Stuart Tym, Head of Planning at Wilkes examines the government’s recent revision of the National Planning Policy Framework (“NPPF2”) which incorporates the 18 Jun 2015 WMS ( Written Ministerial Statement)  in respect of community concerns. 

The WMS has incorporated the WMS as follows: –

“When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:

the development site is in an area identified as suitable for wind energy development in a local or neighbourhood plan; and

following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.”

Planning applications proposing wind energy development that include one or more turbines, will “not be considered acceptable” where it is not in an area noted to be suitable by the development plan. The NPPF also states that the proposal must also have undergone consultation and it must be shown that the proposal has the backing of the local community.

The WMS is brought forward with a notable addition, following the trend of NPPF1, in a footnote!  FN49 adds in that these negative /protective policies do not apply to the repowering of existing wind turbines, and therefore, there is clear incentive to revive such wind turbines in order to start using them again as a source of renewable energy.

From an evidential perspective it is hoped that problems and benefits (the balancing act) could be more clearly evidenced in a repowering scenario than a new green site scenario.

Stuart comments that “This change is being celebrated by those campaigning against climate change, and it is important for us to understand why”.

Although, still dependent on the securing of funding, and whether individual developers will choose to carry out such repowering, there are financial barriers that must be overcome by wind farm developers, however, it would appear that renewable energy is being refocused once again.

Stuart has a strong background of acting on renewable energy applications having most recently acted on opposing a planned windfarm in the Lincolnshire area.

If you would like assistance in relation to planning law or renewable and/or alternative energy please contact Stuart Tym at The Wilkes Partnership on 0121 710 5891 or stym@wilkes.co.uk.

For those of us for whom such items are of significant importance, we can confirm that the colour red (specifically Pantone 18-1663TP) is now becoming recognised as a registered trademark for Louboutin high-heeled shoes.   

The Grand Chamber of the Court of Justice of the European Union made this finding in proceedings brought by Christian Louboutin and his companies concerning the sale of shoes by another company (Van Haren shoes) that Mr Louboutin alleged infringed his trademark by incorporating red soles.

Mr. Louboutin reportedly used his assistant’s red nail polish and applied it to the soles of a shoe a quarter-century ago. Since then, he has frequently declared the design element to be his recognisable signature and has argued that it merits legal protection.  This argument was put to the test when Van Haren, a Dutch company, started selling affordable high-heeled women’s shoes with red soles. Lawyers for Mr. Louboutin claimed that the shoes sold by Van Haren, part of its Fifth Avenue by Halle Berry line, infringed on his brand’s trademark for footwear. The trademark, registered in Belgium, the Netherlands and Luxembourg, referred to “the colour red (Pantone 18 1663TP) applied to the sole of a shoe.”

Louboutin’s team had an initial ruling in their favour and Van Haren had to temporarily stop making and selling the line of shoes, but the company’s lawyers fought back, using the argument that Mr. Louboutin’s red soles were not a separate entity from the shape of his high-heeled shoes – and shapes typically cannot be trademarked under European Union law.  The case eventually made its way to the European Court of Justice and the arguments focused on the definitions surrounding “shape”.

The Court found that, whilst it was true that the shape of the product or of a part of the product played a role in creating an outline for the colour, it could not, however, be held that a sign consisted of that shape in the case where the registration of the mark did not seek to protect that shape but sought solely to protect the application of a colour to a specific part of that product. The mark did not relate to a specific shape of sole for high-heeled shoes because the description of that mark explicitly stated that the contour of the shoe did not form part of the mark and was intended purely to show the positioning of the red colour covered by the registration.

In its ruling, the court concluded that Louboutin was not seeking to protect the shape of a shoe, merely the application of a colour to a specific part of it.

The case is not over yet as it will still have to go back to the original Dutch Court, however it is widely expected that the court will now confirm the validity of the red sole trademark.

If you would like assistance in relation to a copyright/trademark matter, please call Aimée Redican on 0121 710 5846 for further information or email aredican@wilkes.co.uk.

