Legal Practice Notes

Undertakers’ powers to lay pipes The powers available to a sewerage undertaker to install sewers, lateral drains and disposal mains are set out in sections 158 and 159 of the Water Industry Act 1991 ( WIA 1991). An undertaker may invoke these powers both within, and beyond, its own area of operation. Those powers apply both inside and outside its area. For the purposes of the WIA 1991, any mention of a pipe—including a main, drain or sewer—also covers a tunnel or conduit that serves, or is intended to serve, as that pipe, together with any fittings or accessories for it. References to laying a pipe extend to building such a tunnel or conduit, to constructing or installing those fittings or accessories, and to forming a connection from one pipe to another. This expressly includes the making of a connection between one pipe and...

A sewerage undertaker is the company named by the Secretary of State or Ofwat to act as the sewerage undertaker for the territory described in its instrument of appointment under section 11(1) of the Water Act 1989, as preserved by section 6(1) of the Water Industry Act 1991 ( WIA 1991). The appointed undertaker may carry out its functions within the boundary depicted on the Sewerage Services Area Map attached to that instrument. Any dispute about the limits of an undertaker’s area is decided by Ofwat, in line with Condition A7 of the Instrument of Appointment. Within its area, the undertaker must provide sewerage services pursuant to its duty under WIA 1991, s 94. ‘ Sewerage services’ covers the disposal of sewage and any other services that a sewerage undertaker is required to deliver for the purpose of fulfilling its...

What is the Renewables Obligation scheme? The renewables obligation ( RO) was designed to stimulate investment in renewable generation. It came into force in Great Britain in 2002, and in Northern Ireland in 2005. Under the scheme, electricity suppliers serving customers had to procure an ever-rising share of their wholesale power from renewable sources. Subject to certain exceptions, RO accreditation ended on 31 March 2015 for new solar PV and onshore wind projects, and from 1 April 2017 for all other new types of electricity generation. For more on this, see: Closure of the RO to new generation and grace periods below. The Secretary of State ( So S) for Energy, Security and Net Zero, who leads the Department for Energy Security and Net Zero ( DESNZ), determines the obligation in line with the Renewables Obligation Order 2015 ( RO Order 2015) SI...

Appointing a receiver offers creditors and certain other parties a means to safeguard their interests in a company’s assets. This note outlines the available forms of receivership and the key consequences of a receiver being appointed. For access to materials within the Receivership subtopic, refer to: Receiverships—overview. The following features apply across all receivership types: A company does not have to be insolvent to enter receivership Other creditors may still pursue claims despite a receiver being appointed During the receivership, the company’s dealings with property covered by the appointment are curtailed Receivership does not automatically lead to liquidation (the winding up of its affairs) Further points specific to particular receivership forms are outlined below. Law of Property Act ( LPA)/fixed charge receiver Under the Law of Property Act 1925 ( LPA 1925), a mortgagee may appoint an LPA...

Public nuisance The common law offence of public nuisance was abolished by section 78 of the Police, Crime, Sentencing and Courts Act 2022 ( PCSCA 2022) and supplanted by a statutory offence of intentionally or recklessly causing serious harm to the public. That said, the common law offence still technically applies to conduct committed before PCSCA 2002, s 78 took effect, or which began prior to PCSCA 2022, s 78 coming into force and continued thereafter. It is, however, highly unlikely that prosecutions will proceed under the common law. See: Public nuisance under common law. Common law public nuisance endures as a tort in civil law, and PCSCA 2022, s 78(8) states the statutory offence does not affect liability for that tort. Statutory offence of intentionally or recklessly causing a public nuisance Although PCSCA 2022 does not expressly use the term ‘public nuisance’ in its wording, it...

Introduction In simple terms, a drain serves a single premises, while a sewer serves multiple properties. In the context of development, there are two distinct drainage systems to consider: Foul water: pipework that removes used foul water from buildings. Above ground this is known as sanitary pipework; below ground the pipes are called foul drains and foul sewers. Surface water: arrangements that convey rainwater from hard surfaces. The below-ground conduits are termed surface water drains and surface water sewers. Public sewers are in the ownership of the sewerage undertaker. Private sewers—now relatively rare due to legislative change—belong to the properties they serve. Any building operations on or near a sewer require the owner’s approval. Constructing over, or within 3 metres of, a public sewer demands written consent from the relevant sewerage undertaker. A sewer may need to be diverted, relocated, or...

