Coodes LLP is recognised as one of the leading law firms in Cornwall and Devon and the longest established firm in the region. We provide legal advice across the entire spectrum of business and personal needs, delivered by highly-experienced lawyers, organised according to the needs of our clients. We are open, honest and direct.
Kevin George, commercial property lawyer and Partner in Coodes Solicitors’ Rural Services team, advises farmers on the opportunities and potential pitfalls of hosting a battery storage system.
Farmers have always been good at looking for opportunities to diversify. Many of our clients in the South West responded to the fast growth of the renewable energy sector, by hosting solar farms or wind turbines. With uncertainty around the future of the Basic Payment Scheme, more farmers are investigating new and different business opportunities.
A number of developers are now seeking sites for battery storage systems. Battery storage could provide the solution to balancing supply and demand for energy in the future. This is an emerging industry, which has the potential to grow. Developers are now seeking to secure land for battery storage systems. Many landowners are being approached and our clients are starting to ask for legal advice on the issue.
What are the benefits of hosting a battery storage system on my land?
With leases for battery storage being typically between 20 and 25 years, there is potential for landowners to earn a long-term rental income. If you have been approached about hosting a site, this could become a profitable business venture for your farm. If battery storage does turn out to be the ‘next big thing’ your decision to host a site could turn out to be profitable.
What are the potential pitfalls of entering into an agreement to host a battery storage system?
Developers are now seeking to secure the best sites for battery storage. This means they may give you the ‘hard sell’, putting you under pressure to sign an agreement as quickly as possible. You should not feel pressurised into an agreement before getting expert legal advice and ensuring you understand, and are happy with, the developer’s offer.
The energy company may try to persuade you to sign an exclusivity agreement for the site. We would advise you not to do this as it prevents you from exploring any alternative options for the site.
Even if you do enter into an agreement, you could face a number of barriers, including planning issues and a negative response from neighbours who may not want a large and noisy installation nearby.
How can I ensure I get the best out of hosting a battery storage system on my land?
If you decide to host a battery storage system, you will need to enter into a full-scale business lease with the developer. Before entering into negotiations, speak to a surveyor who understands your needs and has expertise on this complex area.
We would advise you to consider the terms and conditions of your contract stating there would be an increase in rent if the capacity of the battery storage system increases in future. We would also recommend including rent review in your contract to ensure you get the best value out of the site for the full term of your lease. It is also important to have a decommissioning bond in place in case the developer does not clear the site if the lease comes to an end.
Because battery storage is an emerging sector, it is not yet subject to specific Government regulations, so getting the right advice at the outset is the key to avoiding potential issues.
Here at Coodes Solicitors, our specialist Rural Services team includes five fellows of the Agricultural Law Association. We work with landowners across the South West and can help you get the best out of any diversification opportunities.
Pam Johns, Partner and Rural Services Team Leader at Coodes Solicitors, explains why Coodes Solicitors is sponsoring the Young Farmer of the Year award at the South West Farmer awards 2018.
Coodes Solicitors has sponsored the Young Farmer of the Year category of the South West Farmer Awards, since the awards began in 2016. As a law firm with a dedicated rural team, we are proud to support these awards, which celebrate the achievements of the region’s farming community. Generations of landowners have trusted Coodes with their legal work and we consider ourselves very privileged to support rural businesses as they develop, diversify and grow.
The Young Farmer of the Year is more relevant and important than ever before. Here at Coodes, we are seeing more and more farming families entrusting the younger generation with a large stake in the business. We are advising growing numbers of clients, who want to set up Partnership Agreements where the son or daughter has the controlling share (at least 51%) of the business. Members of the farming community will know that this helps to access the Young Farmers Basic Payment Entitlement. Despite the obvious financial benefits this brings, it is a big decision for any farming family to put so much responsibility on young shoulders. With land now being so valuable, there are huge amounts of money involved, which brings a considerable amount of risk.
When they become more involved in the farm, young farmers need to consider how their personal circumstances might impact on the farm business in the future. If they are planning to marry, have they considered pre-nuptial agreements to protect the value of the farm? Or if they are cohabiting with a partner, are they aware that a Living Together Agreement offers some legal protection? With many farming families having assets running into hundreds of thousands of pounds, it is important to plan ahead and get the right advice.
