Issue 5 February 2014 WIND TURBINE APPEAL ALLOWED IN THE GREEN BELT

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1 Issue 5 February 2014 WIND TURBINE APPEAL ALLOWED IN THE GREEN BELT A planning appeal in relation to the installation of three Endurance 50kw wind turbines (46 metres in overall height) has recently been allowed in the Ribble Valley Green Belt. The appeal was submitted under Section 78 of the Town & Country Planning Act 1990 against the refusal to grant planning permission by Ribble Valley Borough Council at the Carr Hall Garden Centre, Whalley road, Lancashire. The National Planning Policy Framework (NPPF) states that substantial weight should be given to any harm to the Green Belt and the Council s Local Plan also states that planning permission will not be given for inappropriate development in the Green Belt except in very special circumstances. In this appeal, the Planning Inspector ( the Inspector ) considered whether the proposal was inappropriate development in the Green Belt and whether any harm was outweighed by other considerations amounting to very special circumstances that would allow the development. The turbines impact on the character and appearance of the area, on users of nearby footpaths and their effect on protected species were other issues considered. The Inspector found that the turbines would have an adverse impact on openness and represent a visual encroachment, however, he did not consider these issues to be significant. The Inspector argued that as the NPPF states that very special circumstances may include wider environmental benefits (associated with energy production from renewable sources) and economic growth in rural areas, the appeal should be allowed. The Inspector thought that the proposal would provide a source of renewable energy in the area and also help create local jobs. This appeal decision is important as it demonstrates that the provision of renewable energy and rural employment can be shown to be very special circumstances when considering development within the Green Belt. If you would like to discuss this planning appeal decision or any other planning matter then please contact: Kevin Halewood Director of Planning Tel: kevin.halewood@brabners.com

2 THE PATENT BOX TAX RELIEF The Patent Box tax relief regime enables companies to apply a reduced corporation tax rate of 10% (instead of the main rate of 24%, reducing to 23% in April 2014) to its profits earned from patents and certain other intellectual property (IP). This regime has been specifically designed by the Government to promote innovation and patent protection in the UK. The benefit of the Patent Box regime is being phased in over a five year period from 1 April 2013, with the full benefit available from 1 April The Patent Box regime is in addition to the Research and Development tax relief, so that companies may be able to benefit from both tax reliefs. How does it benefit the industry? The Patent Box can provide potentially significant benefits for innovative companies. With technological developments in the growing renewables industry, many businesses in the industry are already generating intellectual property and can benefit from the patent process. The Patent Box tax relief regime can give such businesses an additional incentive to protect those valuable assets. Who can benefit? A company must own or exclusively licence in patents. The company must also have undertaken significant contribution to the development of the patent. The patent needs to be granted by the UK or the European Patent Office. A member of a group could qualify for Patent Box but needs to perform a significant amount of management activity in respect of the patent (such as granting licences). Passive ownership of IP will not qualify. The types of income falling within the Patent Box include sale of patent products, licence fees and royalties and income from infringements. How to claim The company needs to make an election to HM Revenue and Customs before the first anniversary of the filing deadline of the corporation tax returns for the accounting period in which the relevant profits arose. Practical steps to consider There are some preparatory steps that companies might want to consider to benefit from the Patent Box regime: Review the current patents in the company to assess the potential value of the Patent Box to the company Consider whether patents should be owned in the UK to benefit from the regime Review current intellectual property licences to determine whether they qualify for the Patent Box