Businesses have been gearing themselves up to comply with the Data Protection Act 2018 and General Data Protection Regulation (GDPR) in relation to the retention and use of personal data of individuals they interact with for some time now, but do they realise there are huge employment law implications to this new directive?

Jas Dubb, employment law specialist at Wilkes sheds some light on the new rules.

“The penalties for non-compliance have now significantly increased and can carry criminal sanctions in extreme cases”, he warns.

Personal data comes in many forms. It is likely that employers will hold a lot of personal data about their employees, and former employees.  This could include next of kin details, benefits details and bank details. If the employer operates CCTV or monitors emails, internet use or records telephone calls, then this will constitute personal data for the purposes of GDPR.

Under GDPR employers need to ensure that where data is held it is properly protected. There is a greater emphasis upon security and the control of data within the employer’s possession. Employers should also consider how long they legitimately require to hold employee data and regularly check the accuracy of the data held.

Employees have previously had the right to seek copies of the personal data held via a Subject Access Request. But under GDPR employees also have rights, under certain circumstances. to erase personal data, to restrict data processing and to object to processing of their personal data, amongst others.

As part of the road to compliance, employers need to have a privacy notice. The notice needs to cover such things as what data it expects to gather, whether or not they ever share this data and if so with whom, amongst other matters. This notice must be provided to all those who’s data is held. As such this, in an employment law context, would include prospective candidates who may apply for a job, workers the business may engage from time to time as well as direct employees.

The Information Commissioner’s Office (ICO) is the body which oversees this new legislation. Disgruntled employees can raise their concerns and complaints directly with the ICO.

The original employer data protection obligations come from the 1998 Data Protection Act following EU regulations. These were related to obtaining, processing and securing personal data. This has now been replaced by the GDPR and Data Protection Act 2018 which came into force on 25 May 2018.

We provide advice to both employers and employees. For advice on any employment related matter and to discuss our Free Employment Health Check for your business please contact Jas Dubb at The Wilkes Partnership on 0121 233 4333 or jdubb@wilkes.co.uk.

The Wilkes Partnership has advised BGF on its portfolio company, The Coaching Inn Group’s, 15th site acquisition of The Swan Inn, Stafford for an undisclosed sum.

The transaction was led by Corporate Partner, Rick Smyth with support from Associate Solicitor Mike Linford.

Supported by BGF, The Coaching Inn Group will continue to seek and acquire high-quality coaching inns as it looks to further consolidate this highly fragmented market.

Commenting on the deal, Rick said: “We were delighted to be working with the team at BGF again to help them develop their ongoing investment in the Company. We look forward to continuing to build the relationship going forward.”

It has been a great start to the summer for the Wilkes corporate team with a record number of sizable mandates currently under instruction. It is encouraging to see the M&A market continue to flourish in 2018.”

Mark Freer, Investor at BGF said: We have been working with Wilkes for a number of years and always appreciate their pragmatic approach to getting the job done. We look forward to working with the Wilkes team again on transactions of this nature.

This is the latest in a growing line of M&A work for The Wilkes Partnership, following the completion of deals across a range of sectors including IT software, FMCG, events and health and social care.

For help and advice relating to your business get in touch with Rick Smyth on 0121 710 5932 or via email at rsmyth@wilkes.co.uk.

Congratulations to Nicola Pitt who has successfully qualified into the Private Client Team here at Wilkes.

Nicola will be working across all areas of private client work such as Wills, Probate and Tax Planning.

Nicola graduated from The University of Birmingham and completed her LPC at The University of Law, Birmingham.

Speaking about the appointment, Zara Reed, HR Director at Wilkes said “ We are delighted to have Nicola with us as a qualified solicitor having successfully completed her training contract.

We feel that the training contracts we offer here at Wilkes give future solicitors a well-rounded view of what life in a faced-paced, independent law firm is all about.

Our aim is to select high quality individuals with realistic potential to become excellent qualified solicitors and, ultimately, partners.”

