Utilities & Infrastructure

(Applicable UK-Wide)

Summary

In this quarter, Paolo Sbuttoni (Partner) and Oliver Toomey (Associate)in Foot Anstey’s Data team, gave Energy Knowledge Institute their latest view of the role artificial intelligence currently plays in the energy sector.

Comment

An excerpt from their analysis can be found below:

The opportunities offered by artificial intelligence (AI) are vast, with potential to transform the energy sector, in terms of infrastructure and operational performance, on the road to net zero.

However, businesses will need to manage the risks to reap the rewards. Utilised effectively, powerful AI systems have the potential to transform the energy and infrastructure sector. New models can boost business efficiencies, enhance grid stability and speed up the transition to green technologies. However, many businesses in the sector are still grappling with how to unleash the huge opportunities of AI in a cost-effective, risk-managed way.

The risks cannot be understated, particularly as the European Union (EU) has just imposed far-reaching legislation to control firms using AI systems, and specifically those environments defined as ‘high-risk’, which include energy and utilities. In light of this, solid AI and data governance, regulatory awareness and savvy contract negotiations will all be crucial to reaping the full rewards of groundbreaking AI applications.

(Applicable UK-Wide)

Summary

The DUA Bill is currently at its Report Stage in the House of Lords. It introduces a statutory framework for mapping underground pipes and cables via the National Underground Asset Register (NUAR).

Comment

This framework will create a real-time, centralised data base of underground infrastructure, compared to the current time-intensive system which requires six days following each request for underground asset information to be obtained. NUAR would make data available instantly; avoiding delays and inefficiencies in construction projects, reducing the risk of accidental strikes on underground pipes and cables, and ensuring better resource allocation between stakeholders.

(Applicable UK-Wide)

Summary

The Digital Markets, Competition and Consumers Act 2024 (“DMCCA”) received Royal Assent in May 2024 and the new regime for merger control, digital markets and investigation process came into force on 1 January 2025.

Comment

The DMCCA establishes a new pro-competition regime for digital markets by giving the CMA the power to designate undertakings as having strategic market status in respect of a digital activity. The CMA will be able to impose conduct requirements on designated undertakings and, following investigation, make pro-competition interventions. Further, the DMCCA amends aspects of the mergers, markets and antitrust regimes whilst also providing for co-operation with overseas regulators, disclosing information overseas and a duty of expedition.

To find out more, please see our article: UK Government Draft Bill Proposes Significant Reforms for Consumer Protection and the Digital Sector | Foot Anstey

Update (January 2025)

The CMA has launched a consultation on draft guidance regarding the unfair commercial practices provisions in the DMCCA 2024, which will revoke and replace the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 (CPUTR 2008). The draft guidance aims to illustrate how these provisions apply in practice and assist traders in compliance. The CMA has also launched a consultation on draft guidance outlining its enforcement powers and role related to consumer protection. The proposed guidance aims to update and replace the current consumer protection enforcement guidance: CMA58.

The consultation will close on 22 January 2025.

(Applicable UK-Wide)

Summary

The Act makes companies that operate a wide range of online services legally responsible for keeping people, especially children, safe online. Ofcom will give guidance and set out codes of practice on how in-scope companies can comply with their duties in three phases, as set out in the Act.

Comment

To find out more, please see our article: The Online Safety Bill – An overhaul to the rules on marketing to children online | Foot Anstey

Update (January 2025)

A new phase of implementation under this Act commenced in December 2024. Alongside this, the Illegal Harms Codes of Practice and illegal content risk assessment guidance was also published in December 2024. This will require all in-scope providers to begin assessing the risks of illegal content appearing on their platforms from December 2024. Following this, in-scope providers are required to disclose a risk assessment from 31 March 2025.

(Applicable to England and Wales)

Summary

A large group of claimants representing over 2000 individuals put forth a claim against The Shell Petroleum Development Company of Nigeria for environmental damage caused by oil spills in the Niger Delta. As the claimants were unable to pinpoint specific instances of oil spills in making their claim, the High Court had ruled that the Claimants could not make their claim as proposed, by identifying a lead claimant. However, the Court of Appeal has now overturned this ruling. Should this ruling stand, the finding that such an inability (to identify specific instances of loss-causing pollution) will not preclude group environmental actions led by a lead claimant will set a significant precedent in environmental litigation going forward.

Comment

There is a likelihood that this decision will be appealed – we will provide an update when one becomes available.

(Applicable to England)

Summary

Ofwat confirmed that the UK Thames Water breached obligations under its licence condition P30, relating to the £195.8 million paid in dividends in October 2023 and March 2024 to shareholders. As a consequence, Ofwat has fined the UK’s largest water provider £18.2 million and will claw back £131 million in unjustified dividend payments, using price control, to ensure customers to not lose out on tax benefits.

Comment

This is the first time Ofwat has used its enforcement powers to ensure that water companies link shareholder dividend payments to the performance of the company, following the introduction of these powers in May 2023. In making this determination Ofwat has sent a clear message by demonstrating that action will be taken against companies where money is taken out of regulated businesses without merit.

(Applicable to England and Wales)

Summary

The “Shareholder Rule”, a principle established by a long line of previous English case law, states that a company cannot assert privilege against its own shareholders (except where privilege is claimed over documents which would not have been precipitated if not for adverse litigation with the same shareholder) in declining to disclose requested documents. On 27 November 2024, the judgment handed down by Picken J in Aabar Holdings S.à.r.l. v Glencore Plc & Others [2024] EWHC 3046 (Comm) decisively overturned this principle. This decision arose in the context of ongoing litigation between various claimant groups and Glencore plc around alleged misconduct by subsidiaries in several African and South American countries, in breach of S90 and 90A of the Financial Services and Markets Act 2000 .

Comment

The implications of this decision could reshare shareholder disputes and lead to Claimant shareholders obtaining disclosure of key documents in other realms of litigation. It will be interesting to see if a higher Court reaffirms this principle.

(Applicable to the UK)

Summary

On 2 December 2024, the new Supreme Court Rules (“SCR”), as formalised through the passing of a  statutory instrument, came into force.

Comment

The main aims of the changes made by the SCR are to:

• introduce a new Supreme Court case management portal whereby parties interact with the Registrar of the Court and each other;
• to incorporate the greater use of electronic documents, as most notably prompted by the COVID-19 pandemic; and
• to address issues which had arisen under the previous Rules.

(Applicable to England and Wales)

Summary

The Building Safety Act 2022 (BSA) significantly reformed building safety regulations by giving qualifying residential leaseholders extensive protection from the costs of remedying building safety defects and by improving the safety framework for homebuilders.

This case concerned remedial works to the facade of a mixed-use block of 32 flats. The landlord applied for dispensation from the need to consult, which was opposed by the leaseholders. On appeal following the First Tier Tribunal’s (FTT) initial decision, the Upper Tribunal found that the BSA provisions regarding the ability of the landlord to recover costs from qualifying leaseholders had not been taken into account by the FTT and this constituted an error of law.

Comment

This early post-BSA case demonstrates that the Courts are still adapting to the new regimes instituted by the BSA. It underlines the importance of all stakeholders ensuring that their approach to remediation matters, regardless of their role in the process, fully accounts for all BSA rules in force.

(Applicable to England and Wales)

Summary

This appeal decision in the Upper Tribunal (UT) considered whether two agreements relating to the installation and operation of telecommunications equipment were leases or licences. This would affect whether the agreements were subject to the Telecommunications Code in Schedule 2 to the Telecommunications Act 1984, also known as “the old code”. The telecommunications apparatus under each agreement were kept in high fenced, padlocked compounds.

The UT referred to Street v Mountford in assessing whether the agreements were leases, specifically by considering whether the agreements granted exclusive possession, for a term, at a rent. In its considerations, the UT highlighted that the occupier was the sole occupant of the land and that the agreements referred to successors in title.

Regarding the later agreement, neither the rent nor the term were in dispute, but the element of exclusive possession was. For the earlier agreement, the rent was not in dispute, but both the requirements for term and exclusive possession were.

The UT concluded that exclusive possession was present in both instances although ultimately only the later agreement was held to be a lease, as the term was uncertain for the earlier agreement.