3 Review intellectual property ownership within your group to ensure there is no passive investment of IP within the group. Stop Press The European Commission have been concerned that the Patent Box amounts to harmful tax competition. The EU Code of Conduct Group will review all nine existing patent box and similar tax regimes within the EU which give preferential treatment to income from intellectual property, to ensure consistency with the principle of equal treatment. A progress report will be made by the end of the Greek Presidency of the EU in June While we wait to hear the outcome of the EU Code of Conduct Group's assessment, it is unclear whether the UK Patent Box is really under threat from EU intervention. However, it would appear unlikely that there will be any significant changes to the Patent Box regime in the short term. If you like more information about the Patent Box tax relief or any other tax incentive issues please contact: William Ngan Associate and Chartered Tax Adviser, Corporate Tel: william.ngan@brabners.com CHANGES TO THE LAW RELATING TO EMPLOYEES RIGHTS ON THE TRANSFER OF A BUSINESS Colloquially known as TUPE, the Transfer of Undertakings (Protection of Employment) Regulations 1981 is a piece of legislation which protects the rights of employees on the transfer of a business, such as where a company buys the business of another company or where there is a relevant change of service provider. In such situations, the employer prior to the transfer is known as the transferor and the employer after the transfer is the transferee. In brief, TUPE provides for the following concepts: The automatic transfer principle, namely that employees will transfer to the transferee who will inherit all rights, liabilities and obligations in relation to those employees; Employees will be protected against dismissal if the dismissal is connected to the TUPE transfer; The transferor and transferee are required to inform and consult with representatives of all affected employees; and

4 The transferor is required to provide certain employee liability information to the transferee in relation to the transferring employees. TUPE applies to a relevant transfer, namely where: A transfer of a business, undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains its identity; and/or A company, which engages a contractor to do work on its behalf, reassigns such a contract to another provider or brings the work "in-house" (known as a service provision change ). Whether or not there has been a relevant transfer will depend entirely on the circumstances and, for example, the identity of the entity carrying out the services before and after the apparent transfer. On 31 January, amendments to TUPE came into force. Some of the key changes are as follows: The test for service provision changes will now require that the activities carried out after the change in service provider must be fundamentally the same as those carried out by the person who has ceased to carry them out; Amendments to the provisions which give protection against dismissal and restrict changes to contracts; Allowing micro businesses (companies with fewer than 10 employees) to inform and consult all employees directly when there are no existing appropriate representatives; Increasing the deadline for the transferor to supply employee liability information to the transferee from 14 to 28 days before the transfer; Amendments relating to collective agreements, including providing that transferred contracts do not bind the transferee to any term of a collective agreement agreed after the date of the transfer if the transferee is not a participant in the collective bargaining for that provision; and Amending the law on collective redundancies so that a transferee may meet the requirements for collective redundancy consultation, if the transferor agrees, by consulting (or starting to consult) representatives of transferring staff about proposed collective redundancies prior to the transfer taking place. Whilst the changes coming into force are perhaps not as far reaching as originally expected, they will refocus the attention of businesses and their advisors on the question of whether a TUPE transfer situation exists (particularly in a service provision or change of contractor situation) and may also encourage cooperation between transferors and transferees in sharing information and conducting consultation on a joint basis which would be a positive development for employers and employees alike. It remains vital that any business which could be affected by a potential TUPE transfer is aware of its obligations in relation to affected employees, which is not necessarily limited to those whose employment is actually transferring. If you have any queries about TUPE or any other matters of employment law affecting your business, please contact: Joe Aiston Solicitor Employment Tel: joe.aiston@brabners.com

5 ENERGY NOW EXPO 2014 Brabners enjoyed two days exhibiting at the Energy Now Expo last week (12 and 13 February) at the Telford International Centre where they met some old friends, made some new ones and were on hand to answer delegates and visitors queries on all legislative and legal matters affecting the renewables energy sector. With all the attendees at the Energy Now Expo attending for genuine renewable reasons, whether it was developers, installers, owner-operators or otherwise, the Brabners Team were able to provide tailor made advice gained through practical experience of working with clients active in the renewable sector. This was the first time Brabners had exhibited at the Energy Now Expo having attended as a delegate for the last three years. We have seen the exponential way in which the Energy Now Expo has grown and matured into the best place in England and Wales for farmers and land owners to get the best overall view of all current renewable offerings. It is for these reasons we felt it was time to exhibit and we were not disappointed. If you missed us, please do get in touch with either Mark Rathbone or Rupert Jackson to discuss your individual requirements, otherwise we look forward to seeing you at Telford next year, if not before. Rupert Jackson Consultant, Head of Agriculture Tel: rupert.jackson@brabners.com Mark Rathbone Head of Corporate Liverpool Tel: mark.rathbone@brabners.com This bulletin is for general guidance purposes only and should not be used for any other purpose If you wish to receive this bulletin please let us know by contacting Jeanette Jackson at Jeanette.jackson@brabners.com Brabners is a Limited Liability Partnership