Legal Practice Notes

This Practice Note offers practical guidance on the frequently debated question of which local authority should be designated for section 31 of the Children Act 1989 ( Ch A 1989). Specifically, it examines and clarifies: the distinct statutory criteria governing designation for both care orders and supervision orders in such cases for care orders, whether and to what extent A v A ( Children: Habitual Residence) ( Reunite International Child Abduction Centre) influences the understanding of ‘ordinary residence’ in particular the operation of the ‘stop clock’ in Ch A 1989, s 105(6), and the effect of amendments to Ch A 1989, s 22 introduced by the Children and Young Persons Act 2008 on the definition of a looked after child in this context General principles The Family Court may not issue a care order or a supervision order in the abstract. Any such order must identify the local...

This Practice Note distils the law, guidance and practical approach to varying contracts and deeds. It outlines how a contract or deed can be changed in writing, orally or by conduct, and also addresses unilateral variation, waiver and sustained minor breach. It offers practical and drafting pointers, flags issues when adjusting business-to-consumer contracts, public contracts and third party guarantees, and considers third party rights on variation. For a step-by-step guide to contract variation with full resources, see Practice Note: How to vary a contract. Where a variation stems from renegotiation after difficulties during performance, see also Practice Note: Managing difficulties in commercial contracts for further guidance. When is a contract variation appropriate? In commercial life, parties rarely operate only through isolated, stand-alone agreements; rather, relationships evolve over time, which may necessitate changes to existing contracts. Variations may arise and be proposed for many reasons,...

Introduction Since the development consent regime was introduced by the Planning Act 2008 ( PA 2008), the requirement to obtain consent under section 36 of the Electricity Act 1989 ( EA 1989) has been greatly reduced. Nevertheless, s 36 still has application to: onshore and offshore generating stations in Scotland; and offshore wind (or water) generators with a capacity between 1 MW and 100 MW (excluding any within Scottish waters or a Renewable Energy Zone for which the Scottish Ministers have functions) When is s 36 consent required? EA 1989, s 36(1) bars the construction (at a ‘relevant place’), extension, or operation of a generating station without the consent of the ‘appropriate authority’. For these purposes, a ‘relevant place’ is a location in Great Britain, in the territorial sea adjacent to Great Britain, or within a Renewable Energy Zone ( EA 1989, ss 36(1) and (4)). ‘...

This Practice Note explores the definition, interpretation and practical use of conditions precedent in commercial arrangements. It also reviews common conditions precedent and key drafting considerations... What are conditions precedent? In a commercial contract, a condition precedent identifies an event that must occur before either: the contract itself, or a party’s obligations under the contract, take effect Until that event is fulfilled, neither the agreement nor the relevant duty is binding. The leading authority on construing a condition precedent is Bremer Handelsgesellscheft Schaft mb H v Vanden Avenne Izegem PVBA [1978] 2 Lloyd’s Rep 109 (not reported by Lexis Nexis®). There, Lord Wilberforce explained that whether a clause amounts to a condition precedent, or is some other form of contractual term, turns on: (i) the wording of the clause, (ii) its place within the agreement as a whole, and (iii) broader legal...

What is BREEAM? The Building Research Establishment’s Environmental Assessment Methodology ( BREEAM) provides a framework for assessing and certifying the environmental performance of a building’s design, construction and operation. Certified buildings are given a BREEAM score and rating, allowing the environmental impacts of their design and construction to be measured and benchmarked against other certified buildings. BREEAM is owned, maintained and managed by BRE Global Ltd. BRE Global Ltd issues licences to independent, trained and qualified BREEAM Assessors who carry out assessments. Completed BREEAM assessments are then submitted to BRE for independent review and certification. Drivers of BREEAM While BREEAM is a voluntary standard, there are several drivers for undertaking a BREEAM assessment, including: Local development frameworks, via planning authorities, specify BREEAM ratings to be achieved to demonstrate the sustainability of developments. For example, in Wales, all new non-residential developments (over 250m 2) promoted or...

Scope of Practice Note This Practice Note on preparing a notice of breach of contract highlights the principal situations in which serving such a notice may be appropriate and explains the context for our tailored notice of breach precedents. Many commercial agreements contain terms requiring a party in default to receive notice of its breach. Frequently this sits within a termination clause and may be necessary to enable the defaulting party to remedy the failure and/or operate as a preliminary step to issuing a termination notice for breach under a contractual right to terminate. That said, not every breach of contract creates a right to terminate or necessitates a notice to remedy; some breaches may confine the innocent party to a claim for damages only. In those circumstances, a notice may be issued to inform the defaulting party that the innocent party requires the breach to be...