Partnership Agreements vary and having a certain share of the business, does not necessarily mean having control over the land. Although many farmers may not differentiate between the business and the land, they are different in legal terms. It is important that your Partnership Agreement reflects the split you want. Again, getting expert advice is crucial.
With five Fellows of the Agricultural Law Association, Coodes is one of the few law firms to have a specialist Rural Services team. This depth and breadth of expertise means we understand the range of personal and business issues that a young farmer needs to consider.
Young farmers are playing a bigger role than ever before. We think it is important that their efforts are celebrated. Perhaps you know a young farmer who has shown themselves to be particularly creative, innovative and forward thinking and have achieved positive results from their new ideas. To nominate someone for the Young Farmer of the Year, and any other of the South West Farmer Awards, visit the website.
During Mental Health Awareness Week, Julian Tyson, Partner in Coodes Solicitors’ Mental Health and Community Care team welcomes the prospect of more mental health support in Cornwall.
Work has now begun to build a new mental health unit for children and adolescents in Cornwall. The facility, which will be located in Bodmin, is the result of years of campaigning from local charity the Invictus Trust and others. Due to open in April 2019, the Sowenna Centre will, for the first time, give under 18s access to beds in a specialist mental health service in Cornwall.
We have also recently seen the opening of Cove Ward in Redruth, which provides psychiatric rehabilitation for people with a long term mental illness alongside the existing rehabilitation unit in Bodmin.
The prospect of having more specialist mental health provision in Cornwall’s hospitals is great news.
It will make a big difference to the people I support. Over the years, my work with families who need support with mental health issues has shown time and time again the lack of provision in Cornwall. Sadly, many young people have been transferred hundreds of miles for treatment. This not only makes it very difficult for families to spend time together while someone is receiving treatment, it also makes their transfer back into the community much harder.
When someone is being treated for mental illness, the ultimate aim is always to help them get back into the community. That means they need a really good support structure with people who they can build a trust with, as they start on their journey to recovery. Having the right support in place can significantly reduce the risk of people having to go back into hospital for treatment.
This new support is being established in Cornwall as our awareness and understanding of mental health continues to improve. Mental illness is being destigmatised so it is no longer a marginalised issue. It is becoming more palatable for people to share their experiences. Dwayne “The Rock” Johnson is the latest celebrity to open up publicly about having experienced mental health problems. A recent visit to the cinema included an advertisement about the elephant in the room referring to one man’s reluctance to talk about a mental health issue. This increased openness is incredibly helpful as mental illness can affect anyone, but it is a hidden condition and has been stigmatised in the past.
With more of us opening up and talking about mental health problems, more people are also seeking help when they need it. I am now pleased that more people will now be able to access the help they need, close to home in Cornwall.
Talking to someone who has recently been bereaved is not easy. During Dying Matters Awareness Week 2018 Louise Southwell, Partner and elderly client specialist at Coodes Solicitors shares her top ten tips for these difficult conversations.
As a lawyer who specialises in elderly client law, and advises on Wills and probate, I come into regular contact with people who have been bereaved. Talking to someone who has recently lost a loved one is difficult and can be very upsetting, especially if the death was sudden and unexpected. While everyone experiences grief differently and there are no hard and fast rules, here are some tips to help you.
1. Do not ignore what has happened
It is common not to know what to say when someone you know has loses a loved one. If the death was sudden, you may feel shocked and may simply not be able to find the words. Or perhaps you are fearful of saying the wrong thing and adding to your friend’s upset. Not acknowledging the death, however, is the worst thing you can do.
2. Send a card or letter if you cannot speak face to face
If you do not feel able to have a face to face conversation with a friend who has been bereaved, or are simply unable to see them, send a letter or a card. It will really help them to know you are thinking of them.
3. Try to understand if a bereaved friend does not want to see you
You may find that your calls or emails are ignored, at least at first. Your friend may simply not feel ready to respond to your invitation to meet up or even to speak to you. Grief takes time and is an unpredictable process with many different stages. Don’t give up on someone who is bereaved. Leave the door open to your friendship and perhaps they will feel able to respond next time you get in touch.
