4th annual local government conference, Exeter

Annual local government conference
1 March 2016, Exeter

Simplifying property disposals
-a practical legal guide
Neil Walker and Rebecca Toates

Objectives
Done Deal?
Simplifying
Property
Disposals
Initial
Considerations
Due
Diligence
The Road
To
Exchange
Structure

Objectives
• Why are you disposing?
• Surplus land?
• Capital receipt?
• Reduce liabilities/outgoings?
• Regeneration/housing/economic development?
• Generate revenue/create investment for later sale?
• Any replacement facilities required?
• May impact on other considerations

Initial considerations # 1
• How is land currently held?
• Committee/other approvals required.
• Appropriate for other purpose?
• Section 237 TCPA 1990.
• Any “special” consents required?
– e.g. Sec State
• Section 123/State Aid
– Valuation
– Remember additional “open space” requirements under Section
123

• Is it “just a land deal” ?
– Works/development?
– Purchaser providing services?
– Developer/contractor/consultants?
- Any other features?
• Resource – can you cover everything in house? Any budget
approvals required for external consultants?
• Who is leading? Who’s in the team?
• Who is managing external relationships/giving instructions?
• Who will manage the project after exchange?

• Who else needs to be involved/informed:
– Finance?
– Estates – property services/management/valuation?
– Contracts/procurement?
– Legal/insurance/tax
• Timetable – transactional timetable and for internal
process/approvals
• Other functions:
– Planning - conditional sales and issues with S.106s
– Highways - conditional sales and issues with S.38s/S.278s
– Education - impact on disposal? “Special” consents required?

Why is this important?
• Best consideration required
• State aid risks even if Section 123 compliant?
• Procurement challenge
• Internal/external audit
• Meet project objectives
• Efficient use of resources
– internal
– external

Due diligence #1
• How well do you know your property?
• Who knows about the title/position on the ground?
• Registered or unregistered-terrier/deeds
• Freehold or long leasehold (landlord consents?)
• Consider first registration application
• Any restrictions against “dispositions”?
• Asset of Community Value?
• Town or Village Green risk?

Due diligence #2
• Any known title issues?
– Boundaries
– Access to egress from public highway
– Adverse possession
– Uncertain occupations e.g. informal arrangements, tenants holding
over
– Restrictive covenants
– Problem rights (easements)
• CPSEs - 1, 2, 3, 7 other (?!)
• Lots of information/client input required – who has it/will provide it?
• Plans – Land Registry requirements
• Are you providing searches?
• Use a data room?

Dealing with problem titles
• Unregistered title – consider first registration
• Missing title-statutory declaration/possessory title application
• Uncertain occupations
– renew/formalise
– “Contracted out leases”
– Surrender
– Variation
• Problem covenants/rights
– Insurance
– Appropriate for planning purposes
– S.237 TCPA 1990-Indemnity from purchaser
– Release/modification

Structure #1
• What will work best?
– Consider objectives
– Consider possible purchaser’s concerns/likely preferences
– Consider funding requirements of purchaser for
acquisition/development
– Any adverse tax consequences for either party?
• Freehold sales
– Capital receipt
– Overage
– Less control over use and future disposals
– Issues with positive covenants – restriction on title/deed of
covenant usual solution - won’t always be acceptable

Structure #2
• Leasehold disposals
– Short term leases
 S.123 may not apply
 Revenue potential-rents
 Generally a high level of landlord control
– “long leases”
 Term
 Generally less landlord control
 Capital and revenue potential
 Building leases-control until completion of development
– Generally more control over use/future disposals

Structure #3
• Not just a land deal?
– Procuring works – development/refurbishment
– Procuring services – consultancy/operational
– Procurement advice – navigate the regulations
• SDLT issues?
• for purchaser if obliged to carry out works before
the effective date or on other land
• Any property being transferred to you as part of the
deal? SDLT and VAT analysis required-exchange rules

The Road to Exchange # 1
• Consider approvals
• Heads of terms
– Who is preparing these?
– Clarity required-but avoid over-complication
– Are the terms commercially realistic
– Consider issues for purchasers/developers/funders
– Overage/buy back options
• Drafting the contract documents

The Road to Exchange # 2
• Negotiation
– Avoid death by email (!)
– How best to resolve commercial terms?
– Schedule milestones/meetings
– Be realistic – terms/timetable
– Exchange
 Report
 Deposit
• Common pitfalls ?

Done deal? # 1
• What will you need to do after exchange?
– Take decisions-approvals/consents
– Invoice for payment
– Other substantive obligations?
• How quickly can you do it….or need to do it?
– Who?
– By when?
– What does contract say?
– Who’s managing the contract?

Done deal? # 2
• What if you don’t do what you are supposed to?
– Deeming provisions?
– Breach of contract
– Consequences-damages?
• What will the purchaser need to do?
– Same considerations (in reverse)

Done deal? # 3
• Monitoring and management vital
• Are you going to react or pro-act?
• Consider consequences and risk profile
• Variations
• Completion
– Monies
– Title restrictions-overage
– Notices
– Amend internal records/terrier

Lessons learned
• Review objectives
• Have these been met?
– Budget
– Timetable
• What went right?
• If it didn’t go right….
– Why?
– What can you do better next time?
• What can you teach us… to help us to help you?

Questions…
Rebecca Toates, Associate| 0115 934 2000
rebecca.toates@brownejacobson.com
Neil Walker, Associate| 0115 908 4127
neil.walker@brownejacobson.com

Contract law update
Lynne Rathbone

What are we going to look at?
• Some recent case law developments around:
– contract construction and interpretation
– implied terms
– good faith
– variation
– penalties

Construction and interpretation
• Primary purpose of a contract = certainty of terms
• Ambiguity in the drafting can lead to disputes and
the resolution through the courts
• So what will the courts look at, and how far will
they go, when interpreting the terms of a contract?

• Literal wording of the contract
– this is where the ‘interpretation’ should start, and
end…
– it is only when the literal meaning of the wording is
unclear that the courts will turn to other means of
construction, or consider implying terms into the
contract

• Lord Hoffman said in 2001:
“The primary source for understanding what the
parties meant is their language interpreted in
accordance with conventional usage”
Bank of Credit and Commerce International SA (in
compulsory liquidation) v Ali [2001] UKHL 8
• That clearly remains the starting point for the courts
when looking at construction of contracts

• Arnold v Britton [2015] EWSC 36
– interpretation of a clause in a lease (or rather 21
leases …) containing a covenant to pay a service
charge and how that should be calculated/paid.
• Clarification of the court’s approach to contract
construction and interpretation by Lord Neuberger

• Warns against disregarding clear literal meaning of
clause in favour of alternative (perhaps more
commercially sound) interpretation by the court
• Commercial common sense not relevant where the
natural meaning of the language is clear, even if
results in commercially detrimental consequences
• Not the court’s job to protect a party from a bad
commercial bargain!