The core rule in property deals is caveat emptor—let the buyer beware. Put simply, the onus lies with the purchaser to ensure the asset they are buying matches what they intend to obtain, and that the consideration reflects fair value for what is on offer. Accordingly, the buyer must carry out as much investigation as possible before becoming bound to proceed... Searches deliver independent, third-party information about the property, supplementing or verifying details already identified from reviewing the title deeds or responses to enquiries. See also Practice Notes: Transferring commercial property—a practical guide— Pre-exchange—the due diligence process and Property—enquiries before contract and Due diligence—reviewing a registered title—checklist. This Practice Note examines the pre-contract searches that must, or are recommended to, be undertaken as part of title due diligence and are most frequently encountered in day-to-day practice. The list is not...

This Practice Note explores the function of enquiries within the due diligence process and how to deal with preliminary enquiries in commercial property transactions. What are enquiries before contract? Enquiries before contract (also known as pre-contract enquiries, preliminary enquiries or standard enquiries) feature in a range of situations, for example: a buyer investigating the purchase of freehold or leasehold land; a tenant making checks before a new lease is granted; a mortgagee conducting checks before taking a charge over land; a landlord considering acceptance of a lease surrender. For ease, references here to ‘seller’ and ‘buyer’ are used, which should be read as including landlord and tenant, or mortgagor and mortgagee where appropriate. These enquiries take the form of the buyer’s questions to the seller, almost always channelled through their respective legal advisers acting as...

This Practice Note explains what constitutes an actionable misrepresentation, outlines the essential components for advancing a misrepresentation claim, highlights the function of the Misrepresentation Act 1967 ( MA 1967), and contrasts it with related causes of action, providing a comparison with other, similar claims. For connected guidance on the fundamental elements needed to found a misrepresentation claim, see Practice Notes: Misrepresentation—what statements will establish a claim? Misrepresentation—what is inducement? Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation) For an overview of practical issues in misrepresentation claims, set against negligent misstatement claims, see Practice Note: Claiming negligent misrepresentation or negligent misstatement—practical considerations. What is a claim for misrepresentation? A misrepresentation claim arises where one party to a contract (the representor) makes an untrue statement that leads the other party (the representee) to enter the contract. A claim can also be brought where the statement is made by an agent of a...

Exemptions from the marine licensing regime Certain activities that would typically be treated as licensable under section 66 of the Marine and Coastal Access Act 2009 ( MCAA 2009) can, where specific stipulated conditions are satisfied, fall outside the marine licensing regime established by MCAA 2009 and therefore not require a licence. This approach applies only where the relevant criteria are met. Using exemptions allows regulators to act in a proportionate manner in the regulation of the marine environment, by making the licensing process swifter and more cost-effective wherever the activity is considered to present low risk. Although the proposed activity may not require a marine licence, other consents may still need to be obtained. See Practice Note: Marine...

In judicial review, noting that a document exists or once existed is usually achieved by the duty of candour, not by a formal disclosure process. Default lack of formal disclosure and inspection exercise By default there is no formal disclosure; it is not required unless the court directs otherwise. This is because judicial review turns on the legal consequences of mostly agreed facts; the court does not resolve factual disputes; and all sides owe a duty of candour to the court, so separate “disclosure” is unnecessary (though in practice the outcome is often similar). The same approach applies to judicial review, statutory reviews and appeals in the Administrative Court. The court retains a broad discretion to order disclosure, but that power will be exercised sparingly. General duty of candour All parties to judicial review are under a general duty of candour requiring them to reveal the...

The Freedom of Information Act 2000 ( FIA 2000) grants a public right to access information held by public authorities, including government departments, local institutions, educational institutions, publicly owned companies and other public organisations across England, Wales and Northern Ireland. Anyone—individuals, companies and foreign nationals—can request disclosure of any information held by such authorities. This Practice Note outlines common procedural pitfalls and issues that public authorities may encounter when dealing with freedom of information requests ( FOI requests). Requirements for a valid FOI request How much information needs to be included in an FOI request? Under FIA 2000, s 8, an information request must: be in writing provide the requester’s name and a contact address set out or describe the information sought The Information Commissioner’s Office ( ICO) interprets the written requirement broadly. In ICO decision FS50530703 it was determined that FOI requests made online or via social media...

Liability for flood management and drainage Traditionally, individual landowners bore primary responsibility for flood defences. It has, however, long been recognised that drainage works serve the wider public interest. Public authorities therefore have a crucial function in preventing and managing flooding for the benefit of communities. For any claim arising from a flooding incident, the first task is to identify the party or parties with duties relevant to the prevention of flooding. Potential liabilities and claims may arise across both private law and public law. This note addresses both areas. At the outset of any flooding event, the availability of insurance must also be considered. See Practice Notes: Flood insurance—overview of the market and Flood reinsurance—the Flood Re scheme. Potential responsible parties include: landowners riparian landowners public...

