In December 2011, the Environment Agency announced the creation of a “specialist environmental crime taskforce”. The aim of this taskforce will be to identify and eradicate illegal waste sites in England and Wales over the next two years.

The Environment Agency states that illegal waste sites pose a serious threat to the environment and human health. These operations, it says, often lead to contamination of land and waterways, pollution of air quality, noise and odour problems close to homes and schools.

The new taskforce will partner other key agencies, including the police and local authorities in order to gather intelligence and act swiftly to close illegal waste sites.  This move reinforces the Environment Agency’s “…continued action to combat serious, organised waste crime.” The taskforce is supported by up to £5million of Environment Agency funding for the first two years.

The Environment Agency has identified approximately 600 active illegal waste sites in England and Wales. Throughout 2010/11, the Environment Agency and key partners stopped, or brought into regulation, 1195 illegal waste sites and brought over 400 waste-related prosecutions. In addition it is using powers under the Proceeds of Crime Act to deprive operators of profit made.

For businesses to operate a waste activity it requires both planning permission from the local authority and an environmental permit and waste carrier’s licence from the Environment Agency. Without these permits and consents the activity is unlawful and the operator could be in breach of both the Environmental Protection Act and the Environmental Permitting Regulations. Both attract fines of up to £50,000 in the Magistrates’ Court or an unlimited fine in the Crown Court together with custodial sentences and confiscation orders.

For more information on this or any other waste related issues, please contact Claire Petricca-Riding on 01244 405440 or claire.riding@aaronandpartners.com

The bonhomie you felt towards your partner is wearing off along with the Christmas cheer and you’re not sure that you or the business can afford to carry him or her any more.  As you plan the next few months you realise that you need to do something, as things will not improve.

One of the more common questions we are asked, as partnership law experts, is “How do I get rid of my partner?”.  We like to give straight answers and we know that clients don’t like a “That depends” answer to a simple question, but sadly it does depend on a few things.  To help make life simpler, we’ve devised a simple flow chart to help you on your way.

The first step is to work out are whether you are really in a partnership.  If you are, is there an agreement and if there isn’t (sadly there often isn’t, but in the first flush of a new business partnership agreement are not always at the forefront of everyone’s minds).   The next thing to work out is what sort of partnership you have.  If two or more of you set up in business together with no formal agreement or forms, you are most probably in a general partnership.

Family lawyers often say that Christmas generates an increase in business for them.  Partnership disputes are really just commercial divorce and we do see a rise in them at this time of year.  It is easy to get cross, not about the fact that your partner never does the washing up, but that they don’t do their share of hours or paperwork or they treat clients/patients/customers in a way you do not like.  We understand that you just want to remove them with the minimum of fuss and be left free to get on and run your business.

Very often, these matters boil down to a straight negotiation.  You want your partner out and they will go if it is made worth their while.  Whoever’s fault it is and however appalling their behaviour, you need to make a commercial decision.  Are you prepared to pay for a quick and easy exit?  A full blown partnership dispute is very time consuming and expensive and detracts from what it is that you do – satisfying clients, treating patients and the like.  We do of course have a very big legal stick and we sometimes wave it, but our experience is that a negotiated settlement is usually best for both parties.

So, if now’s the time to do something about your problem partner, contact us for a free no-obligation chat about how we can help you.

Mark Briegal is a solicitor specialising in partnership law and partner at Aaron & Partners based in Chester and Manchester but with clients all round the country.  Mark can be contacted at mark.briegal@aaronandpartners.com or on 0844 800 8312.

Although there is no definitive list of possible adjustments that an employer may take contained in the Equality Act 2010 there is now a Code provided by the Equality and Human Rights Commission, which lists possible adjustments which may be taken into account in deciding what steps may be reasonable for an employer to have to take (which might include; making adjustments to premises, providing information in accessible formats and allocating some of the disabled person’s duties to another person).  The cost of adjustments will be one relevant consideration as to whether adjustments are reasonable.  However, employers should not conclude that an adjustment needs to be cost effective to be reasonable.

The phrase “reasonable adjustments” often finds itself the subject of deliberation by the Courts.  The assessment is very much fact sensitive.  The test has been held to be objective and requires the tribunal to substitute its opinion for that of the employer and to decide if the employer’s time and resources should be spent in a particular way.  This differs from the position in unfair dismissal cases where tribunals interfere only if employers’ decisions are outside the band of reasonableness.  This is why the reasonable adjustment provision is such a powerful tool for claimants.