• “the fact that an arrangement has worked out
badly or even disastrously is not a reason for
departing from the natural meaning of the
language, neither is the fact that a certain term
appears to be very imprudent. It is not the function
of the court interpreting a contract to relieve a
party from the consequences of imprudence or
poor advice”.
Lord Neuberger in Arnold v Britton

• When interpreting written contract the court must:
– identify intention of the parties – ‘reasonable
person’ test - objective test
– focus on meaning of relevant words in their
documentary, factual and commercial context
– while reliance must be placed on commercial
common sense that should not undervalue the
importance of the language
– ‘hindsight’ is not a relevant factor

• Two more Court of Appeal cases both relating to
‘commercial common sense’ with similar message:
Wood v Sureterm Direct Ltd & Capital Insurance
Services Ltd [2015] EWCA Civ 839
Trust Risk Group Spa v Amtrust Europe Ltd [2015]
EWCA Civ 437

Implied terms
• Marks and Spencer Plc v BNP Paribas Securities Services
Trust Company (Jersey) Limited and another [2015]
UKSC 72
• Portsmouth City Council v Ensign Highways Ltd [2015]
EWHC 1969 (TCC)
• D & G Cars Ltd v Essex Police Authority [2015] EWHC
226
• C & S Associates UK Ltd v Enterprise Insurance Company
Plc [2015] EWHC 3757 (Comm)

Implied terms
• In Marks and Spencer Plc v BNP Paribas Securities
– Supreme Court provided guidance on questions
arising out of earlier case of Attorney General of
Belize and others v Belize Telecom Ltd [2009] UKPC
10
– Belize should no longer be treated as authoritative
guidance on the law of implied terms
– confirmed that for a term to be implied into a
contract must be necessary for business efficacy

Implied terms and good faith
• Portsmouth City Council v Ensign Highways
– Related to interpretation of obligations under long-
term contract for Highway maintenance
– Council had the right to award service points for
breaches of contract but the regime was unclear
– Council would have the right to terminate if a
certain number of points were awarded within a set
timeframe

– Council was awarding maximum number of service
points permitted, regardless of severity of breach,
purportedly to get out of the contract rather than
for the intended purpose
– Ensign referred matter to expert determination –
expert found Council had acted unfairly and in bad
faith
– Council sought declaration from court concerning
operation of the performance management regime

– Court found that the contract provisions were not
clear and were open to multiple interpretation
– Court adopted the ‘commercial common sense’
approach to construction of the provisions concerned
– It was held that it made sense for service points to
be calculated on severity and duration of breach,
which was not what the Council was doing

• Contract also included a ‘good faith’ obligation in a
clause dealing with the Council’s best value duty
• the court was asked to consider if express term applied
to entire contract OR was there an implied duty of good
faith governing operation of the service points regime?
– Held – express term did not extend to the entire
contract BUT there was an implied duty that in
exercising its discretion the Council would “act
honestly and on proper grounds and not in a manner
that is arbitrary, irrational or capricious”

• D & G Cars Ltd v Essex Police Force
– involved a long term contract between D&G and the
police for D&G to dispose of vehicles for the police
– the police terminated for material breach (came to
light D&G had not crushed a vehicle as instructed
and had been otherwise using it without consent)
and excluded them from the tender process
– D&G brought an action for bad faith against the
police (which they lost!)

– In his judgement, Dove J considered in what
circumstances can a duty of good faith be implied
by law into a commercial contract?
– This was previously considered in Yam Seng Pte v
International Trade Corporation Ltd [2013] EWHC
111 (QB), [2013] 1 All ER (Comm) 1321 by Leggatt J,
who said that where parties to a contract have a
long term relationship … (‘relational’ contracts),
good faith, cooperation and loyalty are required and
may be more likely implied as a contractual term

– Dove J considered whether there was a legal basis to
incorporate an implied term into a commercial
contract to act with honesty and integrity
– Held: the contract in D&G (which he deemed ‘a
relational contract par excellence’) warranted the
inclusion of the implied, taking into consideration:
 the contract length (5yrs initially); and
 the substance of the contract (dealing with public
property, potential evidence for criminal investigation)

• What would be a breach of this implied term? Acts
which would compromise the mutual trust and
confidence between the parties would be a key
consideration
• Dove J concluded that while he was not satisfied
that there had been dishonesty in this case, there
was a clear breach of implied term re: integrity

Implied terms and variation
• C & S Associates UK Ltd v Enterprise Insurance
– C&S provided claims handling services to Enterprise
under what was effectively a framework agreement,
terminable by either party on 3 months notice
– Enterprise purported to terminate the contract in
January 2014, C&S contended the termination
– complex case dealing with multiple issues, two of
which we are going to consider today:

• Issue 5 of the judgement: Could the contract be
varied by email exchange?
– Qu: whether the contract was varied by an exchange
of email in October 2013 so as to (i) increase the
fees payable to C&S; and (ii) impose a min. 2yr term
– The contract included the following variation clause:
– “Any variation of this Agreement shall not be
effective unless made in writing and signed by or on
behalf of each of the Parties to this Agreement”

• The email correspondence had been quite clear as
to what the variation would be, and the parties had
acted on the increased payment terms
• Males J held that:
– Parties did objectively intend to be bound by their
email exchange
– All the elements of a contract were in place (i/c
offer, acceptance, certainty of terms etc)
– ‘Objective’ test applied

• Held that:
– Variation clause ensured the parties would not be
bound by oral agreements or even by informal
unsigned written agreements BUT it didn’t go so far
as to insist on manuscript signatures, paper docs etc
– No reason why, as a matter of construction, docs in
electronic form, in particular emails signed on
behalf of both parties, would not satisfy the
formation requirements, including contract variation

• So the ‘signature block’ at the end of each email
was sufficient to satisfy the ‘signed by or on behalf
of each of the Parties’ requirement
– “Accordingly my answer to issue 5 is that the
contract was varied by an exchange of emails in
October 2013 so as to increase the fees payable to
C&S and to provide that the contract should
continue for a minimum term of two years from 1
October 2013” [136]

• Issue 6 of the judgement: Did the contract as
varied include an implied term that Enterprise
would continue to pass claims to C&S in the
ordinary course of business up to 1 October 2015?
– In considering the position re: implied terms, Males J
considered the Supreme Court decision in Marks &
Spencer

– Confirmed: only after the process of construing the
express words is complete that the issue of whether
a term should be implied falls to be considered
– the original contract was effectively a framework
with no minimum volume level
– “Such a term is neither necessary nor obvious and
the amended contract works perfectly well without
it” [144]
– Accordingly the contract as varied did not include an
implied term for guaranteed workflow

