Horizon Scanner

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.

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 to the UK)

Summary

Regulation of competition in digital markets; amending Competition Act 1998 and Enterprise Act 2002; and making provisions for the protection of consumer rights.

Comment

The Bill received Royal Assent on 24 May 2024. Section 129 which covers covering mergers of energy network enterprises will enter into force on 24 July 2024. Most of the other provisions of the Act are expected to commence in Autumn 2024 following consultation on CMA guidance, which runs until 12 July 2024.

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(Applicable to the UK)

Summary

Regulation by OFCOM of certain internet services, communications offences and connected purposes.

The Online Safety Act was enacted on 26 October 2023.

Comment

As the bodies responsible for regulating data protection and online safety in the UK, the Information Commissioner’s Office (ICO) and Ofcom are both committed to protecting people online. Ofcom has set out its plans for putting online safety laws into practice following the passing of the Online Safety Act. The Act makes companies that operate a wide range of online services legally responsible for keeping people, especially children, safe online.

Ofcom has published guidance on 8 May 2024 and conducted consultation on the codes of practice on how in-scope companies can comply with their duties. These duties will come into force in three phases, as set out in the Act. Ofcom expect the first new duties to take effect at the end of 2024.

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(Applicable to the UK)

Summary

European Commission 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

EU Member States have until 17-Oct-24 to transpose the Directive into national law.

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.

(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 to England and Wales)

Summary

The Act received Royal Assent in October 2023, with further regulations expected in 2024 to bring various aspects of the Act into force. The Act makes significant changes which affect the real estate sector including:-

Providing the Government with the power to require certain classes of information relating to (i) beneficial ownership, (ii) contractual control, and (iii) national security in England and Wales. The “contractual control” purpose relates to relevant contractual rights that arise under a contract, relate to the development, use or disposal of land in England & Wales, and are held for the purposes of an undertaking (which includes a business).

The proposed “contractual control” register would catch, for example option agreements, pre-emption agreements, conditional contracts and promotions agreements.

Following the passing of the Act the Government has opened a consultation on the proposed register of contractual controls together with draft regulations which would implement the regime.

Comment

At present the draft regulations are intended to apply to arrangements entered into after 6 April 2021, existing agreements varied to alter any of the specified information or assigned at any time after the commencement of the regulations.

Failure to comply will lead to criminal liability. Stakeholders should therefore follow the development of the regulations and may wish to submit their views to the consultation before it closes.

(Applicable to England and Wales)

Summary

New regulations have been made which will amend the Electronic Communications Code (Jurisdiction) Regulations 2017 (SI 2017/1284) from 6 April 2024.

These will give the First-tier Tribunal jurisdiction for all proceedings under the Code in relation to England and Wales.

These follow a range of amendments made to the Code in 2023, with further amendments expected to come in 2024.

Comment

Many Code cases are already being heard in the First-Tier Tribunal, so this change is unlikely to have a significant impact.

However, it follows a number of changes to the Code which were put into effect in 2023.

Further amendments also are forthcoming. A consultation on the implementation of modifications to the Code to allow operators to impose agreements on unresponsive land owners closed on 4 September 2023.

(Applicable to England and Wales)

Summary

The new guidance published by HMCTS is applicable from 22 May 2024 and covers small claims mediation and the requirement for parties to mediate in small claims.

For new claims made on paper and through the “legacy” systems, including Money Claims Online and for bulk customers who issue through Secure Data Transfer, mediation will become a requirement on 22 May 2024. This means most claims under £10,000 will be required to mediate first.

Comment

Once these changes have been introduced, eligible parties will automatically be referred to a free, one-hour mediation. Parties will be required to attend the mediation, but will not be required to reach a settlement.

(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 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 PSCs 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.

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(Applicable to England and Wales)

Summary

Non-mandatory guidance which is split into sections which 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 on of 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 (see Whole Year 2024 for further details) .

(Applicable to England and Wales)

Summary

Consultation to determine if, under Section A, auditors should move to a risk-based approach to identify laws and regulations with which non-compliance may have a material effect on both the financial statements and the work effort required. The FRC also proposed to replace Section B with a principles-based standard that will apply to public interest entities, introducing a new definition of reportable matters and a requirement that, if a reportable matter exists but no law, regulation or relevant ethical requirement is identified, the auditor must still consider whether the information is of such significance that it is in the public interest to report it to an appropriate authority.

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(Applicable to England and Wales)

Summary

A consultation with industry to seek evidence about the costs, benefits and practicalities of scope 3 GHG emissions reporting. Scope 3 emissions account for approx. 80-95% of total emissions at large organisations and reducing Scope 3 emissions can assist the UK to reach the Net Zero target by 2050. This call for evidence will also help inform the Government’s post-implementation review of SECR, due in 2024, and assist the Government to decide on the appropriateness of whether to include Scope 3 disclosures within the UK-endorsed version of IFRS S2. The call for evidence ran from 19 October 2023 to 14 December 2023.

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(Applicable to England and Wales)

Summary

Larger UK companies and LLPs currently provide a bi-annual report establishing their payment practice for payment of supplier invoices and performance data for the preceding year. These amendments will expand the scope to include proportion of invoices which are disputed, what percentage of payments were paid in specified time intervals (less than 30 days, 31-60 days, more than 61 days) and clearer instructions on how to report payments made via a third party ‘supply chain’ finance provider.

