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Discover thought leadership and legal insights by our legal experts from across CMS. In our Expert Guides, written by CMS lawyers from across the jurisdictions where we operate, we provide you with in-depth legal research and insights that can be read both online and offline. You can also find Law-Now articles with focused legal analysis, commentary and insights to help you anticipate future challenges and much more.



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Expertise
09/07/2024
The Lasting Impacts of COVID-19 on Legal Project Management
The Lasting Impacts of COVID-19 on Legal Project Management
09/07/2024
In Dispute: Artificial Intelligence in litigation 2024
Much attention has been paid to the rise of artificial intelligence and the associated litigation risk. In this series, as well as litigation risk arising from AI, we look at the practical implications of the use of technology from predicting the likely outcome of a case, to forming legal arguments and expert opinions.
09/07/2024
Referral to the Enlarged Board of Appeal – G 1/24 ("Heated aerosol")
Under Art. 112(1)(a) EPC, a Board of Appeal refers a question to the Enlarged Board of Appeal if it considers that a decision is required, in order to ensure uniform application of the law or if a point...
09/07/2024
CMS European Private Equity Study 2024
This study analyses hundreds of Private Equity deals that we advised on in 2023 and previous years, providing unique insights into market trends
05/07/2024
The First 100 Days: Planning, Infrastructure and Energy Transition
Introduction As the dust settles on the 2024 Election result, and the new government takes shape, CMS and Deloitte reflect on the opportunity that the first 100 days of the new administration can offer the world of planning, infrastructure and energy transition. The new administration is committed to accelerating net zero. The Labour Party’s manifesto and Clean Energy Plan[1] contained a pledge to double onshore wind, triple solar power, and quadruple offshore wind by 2030 together with the introduction of a carbon border adjustment mechanism to prevent emissions being displaced elsewhere. Planning reform and the establishment of GB Energy will be key to delivering this. Indeed Labour have put setting up GB Energy as one of their "first steps"[2] and the Kings Speech on the 17th July could provide the platform to see early action on both. There are near term levers that can be used to establish a strong baseline in which to deliver, not only on manifesto promises, but to also realise the much need momentum to support UK Plc in meeting its economic and environmental potential. These are:  Skills and Training FundingProvision of toolsAdditional In­fra­struc­ture­Bey­ond the Manifesto - the technical realities 1. Skills and Training Funding Low carbon energy generation and the delivery of large scale infrastructure are key to realising the energy transition and success of UK Plc in achieving net zero targets. However, there is a planning and environmental resource gap to be plugged for these the energy transition to be delivered at the pace needed. Immediate funding to invest in skills and training and the planning process as a whole is required, this could take the form of:  The expansion of investment in STEM subjects at school to raise greater awareness of the planning profession and its important role in the delivery of infrastructure, environment and energy transition; To immediate investment in the professionals working in the sector today. The latter will have the very real effect of unlocking Local Planning Authorities (LPAs) and statutory consultee consultees to provide the ability to respond to applications in a timely manner Whilst the establishment of Great British Energy could be of great benefit, a portion of the £8.3billion invested in its set up could work alongside the proposed funding through UK Stamp Duty fund,  in funding planning officers and consultees to help unlock and expedite delivery. To this end, the introduction of the new tiered service by The Planning Inspectorate (comprising Basic, Standard and Enhanced services) in the determination of Development Consent Orders (DCOs) could be a model that is rolled out more widely across the planning system to achieve full cost recovery in this regard. The new administration should provide transparency as to how monies are being recycled into the quality inspectors, EIA officers and where this could be adopted at a re­gion­al/dis­trict geography level. This can be achieved through additional funding mechanisms, such as the Innovation and Capacity Fund, which should continue to provide assistance to local authorities to ensure that the new pre-application processes are successfully im­ple­men­ted. The previous Government’s community benefit proposals for transmission infrastructure is ongoing. This is an area where the new administration could be bold. The recent Community Benefits for Electricity Transmission Network Infrastructure – Social Research paper identified that long-term job creation is one factor which could help drive acceptability for projects. Given the acknowledged skills gap, clearer guidance on a broader community benefit scheme (beyond just transmission projects) may help in driving positive change and funding. Indeed Labour’s manifesto proposed to “reward clean energy developers with a British Jobs Bonus, allocating up to £500 million per year from 2026, to incentivise firms who offer good jobs, terms and conditions and build their manufacturing supply chains in our industrial heartlands, coastal areas, and energy com­munit­ies”Sim­il­arly, the s106 mechanism for planning applications could be expanded to include support and training of both communities and determining authorities in the planning system. This could have demonstrable value on the autonomy of local communities to engage and understand the planning process, beyond developer consultation rounds. Longer term, an indirect financial benefit for developers can be achieved through extending the proposed restrictions on landowners claiming hope value[3]. Politically, this should be straightforward as the previous administration laid the ground-work through the Levelling-up and Regeneration Act 2023. 