Legal News

What is embodied carbon and why is it important? There is no single, settled definition of ‘embodied carbon’ in planning legislation or policy. In general, it refers to the greenhouse gas emissions tied to constructing a building—and, depending on the assessment’s scope, dismantling it at end of life—as opposed to the ‘operational carbon’ arising from the building’s use. Together, embodied and operational carbon contribute to a building’s whole‑life carbon emissions. Although progress is still required, the real estate industry has made notable advances in cutting operational carbon, from energy‑efficient lighting to on‑site solar PV, which means embodied carbon is becoming relatively more significant. While embodied carbon has not historically received the same attention as operational carbon, there is now broad recognition that it must be rigorously measured and assessed if the built environment is to support the government’s legally binding objective of reaching net zero by...

Fearn v The Trustees of the Tate Gallery [2023] UKSC 4 What are the practical implications of this case? The Supreme Court has confirmed that visual intrusion can constitute a nuisance, though simple overlooking on its own does not. While eye-catching, the ruling is unlikely to trigger a deluge of neighbour disputes about being watched. The court contemplated that only a marked and sustained degree of visual interference would cross the threshold. As Leggatt LJ explained at [103], instances where land is put to an unusual use that causes visual intrusion of sufficient duration and intensity to found a nuisance claim are expected to be uncommon. It also remains the law that merely putting up a building or structure that looks over another parcel of land, without more, does not amount to a nuisance. Regarding grievances from occupants of highly glazed, tall...

TP ICAP Ltd v NEX Group Ltd [2022] EWHC 2700 ( Comm) The claims for breach of warranty stemmed from two probes: one by the US Commodities Futures Trading Commission concerning swaps trading linked to bond issuances and another by a Frankfurt public prosecutor targeting a named director of a group entity in relation to cum-ex trading during the relevant period. In essence, the alleged breaches concerned warranties addressing the following: that no group company, officer, or employee had been the subject of any non-routine investigation of any kind by a ‘ Governmental Authority’ within the prior 18 months; and that no circumstances existed which could reasonably be expected to result in litigation against a group company where the amount in dispute exceeds £500,000. Those warranties were, in places, qualified by a seller-awareness threshold (here defined as the actual knowledge, after...

With the global shift towards net zero, a swell of lawsuits targeting firms that misrepresent their offerings as green is looming. However, although the UK watchdog has repeatedly vowed to tackle ‘greenwashing’, including through enforcement, the law does not invariably favour the Financial Conduct Authority ( FCA). As environmental activists and disgruntled investors bring claims against businesses for overstating the sustainability of their products, the regulator’s capacity to intervene will seem ever more constrained unless its powers are strengthened. Without stronger powers, the regulator’s ability to act will look increasingly reduced, particularly as allegations accumulate and claimants press for action against exaggerated sustainability claims. Activity on sustainable finance is progressing at pace in the UK. In November 2020, the government was first to unveil mandatory climate-risk reporting. By the close of 2023, major financial institutions and listed corporates must publish...

What are the practical implications of this case? This claim sits among numerous legal actions worldwide accusing governments of failing to act to fulfil their Paris Agreement climate obligations and of infringing various human rights. It highlights the markedly growing prevalence of rights-based climate claims, with many claimants invoking human rights as a tool for holding defendants to account for their climate commitments. While the court acknowledged that climate-related matters are of great importance, the judgment equally exposes the considerable challenge of using litigation in the English courts to contest the UK government’s climate conduct under current domestic law. Regarding the Paris Agreement arguments, the court determined that English courts have no jurisdiction to rule on whether the government has breached obligations arising under an unincorporated international treaty. The court also observed that, since there is an...

On 15 December 2021, the government presented to Parliament regulations to implement the proposals set out in the Consultation response: EV Charge points in Residential and Non-residential Buildings (for more information on the proposals, see: Consultation outcome on electric vehicle charge points in buildings published, LNB News 22/11/2021 81). The Regulations, SI 2021/1392, set out the specifics developers and other stakeholders require to comply with the new obligations. In this legal update, we address key questions about the new regulations and their application. When do the Regulations come into force? The Regulations will come into effect on 15 June 2022. What about developments in progress as at 15 June 2022—will they be subject to the new requirements? The Regulations contain transitional provisions. They will not apply in relation to building work where a building notice or an initial notice has been provided to, or full plans have been...