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(Applicable internationally)

Summary

 The new guidelines were published in April 2024. The Guidelines have been created to serve as a framework for companies to incorporate carbon credits into their climate strategies. The Guidelines advocate for the quantification and disclosure of emissions, the establishment of net zero pathways and the thoughtful selection of high-quality carbon credits. IETA supports the principle of moving towards a globally linked Greenhouse Gas (GHG) market.

Comment

The guidelines highlight that the Voluntary Carbon Market (VCM) is unregulated, and companies should consider further due diligence in selecting only high-quality carbon credits which meet specific quality standards.

IETA recommends procuring carbon credits that have been issued by a reputable, experienced carbon crediting programme and which have an independent, third-party ‘quality’ label.

(Applicable to England and Wales)

Summary

House of Lords Committee requested submissions for inquiry into the effectiveness of the Modern Slavery Act 2015. The call for submissions closed on 27 March 2024.

Comment

It is expected that the report on this topic will be issued by the Committee before 30 November 2024.

(Applicable to England and Wales)

Summary

In February 2024, new regulations were made relating to the commencement of certain provisions of the Economic Crime & Corporate Transparency Act 2015.

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(Applicable to England and Wales)

Summary

Ministerial review of call for evidence response and setting out next steps, including an updated NSI Section 3 statement on 21 May 2024, publish updated market guidance also on 21 May 2024, consult on updating the mandatory areas by Summer 2024, consider technical exemptions to the mandatory notification requirement (approx. Autumn 2024) and improve the operation of the NSI system.

(Applicable to England and Wales)

Summary

Model terms of reference for use by a sustainability or ESG committee, to be read in conjunction with other committee recommendations under the UK Corporate Governance Code.

Comment

This is a best practice recommendation.

(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.

(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. DESNZ 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.

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(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 England)

Summary

The Government has confirmed that a second staircase will be required for new residential buildings in England that are over 18 metres in height. This is subject to a 30-month transition period, meaning that it will come into force on 30 September 2026. Projects that receive building regulations approval prior to 30 September 2026 and are based on the old rules (without the second staircase requirement) will have to be “sufficiently progressed” by 30 March 2028. Compliance with the new rules will be checked as part of the fire safety review process for any higher-risk building (HRB) at both gateway one (planning) and gateway two (building regulations approval).

Comment

The new rules will come into force on 30 September 2026. Property developers will need to take note of this new fire safety requirement when building new residential buildings

(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

The UK Transition Plan Taskforce (TPT) published its final disclosure framework and implementation guidance on 9 October 2023. The framework is broadly aligned with international standards (IFRS S2) published in June 2023 by the International Sustainability Standard Board (ISSB). The TPT recommends that the transition plan should include disclosures on 19 topics across the following categories: foundation; implementation strategy; metrics and targets; and governance.

The TPT launched a “deep dive” consultation on 13 November 2023, which ended on 29 December 2023. The consultation sought views on TP guidance for the following seven sectors: asset managers, asset owners, banks, electric utilities, power generators, food and beverage, metals and mining, and oil and gas. The TPT published their final sector specific guidance for businesses on 9 April.

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(Applicable to the UK)

Summary

Legal complaint has been submitted to the interim Environmental Protection Assessor for Wales against Natural Resources Wales (NRW). Fish Legal has brought the complaint against NRW alleging that NRW has failed to deliver on its statutory responsibilities to protect the River Wye from agricultural pollution.

Comment

Example of action against the regulator, follows trend of increasing public law actions in relation to water pollution. Impact of such action on the approach of the regulator yet to be seen.

(Applicable to the UK)

Summary

Following the Government consultation concerning the reform of the Construction Industry Scheme (CIS), the Government will be amending areas regulating landlord contributions to works carried out by tenants. Under CIS, contributions to building works which are the responsibility of the landlord are within the scope of the scheme whereas as payments directly for the tenant’s benefit fall out of scope. The consultation revealed the line between the two is unclear especially when applying the definition of Reverse Premiums. In response to this, the Government has revealed plans to simplify the criteria for payments from landlords to tenants being excepted from the CIS.

Comment

The reforms aim to clarify when payments made by commercial landlords to tenants will be caught by CIS. When payments are covered under CIS, it may result in landlords having to withhold tax from the payment to the tenant and thus, the tenant does not receive the full amount expected. As the regulations seek to remove the majority of landlord to tenant payments from the scheme, this will reduce the number of arrangements which will suffer the tax implications of the CIS regime.

(Applicable to the UK)

Summary

The UK is taking rapid action on industrial decarbonisation to meet net zero. Carbon leakage is the movement of production and associated emissions from one country to another and can undermine efforts to reduce global emissions and limit global warming to 1.5°C. The UK Government therefore consulted on a range of potential domestic carbon leakage mitigation measures and has now published a summary of responses to the consultation. Further consultation titled “Introduction of a UK carbon border adjustment mechanism from January 2027” runs from 21 March 2024 to 13 June 2024.

Comment

Relevant to energy project developers importing goods into the UK. The EU introduced regulations in October 2023 and the UK is set to do the same in 2027, subject to further consultation in 2024 on the details of design and delivery.

(Applicable to the UK)

Summary

The Joint Contracts Tribunal publishes standard forms of building contract, the last suite being published in 2016. JCT announced that they will be issuing an updated suite in Spring 2024. The new suite will incorporate legislative changes since 2016 e.g. Building Safety Act 2020 and Corporate Insolvency and Governance Act 2020, as well as future-proofing the contracts to include provisions for collaborative working, sustainable development and environmental considerations. JCT are also adding a new contract to their suite which will be a target cost model.