2. Provision of tools After skills and training, availability and access to the correct tools for stakeholders (developers, consenting authorities, statutory consultees) to use is fundamental to success. In the first 100 days, beyond express planning reform, direction setting can also very clearly be given through informed written ministerial statements of intent. In the solar space, a new written ministerial statement (or at least the withdrawal of the 2015 and April 2024 written ministerial statements) would be a short-term win to provide confidence. In the onshore wind space, a written ministerial statement and an update to the National Planning Policy Framework (NPPF) (and associated update to the National Planning Policy Guidance - NPPG) will provide confidence that long-promised planning support will be delivered. In the hydrogen and electricity space, moving quickly to put National Electricity System Operator (NESO) in place and progress the Strategic Spatial Energy Plan (SSEP) will provide more strategic planning support as will including policy in the NPPF and NPPG. What is critical is that short term gains do not frustrate long-term objectives and that commitments to generation capacity do not prejudice transmission networks. The SSEP should be comprehensive and identify what needs to be built and where connections need to be made. The SSEP should also be recognised in the NPSs, NPPF and NPPG to give it clear planning policy status too. Through an infrastructure and energy transition lens, and specifically the adoption of ‘not so new tech’, the absence of explicit policy and guidance on hydrogen and carbon capture utilisation and storage (CCUS) has meant that these sectors have not been able to deliver the promise and pace that was anticipated. It is acknowledged that the UK needs a diverse energy mix and to be able to adopt these technologies and mix at scale requires concrete policy (including clarity on funding) to ensure investment and consenting decisions can be made with confidence. Ministerial statements that commit to the adoption of hydrogen and CCUS National Policy Statements (NPS), with a very clear timeline for adoption, would benefit increased confidence and investment. 3. Additional Infrastructure: Datacentres and Housing Data centres and housing also rely on private investment and face delivery challenges. There has been reference throughout the pre-election period to data centres being introduced to the NSIP regime with the Labour manifesto expressly citing the need to “remove barriers to new datacentres”. Whilst there is discussion to be had on planning act thresholds, extending the potential scope of section 35 and allowing projects to seek a direction may be beneficial, particularly for projects that may require private wire electricity connections and/or the co-location of electricity generation and which may require land assembly. The prospect of housing being introduced to the NSIP regime has also been raised. This would require legislative change, and the Kings Speech on the 17th July could provide an early immediate opportunity. Whilst this would not be appropriate for all housing schemes it would be a welcome longer-term measure to deliver new towns. The approach to policy needs to be carefully considered given that the policy matrix for NSIP development is materially different. In order to put NSIP housing development on a stronger footing, adopting an NPS and triggering the decision-making framework via section 104 of the Planning Act 2008 would be appropriate. This could allow for a concept, similar to critical national priority infrastructure in the energy NPSs, whereby the need for the housing development is determined to meet all policy tests such as very special circumstances in the green belt (provided that the mitigation hierarchy has been followed and subject to the same carve out for HRA development). A site-specific housing NPS, similar to the nuclear NPS, may be most appropriate if housing were included as a class of NSIP.A short-term step to aid with delivery for both data centres and housing would be amendments to the NPPF which strengthen the presumption in favour of sustainable development made. This approach could see the presumption in favour of development (or certain forms of development) enhanced with the factors that disapply the presumption reduced. Historically, appeal decisions have seen different conclusions reached on the weight applied to factors. Clearer policy guidance on the approach to weight would also be beneficial, and this could follow a similar approach to the critical national priority concept. This would then mitigate a lot of the arguments regarding weight and benefits that play out in large scale residential appeals. Another short term step the new administration could take to expedite delivery would be to use existing planning tools such as special development orders and local development orders – both under-used, and can be implemented relatively quickly. While these will not be appropriate for all schemes, and may need alignment with compulsory purchase processes, they could. This could be coupled with longer term legislative change to deliver the steps above. 