Penalties
• Consolidated appeals of Cavendish Square Holding
BV v El Makdessi and ParkingEye Ltd v Beavis [2015]
UKSC 67
• Supreme Court has clarified the position and
effectively rewritten the rule against penalties,
one of the key limitations on freedom of contract

Penalties
• It confirms that the tests previously established by
Lord Dunedin in Dunlop Pneumatic Tyre Co Ltd v
New Garage and Motor Co Ltd [1915] AC 79
(penalty or genuine pre-estimate of loss?) are
simply considerations that may not always apply
• Still relevant but of most use when assessing
straightforward liquidated damages clauses not
necessarily more complex cases

Penalties
• In more complex cases, a broader test may be
justified – where the innocent party’s interest in
performance extends beyond the prospect of
financial compensation for the breach
• Need to determine the nature and extent of the
innocent party’s legitimate interest in the
performance of the relevant obligation

Penalties
• The ‘true test’ is whether the offending clause is a
secondary obligation which imposes a detriment on
the party in breach, out of all proportion to any
legitimate interest of the innocent party in the
enforcement of the primary obligation
• An innocent party’s legitimate interest is not
always confined to compensation

Penalties
• Focus then should be on whether the clause is
‘unconscionable’ or ‘extravagant’ NOT whether it
is a ‘genuine pre-estimate of loss’
• Qu: is there a justification for the clause and, if so,
whether in the particular circumstances it is
unconscionable or extravagant.
• Possible for a clause to be commercially justified
and yet still be a deterrent against specific breach

Penalties
• Following those rules their Lordships held:
– El Makdessi: that clauses that provided that if the
sellers breached certain restrictive covenants the
buyer did not have to pay any future payments of
the price, and that the sellers would lose their put
options, were NOT unenforceable penalties as the
buyer had a legitimate interest in ensuring the
observance of the restrictive covenants to protect
the future goodwill of the business it was purchasing

Penalties
– ParkingEye: the £85 parking charge was NOT a
penalty as ParkingEye had a legitimate business
interest in charging overstaying motorists which
extended beyond the recovery of financial loss,
namely the wider operation of its business
– The charge was NOT unconscionable or extravagant
as it was in line with common practice in the UK

Questions…
Lynne Rathbone, Partner| 01392 458739
lynne.rathbone@brownejacobson.com

Fracking, flooding and the
foremost developments in
planning 2015/16
Richard Barlow and Laura Hughes

Fracking in the South West
• Geology was ‘born’ in the UK, and geology in UK,
down to about 1km, is well known.
• Geology below this is not well known.
• Current thinking is that most likely areas for
effective shale gas fracking are south east and
central/northern England, and southern Scotland
• 2014 licence round saw licences granted in
Somerset, Dorset, Isle of Wight and Wiltshire

• PEDL’s granted to South Western, Perenco,
Infrastrata, and Angus. (Existing licences in
Wiltshire held by Egdon Resources and Perenco)
• https://decc-
edu.maps.arcgis.com/apps/webappviewer/index.h
tml?id=29c31fa4b00248418e545d222e57ddaa

History of UK fracking
• Its been going on a while – fracking in UK since the
70’s. However, not for shale gas, and not on the
scale now proposed.
• Quadrilla’s operations at Preese Hall triggered
minor earth tremors in 2011. Fracking in the UK
ceased until Dec 2012 when the Govt announced
that exploratory fracking could resume.
• Significant public interest/concern re fracking; and
significant Govt backing.

Where are we now?
• A stringent regulatory regime
• EA, HSE, PHE and others all say the process is safe
(provided it is conducted under the appropriate
regulations).
• https://www.youtube.com/watch?v=GFipga_zozI

The planning context
• Determine in accordance with the development
plan
• NPPF: section 13 on minerals. Only specific
reference to ‘unconventional hyrdrocarbons’ is
para 147, 1st bullet which deals with distinguishing
between the three phases of development
• PPG on minerals. Section 9 on planning for
hydrocarbon extraction.

Reliance on other regulators
• PPG, para 112 states that “planning authorities
should assume that [other regulatory] regimes will
operate effectively”, but should take advice from
regulatory bodies that issues can and will be
addressed
• R (on the application of Frack Free Balcombe
Residents Association) v West Sussex County
Council [2014] EWHC 4108 (Admin) confirms the
position

Permitted development?
• Some initial seismic work may have deemed
planning consent under part 17, schedule 2 of
GPDO
• March 2015 consultation proposed permitted
development rights for drilling of boreholes for
groundwater monitoring. Government intends to
amend legislation to implement this proposal.

Protected areas
• Before Christmas Commons voted to reverse
outright ban on fracking in National Parks and SSSIs
• Regulations will mean that fracking in protected
groundwater areas, National Parks, the Broads,
AONBs, World Heritage sites and SSSIs will be
possible so long as it occurs on land below 1200
metres deep.

The extent of the development
• Amendment 13 Jan 2014 to the Town and Country
Planning (Development Management
Procedure)(England) Order which means that
requirement to serve notice on owners of land
underneath which purely subterranean activities
would occur need not be notified
• PPG indicates application should red line the above
ground operations, but hatched line the below
ground operations

Material considerations
• Para 13 of the PPG lists possible issues for
consideration by planning authorities dealing with
minerals applications: noise, dust, air quality,
lighting, visual impact, landscape character,
archaeological and heritage features, traffic, risk of
contamination to land, soil resources, geological
structure, impact on best and most versatile
agricultural land, blast vibration, flood risk, land
stability, protected sites and landscapes, aftercare,
surface and groundwater, water abstraction

Environmental Impact
Assessment
• Unlikely an EIA will be required for exploratory
drilling operations which do not involve fracking.
• Planning authorities should not consider possible
environmental impact of extraction phase when
permission is only sought for the exploratory phase.

Speedy decisions
• Government policy statement on 13 August 2015
• For two years SoS will recover planning appeals
relating to fracking
• SoS will “actively consider” calling in shale
applications
• SoS will identify authorities who repeatedly fail to
determine applications within 16 weeks, and may
call in applications

A rock and a hard place?
• The Lancashire experience
• Quadrilla’s history has not helped but nevertheless
• Four of Quadrilla’s applications to be determined
• Planning committee spanned 4 days, with as many
as 70 people speaking in relation to each
application
• Decision taken contrary to officers report to refuse
3 applications
• Four inquiries, and one JR…..