Comment

Relevant to clients utilising the JCT suite of contracts. The target cost model has not previously been a feature in the JCT suite but clients will be familiar with the concept from the NEC suite. We will issue an update on the changes within the JCT 2024 to clients once the new contracts become available.

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(Applicable to England)

Summary

S.115 of the Levelling up and Regeneration Act 2023 (LURA) enacted 26 October 2023 has introduced changes to S.171B of the Town and Country Planning Act 1990 (TCPA).

From 25 April 2024 the time limits for enforcement of breach of planning control for operational development and change of use to a single dwelling house have been extended from four years to ten years in England. In Wales, the time limit for enforcement will still be four years.

These changes will not apply where the operational development or change of use to a dwelling was substantially completed before 25 April 2024.

Comment

It is important to keep these provisions in mind when undertaking planning due diligence and if relying on the regularisation of unauthorised development for the purposes of planning control. Please contact Foot Anstey’s planning and environment team if you have any questions.

(Applicable to Wales)

Summary

The Infrastructure Wales Bill 2023 was passed in the Senedd on 16 April 2024. The Bill intends to bring forth major changes to the legislative framework for planning in Wales, in order to make infrastructure consents more efficient by unifying the consenting process. The Bill introduces a new form of consent called ‘Infrastructure Consent’ which will be issued in relation to Significant Infrastructure Projects, including energy, transport, waste and water.

Two consultations on the Bill have been launched by the Senedd in relation to (i) the pre-application consultation procedure; and (ii) the fees for the consenting process.

Comment

It is yet to be seen when the Bill will come into effect. Foot Anstey will continue to monitor the Bill’s progress and the provisions.

(Applicable to Wales)

Summary

The Welsh Government proposes abolishing multiple dwellings relief (MDR) from 1 June 2024. The Consultation also invites views on abolishing the provisions on purchasing six or more dwellings in a single transaction if MDR was abolished, and extending LTT relief for social housing, which currently only applies to registered social landlords and local authorities buying property for social housing purposes. The Government is also interested in general views on LTT relief in Wales.

Comment

Whilst it remains to be seen what the response to the consultation will be, it is likely that the response to abolishing MDR will follow England’s changes to the SDLT regime. The abolishment of MDR in Wales may see a sharp increase in the number of transactions for two or more properties prior to 1 June 2024, though this will largely depend on other conditions in the market.

(Applicable to England)

Summary

In April 2024 the Planning Inspectorate launched the ‘Find a National Infrastructure Project’, providing information about Nationally Significant Infrastructure Projects (NSIPs). These large-scale projects include power stations, highways, and power lines.

The Planning Inspectorate, responsible for examining applications of this size in England and Wales, has ensured that the site allows users to navigate consistently through each stage of the NSIP process. Clients can register to become an interested party, search and access documents related to each project, and view other participants’ submissions.

Projects located partially or entirely in Wales transition onto the site in Summer 2024.

Comment

Clients who are interested in NSIPs can have their voice heard through this website. However, clients developing NSIPs should be aware of the increased spotlight this website shines on their NSIP and potential ancillary reporting requirements.

(Applicable to England)

Summary

The appellant sought a Certificate of Lawfulness of Proposed Use or Development (‘CLOPUD’) for “the hosting of up to 120 weddings per year” at a golf and country club. At the inquiry, the parties agreed an amended description to the use, which the PINS inspector considered that was narrower than that originally provided and reflected the proposal as described in the appellant’s evidence, in terms of precisely what was proposed within the barn. On the basis of the amended description, the council also confirmed that it would have granted a CLOPUD on those terms. The appeal was allowed, and highlights the importance of ensuring that the description in a CLOPUD is accurate and precise.

Comment

It is important for clients to carefully consider the description when drafting an application for a CLOPUD. It must be sufficiently accurate and precise for the applicant to obtain the correct permission.

(Applicable to England and Wales)

Summary

The Department for Levelling Up, Housing and Communities (DLUHC) conducted a consultation on changes to various permitted development rights, which ran from 13 February 2024 to 9 April 2024.

The Local Government Association (‘LGA’) has published its strong opposition to extending national permitted development rights further, as ‘there is no place in the current or future planning system for permitted development (‘PD’) rights,’ in particular those which permit the creation of new homes. A fully resourced and well-functioning planning system does not need this deregulated approach to development which undermines the Government’s own and local authorities’ planning policies and place-making ambitions. The LGA also believes that local Government will not be able to oversee the planning and delivery of the right homes in the right places if PD rights continue to undermine and override their decision-making powers.

Comment

We expect that the outcome to the consultation will be published later this year. Whilst the Government has yet to finalise its position, this strong opposition by the LGA will likely play a role in Government thinking. Clients who are relying on a change in the law for permitted development rights should be wary that it is unlikely that these rights would be extended further after the LGA’s response.

(Applicable to Wales)

Summary

The Building Safety Act 2022 (‘BSA’) applies to Wales as well as England, however it gives the Welsh Government (‘WG’) the power to implement a different regime. There are currently no official proposals, however Julie James (WG Minister for Climate Change) said in March 2024 that they will implement a phased introduction of changes in a suite of secondary legislation starting on 6 April 2024 for the purposes of transparency and accountability. The introduction is estimated to conclude in April 2025  A webpage has now been published collating its guidance for building control professionals which may provide some insight.