In Salford NHS Primary Care Trust v Mrs A Smith UKEAT/0507/10, Mrs Smith was on long term sick leave with chronic fatigue syndrome.  She was offered redeployment and retraining by the Trust, but felt this was not suitable.  The employment tribunal found that the Trust had failed to make reasonable adjustments as it had not considered offering rehabilitative work.  The Trust successfully appealed to the Employment Appeal Tribunal (EAT) who found that reasonable adjustments are concerned with enabling a disabled person to remain in or return to work and not to offering a career break or rehabilitative non-productive work.  This confirms guidance provided in earlier case law that the reasonable adjustments duty only covers substantive adjustments rather than procedural steps such as consultations, investigations and trial periods.

In Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10, Mr Foster was on long term sickness absence due to stress.  He was dismissed on capability grounds and won a case for unfair dismissal and disability discrimination at tribunal, which was appealed by the Trust.  In considering reasonable adjustments, the EAT said it would have been a reasonable adjustment to have put Mr Foster on the redeployment register even if there was only a prospect of a redeployment opportunity becoming available.  Thus a prospect of an adjustment removing a disadvantage is sufficient to make reasonable adjustments.  The Trust lost the appeal.  Therefore employers need to consider the extent to which the adjustment would lower the disadvantage faced by an employee with a disability.  A mere prospect of an adjustment removing a disadvantage is sufficient to make an adjustment reasonable and there is no need for that prospect to be good or real but simply, a potential.

These recent rulings along with the Code aim to clarify what is meant by “reasonable adjustments” but as the assessment is very much fact sensitive there will no doubt be further deliberation of the phrase by the Courts.

If you are currently facing problems with reasonable adjustments or want any more information regarding disability discrimination, please do not hesitate to contact Claire Brook in our Employment Team.

In a recent case, this is exactly what happened and, because the administrator refused to take proceedings, creditors sought to have him removed and replaced by another. The Insolvency Act 1986 permits this where there is ‘good or sufficient reason’ for doing so. This does not mean that the administrator is unfit to act or is guilty of misconduct, but that the removal of the administrator is in the interests of the majority of the creditors.

In the case in point, the purpose of the proposed legal action was to reduce the creditors’ liability under personal guarantees.

An initial application to remove the administrator was refused and an appeal was made to the Court of Appeal. The Court ruled that if the administrator was unbiased and had reached a decision based on the material before him, then the fact that a different administrator might reach a different conclusion might be a reason to challenge the decision, but not to remove the administrator altogether.

The courts are reluctant to overturn decisions when a professional person has been shown to act impartially and has taken a decision which is within the range of reasonable decisions open to them based on the information available.

The essential lesson to be learned from this case is that the time to make arguments of this nature is early on in the process. Persuading the administrator to take action is more likely to be successful than a subsequent legal challenge after the administrator has decided not to do so.

If you are faced with your interests being affected by the insolvency of another party, we may be able to assist you in negotiations with the insolvency practitioner responsible. Contact Nick Clarke for more details.

The decision to appoint the administrator was supported by a majority of the directors, but no board meeting had been convened and no notice had been given to the members of the board. The appointment was challenged by a director who had not been present at the meeting.

The first question the court dealt with was ‘Can a majority of the board of directors ratify a decision which was not taken in accordance with the company’s articles of association?’

The second question was ‘Can the company dispense with issuing notices to “concerned persons” regarding the intention to appoint an administrator?’

The High Court ruled that the answer to both questions was ‘no’ and therefore the appointment of the administrator was invalidated by each of the failures.

This case shows that no matter how far down one’s list of priorities abiding by the internal regulations of the company may seem to be, failure to do so, or to comply with company law in general, can cause far more problems than one might think.

For advice on all company law contact Nick Clarke in the Corporate and Commercial Department.

The Court of Appeal has resolved the issue and confirmed that such dismissals can be automatically unfair.  In Spaceright Europe Ltd v Bruno Baillavoine and another [2011] EWCA Civ 1565, it was held that a dismissal implemented at an early stage by administrators in order to make the business attractive to potential buyers will be a dismissal connected to the transfer.  Further, the administrators’ desire to make the business attractive did not amount to an economic, technical or organisational reason (ETO reason) for dismissal.

Under the Regulations, the dismissal of an employee (with 11 months and 3 weeks continuous service) before or after a relevant transfer will be automatically unfair if it is for a reason connected with the transfer that is not an ETO reason entailing changes in the workforce.

Mr Baillavoine was the Chief Executive of Ultralon Holdings Ltd (Ultralon).  He was dismissed by the administrators on the same day as Ultralon went into administration.  At that time, the administrators were contemplating a sale of the business, but no sale had been agreed.  No purchaser was even identified at that time.  One month later, Ultralon was sold to Spaceright Europe Ltd (Spaceright).  Mr Baillavoine claimed that his dismissal was automatically unfair under the Regulations.