Comment

This recent leading case provides detailed input into the distinctions between a lease and a licence. In particular, in making this determination, consideration should be placed into how certain a term must be in order for the agreement to fulfil the requirements of a lease – in this instance, a 10-year “minimum term” continuing thereafter subject to 12 months’ notice to terminate at any time by either party was held to be insufficiently certain to grant a lease. This case is a strong reminder that a label attached to an agreement may be indicative of the type of agreement it is (and, therefore, what legal principles apply), however it is in no way determinative. The normal principles of construction and business common sense will also apply and agreements should be reviewed in their entirety and a view formed on the agreement as a whole.

(Applicable to England and Wales)

Summary

In August 2023 a class action lawsuit was brought under the Consumer Rights Act 2015 against Severn Trent for its alleged breach of environmental obligations. The claim is brought in the Competition Appeals Tribunal (CAT) and the claim value is £330m. The claimant, Professor Carolyn Roberts (represented by Leigh Day), accuses Severn Trent of under-reporting sewage spills and overcharging customers.

Specifically, the accusation is that the company have misled regulators about the number of sewage discharges, this should have led to more penalties paid by the company and reduced customer bills (because the company had not meet their environmental targets), therefore, it is claimed that Severn Trent unfairly overcharged customers by under-reporting sewage spills.

Although the claim is currently only brought against Severn Trent, the claimant has indicated an intention to bring further claims against several other water companies.

Comment

This claim is likely to be of relevance to utilities companies and their competitors. It remains to be seen whether the claimant will widen the scope of their claim to include other companies, however, the fact of this claim alone will be of significance to our utilities clients and competitors.

(Applicable to England and Wales)

Summary

This High Court ruling dated 26 March 2024 impacts the validity of ‘secret-commission’ claims against energy brokers

The High Court has held, among other things, that the scope of a broker’s fiduciary duty does not extend to an obligation to disclose the amount of commission in a “half secret” commission claim. However, the judge accepted that different facts may produce different results, for example where the claimant was unsophisticated or vulnerable or it could not have ascertained the amount upon enquiry.

Comment

In this instance, there was equality of bargaining power, the claimant had the opportunity to enquire about the commission amount and there was no evidence that the rate was not a customary rate of reward in the energy market. Even if the judge was wrong, he concluded obiter that the claimant had given informed consent. In fact, adding commission to the unit price was a known industry practice which, to the extent it reflected trade usage and custom, obviated the need for informed consent. The judgment clearly impacts on the validity of future ‘secret-commission’ claims, which are often brough at volume against brokers via template claims.

(Applicable England & Wales)

Summary

On Friday 24 May 2024, judgment was handed down by Foxton J in Gordiy v Dorofejeva & another [2024] EWHC 1273 (Comm).   The underlying claim (concerning an abortive share purchase agreement) was valued at £650,000 to £900,000 and issued in the Commercial Court by a litigant in person.

Comment

The Court warned legal practitioners that claims valued under £1 million should not be commenced in the Commercial Court. The Judge commented that the commencement and/or continuation of proceedings in the correct court is equally the responsibility of all parties. Where judges discover that hearings have been listed in cases inappropriately commenced in the Commercial Court, those cases will be transferred out.

(Applicable England and Wales)

Summary

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

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

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

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

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

Comment

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

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

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

(Applicable UK-Wide)

Summary

Companies House published a new policy on 27 September 2024 outlining its new and enhanced enforcement powers following the changes set out under the Economic Crime and Corporate Transparency Act 2023. The enforcement policy sets out the powers that Companies House will now use in order to administer several options regarding enforcement, including its approach to levying and imposing financial penalties, seeking court orders to secure compliance, launching criminal proceedings, and seeking director disqualification orders.

Comment

Companies House will also work with enforcement partners, such as the Insolvency Service and the Department for Business & Trade, to share intelligence, refer cases, and promote enforcement action where appropriate.

(Applicable UK-Wide)

Summary

The Government published regulations that will establish a new corporate criminal offence of failure to prevent fraud, which will be effective from 1 September 2025. The Economic Crime and Corporate Transparency Act 2023 sets out the new offence and imposes automatic lability on companies if members of the organisation participate in activities which are fraudulent in nature.

Comment

On 6 November 2024, the Home Office published its guidance on the ‘Failure to Prevent Fraud’ offence. Consequently, following the 9-month implementation period, the Failure to Prevent Fraud Offence will come into force on 1 September 2025. From that point, large organisations can be liable for up to an unlimited fine if they benefit (or are intended to benefit) from the fraud of an “associated person”.

For further information on this topic, please see our article Failure to Prevent Fraud Offence – Home Office Guidance Update | Foot Anstey.

(Applicable UK-Wide)

Summary

On 16 September 2024, the government issued its response to the House of Lords Committee report following the inquiry into the effectiveness of the Modern Slavery Act 2015.

 Comment

This Committee report recommends the introduction of new measures including:

• New legislation requiring companies to conduct modern slavery due diligence in their supply chains;
• The implementation of laws to ban goods with clear ties to modern slavery from being brought to the UK;

The introduction of sanctions for organisations that do not comply with supply chain reporting requirements.

(Applicable to the UK and EU)

Summary

The EU have demonstrated their commitment to removing forced labour from the supply chain by adopting a new regulation which prohibits the placing and making available on the EU market, or the export from the EU market, of any product made using forced labour. The new regulation was adopted on 19 November 2024 and will enter into force on the day following its publication in the Official Journal of the European Union and will apply three years after the date of entry into force.

The House of Lords committee on the Modern Slavery Act 2015 has also recommended UK legislation to strengthen obligations around conducting modern slavery due diligence in the supply chain.

Comment

As a result, businesses should consider strengthening their supply chain due diligence measures to get ahead of upcoming legislative change and to demonstrate a commitment to ESG matters more broadly.

(Applicable UK-Wide)

Summary

In a consultation which closed on 28 October 2024. the Financial Reporting Council (FRC) sought views on its proposals for revised Guidance on the Going Concern Basis of Accounting and Related Reporting, including Solvency and Liquidity Risks (the Guidance).

Comment

The Guidance is non-mandatory and aims to provide proportionate and practical guidance to all UK companies within its scope. The final Guidance is expected to be published in early 2025.

(Applicable to England and Wales)

Summary

The Department of Business & Trade (DBT) has updated its published guidance for reporting on payment practices and performance.

The key amendments are:

• an update to the meaning of “balance sheet” to determine whether a company/LLP exceeds two or all of the thresholds for qualifying as a medium-sized company under section 465(3) of the Companies Act 2006;
• further guidance in relation to the additional reporting requirements introduced by the Reporting on Payment Practices and Performance (Amendment) Regulations 2024;
• examples and further guidance on the phrase “receipt of invoice”; and
• further guidance on reporting statistics where supply-chain finance applies.

Comment

These new requirements will apply in relation to each financial year of a company beginning on or after 1 January 2025, relating to the sum total of payments made during the reporting period and the percentage of payments that were paid during the reporting period which were not paid within agreed terms because of a dispute.

(Applicable UK-Wide)

Summary

The Financial Reporting Council (FRC) published its consultation on the changes to its Stewardship Code on 11 November 2024, requesting responses by 19 February 2025.

Comment

The aim of this consultation is to assist the effective disclosure and stewardship practices to enable accurate investor reporting which will be assessed by the FRC as an independent and impartial body.

(Applicable UK-Wide)

Summary

The Digital Information and Smart Data Bill, which is currently at committee stage in the House of Lords, is intended to permit the establishment of a National Underground Asset Register, which will allow planners and excavators to access data regarding the installation and maintenance of underground pipes and cabling.

Comment

The Digital Information and Smart Data Bill will look to implement certain provisions of the previous Government’s failed Data Protection and Digital Information Bill. The form of the smart data proposals is yet to be established however the creation of a digital map for maintenance of underground networks of pipes and cables could prove a useful tool for the construction and utility sectors.

(Applicable UK-Wide)

Summary

This Bill, which was announced in the King’s speech on 17 July 2024, is intended to streamline critical infrastructure project delivery by simplifying the consenting process for large infrastructure projects. It is intended to introduce new National Policy Statements with a review process every five years. The Bill will also aim to reform the compulsory purchase compensation rules.