Comment

Those who feel they may be affected by the BSA legislation, either as tenants, building inspectors, freeholders or otherwise, will need to check which version of the Act will apply to them and when the relevant section will come into force to avoid being unaware of responsibilities under the Act or not enjoying the benefit of some protections.

Find out more about Building Safety

(Applicable to England and Wales)

Summary

The Leasehold and Freehold Reform Act 2024, which received Royal Assent on 24 May 2024, is intended to essentially overhaul the current complex leasehold system to improve consumer choice and fairness in leasehold. The Act is not yet in force, and will be commenced in due course by the Secretary of State via statutory instrument.

One part of the Act which may be of interest to businesses, are the reforms to collective enfranchisement of mixed-use buildings. These include raising the threshold for eligibility for collective freehold acquisition by leaseholders in mixed-use buildings from 25% to 50% non-residential space.

Comment

The Leasehold and Freehold Reform Act 2024 is part of a wider range of Government policy aimed at reforming Leaseholds and providing further protection for residential leaseholders.

Businesses should aim to keep up to date in developments in this area. Changes are likely to continue.

The Act is unlikely to take effect prior to the forthcoming general election on 4 July 2024.

(Applicable to England and Wales)

Summary

The Act received Royal Assent in October 2023, with further regulations expected in 2024 to bring various aspects of the Act into force. The Act makes significant changes which affect the real estate sector including:-

Providing the Government with the power to require certain classes of information relating to (i) beneficial ownership, (ii) contractual control, and (iii) national security in England and Wales.

The “contractual control” purpose relates to relevant contractual rights that arise under a contract, relate to the development, use or disposal of land in England & Wales, and are held for the purposes of an undertaking (which includes a business).

The proposed “contractual control” register would catch, for example option agreements, pre-emption agreements, conditional contracts, and promotions agreements.

Following the passing of the Act the Government opened a consultation on the proposed register of contractual controls together with draft regulations which would implement the regime. The consultation closed on 20 March 2024.

Comment

At present the draft regulations are intended to apply to arrangements entered into after 6 April 2021, existing agreements varied to alter any of the specified information or assigned at any time after the commencement of the regulations.

Failure to comply will lead to criminal liability.

The consultation is now closed, and its findings are awaited. Stakeholders should continue to follow the development of the regulations.

At present the regulations are expected to be implemented on 6 April 2026.

(Applicable to England)

Summary

In previous years, companies have been essentially prohibited from developing windfarm projects onshore in England due to a myriad of planning restrictions. This could be set to change in the coming year, in particular if the UK sees a change in its national government.

The Labour Party have previously promised to remove the obstructions for onshore windfarms and many commentators consider that an election may well bring a shift towards a Labour government. Future policy pledges on topics such as planning and renewables will be seen as election campaigning increases.

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(Applicable to England and Wales)

Summary

The Government has conducted a consultation with draft regulations on 24 January 2024 seeking views on the implications of collecting and publishing information on contractual control agreements. The Government is seeking to create a free of charge publicly available dataset which will aim to provide an accessible source of information for communities, developers and other stakeholders to understand controls on land. These contractual control agreements include option agreements, promotion agreements, pre-emption rights and conditional sale contracts relating to registered land in England and Wales. The consultation has been launched due to concerns that although the contractual control agreements may be protected on registered titles, they are not documented in a transparent manner.

Comment

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 parties and their advisers to correctly file information in line with regulations. The proposal is to include key information such as the type of agreement, the parties involved, the date of the agreement, territorial extent of the agreement, title numbers affected and solicitor regulation authority number for the solicitors involved in the transaction. Where information is not provided or false information is given knowingly or recklessly, this could constitute a criminal offence under the Levelling Up and Regeneration Act 2023 which carries a maximum of 2 years imprisonment and an unlimited fine. We await the government’s response to the consultation.

 

Summary

The appeal proposal was to replace 12 existing single glazed timber sash windows with double glazed alternatives in a Grade II listed building. The new units would be timber sash windows with the same glazing patterns as those they replaced but with slightly differently sized timber sections. They would include “slimlite” double glazed units with an overall thickness of 14 millimetres.  The new windows would prolong the life of the building and improve its thermal efficiency and current appearance. The inspector considered that these public benefits outweighed any harm caused by the differences between the existing windows and those proposed.

Comment

For developers who are seeking to improve insulation through new double glazed windows, it is important to note that the new design should improve thermal efficiency and prolong the building’s life for planning permission to be granted. It is also interesting to see the departure from the existing design of the listed building was approved in pursuit of increased longevity and sustainability of the building which shows how important current climate issues factor into planning, even here in terms of protected buildings.

(Applicable to England & Wales)

Summary

The Royal Institution of Chartered Surveyors (RICS) has announced the launch of the fully updated Rights of Light 3rd edition Professional Standard which becomes effective from 1 June 2024. This includes an appended Protocol for disputes relating to Rights of Light (Protocol).

Though not mandatory, the latest edition of the Protocol has been incorporated into the latest professional standard which shows its importance. The Protocol sets out clear guidelines of best practice parties are encouraged to follow to help to minimise the risk of disputes, and to enable any disputes which arise to be resolved promptly, keeping costs to a minimum.

Comment

The new Protocol sets out clearly a process for trying to avoid disputes and how disputes should be managed from the perspective of both developers and adjoining owners. Clear communication, and consideration of ADR is expected. It emphasises the need to take professional advice prior to proceeding with any of the steps in the Protocol.