The wider context
• Increasing numbers of severe flood events.
• Met Office, 2014: “There is evidence that heavy
rainfall events may become more frequent over
time: what in the 1960’s and 1970’s might have
been a one-in-125-year event is now more likely a
one-in-85-year event.”
• December 2016 was second wettest in UK since
records began, with an average temperature of 8C,
about 4.1C above the long-term average.

2007 floods
• Significant flooding in June and July 2007 in
Yorkshire, the Midlands, Gloucestershire,
Herefordshire, Worcestershire, Oxfordshire,
Berkshire.
• Civil and military authorities described rescue
efforts as the biggest in peacetime Britain

Pitt review
• Established following the floods
• 92 recommendations - Government claimed in 2013
to have implemented them all
• Some pertinent to planning:
– Presumption against building in high flood risk areas
– Strengthen PPS25 if required
– Remove PD rights for laying if impermeable surfaces
front and rear

– Automatic right to connect to surface water drains
for new developments removed
– Building Regs amended to ensure all
new/refurbished buildings in high flood risk areas
are flood-resistant
• Flood & Water Management Act 2010 enacted to
deal with some recommendations relating to
national and local management of flood risks

Flood & Water Management Act
2010
• Counties and unitaries are ‘lead local flood
authorities’ – responsibility for producing local
flood risk management strategies (s9)
• Non-unitary districts and boroughs are consulted on
local flood risk management strategies (s9)
• All local authorities are ‘risk management
authorities’ – in exercising flood and coastal
erosion risk management functions (includes
planning) must act in a manner which is consistent

• with national and local strategies and guidance
(s11)
• All ‘relevant authorities’ (includes all local
authorities) must co-operate with other relevant
authorities in the exercise of their flood and
coastal erosion risk management functions (s13)

Government response
• Additional funding announced for affected areas
• Reports on winter floods identified issues
associated with use of military in civil emergencies,
need for a review of the Bellwin scheme and a
review of provision within the energy sector

Pooley Bridge, Ullswater, 2015

Government response
• Support for local authorities affected by floods
available through the Belwin scheme
• Additional funding also made available in affected
localities
• A National Flood Resilience Review – chaired by the
Duchy of Lancaster Oliver Letwin, to be published
in summer 2016

National Planning Policy
Framework
• Section 10 “Meeting the challenge of climate
change, flooding and coastal change”; paras 100 –
108
• Local plans employ sequential, risk-based approach
to the location of development
• If following application of sequential test is not
possible to locate elsewhere, apply exception test

• If both tests applied, within site most vulnerable
development in areas lowest flood risk and
development must be appropriately flood resilient
and resistent
• Identify Coastal Change Management Areas and be
clear as to what development appropriate in such
areas, and relocate as appropriate
• Use temporary permissions and restoration
conditions as appropriate

PPG – Flood Risk and Coastal
Change
• Summary (para 001)
– Assess flood risk
 Strategic flood risk assessment to inform local plan
 In areas at risk, or 1+ hectares, developers undertake
a site specific flood risk assessment
– Avoid flood risk
 In plan making, apply the sequential test and the
exception test
 In site specific decisions, apply the sequential test and
the exception test

– Manage and mitigate
 If development needs to be in a location where there
is a risk of flooding ensure development is
appropriately flood resilient and resistant, safe for
users for the developments lifetime and will not
increase flood risk overall
 LPAs and developers should seek flood risk
management opportunities and to reduce the causes
and impacts of flooding

Strategic Flood Risk Assessment
• “..a study carried out by one or more local
planning authorities to assess the risk to an area
from flooding from all sources, now and in the
future, taking account of the impacts of climate
change, and to assess the impact that land use
changes and development in the area will have on
flood risk.” (para 009)
• Prepared in consultation with EA, lead local flood
authorities, LAs own emergency response and
drainage authority, internal drainage boards

Sequential Test
• Aim is to ensure that development is kept out of
medium and high risk areas (flood zones 2 and 3)
and other areas affected by flooding where
possible
• Where possible place development in zone 1 (low
probability of flooding)
• If not possible consider placing in zone 2 (medium
probability), if development is highly vulnerable
apply exception test

• If not possible to place in zone 2 consider placing
in zone 3a (high probability) – but note highly
vulnerable development should not be placed in
zone 3a, and the exception test would be required
to be met for more vulnerable development and
essential infrastructure
• If not possible to place in zone 3a, look to zone 3b
(functional floodplain) although aside from water
compatible development, only essential
infrastructure should be permitted and only after
the application of the exception test

Flood
zones
Flood Risk Vulnerability Classification
Essential
infrastructure
Highly
vulnerable
More
vulnerable
Less
vulnerable
Water
compatible
Zone 1 ✓ ✓ ✓ ✓ ✓
Zone 2 ✓ Exception
test
✓ ✓ ✓
Zone
3a
Exception test ✗ Exception
test
✓ ✓
Zone
3b
Exception test ✗ ✗ ✗ ✓

Exceptions test
• Test with two limbs:
– (1) Development will provide wider sustainability
benefits to the community that outweigh flood risk
– (2) Development will be safe for its lifetime, without
increasing flood risk elsewhere and where possible
will reduce flood risk overall
• Menston Action Group v City of Bradford
Metropolitan DC [2016] EWHC 127 – no obligation
on developers to reduce flood risk overall

Planning to the rescue?
• Committee on Climate Change consider new
development can assist (through SUDS primarily) in
improving situation for the 1 in 6 properties in
England currently at risk of flooding
• CCC also studied 42 development plan policies in
2012
– Concluded planners had a good understanding of
current flood risks and had started to explore
implications of climate change

– However, mixed evidence that this improved
understanding was being used to inform
development plans
– Fewer than ¼ of authorities had a clear audit trail as
to application of the sequential test. A third
mentioned it in plans, but did not set out how it had
been applied, and the rest made no mention
– Majority of policies focussed on making flood plain
development safe once the decision to allocate land
had been made.

More cases than ever before…
• Number of planning cases increasing year on year
• Westlaw lists 194 planning cases in Admin Court,
Court of Appeal and Supreme Court in 2015
• We’re not covering them all….!

