clarity
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All following articles are authored by members of the Beswicks team.
A rebrand 04 Elderly urged to plan ahead 08 Taking control of goods 10 Cheshire East crisis in the supply of housing land 14 LLP’s -Work but are they ‘Workers’? 18 Shareholder/Partnership disputes - a business divorce 20 Break-up for summer 22 Beswicks news 24 Seminar 28
The contents of this magazine are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
A rebrand _
Everything and nothing A white table in a white room
Exesios’ voice Throughout our 14 years in design whenever a client has approached us asking for minimalism they rarely meant it. It’s not easy to turn your back on the norm and go minimal, with the idea quickly fading away during the design process. So it was a completely refreshing experience to work with Simon and Graham as they were prepared to push the boundaries - there was never any doubting they truly meant minimal! It was a very collaborative process with the constant challenging of ideas. Simon and Graham were fully committed to their vision while still being open to evolving and shaping their ideas, which led to what we believe is a fantastic new look and feel for Beswicks. We’re delighted to have been part of this journey.
Eleni Brammer Director
We w
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A rebrand
Beswicks’ Voice
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It was time to change, as we didn’t think our branding or web site any longer reflected what we try to deliver for clients. We wanted our branding to reflect the clarity we deliver for our clients. We also took the view that most web sites are cluttered with information that simply isn’t relevant to their users, hence the straightforward approach. We worked with Paul and Eleni at Exesios in our sports business and were impressed by their delivery times and the quality of the products and ideas they provided. Working with them and their team challenged us to explain what we wanted which lead us to greater understanding of our own needs. They were innovative and provided many alternatives for us and argued with us in a positive way about which alternative we should take. They have extensive technical knowledge in relation to web and mobile device usage which was very helpful. They also have great biscuits. We are delighted with the outcome and have had many positive comments from clients and colleagues. We hope you enjoy our first issue of ‘Clarity’ our new quarterly Magazine in the new brand look.
Graham Neyt Managing partner
A rebrand
Elderly urged to plan ahead _ Most people have now heard of “Lasting Powers of Attorney” (LPAs) which have been in place since 2007. However, out of the two types available, it appears that the majority of those creating these documents have opted for the property and affairs Lasting Power of Attorney. These are very important and useful documents. You can appoint someone to make decisions about money and property for you for example:
This needs to be a conversation with someone you trust. Once you have faced that, it actually takes some of the worries away, because it ensures your needs are put first and it also reduces the risk of abuse. He said that, too often, decisions about welfare ended up being taken by health and care professionals who barely knew the individual, or by relatives who only began taking an interest after the person became too confused to assert their wishes. (Source: Daily Telegraph)
_ paying bills
Lasting Powers of Attorney give you control now to appoint the appropriate person to make decisions for you in the future if you are unable to do so. Having a lasting power of attorney (LPA) for your personal welfare may mean that the person(s) you appoint can make decisions including:
_ collecting benefits _ selling your home Official figures show that since 2007, more than 900,000 elderly people in the UK have registered LPA’s so that a person can take decisions on their behalf if they lose mental capacity. But ministers are concerned that four out of five registrations relate only to property and finance, rather than to health and welfare - with few pensioners drawing up plans for how they want to be cared for, should they develop a condition such as dementia. Ministers are urging pensioners to draw up legal plans setting out how they wish to be cared for in old age, to protect them against exploitation. In an interview with The Telegraph, Simon Hughes, the Justice Minister, said the absence of such plans meant too many elderly people were forced to live in circumstances they would never have chosen, while others were put at risk of exploitation and abuse. Mr Hughes also said: “People should assume they will be less capable of looking after their affairs later in life - that needs to be the working assumption.”
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_ where you are to live, _ whether a care home or a nursing home is best for you and which one, or
_ whether you can continue to live at home with help from social services. Your attorney will be able to decide if you should:
_ receive healthcare treatment, _ not receive a particular healthcare treatment, or _ stop receiving a particular healthcare treatment. If you have any questions or would like to enquire about wills, LPA’s, and trust matters please contact Howard Heath, Sarah Mellor or Kate Bloor on 01782 205000 or by email enquiry@beswicks.com
Taking control of goods _
From April 2014 changes have been made as to how a judgment debt can be recovered by threatening to sell, or by selling the debtor’s goods. This is currently one of the most popular methods of enforcement and was known as execution. It is renamed “taking control of goods” and is obtained by a writ or warrant from the High or Country Court.
