Real Estate Focus - August 2025

UK Electricity Networks consultation: Streamlined consents, land access and rights

On 8 July, the UK government opened its Electricity Network Infrastructure consultation which proposes major reforms to speed up grid expansion for Net Zero by 2030, while balancing the rights of landowners, communities and the environment. Seeking to address longstanding delays in the current system, the consultation sets out various measures aimed at simplifying how new power lines and substations are approved and how network operators access land.

Faster wayleave agreements

When privately negotiated agreements with landowners fail, network operators can apply for a "necessary wayleave" (a compulsory right to keep or install electric lines on private land). To reduce procedural delays, the government plans to streamline this process. Key changes include:

• requiring landowners to provide a valid reason for asking an operator to remove equipment and giving operators 6 months (instead of 3) to respond before lines must be taken down – this is intended to facilitate more informed negotiations between the network operator and the landowner/occupier and encourage a voluntary agreement to be entered into without the need for a necessary wayleave;

• wayleave disputes being handled primarily through written statements by default, with optional oral hearings (including virtual hearings) only if a party requests one (whereas currently both parties must consent to the written representation procedure);
  • removing the requirement to appoint an external inspector, meaning that officials acting on behalf of ministers could determine applications based solely on parties' statements of evidence and any further representations submitted by parties – by negating the requirement for an inspector report, this could potentially cut delays by an average of seven months;

• increasing the standard term of a granted necessary wayleave in England and Wales from 15 years to 40 years, aligning with Scotland and reflecting the decades-long life of grid assets – this longer term will give network operators more certainty and avoid frequent renewals, though landowners would wait longer to renegotiate terms.

Streamlined planning consents

Building new electrical infrastructure often requires multiple consents. The consultation targets "low-impact" upgrades and smaller projects for faster approval, so regulatory scrutiny focuses on truly major developments. New proposals include:

•  raising the size limit for distribution substations allowed under permitted development from 29 m³ to 45 m³ – this would allow many modern substations (especially for electric vehicle hubs) to be built without a full planning application, saving months and approximately £20,000 per project. Additional conditions (like a 3 m height cap and minimum 5 m distance from homes) would apply for substations above 29 m³, and in sensitive areas (national parks, heritage sites) local authorities would still need to give prior approval on design;
•  new exemptions from the requirement to obtain Secretary of State (SoS) consent (under Section 37 of the Electricity Act) to expedite overhead line upgrades – for example, upgrading a line from single-phase to three-phase (on the same poles) would no longer need SoS consent. Likewise, modest pole height increases (up to 20% taller) and existing voltage upgrading from 6.6 kV to 11 kV on existing lines would be pre-approved, as would increasing the threshold for installation and maintenance of overhead lines for multiple consumers from 20 kV to 33 kV; and

• simplified rules for minor line re-routes (allowing slightly longer diversions around obstacles without a fresh consent) and replacing old wires with insulated cables in scenic areas.

Nationally Significant Infrastructure Projects (NSIPs)

The government proposes a change to the thresholds for NSIPs. Currently, any overhead line longer than 2 km at 132 kV triggers the lengthy NSIP planning regime (i.e., a Development Consent Order under the Planning Act 2008). The consultation proposes raising that threshold to 10 km and excluding 132 kV lines on wooden poles from the NSIP category altogether. This means more mid-sized network projects could be approved via normal local planning or Section 37 processes and, consequently, changes to the NSIP thresholds are intended to focus more major planning effort on larger projects.

Enhanced land access powers

As it currently stands, Distribution Network Operators (DNOs) have statutory rights to enter land to work on existing equipment, but it is not clear if they can cross third-party land to reach it. Transmission Owners (TOs) at the high-voltage level have no statutory access rights at all. The consultation aims to tackle these gaps by:

• clarifying that a utility's legal access rights extend to "adjacent land as necessary" meaning an operator can lawfully go over a neighbour's property in order to reach its infrastructure if needed, with the obligation to repair any damage or pay compensation just as on the host land;
•  extending statutory access powers to TOs (subject to a longer notice period of 30 working days, compared to 5 working days for DNOs), so they are not entirely reliant on voluntary agreements if a landowner blocks access; and

• giving a general right to DNOs to install underground cables in private streets without needing every frontager’s permission (akin to the situation with gas utilities).
  These changes would ensure that critical maintenance or upgrades cannot be derailed by a single holdout landowner, though voluntary negotiation would remain the first resort.