IHRAR report The IHRAR’s publication is an exceptionally comprehensive and highly impressive piece of analysis. It accepts as a fixed point the government’s commitment to remain a party to the European Convention on Human Rights ( ECHR). This includes the ability of individuals to petition the European Court of Human Rights ( ECt HR) in Strasbourg once domestic avenues of redress are exhausted. Throughout the IHRAR there is recognition that reforms restricting people’s capacity to enforce rights in the UK courts may prompt more cases going to Strasbourg, which would ‘run counter to the HRA’s original objective of bringing rights home’, rather than resolving matters within the domestic legal system. The IHRAR proposes only limited amendments to the HRA itself. They are notably restrained and incremental in nature overall. The principal ones are: a modification to the test in HRA 1998, s 2, which...

What are the practical implications of these cases? These joined references give the Court of Justice another chance to examine how certain car makers have fitted engines with so‑called ‘defeat devices’. Such software and hardware alter readings for particular pollutants, making a vehicle seem to meet environmental thresholds far more frequently than it truly does. The Court has only lately clarified what amounts to a prohibited defeat device under Regulation ( EC) No 715/2007, and the present matters concern the application of that interpretation to highly sophisticated systems which curtail emissions‑control depending on the temperature and the altitude at which the car is operated. The Advocate General adopts a firm, purposive reading of the Regulation and underlines its role within the European Union’s broader aims and objectives of securing a high level of environmental protection, a key element of which is the...

Allen v Ealing London Borough Council [2021] EWHC 948 ( Admin) What are the practical implications of this case? This judgment brings long-awaited clarity to a point that has caused uncertainty for some thirty years, because no appellate court had previously ruled squarely upon it. A series of earlier cases— Hewlings v Mc Lean Homes East Anglia Ltd [2001] 2 All ER 281; Hall v Kingston upon Hull City Council; Ireland v Birmingham City Council; Baker v Birmingham City Council [1999] 2 All ER 609; Leeds v Islington London Borough [1998] Lexis Citation 2551—considered comparable questions and made obiter comments, yet the central issue persisted unresolved. The outcome is welcomed by those affected by statutory nuisances, as it confirms Parliament’s intention that the procedure for obtaining abatement should be easy for lay persons to use and understand in practice and in...

The European Parliament has backed a legislative initiative report obliging companies operating within the EU internal market to identify and remedy their effects on human rights and the environment. It also endorses sanctions for non-compliance and the provision of legal support for third-country victims of corporate misconduct. Adopted by 504 votes in favour, 79 against and 112 abstentions, the report presses for a binding EU law to ensure businesses are held to account and made liable where they cause—or contribute to causing—harm to the environment, human rights and good governance... Who would fall within the scope of the proposed law? In short, both EU and non- EU businesses. The proposed law would apply to: large undertakings governed by the law of an EU Member State or established in the territory of the EU, regardless of sector and irrespective of public ownership or control ...

Pearce v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 ( Admin) What are the practical implications of this case? While the facts are specific to this matter, multiple offshore schemes along England’s east coast are moving through consent, and each must robustly account for cumulative effects. The case also underlines mounting pushback from local communities against sizeable onshore infrastructure in the area, coinciding with BEIS’s programme reviewing offshore transmission and different approaches to linking offshore wind schemes and landing renewable power. The court further made clear that, even where a proposal aligns with government policy and helps deliver low‑carbon, renewable generation consistent with legal duties towards ‘net zero’ and tackling climate change, that alignment does not displace the requirement for any application to evaluate every impact properly and in accordance with the law. All such proposals therefore need to...

The complete paper is available here. An engaging seminar on the report, hosted with the Bonavero Institute of Human Rights, can also be accessed here. A proposed UK HRDD law The HRDD law could place the following duties on subjected organisations (broadly): to prevent negative human rights and environmental impacts arising from their domestic and overseas operations, including within their supply and value chains to devise and apply appropriate due diligence procedures to avert such impacts to publish a forward-looking plan for future procedures to be adopted, together with an assessment of the effectiveness of past procedures The report also proposes liability......

Introduction On 31 December 2020, the Withdrawal Agreement’s transition phase (discussed here) concluded. From 1 January 2021, relations between the UK and EU are currently regulated partly by the remaining Withdrawal Agreement (as further discussed in this Twitter thread) and partly by the Trade and Cooperation Agreement ( TCA) formally agreed between the EU and the UK themselves. ( There are also two other agreed treaties, on security information and nuclear cooperation, as well). Basic legal issues The EU and UK have agreed to apply the TCA provisionally and temporarily (a common practice in international law). This arrangement runs until 28 February 2021, though the parties may change that date via the Partnership Council (composed of representatives of both contracting parties). This is intended to give the European Parliament sufficient time to examine the treaty in detail before deciding whether to give its consent. By...