Housing supply
• Housing supply – Gallagher Homes Ltd v Solihull
MBC [2014] EWCA Civ 1610
– Para 47 of NPPF requires a 2 stage approach to boost
housing supply
– “Radical policy change in respect of housing
provision”
– (1) objective assessment of full housing need; (2)
assessment as to whether other policies dictated or
justified constraint

• Crane v SoS for Communities and Local Government
[2015] EWHC 425
– SoS concluded that even though neighbourhood plan
was out of date in terms of housing supply, in view
of NPPF policy that neighbourhood plans would be
able to shape and direct development “very
substantial negative weight” should be given to fact
Cl planning application was in conflict with it
– Weight is a matter for the decision taker

Green belt
• Redhill Aerodrome Ltd v SoS for CLG [2014] EWCA Civ
1286
– “any other harm” included green belt and non green
belt harm
• R (ota Luton BC) v Central Beds Council [2015] EWCA
Civ 537
– No requirement for green belt boundaries to be
adjusted before pp granted
– “Very special circumstances” test, stricter than
“exceptional circumstances” test for altering
boundary

Neighbourhood plans
• R (ota Gladman Developments Ltd) v Aylesbury
Vale DC [2014] EWHC 4323 (Admin)
– Planning Act 2004 s38 sufficiently widely worded to
include policies dealing with use of development
land for housing

• R (ota Larkfleet Homes Ltd) v Rutland CC [2015] EWCA
Vic 597
– Accepted NPD could include an allocations policy,
but questioned whether must be prepared as a local
development document
– Held s38(3) drew a clear distinction between
development plan documents and NPDs
– NPDs therefore governed by a separate statutory
regime, and nothing in wording s38B to suggest
could not include a site allocations plan

Environmental
• R (ota Champion) v N Norfolk DC [2015] UKSC 52
– Concerned ability to take account of mitigation at
consideration of whether a development was “likely
to have significant effects” under the Habitats
Directive
– Concluded that lse test was not to be confused with
formal screening in EIA, and mitigation could be
taken into account

Section 106
• R (ota Tesco Stores Ltd) v Forest of Dean DC [2015]
EWCA Civ 800
– Requirement in reg 122(2) CIL Regs 2010 did not
require a LPA to undertake a “quantification” of the
benefits of the agreement and their relationship to
the development in every case

Viability appraisals
• R (ota Perry) v Hackney LBC [2014] EWHC 3499
– Acceptable for planning committee to rely on
summary of planning officers to preserve
confidentiality
• Turner v Sos for CLG [2015] EWHC 375
– Considered how to deal with conflict between
confidentiality and objectors need to know basis of
decision
– Required disclosure of LA viability report, but not
developers

Interpreting conditions and pp
• Trump International Golf Club Scotland Ltd v
Scottish Ministers [2015] UKSC 74
– Concerned interpretation of s36 Electricity Act 1989
– Applicant relied upon planning cases they said not
possible to use implication in interpreting pp
– Carnwath LJ said pp and conditions were not in a
special category when it came to using implication
as a means of interpretation. Process of
interpretation not materially different than for
other legal documents

Duty to co-operate
• Samuel Smith Old Brewery (Tadcaster) v Selby DC
[2015] EWCA Civ 1107
– Duty to co-operate under Planning and Compulsory
Purchase Act 2004 s33A was a duty required to
perform when preparing a development plan
document under s19
– Not a requirement after the independent
examination stage under s20 had begun

Enforcement
• Stamatios Miaris v SoS for CLG [2016] EWCA Civ 75
– Appeal against an enforcement notice under
s174(2)(f)
– Argument that inspector should have considered
general planning considerations notwithstanding lack
of appeal on ground (a)
– Inspector was correct the decide he did not have
power to determine planning merits as steps
required under notice exceeded what was necessary
to remedy injury to amenity

Questions…
Hayley Gilbert| 0115 976 6116
hayley.gilbert@brownejacobson.com
Laura Hughes| 0115 976 6582
laura.hughes@brownejacobson.com
Richard Barlow| 0115 976 6208
richard.barlow@brownejacobson.com

Information law update
Ros Foster
1 March 2016

Information law update
• Section 7(9) DPA
• Disproportionate Effort
• Employer’s rights of access to private messages
• Subject access requests and disclosure
• Safe Harbor
• Reasonable Charging and EIR

SARs and the Court
• Section 7 (9) DPA: court can order a data controller
to comply with a request if it considers the data
controller has not complied with its obligations
• Claims becoming increasingly common with parties
utilising heavyweight legal representation

Approach of the Court
Zaw Lin and Wai Phyo v Commissioner of Police for the
Metropolis [2015] EWHC 2484 (QB)
• Suspects in the murder of two British tourists in
Thailand
• MPS to observe and review Thai police investigation and
prepare a report. Report to remain confidential but
summarised to victims families
• Claimants sought report and MPS withheld in reliance
on Section 29 exemption (crime and taxation)
• Claimants applied to Court for an order for disclosure.

Approach of the Court (2)
Green J held:
• Court’s scrutiny must always be fact and context sufficient
• Court must have regard to all relevant fundamental rights when
balancing the interests of the State and the individual
• Narrower view should be taken of the breadth of discretion than
had been previously adopted (“free and untrammelled discretion”)
– if decided MPS had erred must determine issue in line with the
principles contained in the DPA
• Burden of proving right to invoke exemption falls on data
controller who must do so “with significant and weighty grounds
and evidence”
• In any event nothing in the personal data which was of real value
to the Claimants.

Disproportionate effort
Mulcahy v Metropolitan Police Service
• Matter heard in the County Court. Claimant sentenced to 24 years
in prison for rape and conspiracy to rape
• Made a SAR to MPS for information in relation to the investigation
of offences he was suspected of committing including all unused
material, tape recordings and expert evidence
• MPS estimated would take in excess of 441 hours/11 weeks to
consider all the information held and decide if claimant’s personal
data
• MPS refused the request relying on Section 8(2): disproportionate
effort
• ICO fundamentally disagreed with the MPS but took no action
• Court agreed with the MPS on the evidence before it.

Right to access private messages
Barbelescu v Romania (Application 61496/08)
• Claimant employed as a sales engineer and asked by employer
to set up Yahoo Messenger for the purpose of responding to
client enquiries. Company policy prohibited use of Messenger
for personal use
• Claimant using the Messenger service to send messages to his
fiancée and family during work hours. Some of the messages
were of an intimate nature
• Employer challenged Claimant about personal use. Denied the
allegations until presented with a 45 page printout of messages
• He was dismissed for breach of the policy and challenged his
dismissal all the way to the ECHR.

Access to private messages (2)
• ECHR found Article 8 rights interfered with but that the
interference was justified
• Employer was entitled to verify that employees were completing
professional duties during work hours
• Employer had limited the monitoring of messages in time (one
week) and in terms of the data examined. The employer only
examined the Messenger account, not other information on
Claimant’s computer
• Claimant could provide no useful explanation for using Messenger
for personal purposes
• NOT a green light to monitor all employee communications.

SARs and Disclosure
AB –v Chief Constable of Hampshire Constabulary [2015] EWHC 1238
(Admin)
• AB was a teacher who was dismissed from his job for amongst
other things conduct with sexual undertones and failure to
maintain professional boundaries. No action taken by the GTC (as
was)
• AB successfully applied for another teaching post and information
was sought from Hampshire Constabulary
• An officer of the force noted in emails that AB had “also” been
dismissed from another school and the 2010 dismissal involved
inappropriate touching. Officer was of the view AB should be
nowhere near female students. No evidential basis for the
statements made.

