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Environmental issues in new leases—tenant’s checklist

Environmental issues in new leases—tenant’s checklist Environmental reports • Are there any existing environmental reports? Will the tenant get the benefit of the report(s) via a reliance letter? Do the reports raise any concerns? Have the appointment terms and certificate of insurance been provided? • Commission a combined contaminated land and flooding desktop report in every transaction. Are any other specific desktop searches required (planning, utilities, agricultural, crossrail, HS2, Japanese knotweed)? • If the desktop concludes that the property is ‘in need of further assessment’ in respect of contaminated land liabilities, advise the client of the options available to assess the risks and the timing and cost implications. Consider the following steps: ◦ raise additional enquiries with the landlord’s solicitors ◦ instruct the desktop provider to raise regulatory enquiries with the local authority contaminated land team, planning department and if appropriate the Environment Agency and local petroleum officer ◦ consider whether a phase 1 site walkover is required ◦ obtain a quote for indemnity insurance ◦ if there is no...

Ramsay case law—chronology and cheat sheet

Ramsay case law—chronology and cheat sheet The following table lists, in reverse chronological order, cases that have been important in the development of the Ramsay anti-avoidance principle. It is not a list of every case that has discussed the principle. It is weighted towards the present in the sense that decisions of lower courts are more likely to feature in the list if they are relatively recent, and so demonstrate the latest judicial thinking. For a general introduction to the Ramsay principle, see Practice Note: Ramsay as a guide to statutory construction. For comprehensive tax case tracking across current (and recently completed) tax cases, see the: Tax—cases tracker. Case name and citation Who won in the highest court? Facts in a nutshell Quote(s) from the judgment Comment Michael Brown, Bridget Brown [2024] EWCA Civ 92 The government (in the Court of Appeal) Scheme for avoiding SDLT ‘...no statute is immune from a purposive interpretation, and the very mistake that this court made in Rossendale was to...

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Legal professional privilege in civil proceedings

Legal professional privilege in civil proceedings This Practice Note considers legal professional privilege (LPP), which is made up of legal advice privilege and litigation privilege. It considers the various criteria for both types of LPP including confidentiality of communications, the dominant purpose and legal context of the communications over which privilege is being asserted and to whom the communication has been copied. The question of which country’s law decides whether a document is privileged is answered. The Practice Note looks at the meaning, for the purposes of asserting privilege, of client, legal adviser, legal advice and anticipated litigation. It addresses the various exceptions to privilege (ie circumstances in which privilege will not arise) including the iniquity exception (in circumstances of fraud or crime), where statute overrides privilege, etc. The position on copy documents, collated, selected and extracted documents and translations is also considered. Finally, practical tips on LPP and privilege generally are offered. Legal professional privilege (LPP) (which is often referred to simply as ‘privilege’ in this...

Electric vehicle charge point leases—key issues for commercial property

Electric vehicle charge point leases—key issues for commercial property Background The number of electric vehicles is set to grow rapidly in the coming years, especially as the UK intends to ban the sale of new petrol and diesel cars by 2035, see: Government sets out path to zero emission vehicles by 2035. Significant investment in the UK’s electric vehicle charging points (‘EVCP’) network will be required to support the government’s drive towards electric vehicles. It is therefore important for both developers, charge point operators (‘CPO’s) and landlords to work together to capitalise on the opportunities provided for them in this relatively new market. In the real estate context, some scenarios where EVCP issues may arise, include: • an existing tenant wishing to install EVCPs within their demise or allocated parking bays seeking a licence to alter from the landlord (and in some cases, a licence to alter outside the demise, where cabling needs to be installed, see Precedent: Licence for alterations with works outside the demise). The landlord and tenant...

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Decommissioning Relief Deed

Decommissioning Relief Deed Decommissioning Relief Deed The Decommissioning Relief Deed (DRD) is a contract between the UK Government and a ‘Qualifying Company’ which operates in the oil and gas exploration and production market in the UK or on the United Kingdom Continental Shelf (UKCS). The DRD aims to provide certainty on the

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Would decommissioning a site be subject to the polluter pays principle? Would this be subject to state aid? Would accepting historic risks be subject to the polluter pays principle?

Would decommissioning a site be subject to the polluter pays principle? Would this be subject to state aid? Would accepting historic risks be subject to the polluter pays principle? The ‘polluter pays’ principle is a fundamental principle of EU environmental law. It is enshrined in Article 191 of the Treaty on the Functioning of the EU. Accordingly, it is a governing principle of environmental law in the UK. In addition to its application as a general legal principle, the ‘polluter pays’ principle is also reflected in the specific legal regime for contaminated land contained in Part IIA of the Environmental Protection Act 1990 (EPA 1990). As a starting point, both EU law and the domestic law relating to contaminated land impose certain legal obligations on those responsible for pollution or risks from pollution at a site. A classic example would be pollution and the risks of pollution from mines. Here, in addition to planning conditions and planning obligations likely to have been imposed on the operator...

What is the maximum statutory penalty for summary prosecutions under the Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005?

What is the maximum statutory penalty for summary prosecutions under the Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005? The Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005, SI 2005/2055 The Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005, SI 2005/2055, prohibit the discharge of oil to sea from offshore oil and gas installations other than in accordance with the terms and conditions of a permit, and require offshore operators to apply for permits for all planned discharges of oil in the course of all relevant offshore energy activities, including well operations, production operations, pipeline operations, and decommissioning operations. For more information on oil and gas regulation generally, see: Oil and gas licensing and regulation—overview. Offences under the Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005, SI 2005/2055 The Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005, SI 2005/2055, reg 16 lists the offences under the regulations and any defences. The result of a person being found guilty of an...

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Navigating the North Sea—NSTA releases new guidance to streamline M&A transactions

Energy analysis: On 8 October 2024, the North Sea Transition Authority (NSTA) released updated guidance for the assignment of offshore petroleum production licences in the UK Continental Shelf (UKCS) (the Guidance). Publication of the Guidance followed a consultation launched on 28 March 2023 inviting industry feedback from licensees, infrastructure owners and potential future investors. The aim of the Guidance is to streamline the period between signing and completion of M&A transactions in the UKCS, reducing potentially costly delays and improving deal certainty, while assisting in the development of a stable regulatory system which encourages investment in both oil and gas and energy transition projects in the UKCS. As background to the Guidance, the NSTA recognises the role M&A plays in the UKCS, which includes the need for ‘new capital, new ideas and new vigour’ to support the central obligation of the ‘OGA Strategy’, to maximise economic recovery of petroleum while assisting the Secretary of State in meeting the net zero target.

Secretary of State grants development consent for two energy projects

The Secretary of State for Energy Security and Net Zero has granted development consent for two energy projects: the West Burton Solar Project and the Heckington Fen Solar Park. The West Burton Solar Project is a nationally significant infrastructure project (NSIP) development comprising four electricity generating stations, with an anticipated capacity in excess of 50MW, comprising ground mounted solar arrays and associated development consisting of energy storage, grid connection infrastructure, and other infrastructure integral to the construction, operation, and maintenance of the NSIPs.  The Heckington Fen Solar Park development involves the construction, operation, and decommissioning of a solar photovoltaic electricity generating facility with an output capacity exceeding 50 MW, along with associated energy storage.