment as it would be unfair to the landowner.
Comment
This case is relevant to clients looking to negotiate a break clause into their lease renewal, particularly when the 2017 Electronic Communications Code is relevant.
(Applicable England & Wales)
Summary
Principle: Common Intention Constructive Trust can vary an Express Declaration of Trust.
In Nilsson and another v Cynberg [2024] EWHC 2164 (Ch), an appeal by the trustees in bankruptcy was dismissed, finding that an agreement to vary an express declaration of trust (Stack v Dowden [2007] UKHL 17) could be by way of an informal common intention constructive trust. The agreement to vary did not need to comply with the requirements of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989).
Comment
No specific dates, but clients should be aware of updates to the law. This is important for those considering entering into trust arrangements.
(Applicable England & Wales)
Summary
The High Court held, in a judgment handed down on 16 July 2024, that a planning inspector’s decision was lawful to decide to uphold the LPA’s refusal of planning permission for a development on a site where water use might be impacting the integrity of a protected area (within the Sussex North Water Supply Zone), and that this was consistent with Natural England’s guidance and the duties of the inspector under duties under the Conservation of Habitats and Species Regulations 2017 Pt 6 (1) reg.63(5) . In relation to water neutrality, the High Court decided that whilst there had been no increase in water usage to account for, and that this approach was consistent with Natural England’s guidance in this regard, the position that existing water use was “neutral” would only apply where the proposed residential occupancy had already been granted planning permission.
Comment
This case demonstrates that, in relation to water neutrality, that only development with the benefit of planning permission or which was immune from enforcement action, was exempt from the requirement to demonstrate water neutrality.
Energy
(Applicable England & Wales)
Summary
In 2021, the Government proposed to raise the minimum energy efficiency standard to C by 2027 and B by 2030. On 23 September 2023, Rishi Sunak announced that ““…new policies forcing landlords to upgrade the energy efficiency of their properties will be scrapped…”. The Government has since abandoned the requirement for an increasing minimum energy efficiency standard for domestic properties but the position for commercial property is less clear.
Comment
Proposals to raise the minimum energy efficiency standard to C by 2027 and B by 2030 to be confirmed by Government.
Whilst the Government is yet to confirm whether these plans will be implemented, it is important our clients prepare for these changes. Landlords will want to be aware whether their property is exempt under the proposed changes and may consider undertaking works to their property to improve their EPC rating in the long term.
(Applicable UK-Wide)
Summary
The government has announced its plan to create a new publicly owned company, Great British Energy (GBE) to assist the UK in reaching Net Zero. The new organisation brings together a publicly owned green energy developer – GBE – with the Crown Estate to unlock £60bn of private investment and support the UK’s ambition to achieve clean power by 2030.
The Crown Estate, as the owner of the seabed around the UK will be given powers to facilitate investment and borrowing (including through the Crown Estate Bill) whilst GBE itself will be placed on a legislative footing. The two entities will also partner to accelerate the expansion of offshore wind power, delivering up to 20-30GW of new capacity.
The aim of this endeavour is to insure the UK’s energy security against shocks to the international market, thereby making the nation more resilient to energy price rises whilst simultaneously pursuing the government’s mission for clean power by 2030 and reducing consumer’s energy bills.
Comment
The implications of this landmark policy are likely to be far reaching and we expect full details of the legislative proposals to emerge over the coming months.
(Applicable UK-Wide)
Summary
The government have removed the de facto ban on onshore wind as part of their commitment to doubling onshore wind energy by 2030.
The new Labour government has announced an end to the de facto ban on onshore windfarms. A policy statement released on 8 July 2024 promised to end the ban by making changes to the National Planning Policy Framework (NPPF) which will put onshore wind projects on an equal footing with all other energy infrastructure proposals.
The two tests, set out in footnotes 57 and 58 to paragraph 163 of the National Planning Policy Framework (NPPF) no longer apply. As a result, onshore wind applications will be treated in the same way as other energy development proposals.
Comment
We anticipate that there will be considerable interest in this area given the development of onshore windfarms is likely to be cheaper and logistically less complex than offshore windfarms. According to research carried out by Friends of the Earth in April 2024, it was estimated that the UK could produce 13 times more renewable energy through onshore wind and solar generation by using less than 3% of its land.
The move towards incentives to develop onshore windfarms, combined with the Labour party’s wider ambition to make Britain a clean energy superpower, indicates a strong wind change in the direction of further policies in favour of renewables.