SARs and Disclosure (2)
• The information about AB was passed to the LADO
and ultimately to his new employers
• AB made a SAR of Hampshire Constabulary which
resulted in the false information coming to light.
AB made a complaint about the disclosure to LADO
as well as the officer’s failure to comply with
safeguarding procedures. Both complaints
dismissed by the police
• AB sought a judicial review of the inaccurate
disclosure and the dismissal of his complaint.

SARs and Disclosure (3)
• Court granted both applications finding both of the Police’s
decisions unlawful
• Retention and disclosure of information by a public authority
engages Article 8 ECHR and therefore disclosure must be
justified
• Police failed to have sufficient regard to AB’s Article 8 rights
when making disclosure. Court also found that even where
safeguarding issues are in play the Police could not abdicate
its responsibility to make an Article 8 compliant decision to
another body. Police’s evidence supporting their decision
described as “woefully inadequate”
• Court found it was necessary for there to be consideration of
the principles of necessity and proportionality.

Safe Harbor?
• Schrems –v- Data Protection Commissioner (C-362/14)
• Mr Schrems asked Ireland’s Data Protection Commissioner to
exercise his statutory power to prevent Facebook Ireland
from transferring his personal data to the United States on
the basis that the US did not afford adequate protection
against surveillance activities carried out by US public
authorities
• Commissioner refused on the basis there was no evidence
that Mr Schrems’ data had been accessed by US security
agencies and in any event the US did afford an adequate
level of protection

Safe Harbor (2)
• Ireland’s High Court held that the US did not
afford adequate protection but referred the
matter to the CJEU
• CJEU found that the ‘Safe Harbor’
arrangements previously relied upon were not
sufficient to afford adequate protection.

Safe Harbor – what next
• Article 29 Working Party threatened to take action
if solution to Safe Harbor not found by end of
January 2016
• Process for agreeing a solution not yet finalised. In
the meantime:
Transfer data to a country that is on the European
Commission’s ‘safe’ list
Model Contract Clauses
Binding Corporate Rules

Reasonable charging and EIR
• East Sussex County Council –v Information
Commissioner Property Search Group & Local
Government Association (C-71/14)
• No appropriate limit exemption in EIR but reasonable
charges can be imposed for making environmental
information available
• East Sussex CC tried to extend the meaning of
‘reasonable’ and included disbursements, costs of
searching for the information and ‘overheads’
• Overheads included costs of the building, costs of
maintaining the database and training costs.

Reasonable charging and EIR (2)
• CJEU ruled that there was a distinction between
access to information and supplying information
• Authority cannot charge for access but can charge
for supplying which includes postal and
photocopying costs and time spent by staff
answering the request
• No determination on ‘reasonable amount’ but any
charge made had to be reasonable.

General data protection
regulation
• New definitions
• New principles for Data Processing
• Data Subject Rights
• Consent
• Information to be provided to Data Subjects
• New Data Controller Obligations
• Data Protection Officers
• Increase in Liability and Sanctions

Definitions – personal data
Current
Data relating to a living individual who can be identified
from those data or from those data and other information
which is in the possession of, or likely to come into the
possession, of the data controller.
Future
An identifiable person who can be identified directly or
indirectly, in particular by reference to an identifier such
as name, identification number, location data, online
identifier or to one or more factors specific to the physical,
cultural, physiological, genetic, mental, economic, cultural
or social identity.

Special categories of data
• Data revealing-
 Race or ethnic origin
 Political Opinions
 Religious or Philosophical Beliefs
 Trade Union Membership
 Health or Sex Life and Sexual Orientation
 Genetic or Biometric data in order to uniquely identify
a person
• Processing of any/all of the above prohibited subject to
exceptions

Definitions – data processing
• Current – obtaining, recording or holding the
information or data or carrying out any operation
or set of operations on the information or data
including altering, retrieving, disclosing, blocking
erasing or destroying the information
• Future – any operation or set of operations which
is performed on personal data whether or not
automated including collecting, recording,
organising, structuring, storing, adapting, altering,
disclosure, erasure or destruction.

Principles for data processing
• Data must be processed lawfully, fairly and in a transparent
manner
• Data must only be collected for a specified, explicit and
legitimate purpose
• Data must only be processed to the extent that it is adequate,
relevant and limited to what is necessary in relation to the
purpose for which they are processed
• Data must be accurate and up to date. Data which is inaccurate
should be erased or rectified without delay
• Identifiable data should not be kept longer than is necessary
• Ensure appropriate security of the data
• Ensure compliance with the Regulations.

Basis of lawful processing
• Consent
• Contractual performance
• Legal Obligation
• Vital Interests
• Public Interest or exercise of official authority
• Legitimate interests of data controller or third
party to whom data is disclosed (but not to a public
authority).

Consent
• Must be freely given, specific, informed and
unambiguous
• If written, should be distinguishable from any other
matter
• Withdrawal of consent should be as easy as grant of
consent
• Purpose limited – loses validity when the purpose
ceases to exist
• Burden of proof on the data controller to show
consent freely given.

Data subject rights
• Data subjects can require:
 Inaccurate personal data be corrected or incomplete data be
completed including by way of supplementing a corrective
statement
 Personal data in a machine readable and structured format
commonly used by the data subject and allows for further
use
 The data controller to cease processing their personal data
even if data is being processed for vital interests of the data
controller, in the public interest or for a legitimate interests
• Vital Interest, legitimate and public interest override rights
and interests of the data subject.

Information to be provided
• Data controllers must provide the following to data subjects on
request:
 Identity and contact details of data controller and data protection
officer
 Intended purpose of processing and period for which data will be
stored
 Existence of rights: access, rectification, object and erasure
 Right to lodge a complaint internally and to a supervisory authority
 Recipient or categories of recipients to whom data will be disclosed
 Intention to transfer to another country or international organisation
• Information must be concise, transparent, intelligible and easily
accessible
• Must be provided in writing unless otherwise requested.

Data controller obligations
• Designate a data protection officer
• Appoint a sub-processor
• Adopt policies and implement appropriate technical
and organisational measures to ensure and be able to
demonstrate compliance with Regulations
• Implement security requirements
• Deal with privacy impact assessments
• Comply with requirements of supervisory authority
• Report breaches to the supervisory authority very
promptly (max period of 72 hours from discovery of the
breach).

Responsibilities of Data
Protection Officer
• Inform and advise the data controller/processor
• Monitor the implementation and application of the
Regulations and the data protection policies
• Monitor Impact Assessments and breaches
• Point of contact for Supervisory Authority.