What is a legal register? A legal register is the documented outcome of a process through which an organisation seeks to evidence compliance with applicable legislation. The calibre of legal registers varies, based on the compliance approach adopted and the: rationale scope (ie types of issues, types of requirements, etc) input from those with the necessary technical expertise documentation evidencing compliance They can range from a simple catalogue of legislation to more comprehensive spreadsheets containing details of: the scope of the legal obligations imposed how those obligations apply to the organisation the relevant ‘aspects’ affected, eg cardboard, flooding, treatment plant, etc the appropriate regulator who within the organisation holds responsibility for demonstrating compliance any specific controls that have been implemented compliance, eg any relevant authorisations and records the revision...

The EDR is given effect in England and Wales by the Environmental Damage ( Prevention and Remediation) ( England) Regulations 2015, SI 2015/810, together with the Environmental Damage ( Prevention and Remediation) ( Wales) Regulations 2009, SI 2009/995. Under the EDR, operators whose activities are responsible for serious environmental incidents must take steps to prevent harm and to remedy any resulting damage. See Practice Notes: Environmental damage regulations—overview Environmental damage—when does the environmental damage regime apply? Environmental damage—potential liabilities Environmental damage—operators’ obligations, enforcement, offences and appeals The environmental damage regulations implement the requirements of the Environmental Liability Directive 2004/35/ EC. See Practice Note: EU Environmental Liability Directive—snapshot. Environmental damage includes damage to: land marine waters protected species or natural habitats sites of special scientific interest ( SSSI) surface water or...

What are deemed marine licences? The Planning Inspectorate ( PINS) is responsible for examining and considering applications for nationally significant infrastructure projects ( NSIPs) under the Planning Act 2008 ( PA 2008). See Practice Note: Examination of nationally significant infrastructure projects—general. Where proposals fall within specified locations—principally the English inshore and offshore zones (see: Geographical scope of DMLs below)—section 149A of the PA 2008 allows development consent orders ( DCOs) for NSIPs to include provisions which deem a marine licence to have been granted under sections 65–115 of the Marine and Coastal Access Act 2009 ( MCAA 2009). Nonetheless, in practice, some promoters may prefer to lodge a standalone application for a marine licence with the Marine Management Organisation ( MMO) instead of asking for it to be deemed through a DCO, as in certain situations that pathway can prove more...

What is an agreement on liabilities? Parties to a deal may choose to set out, expressly, how known or potential remediation expenses under Pt IIA of the Environmental Protection Act 1990 ( EPA 1990) will be shared, for example on a land transfer. An agreement on liabilities exists where: two or more persons are “appropriate persons” who bear all or part of the cost of a remediation measure they agree, or have previously agreed, the basis on which that burden is to be apportioned a copy of the agreement is supplied to the enforcing authority, and none of the parties notifies the enforcing authority that it contests the agreement’s application An “appropriate person” is the: person(s) who caused, or knowingly permitted, the contaminating substances to be in, on or under the relevant land ( Class A), or owner or occupier of the contaminated land, but only where a Class A person cannot be...

What is a remediation notice? A remediation notice is a formal written direction requiring an ‘appropriate person’ to undertake the remediation of contaminated land under Pt IIA of the Environmental Protection Act, 1990 ( EPA 1990). For further detail, see Practice Note: Contaminated land—meaning of remediation. An ‘appropriate person’ is: the individual(s) who caused or knowingly permitted the contaminating substances to be in, on or under the land concerned ( Class A), or the owner or occupier of the contaminated land, but only where a Class A person cannot be identified ( Class B) For more information, see Practice Note: Contaminated land—identifying Class A and B appropriate persons. According to the Environment Agency’s ( EA) Dealing with contaminated land in England, only 19 remediation notices had been issued under Part IIA in England (one of which related to a special site). This contrasted with 446...

Compensation orders The procedural framework governing the criminal courts’ authority to issue compensation orders appears in sections 133–146 of the Sentencing Act 2020 ( SA 2020), also referred to as the Sentencing Code. For background on SA 2020’s commencement and scope, see Practice Note: Sentencing Code. When passing sentence on a convicted offender, the court assesses whether to direct a compensation order in favour of the victim(s). Such orders may be imposed in place of, or alongside, other penalties, and may be made against both natural persons and corporate defendants. Relevant offence-specific guidelines from the Sentencing Council expressly instruct courts to consider compensating the victims of crime. Practitioners should therefore review the Sentencing Council’s offence-specific guidance, which confirms whether a compensation order is available following conviction. That guidance summarises the situations in which an order may be made, the matters the court must weigh when...

Scope of planning judicial review Within the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, Part 54, a claim for judicial review is described as a claim to assess the lawfulness of an enactment, or any decision, act, or omission made in connection with the exercise of a public function. Decisions, actions, or failures to act pertaining to the performance of a public function are, as a matter of principle, subject to judicial review......