It is hoped that the new Protocol will help to avoid disputes in this area which can become costly and complex.

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Summary

The Bill proposes to introduce changes to capital gains tax, multiple dwelling relief and social housing exemption.

(Applicable to England & Wales)

The introduction of this Bill has already brought in several changes to the tax regime for those dealing in property. Firstly, as of 6 April 2024, the higher rate of capital gains tax from disposals of residential property will reduce from 28% to 24% which may encourage property owners to consider selling up.  The Bill will also abolish multiple dwelling relief (‘MDR’) from 1 June 2024 which may see an increase in transactions for two or more properties prior to this deadline. Further, the Bill has introduced an exemption where social housing purchases have been made by registered providers from 6 March 2024, provided that at least part of the purchase has been funded by public subsidy. This measure is intended to support the government’s objectives on social housing by ensuring that public funds allocated to social housing are fully utilised for providing homes rather than paying SDLT charges.

Comment

The Bill has made a number of significant changes to the current SDLT regime to reflect current government objectives. To ensure there are enough homes available for purchasers, particularly first time buyers, it is hoped that those who own more than one property will be encouraged to sell to enjoy the CGT reduction, the MDR abolition will dissuade people/companies from buying multiple properties and the social housing relief will encourage new build development. It is hoped that this combination of measures will revive the housing market and provide more options for those looking to obtain their first home.

(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 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 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.

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(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 the UK)

Summary

The increase to the Immigration Health Surcharge (IHS) has been delayed and will now come 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:

  1. 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.
  2. Ensure these increased costs are factored into your budgets for 2024

Find out more

(Applicable to the UK)

Summary

Planned increases to the civil penalties for employers who employ illegal workers have been delayed and will come 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:

  1. Review existing right to work policies and ensure HR and recruitment teams are adequately trained to ensure compliance to avoid incurring fines.
  2. 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.

Find out more

(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:

  1. Keep up to date with the latest developments.
  2. 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.
  3. 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 recent 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 will have 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 to the UK)

Summary 

“Rolled up” holiday pay (calculated at the classic 12.07% rate) has returned as an option for holiday pay calculation for casual, irregular-hours and part-year workers. Rolled up pay will be available for leave years starting on or after 1 April 2024.

Types of payments that should be included in “normal rate of pay” when calculating holiday have been specified, for example payments related to the performance of tasks (including commission payments) and regular overtime should be included.

Automatic rights to carry-over of holiday for workers in certain situations e.g. inability to take holiday due to sickness and statutory family leave.

Working Time Regulations record keeping
Employers are required to keep “adequate” records of time worked by employees. This does not necessarily mean a full record of all daily working hours, but steps should be taken to ensure compliance with working time rules can be demonstrated.

Repeal of covid-19 carry-over regulations
Covid-era rules (introduced in 2020) surrounding the ability to carry-over annual leave have been repealed. Any accrued annual leave, carried over during the period since 2020 under the previous Covid legislation must be used by 31 March 2024 or it will be lost.

TUPE reforms
The requirement to elect employee representatives has been relaxed, meaning that employers can consult directly with their employees if there are no existing worker representatives in place for:

  • Employers with fewer than 50 employees.
  • Employers of any size involved in a transfer of fewer than ten employees (for transfers taking place on or after 1 July 2024).

Action points:

  1. Employers of casual, irregular, and part-year workers should carefully familiarise themselves with the holiday pay provisions. To assist with this, we outlined the key aspects and tips for preparing for the changes in our article and the Government has published guidance on the changes.
  2. Check that you are already correctly factoring the appropriate payments into your holiday pay calculations (e.g., to include commission, regular overtime, and shift allowances).
  3. Check that your WTR record keeping complies with the legislative requirements.
  4. Contract policies and procedures may need to be updated to provide for the changes. You may need to factor in time to consult about contractual changes.

Find out more

(Applicable to the UK)

Summary

From 1 April 2024 the National Living Wage (NLW) will increase to £11.44 for workers in the UK. In addition, the NLW will now be applicable for workers aged 21 and over (where previously it was only applicable to those aged 23 years and over).

The National Minimum Wage (NMW) will also be increased for younger workers as below:
• 18 – 20: £8.60
• 16 – 17 and apprentices: £6.40

Furthermore, the National Minimum Wage (Amendment) (No 2) Regulations 2023 remove an exemption to the NMW which enables domestic workers who live in their employer’s homes to be paid less than the NMW. The regulations come into force on 1 April 2024.

Action points:

Employers should conduct a review of the pay of their workers, including live-in domestic workers, in anticipation of the changes and put measures in place to ensure that workers are being paid the applicable rates when they come into force.

(Applicable to England, Wales and Scotland)

Summary

The draft Paternity Leave (Amendment) Regulations 2024 come into force on 8 March 2024. They propose the following changes to paternity leave:

  • Fathers (or partners) may choose to take two weeks’ paternity leave as two separate one-week blocks, rather than being limited to taking it in one block.
  • Reduction of the period of notice required for specifying the start date of the period of paternity leave and its duration, to 28 days.
  • Extension of the period when fathers (or partners) can take paternity leave to any time in the 52 weeks after birth or placement with the adopter.

The regulations are due to apply in respect of children whose expected week of birth, or expected placement for adoption, takes place on or after 6 April 2024.