The Employment Tribunal found that Mr Baillavoine was dismissed to enable a purchaser to acquire the business without a CEO.  This was a reason connected to the transfer and the ETO defence was not available.  Therefore Mr Baillavoine’s claim succeeded.  Spaceright appealed to the EAT and then to the Court of Appeal arguing that the wording of the Regulations requires there to be a particular transfer in mind at the time of the dismissal.

The Court of Appeal dismissed the appeal.  It held that the Regulations must be given their natural and ordinary meaning which does not require a particular transfer or purchaser to be in contemplation at the time of dismissal.  The Court of Appeal also agreed with the Tribunal that there was no ETO reason available where an employee is dismissed to enable administrators to make the business more attractive to potential buyers.

Buyers in these situations can therefore be liable for pre-transfer dismissals which are connected to the sale despite the fact that no specific purchaser was in the mind of the seller at the time of the dismissal.  It is therefore important to carry out appropriate due diligence and ensure that you have adequate protection, for example by way of purchase price adjustment or indemnity.

If you are involved in or simply considering selling or purchasing a business involving the transfer of employees, please contact Helen Kidd from the Employment Team with any queries or for more information.

The director of a company was given the loan of ‘a second-hand excavator and dumper’ for his personal use, by a customer of the company, from 2003 until 2008. The equipment was used by him in renovating a house he owned. The director considered it to be a private arrangement of negligible value to him, but the company took the view that he had received the loan as a result of his being a director of the company and that he should therefore account to it for the value received. He left the company’s employment before the case came to court.

The court ordered him to pay the sum of £5,200 plus interest to his former company. He appealed.

The Court of Appeal ruled that, on the facts of the case, the director’s duties of strict loyalty to the company and avoidance of potential conflicts of interest were breached. The fact that the company had neither availed itself of the opportunity nor suffered any loss as a result of the arrangement was not relevant.

The duties of directors are set out in detail in the Companies Act 2006. Directors would be well advised to ensure that they are aware of the rights and responsibilities attached to the role. Directors are legally bound not to accept benefits from third parties that arise from their position as a director.

It is also worth pointing out that a person who receives a benefit from a third party by virtue of their employment normally receives a taxable benefit in kind, which must be declared to HM Revenue and Customs on form P11 or P11D so that any tax due can be assessed. A penalty of up to £3,000 may be levied for an incorrectly submitted declaration.

We can advise directors and companies on the applicable law if there are any circumstances in which a breach of a director’s duty has happened or could happen. Please contact Nick Clarke for advice on such matters.

The Welsh Ministers (Transfer of Functions) (No. 2) Order 2009 provides that the Welsh Government can now introduce, amend and endow us with provisions relating to all new builds in Wales.  The practical implications of this concession to the Welsh Government from Westminster has caused, it is fair to say, a modicum of concern within the development industry; principally because the Welsh Government is so strongly committed to achieving ultimate zero carbon development.

But what are the details and effects of this change?  Well, it’s all a bit wooly.  The Welsh Government’s intention is to set a new agenda for buildings in line with making them more “energy efficient and sustainable”.  The Welsh Government has set a target to reduce carbon emissions in new builds by 55% (compared with the baseline set in the 2006 Building Regulations), compared to 44% in England, which is set to accord with its commitment of cutting carbon emissions as a whole in Wales by 3% a year from 2011.

Commitment to zero carbon

This may all sound well and good but the pursuit towards an environmental panacea surely has to come at some cost.  Achieving zero carbon requires significant improvement (and investment) in build materials. The fabric of the building will need to attain a very high level of energy efficiency (through roofing and wall insulation) and the energy used in the buildings will need to come at least partly from renewable energy sources (such as solar and wind power, combined heat and power, and district heating and cooling systems).

All new-builds

Much of the hyperbole relates to homes.  However, it is expected that commercial and industrial buildings will also be on the hit list.  The transfer of building regulations is for all new-builds.  The Welsh Government’s intention is to map out an approach over the coming year to raise the standards of new non-domestic buildings which may have an impact on the likelihood of new industrial or commercial activity coming to Wales.  The Welsh Government is currently reviewing Part L of the Building Regulations in respect of the Conservation of Fuel and Power and has stated that it is looking at the need to align that part with current BREEAM based planning policy.  All in all, the overall cost of providing compliant materials for new builds, for both residential and commercial properties, looks to become more expensive for developers in Wales.

Obvious concern

In an attempt to reassure the industry about the changes, there is to be a series of events around Wales looking to update and address concerns about changes in regulations. The Welsh Government has also appointed eight members to a new Building Regulations Advisory Committee for Wales who are to discuss proposals and the Environment Minister is expected to consult on these proposals in March 2012.

Discomfort swells?