(Applicable UK-Wide)
Summary
The National Wealth Fund Bill was announced in the King’s Speech on 17 July 2024. This Bill will establish the National Wealth Fund, which will combine public and private investment funds to promote development in key sectors, such as green hydrogen, green steel, gigafactories, ports and industrial decarbonisation. Funding will be issued through the UK Infrastructure Bank, which will provide a proposed £7.3billion to catalyse private investment, and aims to generate £3 of private sector investment for every £1 of public investment.
(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.
People
(Applicable to the UK)
Summary
The increase to the Immigration Health Surcharge (IHS) came into force on 6 February 2024. The revised annual cost will be as below:
• Children, students and Youth Mobility Scheme applicants: £776 (up from £470)
• Adults: £1,035 (up from £624)
The fee uplifts are substantial. In adults, this represents a 66% increase on the previous annual cost and will have an impact on employees who are funding immigration applications themselves and/or employers who are reimbursing all (or some) of this cost for their workers.
Action points:
- Applications submitted prior to the implementation date will not be subject to the higher charges. Therefore, submitting applications prior to the implementation date where possible will save on these increased costs.
- Ensure these increased costs are factored into your budgets for 2024
(Applicable to the UK)
Summary
Planned increases to the civil penalties for employers who employ illegal workers came into force on 13 February 2024. The civil penalty fines will triple, rising to £45,000 per worker (if there are no previous breaches in the last 3 years) and £60,000 per worker for repeated breaches.
Action points:
- Review existing right to work policies and ensure HR and recruitment teams are adequately trained to ensure compliance to avoid incurring fines.
- The Government’s draft updated code of practice on preventing illegal working sets out the actions employers can take to avoid liability for a civil penalty. This code of practice comes into force from 13 February 2024.
(Applicable to the UK)
Summary
The Pensions (Extension of Automatic Enrolment) Act 2023 makes provision for the Government to decrease the age and lower the qualifying earnings threshold for pensions automatic enrolment. It is anticipated that this will reduce the minimum age from 22 to 18 years and lower the qualifying earning threshold to the first pound earned. However, further regulations are awaited to clarify the changes, and a date for implementation is awaited.
Action points:
1. Keep an eye out for the Department for Work and Pensions’ consultation on implementing the new measures, which will inform the detail of the changes.
2. Once implemented, policies and procedures will need to be updated to reflect the changes.
(Applicable to England, Wales and Scotland)
Summary
The Strikes (Minimum Service Levels) Act 2023 came into force on 20 July 2023, enabling the Government to make regulations providing for minimum service levels (MSLs) during an employee strike in “relevant services”. MSLs have since been introduced in respect of passenger railway services, and NHS ambulance and patient transport services. Similar regulations came into force for border security services from 12 December 2023.
However, MSLs have not yet been set in the following MSLs are sectors, pending the outcome of the respective consultations:
- Fire and rescue services
- Urgent, emergency and time-critical hospital-based health services
- Education
Action points:
For employers operating in sectors where MSLs are still pending, for the time being:
- Keep up to date with the latest developments.
- Familiarise yourself with the procedure to be followed, in the event of a union giving you notice of a strike which relates to a relevant service to which the MSL regulations apply. Government guidance can be found on its website.
- Where MSLs are introduced, policies and procedures will need to be updated to reflect the new provisions and training will need to be provided to employees handling trade union notices of strike action, considering whether MSLs are met and/or issuing employer work notices.
(Applicable to England and Wales)
Summary
ADR may soon become compulsory in all civil litigation disputes, after the Civil Procedure Rule Committee opened up a consultation inviting views on incorporating mandatory ADR into the CPRs. The consultation flows from the Court of Appeal judgment in James Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416, which held that the court could stay proceedings or order parties to “engage in a non-court- based dispute resolution process”. The ruling and proposed consultation may have a significant impact on litigation – increased use of ADR may lead to either increased or decreased costs depending on the complexity of the litigation. In some instances, ADR may slow down proceedings but ultimately lead to earlier settlements and lower costs. In others, ADR may simply increase costs by introducing a further procedural step where parties have already explored ADR as an option and failed to reach a settlement.
(Applicable UK-Wide)
Summary
The Pensions Regulator published its policy on pensions dashboards compliance and enforcement in early September. Whilst the policy is clearly aimed at trustees and managers of occupational schemes, in practice its application is further reaching. Given the Pensions Regulator’s powers to issue contribution notices to third parties, the application of the requirements also apply to employers, as well as integrated service providers and administrators.
