Member News

Bigfork were commissioned by Norwich based marketing agency, oneonone communications, to design and build a new website for luxury hotel, Barnham Broom as part of a new overall marketing strategy. The brief was to produce a new website that positioned the hotel at the luxury end of the hotel market. oneonone communications carried out target audience research and a user experience audit to develop a website plan.

Using this successful approach to website design a content plan was produced that focused on the key offerings of the hotel. Calls to action such as online bookings were added along with a content management system that allows the Barnham Broom team to manage content in-house. The final design, combined with new photography, is modern and contemporary and can be seen at https://www.barnham-broom.co.uk

Millions of households will receive letters from HMRC over the next few days about changes in Child Benefit which could affect tax codes, according to leading accountants and business advisers PKF.

From January 7th, 2013, an element of means testing will apply to Child Benefit administered by HMRC – and PKF’s Norwich-based Director of Tax Andrew Robinson warned that some families could be hit hard by the changes.

“There are doubts about the fairness of the system and the risk of some conflict where the person entitled to Child Benefit will have to ask a partner details of their income,” he said. “It seems to completely ignore the concept of independence and confidentiality on incomes. Questions have even been raised on whether it impinges on human rights.”

The HMRC letters will go out to all claimants who might be impacted by the law changes – although Child Benefit will remain distinct from the child and working tax credits (and the universal credit when this is eventually introduced).

Claimants will be asked if they wish to opt out of receiving the benefit. HMRC will also have to warn those who maintain their current claim that the benefit will start to be clawed back through claimant’s tax codes or tax assessments where annual income exceeds £50,000. The clawback will be at 1% of the benefit for every £100 of income over £50,000, so that when income reaches £60,000, the financial benefit of the claim is lost.

Andrew explained: “For many couples where the £60,000 earnings threshold is expected to be exceeded by one person, it is likely to prove simpler to opt out of receiving Child Benefit initially rather than risk errors arising through a tax code adjustment. But even here there can be complications with National Insurance issues to consider for those who give up work to look after children.

Controversially, the clawback rules apply to the claimant’s partner (spouse, civil partner or cohabitee) as well as the claimant. For example, if a person claims Child Benefit and has an annual income of £25,000 but the person’s partner has income of £65,000, the benefit will be paid direct to the claimant’s bank account as now, but clawed back from the partner via the tax code applied to his or her salary (the clawback charge will always fall on the higher earner).

This new high income child benefit charge will be collected by HMRC through PAYE adjustments in 2013/14 or through the tax return of the higher earner of an affected couple. However, if both partners can reduce their taxable income for the current year to less than £50,000, they will get to keep the full value of their child benefit.

“There may be a number of options for reducing taxable income to make the anomalies in the rules work in your favour,” said Andrew. These include making pension contributions, using a salary sacrifice arrangement if offered by your employer, transferring income producing assets and even getting your parents to make pension contributions on your behalf. But it is important to take special advice to make sure your plans are cost-efficient.

“In other cases, where incomes are variable or fall into the £50,000 to £60,000 band, where domestic partnerships end or new partnerships are created, there are bound to be difficulties and under or overpayments may well arise. Here the best option will probably be to claim the payments but report any income fluctuations or changes to HMRC as soon as they arise (as with the tax credits system, it is up to you to report any changes).

“The Government has sought to resolve the longstanding problem that parents who give up work to look after children create a gap in their National Insurance contributions record and miss out on a full state pension on retirement.

“Now, a parent who stays at home to look after a child under the age of 12, and who registers for child benefit, will qualify for Class 3 National Insurance credits to maintain his or her contributions record.

“Fortunately, those who register for Child Benefit can also now elect for benefit payments not to be made, and thus can avoid the need for claw back from a spouse or partner earning over £50,000.