Initial Considerations When considering whether to go down the route of taking control of goods as a method of debt recovery, it is worth having regard to two important general features:
_ A writ or warrant of control do not require a judicial decision.
_ The process can be combined with other methods of enforcement The court in which the judgment was obtained will usually be the court in which the taking control of goods will take place, unless;
_ the proceedings are for a sum of £5,000 or more, when all proceedings for enforcement against goods must be undertaken in the High Court.
_ where the sum to be enforced is more than £600, but less than £5,000, you can choose whether to proceed in the High Court or County Court.
Notice to the debtor of enforcement The judgment debtor must be given not less than seven clear days notice of enforcement before an enforcement agent takes control of his goods unless the court orders a shorter period. The period of days does not include a Sunday, bank holiday, Good Friday or Christmas Day. The court can order a shorter period of notice where it is satisfied that, if the order is not made, it is likely that the debtor’s goods will be moved or disposed of to prevent enforcement. The notice must be in writing and contain detailed information about the debtor, the debt, the costs and the likely timescale of the enforcement process. The notice of enforcement must also be delivered by an enforcement agent by one of a number of prescribed postal, fax or personal delivery methods. The enforcement agent must keep a record of the time when the notice is given and by which means. There is no obligation to state the actual date when the enforcement officer will attempt to take control of the debtor’s goods. The enforcement agent may not take control of goods of the debtor after 12 months has expired from the notice of enforcement unless the court has given permission or a repayment arrangement (usually payment by instalments) has been breached, in which latter case, the 12 month period commences on the date of the breach of the repayment arrangement.
_ where the sum is less than £600 or is a Consumer Credit Act 1974 matter the County Court can be used.
Entry and securing goods
The costs, usually fixed, of the taking control of goods are added to the writ or warrant.
Securing the goods An enforcement agent must do one of the following:
The process of taking control of goods
_ Secure the goods on the premises or highway on
There are three stages:
_ Remove them and secure them elsewhere within a reasonable distance from the place taken.
(a) notice of enforcement to the debtor by an enforcement agent;
_ Enter into a “controlled goods agreement” with the
(b) taking control of the goods by entry into the premises and securing the goods or entering into a controlled goods agreement; and (c) notice after entry and inventory of goods.
which he finds them.
debtor. This was formally known as ‘taking walking possession’. What this essentially means is that the debtor is permitted to retain custody of the goods, acknowledges that the enforcement agent is taking control of them and agrees not to remove or dispose of them, nor to permit anyone else to, before the debt
Taking control of goods
is paid. The agreement must be in writing and signed by both enforcement officer and debtor and must contain the contact details of the debtor and a list of the goods of which control has been taken with a description to enable the debtor to identify the goods correctly. The enforcement agent must give the debtor a copy of the signed agreement at the time of entering and if someone other than the debtor enters into the agreement on the debtor’s behalf, the debtor must be provided with a copy at his premises.
Entry requirements The enforcement agent may enter relevant or specified premises and re-enter only by:
Notice after entry and inventory of goods Notice Requirements After entering the debtor’s premises, the enforcement agent must provide a notice for the debtor giving information about what he is doing. This must be in writing, signed by the enforcement officer and contain information about the debtor and enforcement agent along with details of what the enforcement agent has actually done whilst at the premises. If the debtor is on the premises at the time, the enforcement agent must give him the notice. If he is not, the enforcement agent must leave the notice in a conspicuous place on the premises.
_ Any door, or any usual means by which entry is gained to the premises (for example, a loading bay to premises where a trade or business is carried on).
_ Any usual means of entry, where the premises are a vehicle, vessel, aircraft, hovercraft, a tent or other moveable structure. An enforcement agent may if necessary use reasonable force to enter premises or to do anything for which the entry is authorised. He can also ask the court to issue a warrant allowing the use of reasonable force to enter premises. However, a power to use force does not include power to use force against persons, except to the extent that other regulations provide that it does. The enforcement agent must remember to leave the premises as effectively secured as he finds them.
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Inventory In addition to the notice after entry, the enforcement agent must provide the debtor with an inventory of the goods taken control of as soon as reasonably practicable. This must be signed and contain information about the debtor and enforcement agent along with a list of the goods of which control has been taken, with a description, to enable the debtor to identify the goods correctly. The inventory can also be combined with a controlled goods agreement and the notice after entry.