Implications and next steps

The reforms will benefit network operators and clean energy developers by removing red tape and uncertainty. The aim is that this leads to a faster, more predictable consents regime accelerating connections between renewables and EV infrastructure, thereby helping to meet climate targets. Landowner and rural groups, however, note a shift toward greater compulsory powers over private land, which will be extended to access over land where no equipment may actually exist.

The government continues to encourage voluntary negotiations in order to build and maintain strong relationships between parties. In addition, protections for landowners, communities and the environment will remain in place, including fair compensation and additional requirements in respect of special interest land. For example, environmental impact assessments and habitat rules would still apply where applicable, even if planning permission is not needed.

The consultation runs until 2 September 2025, and you can respond here.

‘Auto-renew’ provisions: What does the AP Wireless case mean for telecoms and data centre operators and customers in the UK?

On 25 July 2025, the Court of Appeal handed down its judgment in the case of AP Wireless II (UK) Ltd v On Tower (UK) Ltd.

The appeal focused on whether an agreement expressed to be for a minimum term, which then continued thereafter until terminated by either party, should be construed as either a lease or a contractual licence.

The implication of such classification is that different legislation will apply – either the Electronic Communications Code (Code) or the Landlord and Tenant Act 1954 (1954 Act). This distinction has a significant impact on termination and renewal rights, as well as rental valuation, as the Code is generally regarded as being more operator friendly (with the 1954 Act being more landlord-friendly).

Case summary

The telecoms operator On Tower occupied the site under an agreement originally granted in 1997 and installed its telecoms masts and equipment on the land.

The agreement was expressed to continue for a minimum period of ten years (from 11 March 1997) and could then be terminated by either party giving 12 months' notice, expiring on any day after the minimum term. The Court of Appeal had to decide if the term of the agreement expressed in this way was clearly ascertainable when the parties entered into the contract, which would mean it was a "term certain" and would meet the requirements of a lease.

On Tower sought to terminate the agreement and enter into a new agreement under the Code, which would only be possible if the agreement was a licence rather than a lease.

The Court of Appeal’s judgment was that the term was uncertain and invalid because it was “capable of lasting for an indeterminate period” and “the length of the tenancy purportedly created could not be determined when the Agreement was entered into.” Despite the telecoms operator having been granted exclusive possession of a specific site and paying a rent, the absence of a term certain meant that the agreement was a contractual licence and not a lease. A contractual licence is a personal right to occupy and not a legal estate in land.

The Court reinforced that it will look at the substance of an agreement - parties cannot bypass leasing requirements by using manipulative labels or drafting. It is a long-established principle that labelling an agreement a ‘licence’ when exclusive possession is given to an occupier for a defined term will result in a lease. Conversely, an indefinite term as seen in this case cannot create a lease even if the original parties intended it to be so. Interestingly, both parties to this case were assignees so they were unable to state the intentions of the original parties.

Key takeaways

As ever, clear and unequivocal drafting is required to ensure that an agreement takes effect as the parties intend.

So called “auto-renewal” provisions are common in telecoms and data centre agreements, and so careful drafting is required to ensure that the term (and any extension thereof) is expressed in a precise manner. If the parties intend to grant a licence, it is important to ensure that the provisions do not stray into leasing principles such as exclusive possession.

Patching up the past: Law Commission consults on chancel repair liability reformations

On 15 July 2025, the Law Commission launched its consultation for reform to the law relating to chancel repair liability (CRL) and its registration. Despite previous reform, the legal status of CRL remains unclear. The consultation aims to resolve uncertainty and reduce unnecessary costs in property transactions. We examine the background behind the proposals and their implications if implemented.