Andrew concluded: “Clearly these changes will have an adverse impact upon some households with lower incomes than others due to the anomaly of the income threshold. You may find a household with a combined income of £99,999 does not lose child benefit whereas one with a single income of just over £50,000 will lose out. As ever it is important not to ignore any letters which HMRC issue and to seek advice if you are confused about how these changes will affect you and how to limit the damage.”

For further information, please contact Andrew Robinson, Director of Tax (t: 01603 756911, e: andrew.robinson@uk.pkf.com)

The Government has proposed further amendments to the Enterprise and Regulatory Reform Bill, in order to repeal certain provisions under the Equality Act 2010. Professional Support Lawyer Elizabeth Stevens reports.

The Government has confirmed its intention to repeal the provisions in the Equality Act 2010 relating to third party harassment and the discrimination questionnaire procedure. It has also introduced new powers for tribunals to order a compulsory pay audit.

Third party harassment

Currently, employers can potentially be held liable for the harassment of their employees by a third party (such as a client or supplier), if harassment has taken place on at least two previous occasions and the employer has failed to take reasonably practicable steps to prevent the harassment from occurring (Section 40 Equality Act 2010).

The Government has recently published a response to its consultation on proposals to remove these provisions. Only 20% of respondents agreed with the proposal, with 71% opposing it. However, the consultation response highlights the lack of specific or quantifiable evidence to support the views of those who responded to the consultation, and the Government believes that both the concept and the intention behind the provisions are widely misunderstood. The Government has therefore concluded that it is not necessary to retain the third party harassment provisions.

Amendments made to the Enterprise and Regulatory Reform Bill will repeal the relevant sections of the Equality Act 2010. We do not yet have a date for when this will take effect, and in the meantime the third party harassment provisions will remain in force.

A copy of the Government’s response to the consultation on third party harassment is available here.

Discrimination questionnaires

The Government has also issued its response to the recent consultation on proposals to repeal the provisions under the Equality Act 2010 that currently allow individuals who believe they may have been discriminated against to obtain information (by issuing their employer with a discrimination questionnaire), and to remove the ability for employment tribunals to make wider recommendations in successful discrimination claims (recommendations applying to the wider workforce rather than just the individual claimant).

Only 15% of respondents were in favour of repealing the questionnaire procedure, but in the Government’s view it is “prescriptive and potentially threatening to employers”, and it plans to proceed with the repeal of section 138 Equality Act 2010.

The Government has indicated that the removal of the formal questionnaire procedure will not prevent any individual from seeking pre-claim information through a more informal route. An employment tribunal may still draw adverse inferences from an employer’s refusal to respond to a request for information, or from evasive answers.

It appears that the Government is not yet proceeding with its proposal to remove the ability for employment tribunals to make wider recommendations. A copy of the Government’s response to the consultation on discrimination questionnaires and the power for tribunals to make wider recommendations is available here.

Equal pay audits

The Government has made a further amendment to the Enterprise and Regulatory Reform Bill, to give employment tribunals a new power to order compulsory pay audits where an employer has lost a claim for equal pay. Regulations will set out further details of the content of such audits and the extent of the tribunals’ powers and duties in relation to them.

The Enterprise and Regulatory Reform Bill reached the Report stage and had its third reading in the House of Commons on 16 and 17 October 2012. It will then have its first reading in the House of Lords. It is not yet known when the Bill will receive Royal Assent.

The winner of our Kindle Prize Draw held at the Chambers B2B exhibition is Talib Fehlhaber, owner of The Rapid Defence Martial Arts Academy in Norwich. Congratulations to Talib who assures us the Kindle will disappear as soon as his wife tries it! His new Kindle will also be ideal for previewing his forthcoming book “Kickstart Your Own Martial Arts School”.

Thanks to all who entered the draw and it was great to meet so many new people and Bigfork clients who visited our stand at the B2B exhibition.