Definition of property and some general principles Section 436 of the Insolvency Act 1986 ( IA 1986) adopts an exceptionally broad conception of property. It covers money, goods, choses in action, land and every variety of property wherever situated, as well as obligations and every form of interest—whether present or future, vested or contingent—that arises from, or is incidental to, property. This statutory reach extends to assets of all kinds, tangible and intangible, and regardless of location (on foreign property—see Sanders v Donovan). As regards land, the usual rules of international law mean a trustee in bankruptcy (trustee) will need an order from the court of the place where the asset is situated to enforce their rights. In broad terms, all property (so widely defined) that belongs to, or is vested in, the bankrupt at the start of the bankruptcy falls into the...

Legislative framework This Practice Note explores the transfer of IP rights. It sets out the statutory rules on the formal requirements for effecting legal assignments of patents, trade marks, copyright and designs, as contained in the Patents Act 1977 ( PA 1977), the Trade Marks Act 1994 ( TMA 1994), the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Registered Designs Act 1949 ( RDA 1949) and Assimilated Regulation ( EU) 6/2002, and addresses the possibility of partial assignments. It also addresses equitable assignments of IP rights. Alongside the shared principles applicable to patents, trade marks, copyright and designs, it identifies the specific issues to be considered when transferring each distinct right. The Note additionally deals with the assignment of rights that may arise in future, and with assignments of comparable trade marks and re-registered designs. It explains how to...

Local authorities that have obtained land for a statutory aim must retain it for that same statutory aim. They cannot use that land for another aim unless authorised by statute, and may alter its holding purpose only via statutory appropriation powers. In this setting, the ability to appropriate land for planning purposes is simply the formal administrative act of switching the purpose for which the land is held, so that it is retained for a planning objective. Authorities have relied on this for many years, and it is often a straightforward administrative step undertaken within local authorities. Yet, following Heaney ( HRUK II ( CHC) Limited v Heaney), there has been heightened recognition by both authorities and developers of the advantages of appropriating land to planning purposes and then disposing of it for development free of private rights affecting that land. This is...

The single justice procedure The single justice procedure came into force on 13 April 2015. Its core provisions sit in sections 16A–16F of the Magistrates’ Courts Act 1980 ( MCA 1980), supported by the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909. It is designed to handle high-volume, low-level crime more efficiently, removing the need for parties to attend a hearing. Since 7 November 2023, defendants facing specified summary-only, non-imprisonable offences have been able to choose an automatic online conviction and penalty under MCA 1980, ss 16G–16M. This approach is described as the ‘automatic online conviction and penalty for certain summary offences’ and is intended to ease the continuing court backlog by allowing defendants in low-level cases to plead guilty and receive penalties without appearing in court. The definitive list of offences eligible for the automatic online conviction service will be set by a...

Electronic signatures This Practice Note sets out the legal position on electronic signatures—also called digital signatures, e‑signatures, E‑ Signatures, e Signatures, paperless signing or electronic document signing. It explains the categories of electronic signature and the technology used to generate digital signatures, including public key infrastructure ( PKI). It reviews key UK legislation such as the Electronic Communications Act 2000 ( ECA 2000) and the UK e IDAS Regulation, and outlines best practice for executing documents by electronic means. An electronic signature functions as the digital counterpart to a handwritten signature, connecting an individual with the contents of an electronic document. The Note focuses on the general law in England and Wales for commercial contracts in a business‑to‑business context. Readers should be aware that particular transactions may present distinct issues, for example due to laws applicable to consumers. For practical guidance on signing when one or more...

Electrical Equipment ( Safety) Regulations 2016 The Electrical Equipment ( Safety) Regulations 2016 ( EE( S) R 2016), SI 2016/1101, form the framework of regulation overseeing the safety of electrical equipment placed on the UK market. Aligned with the EU New Legislative Framework, they set obligations on product conformity, accreditation and market surveillance, with compliance evaluated and enforcement undertaken in line with UK statutory provisions by UK market surveillance authorities. The Department for Business and Trade has produced a range of product safety guidance covering England, Wales and Scotland, which should be essential reading for lawyers advising on electrical equipment supplied to the market. Available guidance includes: Statutory guidance— Electrical Equipment ( Safety) Regulations 2016: Great Britain Placing manufactured goods on the market in Great Britain Product safety for businesses: A to Z of industry guidance Using the UKCA marking Where a business intends to place electrical equipment on the EU...

Practice Note This Practice Note summarises the statutory framework for enforcing council tax liabilities. It explains the legal steps for demanding unpaid sums, the issue of a summons requiring a debtor to attend the magistrates’ court, and enforcement tools including attachment of earnings, securing a charge over property and, in the most exceptional circumstances, committal to prison. Council tax became the principal means for local authorities in England to collect income from residents on 1 April 1993. While the legislation also applies in Wales, the administration of council tax there is the responsibility of the Welsh government. Council tax replaced the community charge (widely known as the ‘poll tax’), which had itself replaced domestic rating in April 1990. See Practice Note: Council tax. The council tax enforcement regime is prescribed by regulations issued by the Secretary of State under the Local Government Finance Act 1992 ( LGFA...