What is CRL and why is it a problem?

CRL is an obligation to keep the chancel of a parish church (the eastern section of a church) in good repair. Prior to the split of the Anglican Church from the Roman Catholic Church in the 1530s, the rector of a parish church had an obligation to repair the chancel of their church and was given land in the parish and the right to collect tithes (agricultural produce) to fund such repair as well as other duties of office and living expenses. These areas of land or “rectories” were acquired by the monasteries that then passed to the Crown following the Reformation who in turn transferred them to non-clergy landowners or “lay rectors”. Responsibility for repair of churches has now passed to parochial church councils (PCCs) but this does not affect the continuing liability of lay rectors to pay for chancel repairs.

The costs of repairing the chancel of church can be substantial and can be more than the value of the land. In addition, as CRL is a several liability, where rectorial land is split between different landowners, any one of them can be pursued for the entire CRL.

Although the Land Registration Act 2002 (LRA) intended that CRL should no longer bind purchasers unless registered with HM Land Registry by October 2013, the law governing CRL remains unclear. Much of the legal uncertainty stems from whether CRL constitutes an interest in land (very likely not) or an interest affecting a registered estate (perhaps), and therefore whether it is governed by the LRA.

Similarly, with respect to unregistered land, CRL is not a land charge which requires registration under the Land Charges Act 1972. This means CRL has always been automatically binding on a purchaser of unregistered land regardless of whether the purchaser had knowledge of its existence.

Purchasers of property typically submit chancel repair searches and, where a potential liability is found, purchase chancel repair insurance to seek to mitigate the risk. Although chancel repair searches and insurance premiums tend to be cheap, purchasers of land continue to collectively spend millions each year to protect themselves against the possibility of unexpected CRL costs principally due to the uncertainty surrounding the legal nature of CRL.

What does the Law Commission propose?

The Law Commission's consultation paper contains provisional proposals and draft legislation to amend the LRA 2002 to clarify the legal nature of CRL so that:

•  in relation to registered land, a notice is capable of being entered in the register of title in respect of CRL (on the basis that CRL is classified as an interest affecting a registered title);
•  CRL only binds a purchaser of registered land where it is recorded on the register (by entry of a notice) at the time of purchase;
• in relation to unregistered land, it is possible to lodge a caution against first registration relating to a CRL;
•  a CRL that is not recorded in the register during first registration ceases to bind the newly registered estate; and

•  the proposed amendments to the LRA operate retrospectively.

What will the benefit of CRL reform be?

The implementation of the Law Commission’s proposals is intended to provide greater confidence to purchasers of both registered and unregistered land that they will not be bound by CRL unless it is registered on the relevant register. In theory, this should put an end to the widespread practice of conducting CRL searches and buying insurance, alleviating time and cost burdens during the purchase process and, if reform can be implemented with sufficient legal certainty, is likely to be welcomed by landowners, funders and conveyancers alike.

Are there any concerns around proposed CRL reform?

Arguably the proposals are too narrow in focus, since the consultation does not consider more extreme measures such as abolishing CRL, clarifying how CRL amounts should be calculated, introducing a cap on liability, a limited period of liability or removing several liability (noting that some of these points are not dealt with due to the limits of the Law Commissions Terms of Reference with the Government). In addition, whilst registration of CRL notifies of a potential liability, it is not definitive as to whether the liability actually exists. It is likely therefore that we will still be left with investigative searches or perhaps insurance, albeit in respect of a much smaller number of properties.

Next steps

The Law Commission’s consultation is open until 15 November 2025; you can respond here.