(Applicable England & Wales)

Summary

Coming into force on 09 December 2024.

Under the 2024 Order:

Fees for HM Land Registry information services will increase by £4 per application (Parts 2 and 3 of Schedule 3).

The definition of “electronic means” (in Article 1(1)) has been updated to exclude email, which will result in higher fees for applications submitted via email. This is subject to an exception for applications made under rule 140 of the Land Registration Rules 2003, which continue to qualify for the lower fee.

Comment

It is important for clients to be aware of changes in prices as a result of these new rules. General paper based applications have increased to £6 for searches and £5 for official copies, to incentivise and reduce reliance on paper being used and sent.

(Applicable to England)

Summary

On 3^rd October 2024, the Ministry of Housing, Communities and Local Government published new guidance setting out in detail the compulsory purchase process and compensation rules in England. The guidance explains the process and procedural requirements as well as providing advice on the exercise of compulsory purchase powers. The guidance was published together with a model compensation claim form which sets out the information to be included when making a claim for compensation and guidance notes on filling out the form.

Comment

Related guidance has also been published on the following topics:

• Crichel Down Rules;
• Purchase notices;
• Compulsory purchase: Rates of interest;
• Compulsory purchase compensation: Power to remove hope value.

(Applicable UK-Wide)

Summary

The Labour government have pledged to take various actions to ensure that the planning system supports public and private investment into infrastructure. This includes implementing legislative changes through the Planning and Infrastructure Bill to be introduced in early 2025. In terms of financial commitment, the Government are attributing £5 million to deliver improvements to the planning regime for Nationally Significant Infrastructure Projects, £46 million to boost capacity and capability in local planning authorities, and £70 million in 2025-26 to support infrastructure and housing development.

Comment

Foot Anstey will continue to monitor this topic and provide further comment around relevant future developments.

(Applicable to England)

Summary

The working paper on brownfield development was published on 27 September 2024, and the working paper on development and nature recovery was published on 15 December 2024.

Collectively, these working papers constituted the Government’s informal consultation on the following key strategies:

1. Setting markers of suitability (markers linked to the scale and type of proposed development have been initially proposed) for brownfield land development, and stating a corresponding position that, by default, proposed developments with these markers of suitability will see planning approval.
2. In some cases, setting location-specific expectations for development – for example, mandating that development should be at least four storeys in settlements with a high level of accessibility.
3. Moving away from environmental mitigation action linked to discrete development projects, and instead shifting to a macro, strategy-led approach to creating positive environmental impacts alongside development.
4. Placing more responsibility for planning and implementing actions with positive environmental impacts on the Government, specifically through allowing for a single public body to consider and secure funding for actions which address environmental impacts in deemed subsets (for instance, residential projects in a certain area for a certain period).

Comment

These proposals signify likely key features of the Government’s upcoming Planning and Infrastructure Bill, which is due to be presented in early 2025.

(Applicable to Wales)

Summary

This guidance explains in detail the required procedures for obtaining approval in respect of Developments of National Significance (DNS) in Wales. This process will need to be undergone in respect of the following types of proposed developments in Wales:

1. The construction of any electricity generating station with an installed generating capacity of between 10 and 350 megawatts;
2. Development relating to the transfer of water resources;
3. The construction of alteration of a dam, reservoir, railway of rail freight interchange;
4. The construction or alteration of a Liquid Natural Gas or a gas reception facility.

Comment         

This new guidance addresses the recommended procedures developers should engage in at the pre-application, application and examination stage of each DNS application. It also details the environmental impact assessment and Habits Regulations assessment procedures that should be followed prior to the submission of an application.

(Applicable UK-Wide)

Summary

The Digital Information and Smart Data Bill, which is currently at committee stage in the House of Lords, is intended to permit the establishment of a National Underground Asset Register, which will allow planners and excavators to access data regarding the installation and maintenance of underground pipes and cabling.

Comment

The Digital Information and Smart Data Bill will look to implement certain provisions of the previous Government’s failed Data Protection and Digital Information Bill. The form of the smart data proposals is yet to be established however the creation of a digital map for maintenance of underground networks of pipes and cables could prove a useful tool for the construction and utility sectors.

(Applicable to England)

Summary

The government have consulted on proposed reforms to the NPPF in a consultation running from 04 August 2024 to 24 September 2024. Changes to the NPPF are expected to be introduced in early 2025. The proposed changes to the NPPF are part of Labour’s strategy to unlock the planning system for housebuilders, renewables, and infrastructure to grow the economy.

(Applicable to England & Wales)

Summary

The Terrorism (Protection of Premises Bill) 2024, widely known as Martyn’s Law, passed the committee stage on 29 October 2024 and is set to enter the report stage. Martyn’s Law imposes strict obligations regarding security on both freeholders of premises (including commercial properties, such as hotels and shopping centres) and tenants. The responsible party for compliance with Martyn’s Law, when it does receive Royal Assent, is the party who controls the premises in regard to its use. Obligations imposed are based on the number of individuals reasonably expected to be on the premises at once: larger premises expected to host over 800 attendees at once are enhanced duty premises, whereas smaller premises expected to hold between 200 and 799 attendees are standard duty premises. Relative to standard duty premises, enhanced duty premises have a stricter threshold for adequate measures to be reasonably in place to protect the public in the event of a terrorist attack.

Comment

In light of the continued exposure of the public to terrorism risk, property owners and occupiers will be led by Martyn’s Law to implement measures to improve protection. Those responsible for premises should keep an eye on developments to be aware of duties when they come into force.

(Applicable to England & Wales)

Summary

On 15 November 2024 the Welsh government published a consultation document aimed at promoting a resilient and high-performing planning service in Wales.

On 9 December 2024, a government working paper was published regarding Planning Committee reform in England.

In both documents, the English and Welsh Government have consulted the public on strategies to boost the size and capability of the planning decision-making workforce in England and Wales.

ENGLAND: The English Government proposes that:

1. In place of the current system in England, which does not provide certainty around whether or not a planning application will be decided by a planning committee, nor certainty around the consistency of planning committees’ decision-making, smaller targeted planning committees focused on strategic development projects are to be set up;
2. A mandatory requirement for planning committee members to receive training be instituted. According to proposals, such training is to, at minimum, cover key principles of the English planning system, including the way in which planning legislation, local development plans and national planning policies interact.

WALES: The Welsh consultation proposes that:

1. Corporate Joint Committees (CJCs), corporate bodies introduced by the Local Government and Elections (Wales) Act 2021 which have similar powers to local authorities, play a bigger role in boosting planning decision-making capability in Wales. Specifically, it is proposed that CJCs and LPAs jointly establish planning skills hubs (which are envisioned to pool planning resources which can be drawn upon as needed) , and consider shared models of delivering planning review and decision-making services.
2. Using revenue obtained from a corresponding proposed increase in planning fees, the existing framework used to monitor the performance of planning decision-making services in Wales be reinvigorated to better capture actual performance;
3. Bursary schemes involving support for undergraduate and postgraduate funded opportunities be instituted to increase the pipeline of planners in Wales.

There is no deadline to respond to the Working Paper published by the English Government as it is stated to a be an informal consultation. The deadline to respond to the Welsh Government’s consultation is 17 January 2025.

Comment

Noting that lengthy planning decision-making timelines in the utility and infrastructure sector can often result in project roadblocks, the additional details contained within these planning decision-making workforce proposals are no doubt welcomed. Whilst there is an awareness that envisioned improvements in this area will take time to bear fruit, we have observed a general keenness within industry for targeted training to ensure that planning decision-makers are best-placed to assess utility and infrastructure projects.

(Applicable UK-wide)

Summary

This Bill, which was announced in the King’s Speech on 17 July 2024 and is due to be initially published in early 2025, is intended to streamline critical infrastructure project delivery by simplifying the consenting process for large infrastructure projects. It is intended to introduce new National Policy Statements with a review process every five years. The Bill will also aim to reform the compulsory purchase compensation rules.