KLM INCREASES SERVICES FROM NORWICH – Fourth daily frequency commences from start of Summer Schedule 2013 –

KLM Royal Dutch Airlines will add a fourth daily flight from Norwich International Airport (NWI) to Amsterdam Airport Schiphol (AMS) from Sunday 31 March, 2013. The new frequency will offer a more flexible and business friendly schedule and increase long-haul connectivity via KLM’s Amsterdam Schiphol hub.

The new frequency will be bookable from 20 October, with travel from 1 April 2013 and will increase capacity on the route by 33%. Return flights from Norwich to Amsterdam begin from just £119 return including all taxes. The increased frequency on the route cements Norwich International Airport’s position as one of the building blocks of KLM’s extensive UK network. Load factors on the route have increased year on year with average load factors now running at 73.3%, one of the highest across KLM’s UK network. Forward bookings to Amsterdam are also up by 4% year on year.

Comments Henri Hourcade, AIR FRANCE KLM, General Manager UK & Ireland: “The addition of a fourth frequency from Norwich demonstrates our commitment to the region. The increase in frequencies will streamline the region’s worldwide connectivity via Amsterdam Airport Schiphol and provide passengers with a more flexible service. For businesses, the extra frequency will allow for swifter connections to our long-haul network and in addition, it will give far greater flexibility to travellers doing business in Amsterdam and Europe who need to return to Norwich on the same day.”

The most popular long haul destinations from Norwich are Bangkok, Dubai, Hong Kong and New York, whilst popular European routes include Berlin, Billund, Frankfurt and Trondheim. The new flight schedule will be:

From Norwich International Airport to Amsterdam Airport Schiphol:

• KL1502 06.15 08.10
• KL1506 09.45 11.40
• KL1508 13.55 15.50
• KL1512 17.15 19.10

From Amsterdam Airport Schiphol to Norwich International Airport:

• KL1505 09.20 09.10
• KL1507 13.30 13.20
• KL1511 16.50 16.40
• KL1515 21.15 21.05

For further information, please contact Samantha Darlaston, Danielle Wright, Niamh Commins or Camilla Jenkin at Consolidated PR on 020 7781 2300; email klm@consolidatedpr.com

The annual statistics for the employment tribunals and employment appeal tribunal (EAT) have been published by the Ministry of Justice. We look at some of the headline figures.

The figures, for the period 1 April 2011 to 31 March 2012, show that the number of claims received by the tribunal overall are down. Multiple claims (brought by two or more individuals) are down by 19% and single claims are down by 2%.

The number of unfair dismissal claims for the period was 46,300, down from 47,900 in the previous year and a drop of around 20% from the 2009-10 figure of 57,400. Claims for failure to collectively inform and consult (for both collective redundancy and TUPE) have increased, but there have been substantial decreases in the number of sex and age discrimination claims.

Some of the most interesting statistics are in relation to the awards of compensation made by the employment tribunals in successful claims. The mean average award in successful claims of unfair dismissal has increased from £8,924 to £9,133, but the median award has remained virtually unchanged at £4,591 compared to £4,560 last year.

The highest award of compensation was in a claim of race discrimination (compensation of £4,445,023), which clearly has a big impact on the average figure for such claims although the median figure for successful claims of race discrimination is £5,256. The tendency for the media to highlight the very large awards of compensation ignores the fact that in practice, the vast majority of successful claims are for much lower figures.

In relation to awards of costs, potential claimants should be aware that 1,295 respondents had a costs award made in their favour, compared with just 116 of claimants.

Further details of the annual statistics are available here

Steeles Law’s Head of Planning and Environment David Merson looks at the Coalition’s proposals to end the abuse of the village green legislation to unlock growth and boost aspiration.

The Coalition has introduced the new Growth and Infrastructure Bill. The Explanatory Notes to the Bill are not yet available but the CLG Background Notes can be found here.

One of the proposals contained therein is one said to stop the misuse of legislation to slow down agreed developments, whilst protecting its use to safeguard cherished community spaces.

Defra’s subsequent press release suggests that the plans “will ensure communities that wish to see land developed in their areas will no longer be overruled by an abuse of Town and Village Green legislation”.