Consequences of a data breach
• Level 1: €10,000,000 or 2% total worldwide annual
turnover
• Level 2: € 20,000,000 or 4% total worldwide annual
turnover
• Factors taken into account when determining fine:
 Nature, gravity and duration of the breach
 Whether breach intentional or negligent
 Previous breaches by the data controller/processor
 Technical and organisational measures in place.

Data Protection Regulations –
where are we now?
• 15 December 2015 – European Parliament and
European Council reached an agreement on the
data protection reform package
• Early 2016 – reform package expected to be
formally adopted. As of 16 February not yet
formally adopted
• New regulations will become applicable 2 years
after the reform package is formally adopted.

Dealing with a data breach
• Establishing the Nature of the Breach
• Notification. Data Subjects? ICO?
• ICO Notification Procedure
• Communicating with the ICO
• Need to notify any other regulatory body?
• Things to Do

Case study
• Client’s public website subject to an SQL injection
attack from Russia
• Containment and recovery: client’s IT specialists
worked closely with website provider to identify
source and impact of attack. Public website closed
down
• Assessment of ongoing risk: to data subjects. Very
difficult to assess quickly, in terms of numbers
affected and nature of data

Case study (2)
• Notification: no requirement to notify promptly so
initial report sent after few weeks with follow up
report sent around a month later. Client is a charity so
notification also sent to the Charity Commission
• Evaluation: internal auditors brought in to review
actions taken and assess future risk, servers retired,
new website established with new procedures as to
retention periods and vulnerability testing
• ICO served an Enforcement Notice

Things to Do
• Keep a log of the breach including:
Date of the breach
Estimated number of people affected
Nature and description of the breach
How you became aware of the breach
Description of the data compromised/lost
Consequences of the breach
Remedial Action taking place.

Information Commissioner
notification requirements
• ICO will need:-
 Name and contact details of individual at the
organisation
 Date of the breach (estimate will suffice)
 Summary of the incident
 Nature and content of the data compromised
 Effect/Likely effects of the breach on individuals
 Measures taken to address the breach
 Actions taken to mitigate any adverse impact.

Questions…
Ros Foster| 020 7337 1015
ros.foster@brownejacobson.com

The Framework for devolution in light of the
Cities and Local Government Devolution Act 2016
and what this means for the future of local
government
Peter Ware Partner
Browne Jacobson LLP

So what is not included in the Act?
• Powers are still at the gift of Westminster the Act
does not seek to enshrine the role of Local
Government or divide competences.
• It clearly does not provide for real fiscal
devolution or autonomy.
• It gives no uniform picture of what local
government will look like.
• It does not simplify local government governance,
regulation nor reduce its obligations.

The most centralised state…
• This has not always been the case of course, justice,
prisons, health, education
• Local Government is persuaded but is central
government?
• Is it really a free choice for local government?
• Top down process, who should decide on governance
model for example?
• Will there be the room to make mistakes?
• What should the role of central government intervention
be?

Accountability and good Governance: is an
elected mayor the answer?
• Well the government says it is, and their line is hardening
• They will be put to the test before the electorate so will live and
die by their record
• What about deselection or removal before the end of their term?
• The Act provides for scrutiny but as with all committees political
balance will be required
• You may not get the same Mayor as the balance of the combined
authority
• How do you ensure that scrutiny and good governance are not
abused or indeed not used effectively?

Where is the template?
• The government wants innovation. So no template?
• Local Government wants to have the best deal, but should it
be a competition?
• What are the limits? Under the Act NHS core duties in relation
to health service cannot be transferred.
• But everything else which relates to the area?
• New Section 105A of LDEDCA 2016 seems to allows true blue
sky thinking, are these deals just the first
rung on the ladder?
• Manchester will be at the front of the queue
asking for more?

Where is the template…
• The Act is permissive not prescriptive in many
ways.
• The tiers of local government in the England are
already complex do we risk “a patchwork quilt of
complexity and idiosyncrasy”.
• It will be important to work out how concurrency of
obligations will work No Gaps, limited overlaps?
• Who will be responsible when things go wrong, how
will you deal with legal challenges?

The role of the statutory officers
• Act provides for scrutiny but relies on existing
executive and conduct structures.
• Thin executive structure.
• Role of the monitoring Officer:
– Code of conduct especially where
politics get involved;
– Conflicts of interests both members and officers.
• The role of the political party at combined
authority level?

Fiscal freedom – where is it?
• Policy on business rates retention announced at
conservative conference
• Details remain sketchy but remember:
– concept of fiscal neutrality for Westminster;
– full retention by 2018;
– no detail on redistribution
– appeals under the current policy; and
– Wider regulation eg state aid.
• Act provides no power for new taxation eg a tourist tax.
• However, the Act puts in place wider financial controls
and governance mechanisms.

Localism
• There is support for decentralisation however:
– Concerns about postcode lottery; and
– A desire to ensure standardised public services
across the country.
• Tension between local decision making and
national standards
• Will their be a race to the bottom?

An opportunity being missed?
• Still little voter engagement or consultation.
• Knowledge seems to be limited.
• Barriers to engagement:
– Devolution application process
– Lack of transparency of bids
• This should be used to reinvigorate.
• How about other sector partners:
– LEPs;
– Health; and
– Third sector.

1972 rules ok..
• No changes to the local government
map
• Still wedded to the concept of local
Government council boundaries
• But what about district councils being
part of different combined authorities than their counties?
– Voting;
– Mayoral precept.

What does the future hold?
• Reorganisation and clause 15?
• Is it inevitable?
• NALC advocate even greater
devolution to the lowest tiers.
• Better deals?
• An opportunity for a more
cohesive voice?

Questions
Time to use the voting again

What do you think are the greatest
barrier to devolution deals?
1. Local government resource in negotiations?
2. Central government resource in negotiations?
3. Central government departments not wishing to
give up control?
4. Local government not wanting devolution or parts
of it?

What is the biggest omission in
the current devolution offer?
1. Local government's role in the state is still not
enshrined.
2. Lack of true fiscal devolution.
3. Health responsibilities are not fully part of it.
4. That Central government is not forced to devolve.

Is reorganisation inevitable?
1. Yes
2. No
3. Too early to tell.

What will central government
look like in 10 years time?
1. Bigger.
2. About the same.
3. Smaller.
4. It will have been abolished.