(Applicable to Wales)

Summary

The Welsh Government have published a consultation paper on the implementation of the Infrastructure (Wales) Act 2024, which was granted Royal Assent on 3 June 2024. The Act provides Welsh Ministers with powers under a new process to determine applications for developments of significance to Wales and in Welsh water. As such the Act aims to make the decision-making process more certain. Details of the processes to be delivered by the enabling powers under the Act are to be prescribed by further regulations. In this consultation, the Welsh Government sets out in detail and seeks views on its proposals for the new consenting process and a system to administer and determine applications under the Act.

Comment

The consultation closed on 13 December 2024, and a full consultation response is expected in 2025.

(Applicable England & Wales)

Summary

The Leasehold and Freehold Reform Act 2024 (LFRA 2024), came into effect on 24 May 2024. The LFRA 2024 has the principal aim of improving the rights of residential long leaseholders of houses and flats in England and Wales. Some of the changes implemented by LFRA 2024 include:

1. Banning the grant of long residential leases of houses unless they are within a permitted exception;
2. Extending the right to manage;
3. Requiring landlords and estate management companies who manage their property or estate to sign up to a mandatory redress scheme.

Comment

Clients in the private rental sector should consider the changes to the leasehold regime when looking at new development projects.

Clients who work in the residential housing sector should consider the potential impacts of LFRA 2024 when looking at their next development projects since leaseholder rights have grown stronger.

Update (January 2025)

On 22 November 2024, Housing Minister Matthew Pennycook confirmed in his update to the House of Commons the upcoming secondary legislation which will be implemented in 2025 to follow the LFRA 2024:

• In January 2025, it is anticipated that secondary legislation will remove the ‘two-year rule’ which previously meant that leaseholders had to wait two years from purchasing a leasehold to buying the same property’s freehold, or extending its lease (enfranchisement);
• In Spring 2025 the Government anticipates that Right to Manage measures, which will increase leaseholders’ rights in mixed-use buildings, will be implemented through secondary legislation.

On top of these, the Ministry for Housing, Communities and Local Government intends to consult the public in 2025 on the operation of the following existing aspects of the LFRA 2024:

• Its ban on buildings insurance remuneration;
• Using valuation rates to calculate the cost of enfranchisement premiums;
• New consumer protection provisions for homeowners on freehold estates.

(Applicable to England and Wales)

The government have issued a plan with the sole focus of speeding up the identification and remediation of unsafe cladding on high-rise residential buildings in England. Following the final public inquiry report on this issue in September 2024, the government promised to accelerate the speed of remediation, however criticisms have since followed, with many questioning the change in pace. However, in line with their stated intention, the Governments launched the Remediation Acceleration Plan (RAP) on 2 December 2024, with the overall aim of speeding up the remediation of unsafe cladding on residential buildings.

Alongside this overall aim, the RAP’s three broad objectives are to:

• Fix buildings faster;
• Identify all buildings with unsafe cladding; and
• To support residents.

To ensure that these objectives are met, the government is aiming to create a legal obligation on landlords to remediate the cladding. ‘Severe penalties’ will be implemented, if guidance is not adhered to. The government is simultaneously aiming to help developers, by providing guidance on the process, and working with regulators to intensify enforcement action against any third parties who unreasonably block remediation. A review of RAP’s impact and success is scheduled for Summer 2025

Comment

It is important for developers to be aware of these changes, and to work with the Government to prioritise the remediation of cladding in an efficient manner.

(Applicable to England and Wales)

Summary

The Planning Inspectorate (“PINS”)  has published new guidance on Nationally Significant Infrastructure Projects (“NSIPs”) and Development Consent Orders (“DCOs”) and procedure under the Planning Act 2008 (the 2008 Act”).  The new advice pages provide advice on NSIPs / DCOs the following topics:

For applicants:

1. advice on making changes to a NSIP/DCO application once submitted to PINS;
2. advice on compiling a consultation report;
3. advice on preparing and submitting application documents.

For Local Authorities:

1. advice on their role in the NSIP process;
2. advice on the Environmental Impact Assessment process;
3. advice on the NSIP process in Wales;
4. advice on taking part in the NSIP process at each stage.

For people and organisations involved in the NSIP process:

1. advice on how to make representations or comments on an NSIP;
2. advice on the NSIP process more generally.

Comment

Whilst this is only guidance and is non-statutory, the guidance is to be read alongside the Planning Act 2008 and is drawn from good practice. The government notes that applicants and others should follow recommendations when engaging in the NSIP process. For further advice on NSIPs or DCOs, please contact Foot Anstey’s planning team.

Update (January 2025)

Towards the end of 2024, the release of further guidance documents have continued to shape the government’s recommendations for progressing NSIP applications. Most notably, guidance on how NSIPs can best account for the requirements of the Water Framework Directive, which will apply in particular to NSIPs situated in proximity to a water body in England and Wales, has been published. Additionally, guidance around ensuring good design within NSIPs, and around the Government’s expectations for Local Authority involvement with NSIPs, provide further useful guiderails.

(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.

Find out more

(Applicable UK-wide)

Summary

The Supreme Court is passing judgment on an appeal concerning a long-running dispute between Manchester Ship Canal Company and United Utilities (UU) regarding the discharge of untreated foul water from sewers operated by UU into Manchester Ship Canal. UU argues that any private law claim of nuisance and/or trespass are impliedly offset by the Water Industry Act 1991. The Act provides an enforcement mechanism for breaches of duty by sewerage undertakers; the argument was successful in the first instance and now we await judgment concerning MSCC’s appeal.

Comment

Example of private nuisance/ trespassing action against a Utility company.

(Applicable to England and Wales)

Summary

In this Judgment, handed down on 25 April 2024, the taxpayers owned a property portfolio and wanted to acquire another property using acquisition funding. The taxpayers and finance provider (S) entered into an ‘option agreement’ which granted S an option to buy three of the portfolio properties in return for the funding (which was a lot less than the value of the properties). S could exercise its right to buy at the end of a 12-month period, provided that the taxpayers had not repaid the deposit plus interest which would determine the agreement.

HMRC argued this agreement was a disposal subject to capital gains tax but the taxpayers argued it was a loan with the grant of security. Here, as the taxpayers had control over the event that the right to exercise depended on, the option would have only been granted if and when the taxpayers ceased to be able to determine the agreement by repaying the funding plus interest. If the grantor of the option has sufficient control to prevent an agreement being an irrevocable disposition (as opposed to one that is contingent on events outside its control) there is a risk that the agreement will not be considered an option for tax purposes.

Comment

When drafting an option agreement, it is important to check the events that will trigger the right to be exercised. If this is not drafted carefully, the parties may incur unforeseen tWhen drafting an option agreement, it is important to check the events that will trigger the right to be exercised. If this is not drafted carefully, the parties may incur unforeseen tax liabilities. Clients considering entering into an option agreement should seek legal advice to ensure their intentions are properly represented in the agreement.ax liabilities. Clients considering entering into an option agreement should seek legal advice to ensure their intentions are properly represented in the agreement.

(Applicable to England and Wales)

Summary

The High Court recently ordered compensation where there was misrepresentation in opposed lease renewal proceedings under the Landlord and Tenant Act 1954 (the Act).

The Act gives business who do not contract out of it, security of tenure which gives them a right to lease renewal at the end of their tenancy and the ability to remain in occupation at the end of a lease on the same terms as their old lease (unless a landlord can establish one of the grounds of opposition set out in section 30(1) of the Act).

The Defendant (Shirayama Shokusan) (SS) owns premises opposite the Houses of Parliament. Until March 2019, McDonalds (the Claimant), ran a restaurant from part of the premises. It was quite a high profile site. McDonalds sought a new lease of the property at the end of its tenancy. SS opposed this using section 30(1)(g), which allows for termination of a protected tenancy where the landlord intends to occupy it for its own business or residential purposes.

In the contested renewal proceedings, extensive evidence was provided of SS’ intention to operate a restaurant from the premises serving Japanese food by November 2019. However, this did not happen. SS briefly opened restaurants in parts of the premises in 2020 and 2021, though not the restaurant it had provided extensive evidence in respect of. McDonalds then sued SS for deceit and damages under section 37A of the Act (compensation obtained by misrepresentation).