The current position means that building work that has been granted planning permission or is undergoing community consultation can be delayed while the legal process of considering a Town and Village Green (TVG) application takes place. The effect is delay, uncertainty and unnecessary additional cost.

Defra cites among the evidence it has received for the proposal the example of a development site (drawn to its attention as part of the consultation) in Saham Toney, Norfolk. In this example Defra says that the Hastoe Group built ten houses on a piece of land which had been farmed for centuries by a local family that wished the site to be used for affordable housing. The use of the field for local housing had been consulted on and there had been an overall positive response from the local community. After the homes had been built, a TVG application was lodged. Two and a half years later the housing residents, owners, and Hastoe are still awaiting an outcome, with the combined legal fees to Hastoe, the landowner and the taxpayer sitting at a reported £50k.

So what does the proposal entail?

Registration of town or village green: statement by owner

S12 of the new Bill amends the Commons Act 2006, by inserting a new s15A which provides that where the owner of any land in England to which this Part applies deposits with the commons registration authority a statement in the prescribed form, the statement is to be regarded, for the purposes of s15, as bringing to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land to which the statement relates.

Subsection (1) does not prevent a new period commencing and any statement under subsection (1) must be accompanied by a map in the prescribed form identifying the land to which the statement relates.

An owner of land may deposit more than one statement under subsection (1) in respect of the same land and where more than one statement is deposited in respect of the same land, a later statement (whether or not made by the same person) may refer to the map which accompanied an earlier statement and that map is to be treated, for the purposes of this section, as also accompanying the later statement.

Where a statement is deposited under subsection (1), the commons registration authority must take the prescribed steps in relation to the statement and accompanying map and do so in the prescribed manner and within the prescribed period (if any).

Regulations may make provision for a statement required for the purposes of this section to be combined with a statement or declaration required for the purposes of section 31(6) of the Highways Act 1980; for the requirement in subsection (3) to be satisfied by the statement referring to a map previously deposited under section 31(6) of the Highways Act 1980; (c) as to the fees payable in relation to the depositing of a statement under subsection (1) (including provision for a fee payable under the regulations to be determined by the commons registration authority); as to when a statement under subsection (1) is to be regarded as having been deposited with the commons registration authority.

Register of section 15A statements

The new s15B requires that each commons registration authority must keep, in such manner as may be prescribed, a register containing prescribed information about statements deposited under section 15A(1) and the maps accompanying those statements. The register kept under this section must be available for inspection free of charge at all reasonable hours. A commons registration authority may discharge its duty under subsection (1) by including the prescribed information in the register kept by it under section 31A of the Highways Act 1980 (register of maps and statements deposited and declarations lodged under section 31(6) of that Act).

Regulations may make provision where a commons registration authority discharges its duty under subsection (1) in the way described in subsection (3), for the creation of a new part of the register kept under section 31A of the Highways Act 1980 for that purpose; as to the circumstances in which an entry relating to a statement deposited under section 15A(1) or a map accompanying such a statement, or anything relating to the entry, is to be removed from the register kept under this section or (as the case may be) the register kept under section 31A of the Highways Act 1980.

Restrictions on right to register land as town or village green

S13 inserts a new s15C in the Commons Act 2006 which deals with the registration of greens and in particular exclusions. The right under s15(1) to apply to register land in England as a town or village green ceases to apply if an event specified in the first column of the Table set out in Schedule 1A has occurred in relation to the land (“a trigger event”). Where the right under s15(1) has ceased to apply because of the occurrence of a trigger event, it becomes exercisable again only if an event specified in the corresponding entry in the second column of the Table occurs in relation to the land (“a terminating event”). The Secretary of State may by order make provision as to when a trigger or a terminating event is to be treated as having occurred for the purposes of this section.