The exact details of the Welsh Government’s pursuit to reduce the level of carbon emissions will remain uncertain for some time to come; the consultation begins in March this year and it is understood that it wishes to set out proposals by 2013, after due consultation and consideration.  These high targets, general uncertainty and ultimate competition with England, where the targets will inevitably remain lower, will undoubtedly cause a degree of discomfort amongst those looking towards Wales as a fertile ground to invest in.  We can only wait to see where this delegation of power leads us, but in any event, a further dichotomy in the requirements for development will have to be embraced by developers and other professionals in the property industry.

On a practical point you now have to be aware that any changes by the Department of Communities and Local Government to the Building Regulations regime will only apply in England.

If you have any queries relating to this article, or planning law in general, please contact David Kerfoot, Head of Planning, at david.kerfoot@aaronandpartners.com

Notwithstanding the current economic issues gripping Europe and pretty much the rest of the known world, the lack of new development and construction projects across the UK and the current fog being created by the coalition governments decision to introduce radical change into the planning system at a time when the country really needs some certainty to promote and support regeneration,  it is good to see that the Department for Communities and Local Government is keeping its finger on the pulse of the nation and dealing with those things that really matter.

On the 6 January 2012 Eric Pickles has launched the Department’s latest discussion paper on “Liberalising the regime for flying flags”.

Some of you may recall that one of Mr Pickles first decisions on becoming Communities secretary was to fly “county flags” at the HQ of the Department with each County flag getting a weeks flying time.

It seems like this was not enough for Mr Pickles, who obviously enjoys seeing a good flag flapping in the wind. The discussion paper sets out its policy background and points out that “We wish to encourage flag flying by relaxing statutory constraints on the display of flags. Our aim is to provide the broadest scope for this freedom that we reasonably can, so that there is more scope for people, communities, institutions and firms to take advantage of the opportunities that flags offer to express local identity and pride” as well as confirming that “The power of flags to move people is written deep in our culture…Flags deserve respect”.

As planning law stands, flags are treated as a form of advertisement. No permission is needed to fly national, EU, UN or County flags or saints flags.  Deemed permission to fly a range of other flags also exists for flags such as house builders flags or flags advertising shops or other business occupying a building (subject to size requirements).

Any other form of flag would need express planning permission.

The proposals in the discussion paper seeks views on extending the range of flags that either do not need consent or fall within the deemed permission regime. Those that may not need consent in the future could include flags for Crown dependencies and British Overseas Territories as well as international organisations of which the UK is a member, historic or current flags for a UK region, district, parish town or hamlet, flags for administrative areas outside the UK, such as Australian states, and heraldic banners. Less traditional flags could also be included including the rainbow “Pride ” flag, flags in relation to official environmental award schemes and sports club flags (away from the relevant club premises).

With regard to deemed permission, this looks primarily at increasing the number of flagstaffs that any user may have without permission. Currently flags should be from a single flagstaff flown vertically. The proposed changes include flagstaffs allowed to project outwards as well as allowing a second flagstaff on site. The limits on the sizes of characters of flags would also be removed.

The closing date for consideration of these significant proposals is the 30 March 2012.

Whilst the writer has no problem at all with flying flags (and is the proud owner of a very large St George’s flag which comes out at appropriate sporting occasions) it is somehow difficult to understand why any Departmental time is being spent on something which at best has only limited significance across the country notwithstanding the impending Olympics and Euro 2012, especially when compared to the issues being raised by the proposed National Planning Policy Framework and the Localism Act. One would hope that Ministers would have their focus on matters which could help revitalise the UK economy rather than on flag waving.

Still, perhaps we can be accused of forgetting the bigger picture. With “localism” and “the Big Society” being such important policy keystones for the coalition government and with battle lines already being drawn between various pressure groups, environmental groups and business groups, at least the new proposals will allow them all to demonstrate their “power and identity” whilst rallying their supporters behind an appropriate flag.

If you have any queries relating to this article, or planning law in general, please contact David Kerfoot, Head of Planning, at david.kerfoot@aaronandpartners.com

Christmas often spells misery for unhappy couples and more time spent than usual with extended family and in-laws can magnify issues otherwise disguised by day to day life. Relationships can falter under the financial strain brought to bear by the costs of Christmas or be blown apart by the indiscretions of a spouse at an office party.

Couples often hold off from taking action until mid January to avoid spoiling the festive period for the children and to ensure that they are settled back into school. Then they seek legal advice and getting this from a specialist family lawyer is essential.

The experienced matrimonial team at Aaron & Partners is practised in dealing efficiently, yet sensitively, with the legal and emotional aspects of relationship breakdown to include; divorce, separation, financial matters, cohabitation disputes, children issues and domestic violence.

Our aim is to bring about as amicable, painless and stress-free a separation as possible. We will advise you of all your options and guide and support you through the process.

For help and assistance with relationship breakdown please contact the matrimonial team on 01244 405555 or email them at family@aaronandpartners.com.