4. Beyond the manifesto – the technical realities Beyond the manifesto, there are a number of steps which the Government could take to expedite the planning process. Expressly capturing more development in the DCO regime (such as hydrogen production or onshore wind) may not be appropriate and a better approach may be extending the remit of section 35 directions (allowing projects to opt-in to the regime). The 50MW threshold for electricity generation has led to solar schemes having their design capped at 49.9MW to avoid the NSIP regime, and since energy storage was removed from the DCO regime there has been a growth in large scale energy storage schemes being consented. Project promoters often debate the most appropriate consenting regime for the delivery of projects, and allowing an “opt-out” from the Planning Act 2008 regime could help. This would be similar to the mechanism introduced through section 24 of the Infrastructure (Wales) Act 2024 in respect of the newly introduced Infrastructure Consent Order regime in Wales. More broadly, the recent Supreme Court decision in Finch (in respect of EIA) and Court of Appeal decision in Fry (in respect of HRA) both provide potential challenges to the delivery of major projects across numerous sectors. Legislative change has long been mooted in respect of HRA matters, with a particular focus on nutrient neutrality and housing, and this should be considered to provide certainty to all industries. These are areas with a substantive body of case law and where guidance and policy updates alone may be insufficient. Implementing any recommendations which flow from the Banner Review[4], to expedite the judicial review process (particularly in the Higher Courts) and consider the threshold for challenges, should be prioritised. Changes to Civil Procedural Rules and the implementation of judicial guidance can be delivered quickly, but must respect the rule of law. The benefit in these changes will be reducing the post-consent time that is often lost for major infrastructure projects. The first 100 days of any new administration provide a real opportunity to be capitalised and set the scene for what’s to come in the worlds of planning, infrastructure and energy transition. The benefit of implementing some or all of the thoughts above would set a very clear signal of the administration intent and delivery of promises made.
01/07/2024
Getting it right: A successful exit strategy for founders
A successful exit strategy for founders | 6 min read Deciding when to sell a business is never easy. Business sales are costly, complex and expensive. Yet securing that first exit is an opportunity most entrepreneurs dream of - enabling them to cash in on years of hard work and reward the employees and investors that helped to build the company into a sellable business. Key contacts:   Bruce Harvie, CorporateTom Jameson, CorporateCraig Wilson, CorporateMatthew McGuire, CorporateAnya Fitzpatrick, Corporate
28/06/2024
Planning in Politics – Manifesto Summary (2024 General Election)
What might the General Election mean for planning policy and the built and natural environment?  With less than one week to go until we all head to the polls, we have summarised the key policies and...
27/06/2024
Antibodies
The development of hybridoma technology in the 1970s revolutionized the field of antibody technology, leading to a fundamental transformation in our realisation of the potential of antibodies as a tool...
20/06/2024
Manifest-EES
Despite Rishi Sunak’s September 2023 MEES U-turn and announcement of a “more pragmatic, proportionate, and realistic approach” to meeting net-zero, energy costs and climate policies remain crucial topics of national debate ahead of the election on 4 July. MEES is (was?) a flagship policy designed to support the UK’s drive and commitment to reach net zero emissions by 2050. For many years, we have been examining and discussing the impact of the MEES regulations on commercial real estate: from application through to enforcement (or lack thereof). With the Climate Change Committee’s warning that current UK policies will not deliver net zero in time for 2050, how are the main political parties proposing to approach MEES in the coming years?Generally speaking, in the context of energy efficiency, the manifestos from the Conservatives, Labour, Liberal Democrats and Reform UK tend to focus on the approach to residential property, but the manifesto commentary released by each party provides an indication of the likely direction of travel for commercial real estate:Based on recent projections, the Labour Party are on track for the second largest majority since the Second World War. It is therefore incredibly likely that MEES will be reintroduced by 2030, but with the caveat that “nobody will be forced to rip out their boiler”. The impact on commercial property remains unknown, but with a new mission to “Make Britain a Clean Energy Superpower by 2030”, it is anticipated that commercial real estate will be subject to higher MEES benchmarks in the coming years.A complete overhaul – or at the very least a shake up?
20/06/2024
Artificial Intelligence in Financial Services
The integration of artificial intelligence (Al) systems within the financial services industry has the potential to transform business operations, improve customer relations, and enhance regulatory compliance...
20/06/2024
'AI-volution' in Life Sciences?
Computing, including AI, applied to life sciences is undeniably a rapidly growing area, driven by significant investment, recent technological advancements and heightened public interest. A look at published...
18/06/2024
Time to talk about the challenges facing UK data centre development
Last week CMS hosted a roundtable in London to discuss the challenges facing UK data centre development. We benefited from the diverse views of clients from across the DC market including sponsors, lending...