Questions…
Peter Ware| 0115 976 6242
peter.ware@brownejacobson.com

So, you’re being prosecuted for
health & safety or
environmental offences?
Dale Collins

Cover
• Background
• Managing an investigation (not manslaughter)
• Prosecution
– Summons and charges
– Case summary and Friskies
– Response
– Decision to plead
– Hearing
• Sentencing

Background
• Bristol City Council. April 2015
– £25,000
• South Lakeland District Council. Feb 2015
– £170,000
• Shropshire Council. Jan 2016. Fatality
– £25,000. £39,317 costs
• North Lincolnshire Council. Sept 2015. Fatality
– £160,000. £40,000 costs

Background
• Plymouth City Council. June 2010
– WEEE breach. £11,000 fine and costs

Consequences of an investigation
– Lengthy 2 years +
– Prosecution – fine, costs, prison, higher penalties
– Reputational damage
– Depletion of resources
– Notices
– Fee For Intervention (FFI) for HSE

Offences- corporate and
individual
• Health and safety legislation – corporate and individual
• Environmental – corporate and individual
• Other regulators eg Fire Authority

Health and safety- corporate
• HSWA 1974
– Section 2 – employees – safe systems / premises
– Section 3 – non employees – conduct of undertaking
• Statutory provisions
– Risk assessment
– Equipment
– Legionella

Health and safety- individual
• Section 7 HSWA 1974
– Duty of employees
– Take reasonable care for themselves and others
• Section 37
– “Where an offence under any of the relevant
statutory provisions committed by a body corporate
is proved to have been committed with the consent
or connivance of, or to have been attributable to
any neglect on the part of any manager, secretary or
other similar officer of the body corporate … .”

Environmental- corporate and
individual
• Examples
– Environmental Protection Act 1990 (section 33)
 Prohibition on unauthorised or harmful deposit,
treatment or disposal etc. of waste

Managing an Investigation
• Immediate Practical Steps
– Act quickly
– Identify Inspector and Supervisor from regulator
– Appoint suitable person within organisation to liaise and
coordinate
– Log all documents submitted
– Support / inform and expect vice versa from staff – subject to
conflict
– Set up proper information sharing in your organisation
– Taking early legal advice – NB conflict
– Notify insurers

• Who will they want to speak to?
– Witnesses to incident
– Junior staff re culture
– Those with a responsibility for H&S/Env’l
management or policy development
– Senior managers operational and non operational
– Third parties ie sub contractors or consultants

• What documents might they want?
– H&S/env’l policies
– Policies relating to incident
– Training records and qualifications of staff
– Training and risk assessment policies
– Relevant risk assessments and method statements

– Personnel files including disciplinary
– Safe working practices
– Induction documentation
– Board minutes
– Minutes of H&S/env’l Committee meetings
– Maintenance policy
– Certifications relating to equipment

• Interview under caution
• May be conducted by Police and / or other regulator
• “Where a person is suspected of having committed an
offence”
• Tape recorded or contemporaneous notes or evidence
obtained during questioning admissible in criminal
proceedings
• Legal rep / conflict

• Crisis management
• Public relations /perceptions
– At all stages
– Continuity required
– Press release for specific occasions?
 Incident
 Inquest
 Decision to prosecute
 Dismissal of staff
 Verdict in prosecution

If prosecuted…
• Can you find the
– Records
– File
– People
• Check the charge
– Correct in law?
– Supported by the evidence?
– Dates of offence

If prosecuted…
• Check the evidence
– Admissible?
• Consider the case summary/Friskies carefully
– Challenge where necessary
– Detail why not accepted
– Make it your version of incident
• Avoid any implication of profit above safety
• Use Guidelines to supplement your position

If prosecuted…
• Defend or mitigate?
• Basis of Plea
– Important doct
– Different to any response to the case summary
– Keep it clear and concise

Sentencing
• For offences prior to 12 March 2015, fines payable on conviction in
the magistrates' court were capped at either a statutory maximum
of £5,000 or a higher amount where legislation provides for it, for
example:
 Environmental offences were capped between £5,000 and
£50,000.
 Health and safety offences were capped at £20,000.
• Cap lifted on fines for offences from 12 March 2015

Sentencing guidance
• Sentencing guidelines - health and safety
offences, corporate manslaughter and food
safety and hygiene offences guidelines
• Environmental offences - definitive guideline
for the sentencing of environmental offences.

Sentencing guidelines - health and safety
offences, corporate manslaughter and food
safety and hygiene offences guidelines
• Firstly, the court will need to determine the category of offence
• Secondly, the court will then need to establish the starting point of the
sentence
• Thirdly, continue with usual rules of mitigation and credit for plea
• Examples
– a large organisation that commits an offence with the greatest exposure to
harm (a fatal accident for instance) and with high culpability will see a
sentencing range of £2,600,000 - £10,000,000.
– Individuals that commit serious offences with high culpability can expect
custodial sentences or high fines where profit was a motivating factor in the
commission of the offence.

Environmental sentencing
guideline
• On 26 February 2014, the SC published its new Environmental Offences -
Definitive Guideline for the sentencing of environmental offences.
• The Guideline is for use by both judges and magistrates from 1 July 2014
(regardless of the date of the offence).
• Guideline sets out a 12-step sentencing process to
– punish offenders,
– prevent reoffending and
– remove financial gain,
while ensuring a consistent approach by courts in England and Wales.
• 12 step process for both corporates and individuals (slightly different)

Sentencing in general
• Fines in the Magistrates’ and Crown Court
• Imprisonment
– A court can order a custodial sentence for certain more serious
environmental/safety/fire offences.
• Directors Disqualification Order
• POCA
• Publicity Orders
• Indirect consequences
– Resource expensive
– Insurance premium
– REPUTATION

Proactive Health & Safety
Management
• Leading Health and Safety at Work : actions for Directors, Board
members, business owners and organisations of all sizes –
www.hse.gov.uk/ leadership
• Essential Principles
– Strong and active leadership from the top
– Worker involvement
– Assessment and review

Proactive Health & Safety/Env’l
Management
• What practical steps should organisations consider :
– Reporting procedures to and from the Executive Members in
particular on matters relating to health and safety
– Systems for ensuring risk assessments are kept up-to-date and
actions implemented
– Systems for recruitment of competent staff, ongoing training
and supervision
– Ensure rewards and sanctions are effective – discipline
– Good procurement standards – equipment and contractors
– Health and safety/env’l training
– SAFETY CULTURE

Proactive Health & Safety/Env’l
Management Planning
• Protocol for accident investigation
– Outlines steps to follow
– Identify key parties internally /contacts externally
– Set out regulators powers
– Framework for what investigation involves
– Key steps to consider

Final words
• Competence
• Confidence
– To challenge opposing views
• Courage
– To tell someone they are wrong and that just
because it has always been done that way, it is
correct
• Culture

Questions…
Dale Collins| 01392 458770
dale.collins@brownejacobson.com

4th annual local government conference, Exeter

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