Taking control of goods
What goods are exempt from a writ or warrant of control? Generally, any goods belonging to the debtor can be taken control of by the enforcement agent except for land, goods not owned by the debtor (such as goods on hire purchase), trust assets and any item that falls within the list contained in A summary of the most common items that appear in the exempt goods list is;
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items or equipment (for example, tools, books, telephones, computer equipment and vehicles) which are necessary for use personally by the debtor in the debtor’s employment, business or, except that in any case the aggregate value of the items or equipment to which this exemption is applied shall not exceed £1,350.
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such clothing, bedding, furniture, household equipment, items and provisions as are reasonably required to satisfy the basic domestic needs of the debtor and every member of the debtor’s household,,
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a vehicle on which a valid disabled person’s badge is displayed.
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a vehicle which is being used for health emergencies, police, fire or ambulance purposes.
there was no financial limit for the tools of trade exemption
assistance dogs
Taking control of goods
Previously, there was no financial limit for the tools of trade exemption. It is likely that many debtors will dispute therefore dispute the value of the goods and this could generate satellite litigation regarding the value of goods.
Summary The new process of taking control of goods is not wholly unlike its predecessor – execution - but if you are considering taking enforcement action in either the High or County Courts, regard should be had to the new terminology, forms and procedural changes if effective and expedient debt recovery is to be achieved. Should you need advice or assistance on this issue please contact Karen Elder on 01782 205000 or email karen.elder@beswicks.com
Cheshire East crisis in the supply of housing land _ The sorry saga continues in relation to Cheshire East Council’s questionable five year supply of housing land. For many months Cheshire East has been fighting a rear guard action combatting a host of housing appeals on greenfield sites in the borough. The National Planning Policy Framework (the NPPF) has encouraged a deluge of housing applications in Cheshire East. A key objective of the NPPF has been “to boost significantly the supply of housing “.The Council has been unable to demonstrate that it can comply with paragraph 47 of the NPPF. This indicates that planning authorities “should identify and update annually a supply of specific deliverable sites sufficient to provide five years’ worth of housing against the housing requirement with an additional buffer of 5% to ensure choice and competition in the market for land. Where there has been a persistent record of under delivery of housing, the local planning authorities should increase the buffer to 20% to provide a realistic prospect of achieving the planned supply and secure choice and competition in the market for land”. The Council does not have an up to date adopted Local Plan in place which reflects the NPPF and which provides a robust housing delivery figure demonstrating a five year supply of deliverable housing sites. The Council has submitted a draft new Local Plan to the Secretary of State, which seeks to meet these deficiencies. Unfortunately, if a Council does not have
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an up to date Local Plan in place, then in large respects the provisions of the NPPF take precedence. Failure to demonstrate an objectively assessed five year supply leaves the Council vulnerable to new housing sites that are sustainable and deliverable within a relatively short timescale. The Council has been fighting to catch-up for a long time. In February of this year, the leader of the Council, Michael Jones, announced that the Council could now demonstrate that it had a five year supply of housing. He announced that the Council had worked hard on its housing supply figures and was confidently proclaiming that the Council could now demonstrate more than a five year supply of deliverable housing sites. However a run of recent planning appeal decisions have debunked the Council’s position despite the fact that the Council has brought on board expert legal and planning advice from leading planning QCs and consultants. The latest appeal decisions at” Moorfields, Willaston” (APP/RO660/A/14/2211721) and “Land off Hind Heath Road, Sandbach” (APP/RO660/A/14/2212992) clearly confirm the Planning Inspectorate’s view that Cheshire East cannot demonstrate an objectively assessed five year supply of housing land sites. Both decisions confirmed that limited weight should be given to the draft Local Plan since there have been many objections lodged against it. The draft Local Plan goes to public examination in the autumn.
The Council has been fighting to catch-up for a long time.
The run of adverse appeal decisions demonstrates that the Council’s methodology in compiling its claimed five year supply of housing is quite obviously deficient and needs to be reviewed urgently. Other appeal decisions in the Sandbach area have raised similar concerns about the draft Local Plan and specific “concerns about the adequacy and methodology of the Council’s objective assessment of housing needs”. The Council has also been accused at recent appeals of using out of date data and methods of analysis.
