The Department for Business, Energy and Industrial Strategy recently published its response to the consultation on the proposed amendments to allocation round four (AR4) contracts for difference (CfD) for low carbon electricity generation. Industry should note the headline amendments to AR4 – in particular, the new 'pots', changes relating to negative pricing, capacity caps and the amended supply chain plans policy.
The judicial review of the government's changes to the use classes order and new permitted development rights was recently dismissed. The High Court ruled that the changes had been legally enacted, a judgment which Rights: Community: Action is seeking permission to appeal. Although this appeal is unlikely to be successful, until any appeal is resolved, there remains uncertainty around the ability to rely on these new permitted development rights and use classes.
A recent Court of Appeal case is the latest in a series of recent planning law cases to be decided against the developer. The courts seem to be moving towards a simpler but less flexible planning system. This is in contrast to the government's recent changes intended to promote flexibility in the planning system.
The Scottish government has launched a public consultation on the introduction of market restrictions on certain single-use plastic items. Responses to the consultation must be submitted before 4 January 2021. The proposed market restrictions on single-use plastics follow and may extend beyond the provisions in Article 5 of the EU Single-Use Plastics Directive 2019/904.
A raft of updated government guidance has been published clarifying the requirements for labelling and packaging food and drink in readiness for the end of the Brexit transition period on 31 December 2020. This should provide some comfort for food business operators and be well received by the food and drink industry, which has long urged the government to consider measures for periods of adjustment. However, despite these government notes, uncertainty remains.
Over the past few years, there have been numerous queries arising out of uncertainty and lack of clarity in relation to the timescales for the commencement of development under a planning permission in principle and its associated approval of matters specified in conditions. The simplification that will be introduced by the Planning (Scotland) Act 2019 is therefore likely to be welcomed by many, but there are important points to note about the provisions in the 2019 act.
A recent case concerning a landlord's counterclaim for the cost incurred by it in remediating its property prior to undertaking a major redevelopment project provides a useful reminder to tenants on the extent of their potential liability at the end of the term of their lease and sounds a cautionary note to any party undertaking works under licence. The landlord was entitled to recover the full cost of the remediation work to deal with asbestos contamination caused by the previous tenant and its parent company.
Until 11 November 2020, the Department for Business, Energy and Industrial Strategy (BEIS) is consulting on the draft Ecodesign for Energy-Related Products and Energy Information Regulations 2021. The consultation asks stakeholders to comment on the ecodesign and energy labelling proposals, BEIS's assessment of the costs and benefits and the intended timetable for reviewing the draft regulations after they came into force, noted in each product-specific section.
EE Limited v Edelwind Limited is another in the increasing line of cases concerning the operation of the Electronic Communications Code, contained in Schedule 3A to the Communications Act 2003. This one, before the Upper Tribunal, concerned the code's provisions governing the service of a notice to terminate a code agreement in terms of when and on whom the notice should be served.
In a recent judicial review appeal, the Inner House considered the application of Section 104 of the Community Empowerment (Scotland) Act, which deals with consultation in respect of disposing and changing the use of common good property. The petition was for judicial review of the Angus Council's decision to demolish a leisure centre which had been erected on common good land.
The Oil and Gas Authority (OGA) recently announced its offer for the award of 113 licences over 259 blocks or part-blocks to 65 companies. Licences were awarded in the OGA's 32nd offshore licensing round, which was launched on 11 July 2019 and closed for applications on 12 November 2019. The 32nd round saw the offer of 768 blocks or part-blocks, with acreage on offer in the Central North Sea, the Northern North Sea, the Southern North Sea and the West of Shetlands.
A recent Supreme Court case has clarified the law around challenges to covenants which seek to limit the use of land. The case involved an appeal by a retail anchor tenant against its landlord, which had sought to challenge a restrictive covenant in the lease which prevented it from letting space to businesses that competed with the tenant. The landlord sought to argue that the covenant was unenforceable as it fell within the doctrine of restraint of trade.
August 2020 saw the publication of two documents which will have a significant bearing on developments in the oil and gas industry in the next decade and are closely related. The Department for Business, Energy and Industrial Strategy published a response to its consultation on the reuse of oil and gas assets for carbon capture, usage and storage projects, while the Oil and Gas Authority published its final report on UK Continental Shelf energy integration.
The government recently published a draft Building Safety Bill as part of its commitment to overhaul fire safety regulation in the wake of the Grenfell Tower fire in 2017, which claimed 72 lives. The draft bill is the latest in a series of actions that the government has taken to improve fire safety in high-rise residential buildings, including the introduction of the Fire Safety Bill.
The Department for Business Energy and Industrial Strategy is consulting on the proposed Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020. The consultation proposes no radical reform to the current environmental impact assessment (EIA) procedures. That said, the consultation proposes detailed changes to the current regulations which, if and when in force, will need to be reflected in developers' EIA procedures.
The government considers that better data on land ownership and control is required to achieve its vision for the planning system, improve the development process and increase the public's understanding of who exercises control over land. The government's particular focus is on rights of pre-emption, options and conditional contracts, and it has published a consultation seeking views on how best to improve transparency around them and what additional data should be made public.
Her Majesty's Revenue and Customs has released helpful guidance confirming that it does not consider that a number of commonly agreed lease concessions should be classed as barter transactions for value added tax (VAT) purposes. During the COVID-19 outbreak, there has been a marked increase in lease concessions being given in exchange for landlord-favourable lease variations. The classification of such arrangements as barter transactions has had VAT implications for landlords and tenants.
A recent Technology and Construction Court decision has considered whether energy-from-waste plants fall within the power generation exemption in Section 105 of the Housing Grants, Construction and Regeneration Act 1998. Such plants have a dual purpose of disposing of waste and producing energy, but Section 105 requires a court to determine the "primary activity" on such sites.
The government has published legislation to bring sweeping changes to the Use Classes Order for England, which will take effect on 1 September 2020. References to uses and use classes in the General Permitted Development Order remain as currently defined until 1 August 2021. What will be the impact of these changes on existing and new leases of commercial property and their provisions governing what the premises can be used for?
Ofgem recently published guidance on its Energy Regulation Sandbox Service. The sandbox is a service that enables innovators to try out new ideas with guidance and support from Ofgem and industry bodies. The changes that Ofgem has announced in relation to the sandbox have widened its remit and provided more flexibility to innovators. The most significant change is that rather than having to meet strict window-based deadlines, innovators can now access the service and submit applications at any time.