Building Safety Update: Levy on residential developments and deadlines for unsafe cladding removal

Building Safety Levy: government publishes draft regulations and guidance

On 10 July 2025, the government published the Building Safety Levy (England) Regulations 2025 (BSL Regulations) and accompanying guidance in advance of the Building Safety Levy’s (BSL) expected commencement in Autumn 2026. Originally intended to come into effect this year, the long-anticipated BSL is a tax that will be payable on applications seeking permission to develop certain new residential buildings. The income raised — an estimated £3.4 billion over the next decade — will be used to contribute to remediating building defects across England.

The draft BSL Regulations outline which types of developments will be chargeable under the BSL, how the levy will be calculated, who will be liable for paying it, and when it must be paid.

Who will be liable?

Provided that a development meets other necessary conditions, the BSL will be charged on works resulting in new residential floorspace amounting to at least 10 new dwellings (or at least 30 new bedspaces in purpose-built student accommodation), regardless of the building’s height.

How will the BSL be calculated?

The sum of the levy will be calculated according to the local authority’s set rate (based on average house prices) and the building’s residential floorspace, with developments on brownfield sites receiving a 50% discount.

What are the consequences of failing to pay?

A failure to pay the levy may result in the building control completion certificate or final certificate for the completed works not being issued.
What other obligations are contained in the BSL Regulations and guidance?

In line with the Building Safety Act 2022’s (BSA) broader aim of ensuring the maintenance and transparency of information on building safety compliance, the BSL Regulations require developers to provide a levy liability statement and collecting authorities to publish levy liability notices, levy payment certificates, and levy update notices where necessary. The guidance contains optional proformas for these documents, which are designed to meet legislative requirements.

In addition, the guidance provides a useful summary of how the BSL operates, alongside a process map. There is also practical advice for developers who may be liable to pay the BSL, local authorities responsible for collecting the levy, and Registered Building Control Approvers who have been appointed by clients to oversee building work.

How will the BSL impact developers?

The BSL poses another, potentially significant, cost which developers will need to account for in both the financing and construction timeline of their projects which are already facing challenges and delays due to complex gateway approval processes and increased construction costs. Its success will ultimately be based on whether or not the government manages to achieve its target of 1.5 million new homes by 2029. Only time will tell.

Remediation Acceleration Plan: government bill announces deadlines, penalties and funding for unsafe cladding removal

On 17 July 2025, the Ministry of Housing, Communities and Local Government published plans for the next phase of its Remediation Acceleration Plan (RAP), an ambitious strategy to speed up the identification and removal of unsafe cladding while supporting residents in the process. Following last year’s launch of the RAP (which we reported on in our January 2025 edition of the Real Estate Focus), the update brings forward the publication of a new Remediation Bill which will set strict deadlines for the removal of unsafe cladding.

The RAP prioritises residential buildings taller than 18 metres, which must have unsafe cladding removed by the end of 2029. The bill will also require buildings taller than 11 metres to have unsafe cladding remediated by the end of 2031. Those who fail to comply with the new duty to remediate could find themselves criminally liable, facing unlimited fines or imprisonment. Where a landlord fails to remove unsafe cladding, the new legislation will empower named bodies (such as Homes England and local authorities) to carry out remediation works instead.

The update also outlines plans to:

•  tighten fire assessment standards to minimise delays to remediation start dates and provide certainty on the scope of works;
•  establish a National Remediation System to serve as a single source of data for all relevant higher-risk buildings;
• provide exceptional funding to buildings under 11 metres tall, where needed to address life-critical fire safety risks;
• bring forward legislation to enforce remediation or mitigation of critical issues following a necessary, temporary move of residents from buildings of 11m+, ensuring that residents can return to their homes as quickly as possible; and
• implement a long-term, sustainable approach to the Waking Watch Replacement Fund.

Nationally, this plan is to be supported by a government commitment to invest over £1 billion in funding for social landlords. At the local level, the MCHLG briefs on progress with Local Remediation Action Plans (LRAPs), which coordinate collaboration between metro mayors, local authorities and regulators. LRAPs that have already been shared highlight aims to ensure clear communication and data-sharing, streamline decision-making, and fast-track training. Millions more pounds in funding are set to be allocated towards implementing these projects.