Action points:

1. Policies and procedures will need to be updated to reflect the changes.
2. Be aware of the reduced notice period as this may tighten the timeframe for employers to organise any cover required whilst an employee takes paternity leave.

(Applicable to England, Wales and Scotland)

Summary

The Flexible Working (Amendment) Regulations 2023 are due to come into force 6 April 2024. The Regulations remove the requirement for an employee to have 26 weeks’ service in order to be able to make a request for flexible working. The right to request flexible working will become a “day one” right.

In addition, the Employment Relations (Flexible Working) Act 2023 is expected to come into force in July 2024. This new legislation will make changes to employees’ rights to request flexible working, so that:

  • There will no longer be a requirement for employees to support their request by outlining the effect it will have on the employer, and how the effect can be dealt with.
  • Employees can make two flexible working requests in any 12-month period (instead of one).
  • Employers will no longer be able to reject requests without consulting and exploring options with the relevant employee.
  • Employers will be required to respond to an employee’s flexible working request within two months (instead of three). However, the employer and employee can agree to a longer decision period if required.

Action points:

1. Policies and procedures will need to be updated to reflect the changes.
2. Be prepared to deal with flexible working requests from employees, from day one of their employment.
3. Plan for the tighter timeframe to respond to flexible working requests, and to be aware that you might see an increased number of requests.
4. Keep an eye out for the final version of the Acas Code of Practice on requests for flexible working, which will reflect the changes. A draft has been published here. It emphasises approaching flexible working requests positively.

(Applicable to England, Wales and Scotland (N.B. nuances apply for each jurisdiction))

Summary

The draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 propose to extend the period of special protection from redundancy for employees who are on maternity leave, adoption leave or shared parental leave. At present, those parents on such leave should be offered priority right of any suitable alternative employment available in a redundancy situation.

The draft regulations propose to extend the period of protection, such that:

  • For maternity leave, the protected period would run from pregnancy through to 18 months from the first day of the expected week of childbirth (or 18 months from actual date of birth where the employee gives notice of this date before the end of maternity leave).
  • For employees who have suffered a miscarriage before 24 weeks of pregnancy, the protected period would run from pregnancy through to two weeks after the end of pregnancy (after 24 weeks an employee would be entitled to maternity leave).
  • For adoption leave, the protected period would run from 18 months from placement for adoption.
  • For shared parental leave, the protected period would run from 18 months from birth, subject to the parents having taken a minimum of 6 consecutive weeks shared parental leave and not being protected under pregnancy, maternity, or adoption protection above.

This extended protection would apply to pregnancies that the employer is informed of on, or after 6 April 2024, any maternity or adoption leave ending on, or after 6 April 2024 and any shared parental leave starting on or after 6 April 2024.

Action points:

1. Be aware that these changes are likely to come (in April 2024) in when planning for future restructures and providing training for those who deal with redundancies.
2. There is nothing requiring you to mention the protected period and redundancy in your policies, but you could choose to do so if you wished.
3. Consider whether your HR records will enable you to identify those who are entitled to special protection. E.g:

  • Identifying who has taken 6 weeks or more shared parental leave.
  • Identifying whether you know the date of birth of a child of a parent who has taken maternity leave.
  • Identifying expected dates and dates of miscarriage.

(Applicable to England, Wales and Scotland)

Summary

The draft Carer’s Leave Regulations 2024 are due to come into effect on 6 April 2024. The regulations make provision for a statutory right to one week’s unpaid leave per year for employees providing or arranging care for a dependant with a long-term care need. There is no minimum service requirement to qualify for this right.

Action points:

1. A new policy will be needed.
2. This new right will also need to be cross referenced in other relevant policies (e.g., time off for dependents). It may be sensible to have emergency time off and carers’ leave referred to in one section together given how closely interrelated they will be.
3. Uptake of this new right is likely to be limited given the leave is unpaid – Carers UK are encouraging employers to consider voluntarily making this right a paid one.

(Applicable to the UK)

Summary

The Government has recently announced a five-point plan to cut migration levels and curb abuse of the immigration system. The Government has stated that these new measures will take effect from Spring 2024 and include:

  • Increases to the minimum salary for skilled worker visa applications from £26,200 to £38,700.
  • An overhaul of the shortage occupation list.
  • A review of the graduate visa.
  • A new ban on health and care workers bringing family dependants with them to the UK.
  • Increases to the minimum threshold maintenance level for family visas.

Action points:

1. Familiarise yourself with the planned changes. To assist with this, we’ve prepared an article outlining the changes as initially announced here. We will be posting further updates as and when they become available to assist you with staying up to date.

2. For now, consider how these planned changes may impact on your ability to source skills from overseas and any measures you may take to mitigate the impact. Please get in touch if you require any advice or guidance on understanding the changes and mitigating the impact.

Summary

In May 2023, the Government confirmed plans to limit non-compete clauses (which seek to prevent an employee working in competition with the business for a period of time after they have left), to 3 months. However, the Government has not confirmed when this intended legislation will be drafted or come into effect.

Action points

  1. Although the timescale for these changes is unclear, it is sensible to look now at your current restrictive covenants and notice/garden leave clauses so that you are ready for when this change does come into effect.
  2. There is no detail yet on what the impact would be on existing longer non-compete clauses in contracts, but it would be sensible to ensure (particularly in new contracts for new staff or promotions) that your non-solicit and non-dealing clauses may provide sufficient cover should any non-compete over 3 months later become unenforceable.