4. Be prepared to talk about the person who has died
Many people imagine that talking about the person who has died will be very upsetting for someone who has recently been bereaved. In fact, this is exactly what some people want to do and they may want to reminisce as a way of keeping the person alive. If you did not know the deceased person, you could start by saying something like “I didn’t know your husband, but I wish I had.” This gives them the opportunity to talk about their loved one, should they wish to. Everyone is different though, so try to read the signals and let them take the conversation in the direction that suits them.
5. Offer practical help while they are grieving
It is normal to want to help a friend who is grieving. However, simply saying “let me know if I can help with anything,” may not be enough to encourage them to call on you. Offers of specific practical help, such as looking after their children for a couple of hours, cooking a meal or taking care of specific funeral arrangements, are generally more likely to be taken up.
6. Avoid clichés
When we feel uncomfortable and are lost for words, we often resort to clichés. If someone has died, this can mean using phrases like “I know how you feel,” or “time is a great healer,” to show you are sympathetic. Unfortunately these phrases are fairly unhelpful. Instead, try to speak to them in a more personal and individual way.
7. Remember that listening is more important than talking
As we struggle to find the right words, it is easy to forget that talking is much less important than listening. Let your friend do most of the talking and do not be afraid of silences. Using open questions is a good starting point and try to resist the temptation to interrupt them.
8. Bereaved people sometimes want to talk about normal things too
Even when they are at the height of their grief, many people sometimes want to talk about normal, mundane things. So, if they ask about what is going on in your life or just want to chat about the weather, take their lead. You are still being a supportive friend by spending time with them and focusing on something else may give them some temporary relief.
9. See your friend as you always have
People often become nervous about speaking to someone who has been bereaved. Even if a very close friend has lost someone, you may suddenly feel tongue tied and not know how to behave around them. The key is to try to remember they are the same person they have always been.
10. Try to remember birthdays and anniversaries, as time goes on
As the months and years go by, remember that grief can hit people especially hard on significant dates. The birthday of someone who has passed away, a wedding anniversary or the anniversary of a death, can all be difficult days. Make a diary note of these dates so you can offer any support when they come around again.
Hayley Gaffney of Coodes Solicitors’ Personal Disputes team advises landlords on what could happen should they be found to not be compliant with the new EPC regulations.
New regulations for EPC ratings came into force on 1 April 2018, setting out a minimum level of energy efficiency for rented properties in England and Wales.
An EPC (energy performance certificate) rates the energy efficiency of a property. Ratings start from band A (being the most energy efficient) and end at band G (being the least). Under the new legislation, all privately rented properties must have a minimum energy rating of band E.
From 1 April this year, landlords of domestic rented properties cannot grant a new tenancy if the property in question has an EPC rating below a band E. And, from 1 April 2020, landlords cannot continue letting a property at all if it has a rating of below a band E.
An EPC is valid for 10 years once lodged on the EPC register and is not required each time there is a change of tenancy, provided the certificate is under 10 years old.
How does the new legislation affect me as a landlord?
This legislation applies to any rented property, which is legally required to have an EPC and is let under one of a number of tenancy types. These included an assured tenancy, a regulated tenancy or a domestic agricultural tenancy. More information on different types of tenancy can be found here.
There are a number of tenancies or circumstances where the new EPC regulations do not necessarily apply. These include social housing and properties let under licence. There are also different requirements for houses of multiple occupancy let as individual rooms and holiday lets. The rules are complex, so if you are a landlord it is well worth checking whether or not your properties need to comply.
What will happen if my rented property is not compliant with new EPC regulations?
Local authorities have the power to enforce compliance and they may check if a rented property does meet the minimum required level of energy efficiency.
They can issue a Compliance Notice to a landlord requesting information about the EPC rating of the property, and if it is found to be in breach of the regulations, the landlord could be fined. The local authority can also publish details of the breach on the national PRS (Private Rented Property) register.
Financial penalties can differ, depending on the type of breach, but landlords could face a maximum fine of £5,000 per breach per property. If a landlord has been previously fined £5,000 and continues to let the property with a new tenancy without improving the EPC rating, the local authority can levy new penalties for that new tenancy.
Of course, a landlord can ask the local authority to review the penalty notice, and if it is upheld, they can appeal again to the First-Tier Tribunal (General Regulatory Chamber), which handles appeals against decisions made by government regulatory bodies.