We offer a two-year training contract made up of four six-month seats in the following areas:

  • Corporate & Commercial
  • Real Estate
  • Business Recovery
  • Commercial Litigation
  • Property & Probate Litigation
  • Private Client

We are currently recruiting for training contracts commencing in September 2020. The deadline for applications is 31 July 2018.

If you would like to find out more about our application process click here.

The Wilkes Partnership Solicitors, Birmingham, Solihull, Supreme Court

Civil Partnerships should be available to everyone – or no one. This was the key finding of a hearing in the Supreme Court in July of this year.

The issue was raised by a different-sex couple who had an objection to marriage and who wanted to have a civil partnership with one another. They have a long-term relationship and have two children.  Under the current rules, they can marry but they cannot have a civil partnership as civil partnerships are restricted to couples of the same sex.

The anomaly in the law arose when Parliament enacted the 2013 Act enabling same-sex couples to marry.  It consciously decided at that point neither to abolish same-sex civil partnerships nor to extend them to different-sex couples even though that was recognised as creating an inequality of treatment between same-sex partners and different-sex partners. Rather, Parliament decided to carry out further investigations. They proved inconclusive. The government therefore decided that there should be no final decision on the future of civil partnerships until societal attitudes became clearer after same sex marriages had taken root.

In seeking to justify its interference with the rights of different-sex couples, the government argued that changes in the law in such a sensitive area of social policy needed time for proper inquiry and consideration. Requiring such time was a legitimate aim. It was therefore legitimate to perpetuate the acknowledged inequality of treatment.

A key consideration for the Supreme Court in addressing the issue was the European Convention on Human Rights taken in conjunction with the right to respect for family life. One of the main tenets of the convention is that people should not be discriminated against on the basis of sex – unless there is a very good and justifiable reason for it.

In respect of the 2013 Act it was parliament itself that brought about the inequality immediately on the new law coming into force, where none had previously existed. In the Court’s view, to create a situation of inequality and then seek the indulgence of time, in the present case several years, as to how to cure it was, to say the least, less obviously deserving of a margin of discretion.

The Court therefore found that the current 2013 Act is discriminatory, that there is no justification for this discrimination and the Act should therefore be amended as soon as possible.

This is not to say that the law has yet been changed and nor can different-sex couples yet have a civil partnership. It is, however, a significant signpost on the way to alleviating this anomalous and discriminatory law.

If you would like assistance in relation to a family matter, call Aaron Keene at The Wilkes Partnership on 0121 785 4400 for further information or email abkeene@wilkes.co.uk.

Partner Gareth O’Hara and Associate Mike Linford of the Wilkes Corporate team have advised Johnsons Cars on their continued expansion with the acquisition of the T H White Motor Group. Mark Hodgson, Partner in the Real Estate department, provided property support for the transaction.

The acquisition encompasses a Fiat Chrysler Automobile (FCA) dealership in Hillmead, Swindon, which sells and services cars and commercial vehicles across the range of FCA brands – Fiat, Fiat Commercial, Chrysler, Alfa Romeo, Abarth and Jeep.

Johnsons Cars is one of England’s largest independent dealership groups, with branches across the country, from Berkshire to the Northwest with 38 showrooms. The acquisition, follows on from the acquisition of four dealerships at the end of 2017 and adds two new brands Jeep and Fiat Commercial to the Johnsons automobile brand offering.

Gareth O’Hara, Managing Partner and Head of the Corporate Team said: “We were delighted to advise Johnsons Cars on their acquisition of the T H White Motor Group. As a firm, we have a longstanding relationship with Johnsons looking after their legal requirements generally. Johnsons continues to go from strength to strength and we look forward to working with them again on future acquisitions.”

Mike Berwick, Operations Director at Johnsons Cars commented: “We greatly appreciate the relationship with Gareth, Mike, Mark and their team as their combined understanding of the retail car business coupled with the obvious legal experience delivered pragmatic solutions and an efficient completion to this acquisition”.

The Wilkes Partnership is one of the UK’s leading independent law firms operating from the Midlands region, providing a wide range of specialist expertise aimed at SME’s individuals and funders.

