Annual local government conference1 March 2016, Exeter

Simplifying property disposals-a practical legal guideNeil Walker and Rebecca Toates

Objectives

Done Deal?

Simplifying Property Disposals

InitialConsiderations

Due Diligence

The RoadTo

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

Initial considerations # 2• 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?

Initial considerations # 3• 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

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…

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

Celebration…

… or post mortem?

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?

Construction and interpretation• 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

Construction and interpretation• 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

Construction and interpretation• 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

Construction and interpretation• 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!

Construction and interpretation• “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

Construction and interpretation• 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

Construction and interpretation• 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

Implied terms and good faith

– 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

Implied terms and good faith

– 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

Implied terms and good faith

• 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”

Implied terms and good faith• 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!)

Implied terms and good faith

– 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

Implied terms and good faith

– 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)

Implied terms and good faith• 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:

Implied terms and variation• 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”

Implied terms and variation• 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

Implied terms and variation• 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

Implied terms and 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]

Implied terms and variation• 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

Implied terms and variation– 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 2015/16Richard Barlow and Laura Hughes

Fracking

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.html?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…..

Flooding

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)

Somerset Levels 2013/14

Dawlish, Cornwall 2014

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.

Case law update

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 6582laura.hughes@brownejacobson.com

Richard Barlow| 0115 976 6208richard.barlow@brownejacobson.com

Information law updateRos Foster1 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 CourtZaw 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 effortMulcahy 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 messagesBarbelescu 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 DisclosureAB –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 ClausesBinding 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 dataCurrent 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. FutureAn 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 breachWhether breach intentional or negligentPrevious breaches by the data

controller/processorTechnical 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 breachEstimated number of people affectedNature and description of the breachHow you became aware of the breachDescription of the data compromised/lostConsequences of the breachRemedial 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 1015ros.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. Yes2. No3. 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 6242peter.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

Managing an Investigation• 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

Managing an Investigation• 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

Managing an Investigation– 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

Managing an Investigation• 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

Managing an Investigation• 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

If found guilty…

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)

Environmental undertakings

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 458770dale.collins@brownejacobson.com