The Secretary of State may by order provide that subsection (1) does not apply in circumstances specified in the order and may by order amend Schedule 1A so as to specify additional trigger or terminating events; amend or omit any of the trigger or terminating events for the time being specified in the Schedule. A trigger or terminating event specified by order under subsection (5)(a) must be an event related to the development (whether past, present or future) of the land.

For the purposes of determining whether an application under s15 is made within the period of two years mentioned in s15(3)(c), any period during which an application to register land as a town or village green may not be made by virtue of this section is to be disregarded.

Schedule 4 (which inserts the new Schedule 1A to the Commons Act 2006) has effect. For the purposes of the application of s15C of the Commons Act 2006 (as inserted by subsection (1)), it does not matter whether an event specified in the first column of Schedule 1A to that Act occurred before or on or after the commencement of this section. The amendment made by subsection (1) does not apply in relation to an application under s15(1) of the Commons Act 2006 which is sent before the day on which this section comes into force.

Applications to amend registers: modification of power to provide for fees

S14 make provision in section 24 of the Commons Act 2006 (regulations about making and determination of Part 1 applications) for regulations under subsection (1) made by the Secretary of State to make provision as to the fees payable in relation to an application (including provision for a fee payable under the regulations to be determined by the person to whom the application is made or (if different) the person by whom the application is to be determined).

Considerations

Many will see these town or village green amendments as long overdue given the way in which the mechanism has been, they would say, abused in order to frustrate development.

Others will no doubt complain about the centralisation of the power and the removal of the ability to legitimately protect the rights of local communities to continue enjoying the access to open spaces that they have done.

Either way these amendments are likely to generate controversy and contentious debate.

If you require further information or advice on any issues raised in this article or any other planning & environmental matter please contact David Merson on 020 7421 1720 or dmerson@steeleslaw.co.uk

Delia’s Canary Catering are delighted to welcome England Manager, Roy Hodgson for one special evening at Carrow Road.

This is your chance to attend our first ever ‘Football Nights’ event at Carrow Road and enjoy an evening with the England Manager. Following a three-course dinner you can put your questions to Roy and learn more about the man who took charge of the Three Lions in the lead up to Euro 2012 and his mission to qualify England for the World Cup in Brazil in 2014.

Multilingual Roy has managed teams from around the world and you can find out more about his experiences managing at international level with England, Switzerland and Finland along with his impressive Club management CV at Malmo, Copenhagen, Blackburn Rovers, Liverpool and Inter Milan.

For those of you who want to get a little bit closer to the man himself we are offering a limited number of VIP tickets which include a pre-dinner drinks reception and the very best seats for dinner.

Where? In the Norfolk Lounge from 7.15pm, dinner in the Top of the Terrace from 8pm. Pre-dinner drinks for VIP guests, from 6.30pm in the Norfolk Lounge. How much? £95 VIP tickets, £75 standard tickets.

Please call 01603 218704 to book your tickets.

Football Nights at Carrow Road with…Roy Hodgson Menu

Potted Crab from Cromer

Boeuf Bourguignon Beef steak slowly braised in red wine with bacon, mushrooms and shallots Mashed Potatoes with Parmesan Buttered Leeks and Carrots

Sticky Toffee Pudding with Toffee Pecan Sauce

Coffee with Chocolate Coffee Beans

Please note that this menu is subject to change. Vegetarian option available.

Ed Savory, an Associate in Leathes Prior’s Franchising team, attended a forum of bfa Affiliates in London on Tuesday 16th October 2012. The bfa Affiliates are accredited professional advisers made up of lawyers, accountants, bankers, consultants and others who have demonstrated their expertise in franchising. The bfa Affiliates meet quarterly to discuss current market trends and certain “hot topics”.

The following two key legal topics were discussed at the latest Forum:

Limitations on franchisor liability

It had recently been brought to attention of the bfa Quality Standards Committee that there are a growing number of franchise agreements including clauses which seek to limit the franchisor’s liability for any claim made by a franchisee to an unreasonable degree.