When can a developer drain onto neighbouring land without permission? ( Bernel v Canal & River Trust) Bernel Ltd v Canal and River Trust [2021] EWHC 16 ( Ch) What are the practical implications of this decision? The riparian claim and the prescriptive claim presented quite different factual and legal issues. Both aspects of the dispute will be of real interest to property practitioners. To determine the riparian issue, the judge had to set out and apply, carefully and in some detail, the law on when an intermittent or occasional flow is sufficient to amount to a natural watercourse, and when it is not. Because extensive rights accompany the presence of a natural watercourse on or adjoining land (the riparian rights), this boundary is legally significant, and not always straightforward to draw in practice on the ground. Although the...

What is the WTO government procurement agreement ( GPA)? The WTO GPA is a voluntary, plurilateral pact that obliges its parties to grant one another access to their respective government contracting and public purchasing markets on a reciprocal basis. Through its EU membership, the UK participated in the WTO GPA; the EU constitutes one of the 20 current participants. The UK has now sought independent accession to the GPA in its own right, and a further 22 jurisdictions hold observer status. Signatories are not free to design procurement systems without constraint; foundational principles are embedded within the Agreement and, indeed, many of these shaped the drafting of the current EU procurement rules. What are the key features of the regime? As noted, the GPA is more than a minimal framework. It comprises the Agreement’s main body together with members’ coverage schedules. While the Agreement...

On 29 April 2020, the Fire Safety Bill received its second reading in the House of Commons and was also referred to a Public Bill Committee. The Bill will amend the Regulatory Reform ( Fire Safety) Order 2005, SI 2005/1541, to provide clearer guidance on the duties of the Responsible Person or duty-holder in multi-occupied, residential premises. Currently, under the Fire Safety Order, fire and rescue authorities hold enforcement powers over the shared parts of blocks of flats, for example entrance halls and landings. They do not possess such powers beyond the front doors of flats to act within individual homes, nor do they also have powers concerning the exterior of buildings. The Fire Safety Bill proposes amendments to the scope of the Fire Safety Order to make clear that the responsible person or duty-holder for multi-occupied residential buildings must manage and reduce fire risk relating to the...

Day v Womble Dickinson ( UK) LLP [2020] EWCA Civ 447 What are the practical implications of this case? In essence, any action for damages for breach of contract or negligence that relies, as a necessary component, on pleading that the ultimate outcome of criminal proceedings would have been different and more advantageous to the claimant if the contract had been honoured or no negligence had occurred, is at risk of being struck out as an abuse of process in such circumstances. The proper route for a defendant, indeed, discontented with the result of a criminal case is to take up every opportunity to appeal the decision. In practice, only where an appeal overturns or varies the decision in the claimant’s favour will there be room for a viable civil claim asserting that the original outcome would not have been reached but for the...

This notice revises the November 2018 edition, incorporating amendments to the rates of...

What are the practical implications of this case? As with the rulings at first instance and on appeal, there are likely to be consequences in both the political and legal arenas. Politically, the judgment heaps considerable pressure on the PM and the government. This is an extraordinary ruling by the Supreme Court. The court concluded that the PM acted unlawfully and without adequate justification, preventing Parliament from fulfilling its constitutional roles both as a legislature and as the body tasked with holding the executive to account. It is difficult to characterise this outcome as anything other than an embarrassment for the PM. It amounts to a serious censure and, in the circumstances, it is unsurprising that there are already calls for the PM to ‘consider his position’. Parliament has been......

R (on the application of Wingfield) v Canterbury City Council [2019] EWHC 1975 ( Admin) What are the practical implications of this case? The decision does not establish any new legal principle, but usefully reiterates settled law concerning what is commonly termed ‘salami slicing’. This describes breaking up a single development into smaller elements that fall beneath EIA thresholds, thereby sidestepping the need for an environmental assessment. Salami slicing has been found to be unlawful and should be avoided. The judgment confirms that defining the relevant ‘project’ for EIA purposes is a matter for the competent authority’s judgment, though it remains susceptible to challenge on grounds of Wednesbury rationality or other public law error. Lang J indicated that the following considerations are pertinent when deciding whether two schemes amount to a single project for the EIA regime: common...