This Practice Note explores the role, function and significance of defined terms within an agreement context. It outlines those definitions most frequently found in documents relating to transactions, and considers the method that ought properly to be adopted when reviewing or preparing a contract that uses defined terminology. For wider guidance on boilerplate clauses generally, see Practice Note: The role of boilerplate. For general guidance on construing contracts, see Practice Note: Contract interpretation—rules of contract interpretation. The definitions and interpretation clause A common boilerplate provision is the definitions and interpretation clause, often treated as a standard component. It should gather every individual defined term contained in the agreement together with all provisions that govern the overall interpretation of the agreement and, where required, the meaning of particular expressions used in it as well. Typically, the defined terms and the...

This Practice Note outlines the distinction between highway land that is only vested in the highway authority and highway land that is owned outright by the authority. It highlights leading cases and statutes, notably the Highways Act 1980 ( Hi A 1980) and the Local Government Act 1929 ( LGA 1929), and clarifies that, where land is merely vested, the authority’s proprietary interest extends physically to the upper two spade-depths of the relevant land, or to such depth as is required for the construction and maintenance of the highway, including associated drains. Whilst that form of vested ownership will usually suffice, highway authorities may purchase freehold estates in land under the Hi A 1980 for the creation of new or improved highways. Some highway land is only vested in the highway authority, whereas other highway land belongs entirely to the...

This Practice Note explains the powers, processes and procedures for stopping up and diverting footpaths under sections 118 and 119 of the Highways Act 1980 ( Hi A 1980). Please note that there are alternative mechanisms for stopping up/extinguishing and re-routing rights of way. For an overview and comparison of the tools available to stop up or divert rights of way, see Practice Note: Powers to stop up and divert highways and footpaths. Stopping up of footpaths, bridleways and restricted byways under Hi A 1980, s 118 Section 118 of the Hi A 1980 confers a discretion on highway authorities to extinguish a footpath, bridleway or restricted byway where the route is unnecessary for public use. Orders made under section 118 are termed 'public path extinguishment orders'. Although a public path extinguishment order under section 118 must be made by the highway...

Most projects rest on a dense network of contractual ties linking all key participants in the scheme (eg the project company, equity investors, contractors, sub-contractors, offtakers and suppliers). Taken together, these contracts are commonly termed the ‘project documents’ in practice (see: Project documents—issues for lenders—overview). In projects focused on the production or exploitation of a product (eg a power project or a mine project), offtake agreements are also generally regarded as some of the principal project documents indeed. What is an offtake contract? An offtake contract is an agreement under which a third party (the offtaker) undertakes to purchase a defined quantity of the product generated by a project at an agreed price. The product is usually a commodity such as oil, gas, minerals or power. The purpose of an offtake contract is to: secure a predictable revenue stream for the project, and ensure there is a...

The offence of possession of a bladed article Under section 139 of the Criminal Justice Act 1988 ( CJA 1988), a person commits an offence if they have with them in a public place a bladed article to which the section applies. Proceedings may take place in either the magistrates’ court or the Crown Court. Where it appears that the magistrates’ court lacks sufficient sentencing powers, it will refuse jurisdiction. See: Sentencing for possession of a bladed article in public below. Elements of the offence An offence contrary to CJA 1988, s 139 is made out where the prosecution proves that the accused: had the item with them in a public place a bladed article, or a sharply pointed article Bladed and sharply pointed articles Section 139 CJA 1988 covers items with a blade or items that are sharply pointed, save for a folding pocket...

This Practice Note sets out the offences that may arise under the Town and Country Planning Act 1990 ( TCPA 1990) or the Planning ( Listed Buildings and Conservation Areas) Act 1990 ( P( LBCA) A 1990) in relation to unauthorised development within a conservation area in England, the statutory defences available, and the penalties that may follow on conviction. It also outlines how a local planning authority ( LPA) can pursue enforcement against such unauthorised works. Issues of conservation area offences and enforcement most commonly result from the unauthorised demolition of buildings within these areas. From 4 November 2024, the legislative framework in Wales became distinct from that in England—see: Conservation area regime in Wales. Offences Undertaking (or causing or allowing) ‘relevant demolition’ without planning permission is an offence under TCPA 1990, s 196D(1). Breaching any condition or restriction attached to a...

This archived Practice Note offers a summary of the presumption in favour of sustainable development as contained in the 2012 edition of the National Planning Policy Framework (2012 NPPF). On 24 July 2018, the government issued a revised NPPF (the 2018 NPPF), which replaced the 2012 NPPF and, with it, the policy text on the presumption in favour of sustainable development set out in the 2012 NPPF. The 2012 NPPF was archived and the presumption it contained will therefore only continue to have effect in certain situations, as outlined below. For details of the presumption currently in force, see Practice Note: Presumption in favour of sustainable development. Note that the NPPF was revised again in 2019, 2021, September 2023 and December 2023, but those later updates are not addressed in this archived Practice Note. Policy context The 2012 NPPF was published on 27 March 2012 and came into...