If you find yourself in breach of the new EPC regulations, seek legal advice at the earliest opportunity.
With the issue of equal pay rarely out of the headlines, Coodes Solicitors Employment Lawyer Philip Sayers explains what employers need to consider.
The Equal Pay Act came into force in 1970. The legislation was put in place to address the issue of women often being paid lower wages than men for carrying out the same work. The latest statistics show that nearly 50 years on, there is still a pay gap of 18% between men and women in the UK.
Over the last few months a number of large businesses and public sector organisations have come under fire for pay gaps between male and female employees. High profile examples include the BBC, Ryanair and Lloyds Bank. So, what should business owners do to ensure they are not at risk of breaching the legislation?
Should businesses be transparent about how much they pay staff?
The law currently says that organisations with 250 or more employers are obliged to publish data on the gap in pay between male and female employees. However, a number of smaller organisations have chosen to share their data too, though they are not currently required to do so. Business owners can find more details on how to report here.
Equal pay for the same work?
The legislation makes it illegal for women to be paid less than men for doing the same work. While this might sound simple, it can be complex. If there are eight shop assistants and the three male assistants are paid a higher hourly rate than their female counterparts, then it is blindingly obvious that their employer is breaking the law. However, it is more complicated if you are comparing different roles. A famous example of this is when school cooks, typically female and often called ‘dinner ladies’, won a Tribunal against their employer. Birmingham City Council was paying its refuse collectors, typically male ‘bin men’, higher wages. The ‘dinner ladies’ won because their union successfully argued the case for their roles being comparable.
The law states that equal pay should be given for work that is the same, broadly similar, or of equal value to the organisation. This can be subjective, so if in doubt seek advice.
So, for any organisation it is important to regularly review its salaries and compare rates of pay for staff carrying out roles at a similar level – even if the work itself is different.
Look at the whole remuneration package
When considering equal pay, it is important not just to look at the hourly rate or annual salary. Employers should be consider the whole remuneration package, including bonuses, performance related benefits and overtime to ensure there is equality among male and female employees. And equal pay does not just refer to money – it also includes annual leave.
What if an employee approaches me about equal pay?
If a member of staff approaches you arguing that they feel there is a gender pay gap in your organisation, the first thing to remember is that it is important not to penalise them for raising the issue. The Equality Act gives employees protection against ‘victimisation’, which means they should be able to make a complaint or raise concerns with their employer without fear of repercussions.
You should clarify with them whether or not they are raising this as a formal grievance – and, if so, go through your usual procedures for this.
Roles change within organisations, and people come and go, so it is important to continually keep track of salaries with the issue of equal pay in mind. Acas has some useful information for employers on equal pay and the Equality and Human Rights Commission has a three-step review for small businesses here.
How can employers manage the health and safety of night workers? Coodes Solicitors Employment Lawyer Philip Sayers outlines an employer’s responsibility to staff on the night shift.
All employers have to comply with health and safety legislation, designed to protect the wellbeing of workers. But for those organisations that run a night shift, there are greater risks for employees and additional regulations for employers.
Health and safety: a priority for all employers
Whatever the nature of your business, the health and safety of your employees needs to be a priority. Fortunately, it doesn’t have to be complicated and most of it is common sense. The Health and Safety Executive (HSE) has a useful guide for employers here.
Whether your staff are working during the day or night, they should be able to carry out their tasks in a healthy environment. This includes having access to toilets and hand basins, drinking water, and a clean space in which to work. Look out for trip hazards and ensure there are no obstructions to walkways and fire exits.
If you have five or more employees you need to have a written health and safety policy. However well thought through it is, a policy is no good if it is just gathering dust on the shelf. Keep it under regular review, update it when necessary and ensure your staff read and understand it.
The law does not expect you to anticipate every possible accident, but you are expected to carry out risk assessments for foreseeable dangers in your workplace. These will depend on the nature of the work but could be related to using machinery, being in a challenging environment or heavy lifting.
Perhaps most importantly of all, ensure your staff are given the necessary training to help them stay safe at work. As your employer it is your duty to ensure they know how to follow any emergency procedures and are given training for any potentially hazardous tasks.