(Applicable to England, Wales and Scotland)

Summary

The Employment (Allocation of Tips) Act 2023 will require employers to:

  • Fairly allocate “qualifying” tips to workers.
  • Make payment of such tips to workers in full within one month of payment from the customer.
  • Make no deductions from such tips other that those required by law. Contractual terms allowing other deductions from tips will be of no effect. Employers will no longer be able to make deductions to reflect card processing charges.
  • Have a written policy that sets out how such tips are dealt with and maintain records of such tips and their allocation for three years (where tips are paid on more than an occasional or exceptional basis).

The Government has published a consultation on a draft statutory code of practice to support the measures. Employers will be required to have regard to the code when designing and implementing their tipping policies and practices.

The Government’s aim is for the full measures of the Act and the Code to come into force to come into force on 1 July 2024.

Action points:

1. For businesses where part of the business regularly receives tips, you will need a new policy and procedures to ensure that you have adequate measures for calculating the allocation of tips and recording those calculations.
2. Payroll teams will need to be trained on the new requirements and procedures in place to ensure that payment of such tips are made within the one-month timescale.
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 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.

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

  1. A new policy will be needed covering the rules relating to this new leave and pay when they are clarified.
  2. This new right will also need to be cross referenced in other relevant family-leave policies.
  3. Consider whether you will enhance pay for leave of this kind.

(Applicable to the UK)

Summary

The Economic Crime and Corporate Transparency Act 2023 (section 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.

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(Applicable to the UK)

Summary

ASOS, Boohoo and George at Asda have signed formal agreements with the CMA which set rules around how they can use green claims. The retailers have provided undertakings to the CMA not to make misleading green claims in relation to their sales and marketing.

The agreed rules cover matters including green claims, intelligibility of information around sustainability to customers, statements about fabrics (e.g., where these are stated to be “eco” or “sustainable”); the use of “natural” imagery, product filters, environmental targets, environmental/ sustainability accreditation schemes.

The undertakings and agreements were provided by the retailers voluntarily, but are a result of a CMA investigation launched in January 2022 of green claims in the fashion retail sector.

Together with the announcement that ASOS, Boohoo and George at Asda had provided such undertakings, the CMA published an open letter which called businesses in the fashion retail sector to action, specifically to familiarise themselves with the CMA’s Green Claims Code and to comply with consumer protection law.

Comment

This represents a trend in CMA scrutiny and actions taken against green claims made by companies.

(Applicable to England)

Summary

The next reporting deadline for businesses within scope of the extended producer responsbility (EPR) scheme for packaging is 1 April 2024 for data collected between July 2023 to December 2023. The EPR scheme itself has been delayed until October 2025 but it is expected further information will be provided in 2024.

Comment

Despite the delay to the scheme, those within the scope of the EPR scheme must continue to collect and report their data to maintain compliant.

(Applicable to Wales)

Summary

New Welsh regulations came into force in Wales on 6 April 2024 which intend to reform workplace recycling in Wales including:

  • Requirements for the separate collection of waste from non-domestic premises (including businesses, charities, and public sector bodies).
  • Extension of the prohibition on the incineration and landfilling of certain recyclable materials and a landfill ban on all wood waste.
  • Enforcement provisions in relation to the ban on the disposal of food waste to sewer from non-domestic premises.

The new regulations provide for civil sanctions in relation to specified criminal offences.

Comment

The new recycling regulations represent the Welsh Government’s commitment to their net-zero target and carbon neutrality.

As a result, from 6 April 2024, all businesses, charities, and public sector organisations in Wales will be under a legal obligation to comply with recycling requirements.

The Welsh Government guidance specifies that the following materials will need to be separately collected:

  • Food;
  • Paper and card;
  • Glass;
  • Metal, plastic, and cartons;
  • Unsold textiles;
  • Unsold small waste electrical and electronic equipment (WEEE).

In-scope organisations will also be prohibited from:

  • Sending food waste to sewer (any amount);
  • Separately collected waste going to incineration and landfill;
  • All wood waste going to landfill.

(Applicable to the UK)

Summary

The modern slavery statement registry was established in March 2021 in response to a government consultation on transparency in supply chains and aims to increase compliance with the Act by building a centralised online registry where modern slavery statements are stored together in one place for anyone to read. Recent updates have been made to the registry as part of the Government’s renewed focus on tackling modern slavery, which includes establishing a House of Lords Select Committee to assess the effectiveness of the Modern Slavery Act 2015 (the “Act”).

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(Applicable to the UK)

Summary

From 1 June 2024, the Environment Agency may commence enforcement action against companies who fail to comply with their packaging data reporting requirements.

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(Applicable to the UK)

Summary

Now that the deadline of 6 April 2024 has passed, the transitional period has ended, and it is no longer possible to issue an initial notice to stay within the old regime. In essence this means that projects involving Higher-Risk Buildings (HRB) are now subject to the more rigorous building control regime.

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(Applicable to the UK)

Summary

In April 2024, HSE updated its Report of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) guidance including further details on who should report under RIDDOR and whether the incident is reportable.

Comment

Businesses should take note of the guidance, found on the HSE website.

(Applicable to the UK)

Summary

The draft Terrorism (Protection of Premises) Bill was published on 2 May 2023. A research briefing on the Bill was published on 16 October 2023. Martyn’s Law will introduce a ‘protect duty’ on the operators of premises and events that attracted a significant number of people, to identify and mitigate the threat posed by terrorist activity.