For example, there have been cases of limitations capping the franchisor’s liability to an amount equal to the money paid by the franchisee to the franchisor in the preceding 12 months, or to a fixed amount linked to the initial fee, with specific exclusion made for liability for loss of profits. Conversely, the liability of the franchisee is usually unlimited.

The enforceability of such clauses is questionable as there are statutory restraints on including certain exclusions in commercial contracts under the Unfair Contract Terms Act 1977. In other words the limitation of liability must be reasonable. In assessing reasonableness, factors such as (a) the relative bargaining positions of the parties (franchisor and franchisee), and (b) whether the term in question is a fair and reasonable one to be included in the circumstances when the franchise agreement is signed, will need to be considered.

This is not a simple matter and it is important to have regard to the entire context of the franchise arrangement in question including the extent to which the franchisee’s liability is limited. For example, it is quite common to see franchisee liability limited to the management service fees which the franchisor would have received during the remainder of the term less the costs the franchisor would have incurred.

Nevertheless, the general consensus was that capping franchisor liability is not reasonable or acceptable. The franchisor must be responsible for the viability of its business system to at least give the franchisee the opportunity to run a profitable business. It was noted that the franchisor’s liability is in any event likely to be capped by the nature of the business structure through which it operates due to the legal nature of limited liability companies and wholly owned subsidiaries.

It is anticipated that a formal Technical Bulletin will be issued by the bfa in due course.

Disclosure requirements and the bfa Guide to the Code of Ethics

Under the bfa’s Code of Ethics (with which all bfa member franchisors must comply) paragraph 3.3 provides as follows:

3.3 In order to allow prospective individual franchisees to enter into a binding document with full knowledge, they shall be given a copy of the present Code of Ethics as well as full and accurate written disclosure of all information material to the franchise relationship, within a reasonable time prior to the execution of these binding documents.

In addition, the bfa has just published a revised Guide to the Code of Ethics which along with the Code is available from the bfa’s website www.thebfa.org.

There was a general view expressed that many franchisors do not strictly comply with the Code in providing prospective franchisees with sufficient information and/or a copy of the Code. This was not considered to be a major issue as the franchisors are often best placed to know the extent of information they need to disclose. For this reason the Code is not prescriptive as to exactly what information must be disclosed. The Guide does provide the minimum information which should be provided, being:

• the business and financial position of the franchisor
• the people involved in the franchise company
• the franchise proposition
• the franchisees
• the financial projections
• the contract

As well as breaching the Code, the franchisor may be at risk of a claim for misrepresentation if it fails to provide sufficient information to new franchisees. It is also worth noting that franchise agreements typically include an entire agreement clause that seeks to exclude liability for any pre contractual information provided to the franchisee.

All these factors must be borne in mind when considering disclosure and it is recommended that professional advice is sought in order to ensure that the franchise offering is compliant.

Other matters discussed

In addition to the above, the Forum also discussed:

• current market trends
• Affiliate presence on the bfa website
• feedback from The National Franchise Exhibition
• latest bfa news

Professional Support Lawyer Elizabeth Stevens and Trainee Solicitor Laura Tanguay report on the Government’s new ’employee-owner’ proposals.

What are the proposals?

At the Conservative Party conference earlier this month, the Chancellor of the Exchequer, George Osborne, announced plans for a new kind of employment contract.

Under the scheme, participating employees will exchange some of their employment rights for part ownership in the form of shares in the business they work for. Those participating will be classed as ’employee-owners’.

The shares given to the employee must be valued between £2,000 and £50,000 in order to qualify for the scheme and will benefit from capital gains tax exemption on any profits.

Legislation introducing the new employee-owner contract is planned to be implemented later this year with the aim that businesses can utilise these contracts from April 2013. At the moment, we have very few details of the mechanics of the scheme and what will happen to the shares when an employee-owner leaves or is dismissed. The Government has stated that it will consult on the finer details of the contract later this month.