Additional health and safety regulations for night shift workers
Staff who regularly work three hours between 11pm and 6am are officially night workers. Shift work has been linked with a number of health issues and some chronic illnesses. To give staff more protection, employers must follow additional regulations.
Working hours and rest breaks for night staff
Night workers must not work more than an average of eight hours in any 24-hours. This is in addition to the normal rest breaks provided for in the Working Time Regulations. Occasional overtime above the average eight hours that takes them over that limit is allowed. Employees cannot opt out of this limit and it is a criminal offence for an employer to breach these obligations. No-one under 18 is allowed to work between midnight and 4am and with partial exceptions, including agriculture, catering and cultural or sporting roles, these younger members of staff cannot work between 10pm and 6am.
Employers are legally required to keep records of any night workers’ hours to prove that they are not exceeding the limits. These records must be kept for a minimum of two years.
Work in certain industries can be exempted from these regulations. They include the armed forces, farming, hospitals and emergency services. Different rules apply to staff working in roles in road, sea and air transport.
Looking after the wellbeing of night workers
Employers must offer all staff a free health assessment before they become a night worker. This should also be offered on a regular basis while they continue to work a night shift. While employers must offer it, employees are not obliged to accept it. If a GP states that night working is causing a health problem the night worker must be transferred to day work wherever possible.
Employers should carry out risk assessments for any night staff working in roles that involve mental or physical strain or working in a hazardous environment.
Dealing with an accident in your workplace
However well you promote safe working, accidents can and do happen. You must have a properly stocked first aid box and someone who is responsible for first aid. You may also want to offer first aid training to some of your staff, including those working nights.
Employers have a legal obligation to report some accidents to the HSE. Find out more about this and report an accident here.
With a number of key changes to employment law taking effect this April, Coodes Solicitors Employment Lawyer Philip Sayers breaks down what businesses need to do.
As these new legislations come into force, employers should be aware of changes that may affect their staff and businesses, either positively or negatively, and make amendments accordingly.
Changes that employers should be aware of, include:
National Living Wage increase
The national living wage for workers aged 25 and over has increased by 33p to £7.83 an hour. Other minimum living wages have also increased and the Low Pay Commission has already begun consultation for next year. Employers may want to use this as a chance to review all salaries to ensure the national living wage is being met.
Rise in statutory payments
Statutory maternity, adoption, paternity, shared parental pay and maternity allowance has risen to £145.18. Statutory sick pay has risen to £92.05 per week.
Mandatory gender pay gap reporting
Large private and voluntary sector employers are now required to publish annual information on their gender pay gaps, according to the Equality Act 2010. There are a number of figures these employers should provide, which are outlined by the Equal Pay Portal. Although businesses with more than 250 employees are required to publish annually, smaller businesses can choose to do so. Whether or not you are publishing your data, now would be a good time to review your salaries and ensure your organisation is paying staff fairly and not discriminating against any employees.
Tribunal compensation limits
The Employment Rights Order 2018 also came into force this month, bringing changes to payments awarded as a result of Employment Tribunals. The maximum amount of compensation that can be awarded for a normal unfair dismissal claim has risen to £83,682. A week’s pay is used as a starting point to calculate statutory redundancy payments and other awards for unfair dismissal. The maximum amount that can be used as a week’s pay is now set at £508.
Termination payments are paid when a staff member leaves a company, as a result of redundancy, retirement, an agreed departure, dismissal or simply moving on. All payments in lieu of notice will now be subject to income tax and class 1 National Insurance contributions, including payments where there is no contractual PILON (Payment In Lieu Of Notice) power.
Taxation changes to payments for injuries to feelings
Payments for injuries to feelings can be agreed in settlement agreements. Previously there was an arguable distinction in the taxable status between injuries to feelings, which arose from pre-termination discriminatory acts, and discriminatory acts which formed part of the termination. New legislation means payments for injury to feelings will always be taxable, except when that distress amounts to a psychiatric injury or medical condition.
Foreign service relief
Foreign service relief, previously paid to UK resident employees who had to work abroad, has now been abolished.