Comment

A consultation on the Bill was published by the government on 5 February 2024 and ran until 18 March 2024. The outcome to the consultation is expected later this year.

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(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

DEFRA published the Notice of designation of sensitive catchment areas 2024 which designated 19 major catchment areas as sensitive for phosphorus or nitrogen where a protected habitats site in England is considered to be in an unfavourable condition due to pollution from one or both of those nutrients in water. The 19 major sensitive catchment areas are a combination of Special Areas of Conservation (SACs), Special Protection Areas (SPAs), Sites of Special Scientific Interest (SSSIs) and Ramsar sites. In the designated catchment areas, water companies have a duty to ensure wastewater treatment works (WwTW) serving a population equivalent over 2,000 meet specified nutrient removal standards by 1 April 2030.

Limited WwTW exemptions will be confirmed 1 April 2024. This may affect the levels of nutrient mitigation that development must secure for specific WwTWs in some catchments.

Comment

Any water companies operating WwTWs in the catchment areas will have a duty to ensure they are compliant by 1 April 2030. Limited exemptions will be confirmed 1 April 2024

(Applicable to England)

Summary

The House of Commons Research Briefing dated 20 May 2024 discusses the use of agricultural land for solar farms and includes commentary from renewable energy groups, environment protection groups and the National Farmers Union (NFU).

The Government aims to achieve 70 gigawatt (GW) of solar power by 2035 and as such have declared that the development of low-carbon infrastructure, such as solar farms, is a priority, although it continues to advise that solar farms should be developed on non-agricultural land.

There are concerns however, that farmland is often chosen over other locations for solar farm developments despite there being a need to preserve agricultural land for food production. Some renewable energy groups have argued that farm land can be used for agrivoltaics (the multifunctional use of solar power and agricultural production). The NFU have expressed their support for muti-purpose land use.

Comment

To meet the Government’s target of 70 GW of solar power by 2035, an estimated 180,000 hectares or 1,800 square kilometres of land in England would be required. The University of Sheffield, Open Climate Fix and Exawatt have found that over half of Grade 1 and Grade 2 Agricultural Land were suitable for solar farms based on the ease of gaining a grid connection. In order to meet the Government’s target, there may need be a more positive shift in attitude towards using farmland for solar farms in future.

(Applicable to England)

Summary

The Government has issued new guidance published on 6 March 2024 to address water scarcity in Cambridge. Cambridge Water are to act as the trailblazer for the Government’s ‘supply-demand balance assessments for AWRMPs’ (Agricultural Water Resource Management Plans) and Local Resource Options (LRO) screening studies projects.

Supply-demand assessments will assess current and future agricultural water demands in comparison with licence constrained supplies and in the context of water resources availability for all sectors.

LRO screening studies are targeted projects to support farmer-led groups to identify local water resource schemes, such as multi-farm reservoirs or aquifer recharge schemes, which will ensure the resilience of the water supply for agriculture in a local area.

The Government are also introducing a pilot scheme to be rolled out in Cambridge where developers can offset their development through the purchase and sale of water credits to ensure they have a neutral impact on water scarcity within Cambridge. Initial credits will be supplied by retrofitted household and non-household properties in Cambridge, with any property owners meeting the market requirements for retrofits able to supply the market in future. Developers will be expected to increase levels of water efficiency and reuse (where possible), with the remaining water that cannot be reduced, offset through the purchase of credits. Water savings provided through retrofits will be monitored and assured, using water company metering data and assured through the EA and the market operator.

Comment

Depending on the success of the pilot scheme in Cambridge, further pilot schemes may be introduced across the country. Foot Anstey will continue to keep track of any further developments in this regard.

(Applicable to England)

Summary

On 9 May 2024, the OEP published a report on its review of how the Department for Environment, Food and Rural Affairs (DEFRA) and the Environment Agency (EA) have implemented the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (SI 2017/407) (WFD Regulations) through river basin management plans (RBMPs) in England. The report was also presented to Parliament. The report found that although the ‘fundamental structure and approach’ of the WFD Regulations are ‘fit for purpose,’ there are issues in implementing the Regulations effectively.

Comment

The OEP have made a number of recommendations, including that the Government identify additional specific measures with committed funding in order to reach their environmental objectives by 2027. They have also recommended that they keep the underlying structure and approach of the WFD Regulations and improve the regime without lowering levels of protection. The report has also identified areas where DEFRA and the EA may not have complied with the Regulations. For example, in justifying approved exemptions from the environmental objectives and failures with public participation and consultation.

(Applicable to England)

Summary

The Code of Good Practice (the ‘Code’) is a voluntary code with cross-sectoral support, and which is designed to provide minimum standards expected of landlords, tenants and their professional advisers to improve industry standards on three key principles, clarity, communication and collaboration, in a number of areas including for: tenancy agreements, new opportunities and schemes, disputes, and the role of professional advisers and agents.

Comment

The Code provides useful guidance for landlords and tenants and can be used to resolve otherwise serious differences of opinion between parties. However, it is important to note that this Code is non-binding, and that landlords and tenants remain bound by the terms of their tenancy agreements and must work within an existing framework of law and regulation. If any of the issues within the guidance arise, clients should still seek legal advice to adequately address the issue.

Note: The Horizon Scanner is up-to-date as of June 20 2024 and is updated at regular intervals throughout the year. 

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