Which rights are surrendered?

In exchange for shares, it is proposed that employee-owners will surrender their rights:

• to claim unfair dismissal (this will presumably only apply to claims for ‘ordinary’ unfair dismissal rather than automatically unfair dismissal, for example relating to pregnancy or trade union membership); • to a redundancy payment; • to request flexible working; and • to request time off for training.

The Government has also indicated that employee-owners will be required to provide 16 weeks’ notice (rather than the usual 8 weeks’ notice) upon returning from maternity leave. It should be noted, however, that the requirement to give notice to return from maternity leave only applies if the employee wants to return early.

The employee’s perspective

The Chartered Institute of Personnel and Development (CIPD) has urged the Government to abandon its proposals, insisting that the scheme is an unnecessary “watering down [of] employment rights”. It warns that “employees have little to gain by substituting their fundamental rights for uncertain financial gain” and has expressed concern about job insecurity created by a “two-tier labour market”.

Although the new scheme will be voluntary for existing employees, an employer may make offers of employment conditional upon accepting employee-owner status. In a competitive market, some may therefore find that they are left with no other option than to accept this type of contract.

The employer’s perspective

The Government claims that the scheme will create the “flexible workforce” required by small businesses. The CBI has given the proposals a cautious welcome, however, suggesting that it will be a niche idea and not relevant to all businesses.

It may be regarded as more affordable for a business to ‘buy out’ an employee’s rights for £2,000, given that it is not uncommon for compromise agreements and tribunal hearings to cost significantly more than this. In that sense, the scheme can be viewed as a new form of insurance for employers. However, the CIPD has queried whether “inviting employees to sign away basic employment rights will deliver the motivated, driven, high performing workforce that small firms need”. Arguably, a dedicated and secure workforce may well provide more fruitful in the long run.

Conclusion

As the old adage goes, the devil will be in the detail. Until the proposal is fleshed out in the full consultation, it is difficult to predict what real impact the scheme will have on the UK employment sector. Look out for our further report on this proposal once the consultation has been issued.

A copy of the Government’s press release is available here.

Steeles Law’s Head of Planning and Environment David Merson looks at the Coalition’s proposals to amend the Community Infrastructure Levy (“CIL”) Regulations to correct the anomalies currently encountered.

Draft regulations amending the CIL Regulations have been laid before Parliament and published this week.

The main changes relate to s73 variations in order to ensure that CIL would not be payable twice for the same development. In addition there is confirmation that CIL will not be payable on planning permissions replacing extant and unimplemented permissions granted before 1October 2012.

It is interesting to note that there is at present no provision in the draft amended Regulations for the application of CIL monies towards the provision of Affordable Housing which will, at least for the moment, still have to be addressed and negotiated through the s106 Planning Obligation mechanism. Furthermore, there is no provision for the passing of a “meaningful proportion” of CIL funds received to neighbourhood bodies. Both of these potential amendments had previously been floated by the Government earlier this year.

The amended Regulations are expected to come into force shortly (possibly as early as mid November) but will not apply retrospectively.

The draft Regulations can be viewed here.

Note however that the amended Regulations are in draft and it is therefore still possible that there may be some further changes before they finally come into force.

The main proposed amendments are as follows:

Section 73 issues

Under the current Regulations, CIL may be payable on both the s73 permission as well as on the original planning permission. The new draft Regulations change this by the removal of the double charging element.

If a charging schedule is in place both at the time the original planning permission is granted and the time a s73 permission is granted, CIL will be payable only once but on the following basis:

• Where the CIL charge calculated at the time of the original permission is the same as the CIL charge calculated at the time of the s73 permission, CIL will be payable on the chargeable development under the original planning permission only. • If there is a change in the CIL charge between the original planning permission and the s73 permission, and if that change is due to a change in a condition under the s73 permission, CIL will be payable only on the chargeable development which is the most recently commenced or re-commenced chargeable development. • For the purposes of these s73 calculations, the date on which the s73 permission “first permits development” should be regarded as the same as the date at which the “planning permission first permits development” for the original permission.