The corporate team offer specialist partner led advice expertise in mid-market corporate finance, M&A, Development Capital, MBO’s, Banking, Restructuring and commercial work.

For further details of how Wilkes can help your business please contact Gareth O’Hara or Mike Linford on 0121 233 4333 or email gohara@wilkes.co.uk or mlinford@wilkes.co.uk

Couples habiting and marrying later, people living longer and entering into relationships later in life or needing more support around the house, contribute to people moving in together.  All too often issues about property ownership are put on the back burner and left until it’s too late.  Someone dying unexpectedly or the relationship going sour leads to acrimonious fallouts, some of which end up being thrashed out in Court.

There are two ways of legally owning property with someone: joint tenants where it passes by survivorship automatically to the survivor, and tenants in common where, on death of one party their share passes under their Will.  It is presumed that the ownership is 50:50 but this does not have to be the case.

But what if the property isn’t in your name?  Promises may have been made and relied upon, someone might have given up their job, contributed to the mortgage or the upkeep of the property or sold their own property and put money into the new purchase.  What’s fair in those circumstances, is it right to say that they have no rights over the property if they are not the legal owner?  Over the years these questions have been debated by lawyers and Courts providing various principles to apply.

Very often, these unintended consequences and legal battles could have been avoided by a well drafted Will or a document called a Declaration of Trust setting out each persons’ interest in the property.

For more information please contact Ellie Holland at The Wilkes Partnership, on 0121 733 8000 or email: eholland@wilkes.co.uk .

In what has been a very busy summer so far here at Wilkes we are delighted to announce the appointment of two new Assistant Solicitors.

Katie Briggs joins Wilkes from Waldrons Solicitors and will be working predominantly within our Property Litigation Team.

Katie will assist on a wide range of matters from home owner disputes, contentious probate matters, and commercial property litigation.

Aimée Redican arrives at Wilkes as a newly qualified solicitor and will join our Commercial Litigation Team having recently completed her training contract at Moseleys Solicitors.

Speaking about the recent appointments, Simon Thomas, Partner in the litigation team  said: “ We are delighted to welcome Katie and Aimée to Wilkes. It’s been a great year for us so far and we are looking forward to getting them involved with our busy caseload!”

If you are interested in joining the team at Wilkes please send a brief covering letter and CV to recruitment@wilkes.co.uk.

Wilkes and Blue Sky Corporate Finance have advised on the sale of construction software company, Synchro Software.

Synchro Software was recently acquired by US-based Bentley Systems Inc., a leading global provider of software solutions for advancing infrastructure. Synchro is the leader (and market creator) in 4D construction modelling software for scheduling and project management, and its software has been globally adopted for building and infrastructure projects. With Synchro, 3D BIM (Building Information Modelling) deliverables are linked with the 4D time dimension.

Synchro CEO Tom Dengenis, who will remain with the business, commented: “Blue Sky and Wilkes handled the sale from start to finish, showing huge commitment and focus. They dealt effortlessly with multiple shareholders and cross-border issues and delivered the deal in a professional but user-friendly manner.”

The Wilkes team was led by corporate partner Jeremy Parkin, assisted by Mike Linford.  “We were delighted to work with Tom and the Blue Sky team on the deal and wish Tom every success as the business is taken to the next level under Bentley,” said Parkin.

Blue Sky managed the sale process. Managing Director Paul Heaven commented, “We have enjoyed a close relationship with Synchro for some 12 years, assisting the company with some of its early seed investment rounds, providing accounting and administration services and serving its board of directors throughout its growth.

There was a good deal of interest in buying this company, and it proved to be a cultural adventure to deal with potential partners across the world (including China and Europe), but in the end, the synergy and chemistry between the key management teams at Bentley and Synchro proved to be the decisive factor. Having witnessed how those relationships have strengthened during the due diligence process, I am confident that this was the right deal for Synchro and all of its stakeholders and that the Bentley/Synchro combination will prove to be a highly successful one.”

If you would like more information about how Wilkes can help your business,  please contact a member of the Corporate team on 0121 233 4333 or jparkin@wilkes.co.uk