Comment
The Pensions Regulator has urged that action is taken now to ensure compliance with pensions dashboards duties. The Regulator has made it clear that its approach to enforcement will be proportionate but that there will be penalties for non-compliance.
We therefore expected the Pensions Regulator to be engaging with pension schemes this autumn to assess compliance and take enforcement action where appropriate.
For further information on getting dashboard ready, please see: https://www.footanstey.com/our-insights/articles-news/is-your-pension-scheme-dashboard-ready/
(Applicable to England, Wales and Scotland)
Summary
The Workers (Predictable Terms and Conditions) Act 2023 is expected to come into force in September 2024. This will provide workers and agency workers whose contracts have unpredictability in terms of the hours, working days or length of engagement (e.g., where fixed term) with a right to request a predictable working pattern. It is expected that workers will qualify for this right on reaching 26 weeks’ service (although workers will only need to show they have worked once each month in the preceding 26 weeks given the nature of the right).
Workers will be able to make two requests within any 12-month period and employers will be required to:
- Deal with such requests in a “reasonable manner”.
- Notify the worker of their decision within one month. (note this is even shorter than the timeframe for handling flexible working requests).
- Only reject the request if it considers that one or more grounds, as stated in the Act, applies. The grounds are the burden of additional costs to the employer, a detrimental effect on the employer’s ability to meet customer demand, and/or insufficiency of work during the periods the worker proposes to work.
- Where you grant the request, offer the new terms and conditions to the worker within two weeks.
Action points:
1. Consider what proportion of your workforce may lack predictability and be entitled to make this request.
2. A new policy and procedures will be needed to deal with predictable working requests.
3. Keep an eye out for Acas’ new Code of Practice on fair and transparent distribution of tips.
(Applicable to England, Wales and Scotland)
Summary
The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force in, or around October 2024. The legislation will:
- Introduce a proactive duty on employers to take reasonable steps to prevent sexual harassment of their employees.
- Enable employment tribunals to increase awards against employers by up to 25% where employers are found to have breached the new duty.
It was initially expected that this legislation would include an explicit protection of employees against harassment by third parties in the workplace. However, following some scrutiny of the purpose and effect of the new law it was softened such that no such “third party” harassment liability is directly imposed. Furthermore, it should be noted that employees cannot make standalone claims under the new legislation. Instead, they must link any claim to an existing harassment claim.
Action points:
1. Consider our Retailers Against Harassment Certification.
2. Review your policies on harassment (generally) and sexual harassment, how active your training is and whether you have good records on how you handle concerns about sexual harassment.
3. Although the provisions on third party harassment were excluded from the bill, do also consider a policy on third party harassment that can be used as a guidance tool by managers and employees.
(Applicable England, Wales & Scotland)
Summary
From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new positive duty for employers to take proactive reasonable steps to prevent sexual harassment of their employees in the course of their employment.
The preventative duty does not create a new freestanding cause of action, but the Equality and Human Rights Commission (EHRC) will be able to enforce the new duty where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment.
The Act gives the Employment Tribunal the power to impose a 25% uplift on sexual harassment compensation where the new duty has been breached.
Comment
Under the preventative duty, employers will need to be able to show that they have taken proactive reasonable steps to prevent sexual harassment in their workplace.
The EHRC has recently published updated technical guidance (published on 26 September 2024) on what will amount to reasonable steps including an 8-step guide for employers. The EHRC’s guidance makes it clear that the preventative duty includes worker-on-worker harassment as well as harassment by third parties such as customers or clients.
It is therefore vital for employers to consider the steps they need to take to ensure that there are measures in place when the preventative duty comes into force. We have made a list of recommendations for employers to consider having in place in readiness for the preventative duty: https://www.footanstey.com/our-insights/articles-news/26-october-2024-are-you-ready-mandatory-duty-to-prevent-sexual-harassment-in-the-workplace/
We are already working with clients on a range of measures including providing a fixed-fee sexual harassment policy, tailored training and strategic transformation discussions. Needless to say we would be delighted to work with you too!
See here for more details: https://www.footanstey.com/our-insights/articles-news/26-october-2024-are-you-ready-mandatory-duty-to-prevent-sexual-harassment-in-the-workplace/
(Applicable UK-Wide)
Summary
Physical documents, including Biometecric Residence Permits (BRPs), will be replaced by eVisas from 1 January 2025. The official cut-off date is 31 December 2024.