It will be possible to off-set CIL already paid against any new charge in circumstances where a CIL payment has already been made in relation to the original permission, and the charging authority issues a new liability notice in relation the s.73 permission because the CIL liability has changed.

Transitional provisions provide that if a planning permission is granted when there is no CIL charging schedule in place, and a later s73 permission is granted when there is a CIL charging schedule in place, the CIL charge will be:

• CIL payable on the chargeable development under the s73 permission minus the CIL that would have been payable under the original permission (using, for purposes of calculation, the charging schedule in force at the time of the s73 permission).

A CIL charge will therefore only be incurred if the s73 permission results in an increase in CIL payable.

Replacement Permissions to allow extension of time to implement

‘Replacement’ planning permissions can be granted where the original permission was granted on or before 1st October 2010, is still extant and is unimplemented (see article 18(1) of the (Town and Country Planning (Development Management Procedure) (England) (Amendment No 2) Order 2012).

CIL will not be chargeable where the original permission was granted before a charging schedule was in place and the replacement permission is granted (under Article 18(1)) when a charging schedule is in place.

Development under “neighbourhood development orders”

The CIL Regulations will apply to development consented under a neighbourhood development order (see s61E of the Town and Country Planning Act 1990, as amended by the Localism Act 2011). This means that CIL is potentially payable.

Regulation 40 formula correction

The amended Regulations correct an error in the formula in Regulation 40 the effect of which is to ensure that there will be no overcharging for development involving the retention of some existing buildings and the demolition of others.

If you require further information or advice on any issues raised in this article or any other planning and environmental matter please contact David Merson on 020 7421 1720 or dmerson@steeleslaw.co.uk

Top chef Galton Blackiston’s prestigious Morston Hall hotel and restaurant has become the 900th business to sign up to an award-winning project which helps Norfolk firms cut costs while reducing carbon emissions.

The REV ACTIVE project has so far concentrated on providing free, confidential and impartial support to businesses in the A11 corridor, but it is now being offered to businesses in the north of the county thanks to a partnership with North Norfolk District Council.

Morston Hall, near Blakeney, was among the first North Norfolk businesses to take up the offer of a free business review.

“It is part of our commitment to our business to ensure that we are sustainable in everything we do,” said Mr Blackiston, whose restaurant is Michelin-starred and has three AA rosettes. “This has always been clear through our policy of local food. When it comes to the business our energy consumption is sizeable, and as these costs are only set to continue grow it is important we do everything we can to manage these.

“REV ACTIVE has identified a number of things that could make a significant saving to our business, many of them at low cost, and the fact there is a grant towards these initiatives is very welcome indeed.”

The project has hit some significant milestones in addition to that of seeing 900 businesses sign up to its free website providing information on how to become more resource-efficient. More than 300 free business reviews have taken place, highlighting potential savings of more than £3m plus around 12,000 tonnes of carbon emissions. These businesses have further benefited from grant funding worth more than £150,000. North Norfolk District Council Councillor John Lee commented: “Projects like REV ACTIVE provide business owners with free impartial advice as to how they can cut costs, and are proven to help businesses grow. REV ACTIVE enables us to really help businesses in these uncertain times, and puts them on a strong footing going forward. We would now like to see more businesses in North Norfolk follow that lead, sign up, save themselves money and benefit our environment. “

REV ACTIVE has European funding, and has been managed and delivered in Norfolk by Breckland Council, in partnership with Norfolk County Council. Following the project’s extension into North Norfolk, organisers are confident it can help more and more business owners to cut costs.

REV ACTIVE has helped businesses from a diverse range of sectors – from companies in the hospitality and leisure sector to manufacturers and professional services.

If you think your business could benefit from a free, impartial review call 01362 656808, email help@revactive.co.uk or visit www.revactive.co.uk.