The Council needs to “wake up and smell the coffee”. Its formal objective analysis of housing supply needs has been cut to pieces at a number of recent appeals by expert consultants for various developers. The Planning Inspectorate is accepting the arguments and submissions made by those developers. The Council therefore urgently needs to reconsider its approach to its analysis of a five year housing supply. More importantly the draft Local Plan goes to formal examination in the autumn. There is a serious risk now that the draft Local Plan will be returned as “unsound” by a government inspector appointed to examine and report on the content of the new Local Plan.
using out of date
data and
In the above appeals there were a number of older existing Local Plan policies which were relevant to the supply of housing. These policies dealt with open countryside and green gaps designations, which would normally seek to prevent new housing. However, due to guidance in the NPPF and the Council’s failure to demonstrate a five year supply of housing land , these policies were not be considered to be up to date and relevant. These policies were therefore discounted in determining whether a particular housing site qualified as sustainable development
methods of analysis.
Failure of the draft Local Plan in the autumn would significantly delay the adoption of any new Local Plan and further aggravate Cheshire East’s vulnerability to greenfield housing developments.
If you require any assistance with planning and environmental law, please call Iain Johnston on 01782 205000 or email iain.johnston@beswicks.com
Cheshire East crisis in the supply of housing land
LLP’s - Work but are they ‘Workers’? _ In May 2014 the Supreme Court overturned an earlier Court of Appeal decision and concluded that a member of a limited liability partnership (LLP) was “clearly” a worker and should therefore be protected under whistleblowing legislation. The decision in Clyde & Co LLP and another v Bates van Winkelhof is likely to have extensive consequences for LLPs. Statutory employment rights vary depending on whether someone is classed as an employee, a worker or selfemployed. Whilst employees benefit from the most protection most notably unfair dismissal rights, “workers” are also entitled to certain statutory protection, these include:
_ paid annual leave; _ national minimum wage; _ a maximum 48 hour working week, unless they have expressly waived the requirements of the Working Time Regulations 1998;
_ protection against detriment for having blown the whistle; and
_ automatic enrolment into a suitable pension scheme. In this recent case Ms Bates van Winkelhof the Claimant, brought a claim against Clyde & Co three years ago, stating that she was forced to leave the firm after
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disclosing to the firm that the managing partner of the firm’s Tanzanian associate firm had paid bribes to win clients. Ms Bates van Winkelhof brought the complaint against Clyde & Co on the basis that she had suffered a disadvantage, by being excluded from the partnership, because she made this disclosure. A key part of the Supreme Court’s decision was the finding that there was no need for any element of subordination in the relationship between a worker and their employer. The Court noted that while subordination may sometimes be an aid to distinguishing workers from other selfemployed individuals, it is not a universal characteristic of being a worker. Accordingly, Ms Bates van Winkelhof was deemed a worker and should therefore be afforded protection under the UK legislation. The Court found that Ms Bates van Winkelhof did not fall into an exception designed to exclude a relationship between self-employed individuals and their clients. This was because she could not market her services as a solicitor to anyone other than Clyde & Co, and she was an integral part of their business, the firm was in no sense her client or customer.
What does this mean for the LLP? Nearly all members of a typical professional services firm or financial services firm will be considered workers, and so firms will need to consider whether amendments are required to their Members’ Agreement to reflect workers’ rights. Another issue that therefore must be considered is that of auto-enrolment, which may prove troublesomeespecially for those firms who have already passed their staging date or are about the meet it – and it is hoped that the Government will consider adjusting the Pensions Act to expressly deal with the issue of LLP members. Until then, firms may be able to argue that a member is remunerated solely by profit share and that profit share does not count towards ‘qualifying earnings’ thereby allowing the member to fall outside the scope of autoenrolment. For further information on this and any corporate/ commercial matter, contact Simon Woodings, Peter Ellis, Catherine Lo or Thomas FosterWard at Beswicks on 01782 205000 or by email enquiry@beswicks.com
Shareholder/ Partnership disputes - a business divorce _ Disputes between shareholders can be the largest challenge a business has to face. Disputes often arise due to exclusion of minority interest, poor personal relationships and conflicts of interest/ separate business interests. Disputes can lead to High Court proceedings which can be complex, stressful, expensive, and disruptive to the day to day affairs of the company.
Specialist advice should be taken at an early stage. We have extensive experience and expertise in resolving such disputes acting for both majority and minority shareholders. We provide an early assessment service offering clients the best options to resolve any dispute.