SS accepted the restaurants it had opened differed from what it had told the court its intention was previously, but said it had genuinely changed its mind and that the delay was mostly due to the pandemic.

The Court dismissed the deceit claim, but did find SS liable to pay compensation to McDonalds under the Act.

Comment

Decisions which deal with the payment of compensation under section 37A are unusual.

The decision emphasises that, where landlords contest a tenant’s application for a new lease under section 30(1)(g) (i.e. the intention to use the premises for the purposes of its own business) it must have a fixed and settled intention to do so at the date of contested lease renewal proceedings.

In this case the court found SS had deliberately misrepresented to the court in the contested renewal proceedings its intention open a Japanese restaurant, and this had induced the court to refuse McDonalds the grant of a new lease. Compensation was therefore payable.

Landlords should take care to advance at contested renewal proceedings, only intentions which they genuinely intend to proceed with.

(Applicable to England and Wales)

Summary

A historic judgment was handed down in the UK Supreme Court. The case concerned whether a local planning authority was required to include in its environmental impact assessment an assessment of the impact of scope 3 greenhouse gas (GHG) emissions of a proposed project, in this case, downstream oil production, as well as scope 1 and 2 emissions. The Supreme Court held, overturning the decision of the Court of Appeal, that the authority was required to consider Scope 3 GHG emissions in these circumstances. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the “EIA Regulations”) require assessment of the ‘direct and indirect significant effects of a project’ on the climate. The Supreme Court held that this was a matter of causation and there was obvious causation that would arise from the combustion of fuel following refinement of crude oil which would give rise to effects on the environment.

Comment

The impact of this case is that new fossil fuel projects which require environmental impact assessment under the EIA regulations will require assessment of GHG emissions which arise from the use of the final product. It is yet to be seen whether this ruling will extend beyond fossil fuel projects to any project requiring environmental impact assessment under the EIA Regulations.

(Applicable England & Wales)

Summary

The Upper Tribunal considered the rent and break right in a lease renewal under Part 5 of the 2017 Electronic Communications Code (2017 Code). It granted the landlord a right to break on the 5th anniversary of the term commencement and each anniversary after that, if the landlord intended to develop all or part of the site for any purpose and could show that it could not reasonably redevelop while the lease continued.  The policy of the Code is not to prevent redevelopment as it would be unfair to the landowner.

Comment

This case is relevant to clients looking to negotiate a break clause into their lease renewal, particularly when the 2017 Electronic Communications Code is relevant.

(Applicable England & Wales)

Summary

Principle: Common Intention Constructive Trust can vary an Express Declaration of Trust.

In Nilsson and another v Cynberg [2024] EWHC 2164 (Ch), an appeal by the trustees in bankruptcy was dismissed,  finding that an agreement to vary an express declaration of trust (Stack v Dowden [2007] UKHL 17) could be by way of an informal common intention constructive trust. The agreement to vary did not need to comply with the requirements of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989).

Comment

No specific dates, but clients should be aware of updates to the law. This is important for those considering entering into trust arrangements.

(Applicable England & Wales)

Summary

The High Court held, in a judgment handed down on 16 July 2024, that a planning inspector’s decision was lawful to decide  to uphold the LPA’s refusal of planning permission for a development on a site where water use might be impacting the integrity of a protected area (within the Sussex North Water Supply Zone), and that this was consistent with Natural England’s guidance and the duties of the inspector under duties under the Conservation of Habitats and Species Regulations 2017 Pt 6 (1) reg.63(5) . In relation to water neutrality, the High Court decided that whilst there had been no increase in water usage to account for, and that this approach was consistent with Natural England’s guidance in this regard, the position that existing water use was “neutral” would only apply where the proposed residential occupancy had already been granted planning permission.

Comment

This case demonstrates that, in relation to water neutrality, that only development with the benefit of planning permission or which was immune from enforcement action, was exempt from the requirement to demonstrate water neutrality.

(Applicable England & Wales)

Summary

Test Valley Borough Council v Fiske [2024] EWCA Civ 1541: Judgment handed down by Lord Justice Holgate on 10 December 2024.

The Court of Appeal ruling in Test Valley Borough Council v Fiske has clarified that:

1. Section 73 applications (applications aimed at amending previously granted planning permissions) cannot contain conditions which contradict the operative part of the granted permission. Whilst this ruling does not formally define the meaning of”operative part”,  Lord Justice Holgate’s analysis in this ruling indicates that its meaning looks to the core substantive development activity the granted permission seeks to deliver;
2. The description associated with a granted permission does constitute an operative part of it;
3. In spite of the other conclusions reached in this ruling, the Court of Appeal found that Section 73 applications can make fundamental alterations to previously granted permissions (e.g.: removing a condition previously associated with a granted permission).

Comment

This ruling has extended the growing body of evidence addressing the extent to which S73 applications can change the ambit of an existing permission grant. This question has been litigated in a number of different ways in recent years and Foot Anstey has kept track of these developments here, here and here.

(Applicable England & Wales)

Summary

The recent Court of Appeal verdict in Cabo v Dezotti [2024] EWCA Civ 1358 represents a decisive ruling around rent repayment orders (orders by a court to a landlord to repay sums of rent or housing benefit received from a tenant or housing authority following a finding of an offence having been committed by said landlord). The Court of Appeal’s decision held that in relation to unlicensed houses in multiple occupation (HMOs), a rent repayment order could be imposed on a property owner as deemed landlord, even where a management company acted for him/her and the property owner was an undisclosed principal.

Comment

This clarification will be especially notable to clients and other stakeholders with managed property portfolios, and it further underlines the importance of property owners awareness of their properties’ licensing status. Following this ruling, landlords can no longer ‘hide’ behind a management company to act as an undisclosed principle.

(Applicable to England, Scotland & Wales)

Summary

The new National Energy System Operator (NESO) was formed by the new Government in September 2024 to act as the independent body overseeing the planning and design of the UK’s electricity and gas systems. In December 2024, NESO requested feedback on proposed methodology as formulated in regards its key initial initiatives. These are set out in three documents.

The Strategic Spatial Energy Plan (SSEP) draft methodology: With the aid of leading modelling technologies, the SSEP will spatially map the optimal mix and location of clean generation and storage to meet forecast demand, net zero targets, and security of supply for consumers. To achieve this, NESO’s proposed methodology includes:

1. Preparations: setting a clear pre-modelling baseline informed by a Strategic Environmental Assessment and Habitats Regulations Assessment;
2. Modelling Activity: incorporating both economic modelling and spatial modelling at the modelling/ analysis stage. In particular, spatial modelling will assess environmental and societal factors aspects relating to each plot of analysed land, in addition to their possible uses, plus technical engineering design pillars.
3. Option-shaping / Appraisal: Creating between four and six pathway options for the placement of different relevant energy infrastructure, and identifying one pathway as having the highest probability of success.

The Centralised Strategic Network Plan (CSNP) high-level methodology principles: The CSNP is NESO’s long-term transformation plan for Great Britain’s electricity and gas networks. It consists of a collection of electricity transmission plans across Great Britain’s onshore and offshore network, and NESO aims to account for Great Britain’s whole energy systems in suggesting, and implementing changes. The current consultation draft proposes that:

1. conducting an indicative design exercise for likely future offshore infrastructure, as informed by the SSEP, will be helpful at an early stage of implementing the CSNP;
2. planning under the CSNP be carried out in three-year blocks to better align with the SSEP’s envisioned timelines;
3. viable change projects, as identified by the CSNP, be placed in a formal delivery pipeline.

The Transitional Centralised Strategic Network Plan 2 (TCSN2) Refresh Methodology consultation draft: The TCSN2 is positioned towards meeting Great Britain’s interim, more immediate network needs – namely, the needs that cannot be addressed by the CSNP with requisite speed. The methodology proposed in the TCSN2 includes the following steps, in order:

1. Anticipating where future bottlenecks will occur based on future energy scenarios;
2. Receiving options from transmission operators as to areas where electricity networks can be reinforced;
3. Assessing options against a balanced multi-assessment criteria to make a final recommendation.

Comment

As limitations linked to the availability of transmission networks have formed another significant blocker to industry players’ projects, the way in which the UK’s electricity and gas networks are shaped by NESO’s initiatives will continue to be a subject of great interest.