Comment
An eVisa is an online record of an individual’s immigration status and the conditions of their permission to enter or stay in the UK. eVisas will allow employees to continue to evidence their right to work in the UK and avoid difficulties when returning from travel overseas.
We recommend employers take the following steps in preparation:
- Communicate a reminder to all staff that for those with a BRP expiring on 31 December 2024 they need to create a UKVI account. We recommend circulating the Home Office’s guidance and factsheets to staff at the same time.
- Check your right to work records for workers’ visa expiry dates.If a manual right to work check was conducted on an individual’s BRP card, prior to 6 April 2022 (which was allowed at this time before the online check was required), then the expiry data may have shown 31 December 2024, when this is not the actual expiry date of that individual’s right to remain/work in the UK. As such, it may be prudent to conduct a further right to work check to understand the individual’s actual visa expiry date and retain your statutory excuse to a civil penalty.
- Check your online right to work process and system is fully compliant because providing a share code to carry out online right to work checks will become the most popular method of checking a worker’s right to work.
Read more about the update and steps you can take here: https://www.footanstey.com/our-insights/articles-news/immigration-updates-for-employers-september-2024/
(Applicable UK-Wide)
Summary
The Labour Government have indicated their intention to implement the Plan to Make Work Pay in full and the introduction of Employment Rights Bill within 100 days of government, i.e. by 12th October 2024.
Comment
The Bill has been tipped as potentially being the biggest package of reform for employment rights in a generation. The headline anticipated changes we expect to see are:
(a) Introducing day one rights, including protection from unfair dismissal, parental/paternity leave and the right to statutory sick pay.
(b) Rebalancing ‘one sided’ flexibility. This is expected to include banning or restricting zero hours contracts.
(c) Trade Union reforms. This is expected to include securing electronic voting for union ballets, simplifying the trade union recognition processes and creating a mechanism for collective grievances.
(d) Whistleblowing. Proposals are expected to strengthen protections for whistleblowers, including for those reporting sexual harassment at work.
(e) Restricting fire and re-hire/replace. The details remain unclear but a higher standard/reason for firing and re-hiring is likely to be required of employers. A new statutory Code is also expected to “strengthen” the one previously published in June 2024.
(f) Equality and discrimination reforms including extending the right to equal pay based on ethnicity and disability. New pay gap reporting obligations are also expected in respect of ethnicity and disability, as well as requiring certain employers to publish “action plans” to address gender pay gaps.
(g) Procedural and other changes are also expected including extending the time limit for tribunal claims and moving towards a single worker status. This would enhance the rights of many workers.
Once the Bill is introduced, when exactly it will become an Act (and therefore law) remains to be seen but this will likely take many months post-introduction given its required passage through the houses of parliament as well as potential for secondary legislation in addition to effect any changes. This should provide employers with some time to prepare for the changes. There may be some changes that can occur outside the Bill itself (and therefore potentially become enshrined in law more quickly) but until we see the draft legislation, this is unknown.
See here for more details, including the anticipated impact on employers and how to prepare in the meantime: https://www.footanstey.com/our-insights/articles-news/the-kings-speech-what-are-labours-plans-for-employment-law/
Summary
The Neonatal Care (Leave and Pay) Act 2023 has made provision for a new right for parents whose babies spend time in neonatal care units:
- Statutory neonatal care leave will apply for a period of up to 12 weeks (with a minimum entitlement of one week), dependent on the length of the child’s requirement for neonatal care. The new right to neonatal leave will be a “day one” right.
- Neonatal care pay will be set at statutory rates. A qualifying service period of 26 weeks will apply for parents seeking neonatal care pay.
The specific rules relating to neonatal care and pay are due to be clarified in future statutory instruments, with the new neonatal leave and pay entitlements expected to be delivered in April 2025.
Action points
- A new policy will be needed covering the rules relating to this new leave and pay when they are clarified.
- This new right will also need to be cross referenced in other relevant family-leave policies.
- Consider whether you will enhance pay for leave of this kind.
Regulatory
(Applicable to the UK)
Summary
The Economic Crime and Corporate Transparency Act 2023 s.199 introduces a new offence which means an organisation will be criminally liable where a fraud offence is committed by an employee or agent for the organisation’s benefit and the organisation did not have reasonable fraud procedures in place. Guidance is expected to be published in late 2024.