Public sector equality duties
Part of the Equality Act 2010 came into force on 1 April, imposing duties on specified authorities to reduce inequalities. This legislation is designed to tackle discrimination which could put certain groups and individuals at a disadvantage. It is now important for all public sector organisations to be able to prove they have given consideration to how any of their policies of decisions might affect people who are protected under the Equality Act. While businesses do not have to comply with the duty, every employer should be familiar with the Equality Act 2010.
These key changes provide a perfect opportunity for businesses to review all employment contracts, ensuring you are meeting all the new standards.
Pam Johns, Rural Services team leader at Coodes Solicitors explains how to update or remove restrictive covenants from your land.
What are restrictive covenants?
A restrictive covenant is a contractual obligation that restricts the use of land or property. These legally binding agreements are on the property deeds. They may, for example, specify the kinds of buildings that are allowed to be developed there, or prevent any new houses from being built on the land.
Restrictive covenants are often centuries old and the reason they were drafted in the first place may no longer be relevant. For example, a recent case in London saw a developer buying land, which was subject to a restrictive covenant not to use it for any purpose other than as a sports club or to build detached houses. The reference to the sports club was no longer relevant, as it had not been used as a sports ground for many years.
Restrictive covenants can cause problems when farmers want to sell or develop land. A land with restrictive covenants limiting its future use can seriously reduce its value. So, what can landowners do if they want to update or remove restrictive covenants?
What can landowners do to remove restrictive covenants?
Many landowners assume that when a restrictive covenant is in place it cannot be removed and they just have to live with it. Fortunately, this is not the case.
The first thing to find out is whether or not the covenant is still able to be enforced. If it is not enforceable then an application can be made to the Land Registry to remove the covenant from the deeds. If it is, it may be possible to negotiate with the party that has the benefit of the covenant to remove by entering into a Deed of Release. There will probably have to be some financial recompense for the release of the covenant.
If a landowner feels a restrictive covenant is unreasonable, they may have a case for having it removed altogether or, if that’s not appropriate, possibly varying or amending the covenant. Getting expert advice from a lawyer and/or planning consultant would be a good place to start. An application can be made to the Lands Tribunal to have a covenant removed or varied. The Lands Tribunal will consider any changes to the property or neighbourhood since the covenant was put in place, whether the covenant is unreasonably preventing developments that would be beneficial.
The downside to such an application is that it can be a very lengthy and expensive process, sometimes taking up to two years.
With the 25th May deadline fast approaching, Kirsty McAuley of the Corporate and Commercial team at Coodes Solicitors explains why business owners can no longer afford to ignore GDPR.
1. The deadline is looming (but there’s still time to get it right)
GDPR is coming into force on 25th May. Whether you are a sole trader, with just a few customer email addresses on file, or a global corporation holding reams of personal data, you need to be ready. It’s really not as scary as it sounds. Although the deadline is fast approaching, there is still time to ensure that your business meets the new regulations.
2. It’s not as difficult as you might think
One of the reasons business owners might be putting off tackling GDPR is that it seems complicated. In fact, the most important thing to do now is simply to take a long hard look at your own data handling processes. This will help you to understand how your company holds and manages personal information on customers, suppliers, employees and business referrers. You will probably find you are doing plenty of things right so you may not need to make many changes. Ask yourself the following questions:
WHY does your business process data? What personal information do you need to hold and for what purpose?
HOW does your business process data? Does everyone manage data in the same way across the business?
WHO internally and externally manages data? Do you know who currently has access to any data you hold?
WHAT data do you hold? List what information you hold about staff, suppliers, and existing and potential customers – this could include names, email addresses or background checks.
3. Missing the deadline could cost you much more than money
You have probably seen the headlines about the fines you could face if you fail to comply with GDPR. In reality, the bigger problem may be the impact that a breach has on your reputation and loss of business.
4. You risk losing your customers’ trust if you fail to comply
Complying with GDPR means storing and managing data legally but it is really about ensuring the privacy of all those whose data you have on file. Your customers are likely to express concern about how you are handling their data, so think about what you need to do to reassure them.
5. It may actually make your business more efficient
A benefit of GDPR that you may not have considered is that it could help your business to run more efficiently. Whether you are sending out a newsletter or renewing contracts, knowing what data you hold and how you can use it should make communications easier and more efficient. While there will inevitably be work to do to get ready for the changes, your efforts now should save time in the future.