(Applicable UK-wide)

Summary

The Autumn Budget published by the Government on 30 October 2024 announced substantial updates to planned investments supporting the UK’s energy transition and net zero targets. Key announcements include:

• A significant budget increase for the Department of Energy Security and Net Zero (DESNZ), rising from £6.4 billion in 2023-24 to £14.1 billion in 2025-26.
• A new £3.9 billion allocation for Carbon Capture, Usage, and Storage (CCUS) Track-1 projects in 25/26.
• £163 million to extend the Industrial Energy Transformation Fund through 2025-26 to 2027-28.
• £134 million to develop port infrastructure supporting floating offshore wind projects.
• £1 billion over three years to fund local energy schemes under the Public Sector Decarbonisation Scheme.
• £2.7 billion to continue development of the Sizewell C nuclear project through 2025-26.
• Progress in Great British Nuclear’s Small Modular Reactor competition, now in the negotiation phase with shortlisted vendors, with final decisions expected in Spring 2025.
• Initial support for the first round of electrolytic hydrogen production contracts.
• Confirmed backing for two electrolytic hydrogen projects in Scotland, located in Cromarty and Whitelee, and two in Wales, in Milford Haven and Bridgend.

Comment

This budget reinforces the UK’s commitment to its 2050 net-zero goals, with increased government funding aimed at key industries dedicated to achieving net zero. Although the specific allocations for GBE and DESNZ have not yet been fully outlined, the overall growth in energy transition investments is promising – particularly as other sectors and government departments face public funding reductions. Please get in touch if you wish to discuss any issues or projects which relate to any of these planned investments.

(Applicable to England & Wales)

Summary

The Battery Energy Storage Systems (Fire Safety) Bill is a Private Members’ Bill and was presented to Parliament in October. If passed, it will mean that planning permission applicants will be required to consult fire and rescue authorities during a consultation for a planning application involving battery storage. The National Fire Chiefs Council is currently updating its guidance on battery energy storage systems and expect to publish the revised version in 2025.

This Bill was presented to Parliament 21 October 2024, and a second reading is scheduled for 25 April 2025

Comment

With increasing entrants into the UK Battery Energy Storage Systems market, the introduction of further requirements into the development process (should the Bill pass) is likely to have a significant impact and potentially cause delays in the sector.

(Applicable to England & Wales)

Summary

Government data records that around 20% of the UK’s total greenhouse gas emissions are due to buildings. In order to assist with meeting its net zero targets, the government has proposed reforms to the Energy Performance of Buildings (EPB) regime.

The aims of the reformed framework include modernising EPC methodologies (and what they measure), managing energy certificate quality and providing accurate information:

1. for homeowners and tenants to assist with their decision-making about their property
2. to determine eligibility for schemes and
3. to measure progress towards energy and net zero targets.

The government has begun a consultation on the EPB reforms which will run until 26 February 2025. It seeks views on clarifying and consolidating the regulations, updating Energy Performance Certificate (EPC) metrics and requirements, improving data management and quality control and revising air conditioning inspections.

Comment

These reforms will support both the government in assessing and achieving its climate targets and will also be beneficial to climate-conscious property owners, who will be better equipped to determine their eligibility for energy efficiency schemes and will be able to make more informed property purchases.

(Applicable to England & Wales)

Summary

Publication of the UK Government’s plans for the economy.

Comment

Autumn Budget 2024: Boosting the UK’s Clean Energy and Net Zero Goals | Foot Anstey

(Applicable UK-wide)

Summary

The Energy Profits Levy (“EPL”) was introduced in 2022 to tax the profits of oil and gas companies operating in the UK and in the UK continental shelf. In the new Government’s Autumn budget, an increase to the EPL rate was confirmed effective 1 November 2024. This increase raises the levy from 35% to 38%, and brings the headline tax rate which applies to upstream oil and gas activities to 78%. This levy will apply up to 31 March 2030. The government will also remove “unjustifiably generous investment allowances” from the EPL, including the 29% investment allowance for qualifying expenditure incurred on or after 1 November 2024.

Comment

These recent announcements are not wholly negative for oil and gas – more favourably for these industries, the 100% first year capital allowances and the decarbonisation investment allowance will be retained (with the latter’s uplift reduced to 66%). In addition, payments by oil and gas companies into carbon capture usage and storage (CCUS) decommissioning funds will also attract tax relief. These CCUS funds hope to facilitate the safe decommissioning and conversion of oil and gas infrastructure into carbon capture infrastructure.

(Applicable UK-wide)

Summary

The National Wealth Fund Bill was announced in the King’s Speech on 17 July 2024. This Bill will establish the National Wealth Fund, which will combine public and private investment funds to promote development in key sectors, such as green hydrogen, green steel, gigafactories, ports and industrial decarbonisation.

Update (January 2025):

The fund will have a total capital of £27.8bn, combining UKIB’s existing capitalisation of £22bn with an additional £5.8bn being committed over this parliament. The Government previously announced that £7.3 billion would be allocated through the fund but have since confirmed that the remaining £1.5 billion is being held back to ensure “flexibility in how the government can best deliver against its aims”.

(Applicable UK-wide)

Summary

The government is in the process of setting up a new publicly owned company, Great British Energy (GBE) to assist the UK in reaching Net Zero. The new organisation brings together a publicly owned green energy developer – GBE – with the Crown Estate to unlock £60bn of private investment and support the UK’s ambition to achieve clean power by 2030.

The Crown Estate, as the owner of the seabed around the UK will be given powers to facilitate investment and borrowing (including through the Crown Estate Bill) whilst GBE itself will be placed on a legislative footing. The two entities will also partner to accelerate the expansion of offshore wind power, delivering up to 20-30GW of new capacity.

The aim of this endeavour is to insure the UK’s energy security against shocks to the international market, thereby making the nation more resilient to energy price rises whilst simultaneously pursuing the government’s mission for clean power by 2030 and reducing consumer’s energy bills.

Update (January 2025):

The Great British Energy Bill, which will establish Great British Energy, is currently in the second reading stage in the House of Lords. Foot Anstey will provide a further update around associated timelines, and the implications of the Bill’s final contents, when it is closer to attaining Final Assent. Following the 2024 Autumn Budget, it has been confirmed that £125 million in public funds will also be allocated to Great British Energy in 2025-26. It was also confirmed that Great British Energy will bring together a publicly owned green energy developer – GBE – with the Crown Estate to unlock £60bn of private investment.

(Applicable to England & Wales)

Summary

In 2021, the Government proposed to raise the minimum energy efficiency standard to C by 2027 and B by 2030. On 23 September 2023, Rishi Sunak announced that ““…new policies forcing landlords to upgrade the energy efficiency of their properties will be scrapped…”. The Government has since abandoned the requirement for an increasing minimum energy efficiency standard for domestic properties but the position for commercial property is less clear.

Update (January 2025):

The current Labour government has indicated that its aim is to create a trajectory for all domestic rental properties to achieve a minimum energy efficiency standard of C by 2030. This new deadline potentially gives domestic landlords an additional two years (compared to timelines set by last Government) to comply. It remains to be seen if this aim will extend to commercial properties – we will provide updates on this issue should any further relevant information arise.

(Applicable England and Wales)

Summary

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

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

Comment

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

(Applicable to England, Wales and Scotland)

Summary

Although The Workers (Predictable Terms and Conditions) Act 2023 was passed in September 2023 with a planned implementation date of September 2024, the new Labour Government have confirmed that this Act, as passed under the former Conservative Government will not be brought into force. Instead, to avoid confusing employers and workers, the current Government have opted to consolidate their proposals within the draft Employment Rights Bill. Please see our summary of this draft Bill.

(Applicable England, Wales & Scotland)

Summary

From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new positive duty for employers to take proactive reasonable steps to prevent sexual harassment of their employees in the course of their employment.

The preventative duty does not create a new freestanding cause of action, but the Equality and Human Rights Commission (EHRC) will be able to enforce the new duty where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment.

The Act gives the Employment Tribunal the power to impose a 25% uplift on sexual harassment compensation where the new duty has been breached.