(Applicable to the UK)
Summary
The Department for Environment, Food and Rural Affairs (Defra) has published a document setting out illustrative base fees for the first year of Extended Producer Responsibility, which is 2025 to 2026.
Comment
The document provides estimated fees for each of the eight categories of packaging materials (aluminium, fibre-based composites, paper or board, plastic, steel, wood, glass, and other). Final fees for the first year are expected to be released after 1 April 2025.
(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: Morrisons case confirms employers must take reasonably practicable steps to ensure the safety of each and every employee not just the majority | Foot Anstey
(Applicable to England and Wales)
Summary
During the opening of the new parliament, the King unveiled a new Water (Special Measures) Bill to strengthen regulation, give the water regulator new powers to ban the payment of bonuses if environmental standards are not met and increase accountability for water executives.
Comment
This Bill was introduced in Parliament on 4 September 2024 and is currently at its second reading in the House of Lords. Foot Anstey will continue to monitor this topic as the new bill progresses through parliament.
Applicable to England and Wales
Summary
A historic judgment was handed down in the UK Supreme Court. The case concerned whether a local planning authority was required to include in its environmental impact assessment an assessment of the impact of scope 3 greenhouse gas (GHG) emissions of a proposed project, in this case, downstream oil production, as well as scope 1 and 2 emissions. The Supreme Court held, overturning the decision of the Court of Appeal, that the authority was required to consider Scope 3 GHG emissions in these circumstances. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the “EIA Regulations”) require assessment of the ‘direct and indirect significant effects of a project’ on the climate. The Supreme Court held that this was a matter of causation and there was obvious causation that would arise from the combustion of fuel following refinement of crude oil which would give rise to effects on the environment.
Comment
The impact of this case is that new fossil fuel projects which require environmental impact assessment under the EIA regulations will require assessment of GHG emissions which arise from the use of the final product. It is yet to be seen whether this ruling will extend beyond fossil fuel projects to any project requiring environmental impact assessment under the EIA Regulations.
Rural Land
(Applicable to England and Wales)
Summary
From 12 February 2024, the mandatory requirement for developers to provide biodiversity net gain (BNG) came into force. The planning condition requires at least 10% BNG for new planning applications for development under the Town and Country Planning Act 1990 that results in loss or degradation of habitat. BNG for small sites (of between one and nine dwellings) will apply from 2 April 2024.
Comment
BNG requirement is now in force. 2025 Biodiversity net gain requirements will be brought in for Nationally Significant Infrastructure projects this year.
(Applicable to England and Wales)
Summary
On 22 February 2024, new guidance was issued by DEFRA which sets out what irreplaceable habitats are, how new mandatory biodiversity net gain requirements apply to developments on irreplaceable habitats and what developers need to consider.
Comment
Developers should consider irreplaceable habitats at the design and planning stage. They should ensure they minimise the impacts on irreplaceable habitats and agree suitable compensation for loss or deterioration of irreplaceable habitats. They must also ensure they record all irreplaceable habitats on site in the metric calculation tool. This is regardless of whether or not an irreplaceable habitat on site will actually be impacted by the proposed development.
(Applicable to England and Wales)
Summary
On 15 March 2024, the Government guidance on biodiversity net gain was updated to include a section on ‘managing biodiversity gains’. This gives information on how to register a biodiversity gain site, record allocation of off-site biodiversity gains to a development, estimate the cost of statutory biodiversity credits, buy statutory biodiversity credits, and search the biodiversity gain sites register.
Comment
This guidance provides further clarity to developers and landowners on how to register a biodiversity gain site, record allocation of off-site biodiversity gains to a development, estimate the cost of statutory biodiversity credits, buy statutory biodiversity credits, and search the biodiversity gain sites register.
(Applicable to England and Wales)
Summary
The Supreme Court has decided that the statutory scheme for regulating sewerage established by the Water Industry Act 1999 does not prevent the owner of a canal or other watercourse from bringing a private claim in nuisance or trespass when the watercourse or canal is polluted by discharges of foul water, even if there is no negligence or deliberate wrong doing on the part of the utility company or statutory undertaker.
Comment
As there has been considerable coverage of alleged sewage pollution incidents by utility companies in the media, there may be a rise in claims from owners of waterways or property subject to similar unauthorised discharges of foul water.
Note: The Horizon Scanner is up-to-date as of October 4 2024 and is updated at regular intervals throughout the year.