Comment

Under the preventative duty, employers will need to be able to show that they have taken proactive reasonable steps to prevent sexual harassment in their workplace.

The EHRC has recently published updated technical guidance (published on 26 September 2024) on what will amount to reasonable steps including an 8-step guide for employers.  The EHRC’s guidance makes it clear that the preventative duty includes worker-on-worker harassment as well as harassment by third parties such as customers or clients.

It is therefore vital for employers to consider the steps they need to take to ensure that there are measures in place when the preventative duty comes into force. We have made a list of recommendations for employers to consider having in place in readiness for the preventative duty: https://www.footanstey.com/our-insights/articles-news/26-october-2024-are-you-ready-mandatory-duty-to-prevent-sexual-harassment-in-the-workplace/

We are already working with clients on a range of measures including providing a fixed-fee sexual harassment policy, tailored training and strategic transformation discussions. Needless to say we would be delighted to work with you too!

See here for more details.

Update (January 2025):

This new duty is now in force. Foot Anstey is helping clients to take various steps to comply, including undertaking risk assessments, arranging tailored training for employees and managers, revising existing policies and putting standalone preventative sexual harassment policies in place.

(Applicable UK-Wide)

Summary

Physical documents, including Biometecric Residence Permits (BRPs), will be replaced by eVisas from 1 January 2025. The official cut-off date is 31 December 2024.

Comment

Read more about this change and the steps you can take here.

Update (January 2025):

The Home Office have announced updates to this roll out process to ensure a smoother transition. We recommend that employers share these updates with employees where relevant. The main updates are:

• Extended use of Biometric Residence Permits (BRPs) – although BRP holders are encouraged to switch to a UKVI account and use an eVisa as soon as possible, to smooth the transition to eVisas, the government are allowing carriers to continue to accept BRP or EU Settlement Scheme Biometric Residence Cards, expiring on or after 31 December 2024, as valid evidence of permission to travel until at least 31 March 2025. We recommend that individuals travelling back to the UK in early 2025 continue to carry their expired BRP in addition to carrying a share code to prove their eVisa status.
• Creating a UKVI account – whilst all BRP holders are encouraged to switch to using an eVisa before their BRP expires, where an individual has not created a UKVI account by 1 January 2025 and their BRP has expired, they will be able to do so next year, using their expired BRP if needed.
• Technical issues – the Home Office have acknowledged technical issues meaning that a small number of individuals have experienced issues with their eVisas, including their status not being visible or showing incorrectly. Where technical issues are experienced, individuals are encouraged to contact the Home Office for the issue to be investigated and resolved. Where necessary, the UKVI Resolution Centre  can enable an individual’s immigration status to be verified through alternative means.

(Applicable UK-Wide)

Summary

The Labour Government have indicated their intention to implement the Plan to Make Work Pay in full and the introduction of Employment Rights Bill within 100 days of government, i.e. by 12th October 2024.

Comment

The Bill has been tipped as potentially being the biggest package of reform for employment rights in a generation. The headline anticipated changes we expect to see are:

(a) Introducing day one rights, including protection from unfair dismissal, parental/paternity leave and the right to statutory sick pay.

(b) Rebalancing ‘one sided’ flexibility. This is expected to include banning or restricting zero hours contracts.

(c) Trade Union reforms. This is expected to include securing electronic voting for union ballets, simplifying the trade union recognition processes and creating a mechanism for collective grievances.

(d) Whistleblowing. Proposals are expected to strengthen protections for whistleblowers, including for those reporting sexual harassment at work.

(e) Restricting fire and re-hire/replace. The details remain unclear but a higher standard/reason for firing and re-hiring is likely to be required of employers. A new statutory Code is also expected to “strengthen” the one previously published in June 2024.

(f) Equality and discrimination reforms including extending the right to equal pay based on ethnicity and disability. New pay gap reporting obligations are also expected in respect of ethnicity and disability, as well as requiring certain employers to publish “action plans” to address gender pay gaps.

(g) Procedural and other changes are also expected including extending the time limit for tribunal claims and moving towards a single worker status. This would enhance the rights of many workers.

Once the Bill is introduced, when exactly it will become an Act (and therefore law) remains to be seen but this will likely take many months post-introduction given its required passage through the houses of parliament as well as potential for secondary legislation in addition to effect any changes. This should provide employers with some time to prepare for the changes.  There may be some changes that can occur outside the Bill itself (and therefore potentially become enshrined in law more quickly) but until we see the draft legislation, this is unknown.

See here for more details, including the anticipated impact on employers and how to prepare in the meantime: https://www.footanstey.com/our-insights/articles-news/the-kings-speech-what-are-labours-plans-for-employment-law/

(Applicable UK-Wide)

Summary

In the Autumn 2024 Budget, a significant change for occupational schemes was announced by the Chancellor. Most unused pension funds and death benefits payable from a pension scheme will be brought within a person’s estate for inheritance tax purposes from 6 April 2027.

Comment

At the moment, most lump sum death benefits do not fall within a person’s estate and are therefore not subject to inheritance tax. Estate planning strategies are likely to be impacted as a result, as well as pension fund management.

(Applicable to England, Wales and Scotland)

Summary

On Thursday 10 October, the Employment Rights Bill was published by the Government, along with a plan for the Government’s “Next Steps to Make Work Pay”.

Comment

The Bill contains many of the expected proposals from the Plan to Make Work Pay but some have been put on hold, including plans to introduce ethnicity and disability pay gap reporting and the “right to switch off”. Many of the changes will be subject to consultation meaning that the majority of reforms will take effect no earlier than 2026.

However, the Bill signals substantive changes to the employment landscape which businesses should be prepared for. This includes the planned introduction of day-one unfair dismissal rights and enhancing the new preventative duty for sexual harassment, as well as stronger employee protections in relation to industrial action, fire and rehire, redundancy, zero-hours contracts and more. For employers wanting an overview of the proposed changes, you can watch our recent webinar discussing these proposals as delivered by Karen Bates, Head of Employment at Foot Anstey.

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 UK-wide)

Summary

The Government has accepted the recommendations of the Low Pay Commission in full, and in doing so, will raise the National Minimum Wage, including the National Living Wage.

The new rates, applying from 1 April 2025, are as follows:

• National Living Wage (21 and over): £12.21 (6.7% increase)
• 18 – 20-Year-Old: £10.00 (16.3% increase)
• 16 – 17-Year-Old: £7.55 (18% increase)
• Apprentice Rate: £7.55 (18% increase)
• Accommodation Offset: £10.66 (6.7% increase)

Comment

This will be good news to those paid at minimum wage but some employers’ operational costs are likely to increase as a result. Some observers have also warned that the changes may make employers less likely to hire younger workers.

(Applicable UK-wide)

Summary

At the end of October 2024, Chancellor Rachel Reeves published Labour’s first budget since their general election success. The budget brought confirmation of the Government’s plans to increase employer’s National Insurance rates from 13.8% to 15% in April 2025. Moreover, employers will start paying the rate on salaries of £5,000 per year, down from £9,100.

Comment

According to the Chancellor, these changes will provide £25 billion of extra funding for public services, such as the NHS. However, some employers are concerned at the rate increase in a time when businesses are already struggling to balance the books. With some businesses reportedly considering headcount reductions as a result, where widescale change is needed collective consultation rules will apply and businesses will need to make sure that they have complied with correct consultation procedures to avoid being hit by additional costs when making redundancies or other significant changes to terms and conditions.

(Applicable to England)

Summary

In its consultation published on 11 November 2024, the Environment Agency (EA) has proposed new charges aimed at better funding its regulation of waste crime. As expected, these charges are targeted at waste operators, if their operations are deemed to have breached the Environmental Permitting Regulations or the Environmental Protection Act. These proposed changes include a new fee to be imposed on offending waste operators to recover the costs of time spent by EA in investigating waste operations, and a new waste crime levy of 10% (based on annual subsistence charges) for operators with waste transfer and landfill waste permits. This consultation closes at 2359 on 20 January 25.

Comment

Whilst it will be some time before these additional charges are adjusted and finalised post-consultation, these proposals represent a latest data point in a continuing trend of the Environment Agency regulating industry more directly.

(Applicable to the UK)

Summary

The UK Carbon Border Adjustment Mechanism (UK CBAM) will ensure that UK-based purchasers account for the carbon cost associated with producing key categories of imported goods through the imposition of an additional carbon tariff. Following the Government’s announcement of this scheme’s implementation in late 2023, it has confirmed key details relating to this scheme in a consultation response document published on 30 October 24:

1. Under the UK CBAM, a carbon tariff will be imposed on specific products imported to the UK from the aluminium, iron, steel, cement, fertiliser and hydrogen sectors. A draft list of these specific products is available at page 57 of the consultation response.
2. The party responsible for paying a UK CBAM carbon tariff (the “liable person”) is, where there are customs controls, the person responsible for the goods when they are released into free circulation or, where there are no customs controls, the person on whose behalf the goods are moved to the UK.

The UK CBAM will come into effect from 1 January 2027. Subsequent to this Oct 24 consultation response, primary and secondary legislation is expected to next follow.

Comment

Please contact Foot Anstey for guidance around the UK CBAM and the EU’s corresponding scheme (the EU CBAM).

(Applicable to England & Wales)

Summary

New regulations which accompany the Leasehold and Freehold Reform Act 2024 (LFRA) came into force on 31 October 2024. These regulations brought rules into force which amend Part 5 of the Building and Safety Act 2022 (BSA).

The affected provisions are as follows:

• Section 114 (remediation of defects);
• Section 115 (remediation orders);
• Section 116 (remediation contribution orders); and
• Section 120 (interpretation of references to other Acts).

The upcoming Leasehold and Commonhold Reform Act (a draft of this has been published) will aim to enact the remaining recommendations set out by the Law Commission in its 2020 report addressing improvements that could be made to the leasehold system. Please see our separate entry on this draft Bill.

Comment

These new regulations, which broaden of the scope for remediation orders and remediation contribution orders under the BSA, will need to be accounted for by landlords of relevant buildings (as defined in the BSA) in understanding the full scope of their responsibilities and potential liabilities.

(Applicable UK-wide)

Summary

Utility providers caught by the Building Safety Act 2022 updates in relation to higher-risk buildings (at least 18 metres in height or has at least 7 storeys, and contains at least 2 residential units), have certain obligations in relation to maintaining a golden thread of information about such buildings.

The construction leadership council has published new guidance for duty holders and accountable persons to help them better understand what this entails.

Comment

The guidance provides further clarity to duty holders and responsible persons on their responsibilities in relation to maintaining a golden thread of information.

(Applicable UK-wide)

Summary

The UK Health and Safety Executive (HSE) has published updated statistics covering key statistics across all industries and in relation to specific industries.

Health and safety statistics 2024

Comment

These statistics provide a helpful insight into the industry wide benchmarks for the health and safety of employees, as well as helping to highlight the key health risks for each industry.

(Applicable UK-wide)

Summary

A new independent commission has been launched by the Government to consider the water sector regulatory framework, the regulators and the incentives that govern the water industry model.

Comment

This commission is intended to make recommendations to the UK government to ensure the water sector regulatory framework meets the objectives that have been set out. A report containing these recommendations is expected from the commission in 2025.

This commission follows on from the government’s commitment to strengthen water regulation, as shown by the new Water (Special Measures) Bill.

(Applicable to England & Wales)

Summary

The Department for Environment, Food & Rural Affairs (DEFRA) has published a draft guidance aimed at supporting water and sewerage companies in managing and regulating storm overflows. This draft addresses all legislation that currently applies to water and sewerage companies in this respect, but when finalised this guidance will not introduce any new legal requirements on water companies or regulators. DEFRA is currently seeking water and sewerage companies’ views on this draft guidance. This consultation closes at 2359 on 24 January 25.

Comment

The queries asked by DEFRA within this consultation are predominantly looking to understand whether the guidance brings clarity to water and sewerage companies, and whether management approaches recommended by the Government are viewed positively.

Summary

The Department for Environment, Food and Rural Affairs (Defra) has published a document setting out illustrative base fees for the first year of Extended Producer Responsibility, which is 2025 to 2026.

Comment

The document provides estimated fees for each of the eight categories of packaging materials (aluminium, fibre-based composites, paper or board, plastic, steel, wood, glass, and other).

There has been observable pushback from industry due to concerns around these fees impacting profits and jobs. These have likely contributed to the further revisions the UK Government have made to proposed EPR base fees. At the end of September, DEFRA published a second round of proposed EPR base fees, and a third round of proposed EPR base fees was most recently published on December 20 2024.

Final fees for the first year are expected to be released after 1 April 2025.

(Applicable to England and Wales)

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.

omment

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.

Update (January 2025)

In a continuation of its review, a first consultation document on this topic was published on 19 November 2024. Within it, the Law Commission has reiterated that the almost 70-year-old 1954 Act has become increasingly misaligned with modern commercial needs.

As expected, this first consultation, which is currently open to submissions, is focused upon the future of security of tenure. It proposes four different models and considers whether security of tenure should be retained and if so, what form this should take. The changes which will be made following the consultation process will represent the first time the LTA 1954 has been amended in over two decades, making this period a crucial time for clients to engage and put their views forward.

Businesses and their advisors can respond to the consultation from now until 19 February 2025. The second consultation will be published once the responses from the first have been analysed. Keeping engaged with the process will be helpful in staying up to date with any developments which may impact any business planning and long leases over key properties

(Applicable to England and Wales)

Summary

During the opening of the new parliament, the King unveiled a new Water (Special Measures) Bill to strengthen regulation, give the water regulator new powers to ban the payment of bonuses if environmental standards are not met and increase accountability for water executives.

Update (January 2025)

This Bill has progressed steadily through Parliament. Since its formal introduction to the House of Lords in early September 2024, it has passed all reading stages in the House of Lords and has most recently been introduced in the House of Commons (as of end-2024). Foot Anstey will continue to monitor this topic as the new bill progresses through parliament.

(Applicable to England and Wales)

Summary

A historic judgment was handed down in the UK Supreme Court. The case concerned whether a local planning authority was required to include in its environmental impact assessment an assessment of the impact of scope 3 greenhouse gas (GHG) emissions of a proposed project, in this case, downstream oil production, as well as scope 1 and 2 emissions. The Supreme Court held, overturning the decision of the Court of Appeal, that the authority was required to consider Scope 3 GHG emissions in these circumstances. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the “EIA Regulations”) require assessment of the ‘direct and indirect significant effects of a project’ on the climate. The Supreme Court held that this was a matter of causation and there was obvious causation that would arise from the combustion of fuel following refinement of crude oil which would give rise to effects on the environment.

Comment

The impact of this case is that new fossil fuel projects which require environmental impact assessment under the EIA regulations will require assessment of GHG emissions which arise from the use of the final product. It is yet to be seen whether this ruling will extend beyond fossil fuel projects to any project requiring environmental impact assessment under the EIA Regulations.

(Applicable to England and Wales)

Summary

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

Comment

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

(Applicable to England & Wales)

Summary

DEFRA have updated their guidance on agreements for biodiversity net gain to clarify that ‘enhancement works’ can include stopping normal maintenance works as well as, or instead of, positive actions to enhance habitat. Examples include, stopping applying fertiliser to grassland, changing a grazing regime, or stopping ditch clearing.

Comment

This DEFRA update arrives as we approach the one-year anniversary of the Mandatory Biodiversity Net Gain Requirement coming into force. Foot Anstey will provide a further consolidated update on the initial operation of this requirement as the results of initial consultations around this subject begin to trickle in.

(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. Biodiversity Net Gain requirements will begin to apply to Nationally Significant Infrastructure Projects in England from November 2025

(Applicable to England and Wales)

Summary

The Supreme Court has decided that the statutory scheme for regulating sewerage established by the Water Industry Act 1999 does not prevent the owner of a canal or other watercourse from bringing a private claim in nuisance or trespass when the watercourse or canal is polluted by discharges of foul water, even if there is no negligence or deliberate wrong doing on the part of the utility company or statutory undertaker.

Comment

As there has been considerable coverage of alleged sewage pollution incidents by utility companies in the media, there may be a rise in claims from owners of waterways or property subject to similar unauthorised discharges of foul water.