Recent cases include:
relation to a shareholder/director on long term sick leave who alleged poor personal relationships with the majority shareholders/directors
5 Key issues to be aware of: 1 What documentation is in place? Is there a shareholders agreement? What do the company’s articles say regarding who makes decisions? Is a majority vote sufficient? Who is in control of shareholders’ meetings? …
2 Have all directors acted appropriately? Directors owe fiduciary duties to the company – breach of these duties can lead to personal liability. Is there a possible derivative claim for negligence, default, breach of duty or trust by a director?
3 What restrictions if any are there on selling shares? Many companies restrict the way shares can be sold and how they are valued.
_ Acting for the majority of shareholders in connection
4 Plan carefully to ensure the appropriate outcome
5 Consider conciliating any dispute before legal
with allegations of conflict of interest against a minority shareholder/director which included taking complex employment proceedings against the minority shareholder/director as well as invoking the provisions of the shareholder agreement against him;
_ Successfully negotiating a favourable settlement agreement for a minority shareholder facing allegations of gross misconduct and who had been frozen out of the business;
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_ Acting for the majority of shareholders/directors in
is achievable, shareholder disputes are personal between the shareholders and the company should not fund the dispute. This often comes as a shock to the shareholders. proceedings – always take early advice to ensure the hoped for outcomes are achievable.
always take early advice to ensure the hoped for outcomes are achievable.
We are always happy to meet clients on an exploratory no obligation and free basis to discuss their issues and offer an initial view For further assistance, please contact Nick Phillips 07772 599723 / nick.phillips@beswicks.com Stephen Taylor 07791 365489 / stephen.taylor@beswicks.com
Break-up for summer _ For some families the summer holidays herald the annual return to their cottage by the sea, or Normandy gîte. Holiday homes here and abroad are no longer reserved for the super-rich. Enterprising middle income investors have, over the past decade in particular, acquired seaside homes, overseas properties and caravans to provide both investment income and capital growth while offering “free” accommodation for the family’s summer holiday, some even regarding “The Lobster Pot” as their pension pot. For happy families owning a seaside retreat can seem a great idea. But for couples in the midst of divorce their once thought of dream home can become a toxic legacy of their marriage as they question: Who should keep it? Who should maintain it? Does either of us even want it? Should it be sold and, given the volatility of the worldwide property market, can it be sold without making a substantial loss thereby eroding the precious matrimonial pot? One example in recent years involved a Spanish villa which fell £100,000 in value to £240,000 with £190,000 still to pay on the mortgage. Although equity remained the parties feared they would never sell it. Neither wanted it.
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Wrangles over overseas houses are becoming increasingly commonplace with the party “lumbered” with the cottage in France for example seeking to later vary an order for a financial remedy when the bargain they brokered on divorce is no longer as attractive as it once seemed. In most cases the courts are predictably unforgiving. Such issues are complex enough where the asset is readily identified and available to the parties but consider the cases where there is a need to protect the asset from dissipation. Section 37 of the Matrimonial Causes Act 1973 operates to provide injunctive relief for parties who suspect assets have gone or might go awry. There is no difficulty using s.37 to secure foreign property as it attaches to a person (usually one of the parties) and not to the property itself. No undertakings as to damages are required but a guilty intention must be shown of the one party to put the asset out of the reach of the other. Beswicks Legal provides expertise in relation to all aspects of family law and property ownership including owning holiday homes or overseas property. For further information please contact Fiona Craig on 01782 205000 or by email enquiry@beswicks.com.
Holiday homes here and abroad are no longer reserved for the superrich.
Beswicks news _
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A new partner puts Beswicks Legal on track for HS2 claims_ A new division centred on planning and environmental law is being established at Beswicks Legal. It will include an advisory service for landowners affected by the development of the proposed HS2 rail link. Iain Johnston who has been appointed as a partner has an extensive track record in areas including HS2 and nationally significant planning law and will head the team. He returns to Stoke-on-Trent following senior roles in heavyweight Manchester and Birmingham practices following an earlier stint in the Potteries. Iain said: “I am delighted to have been chosen to head Beswicks Legal’s new planning and environmental division. It is an exciting time for the firm which is expanding its specialisms to provide a full portfolio of services to business customers. I am returning to North Staffordshire at a time when HS2 is set to come to the fore with the announcement of the fixed route for phase two towards the end of 2014. It is a growing area of work for planning lawyers and I have been responsible for setting up HS2 advisory services in my previous roles as a partner in legal practices in Birmingham and Manchester. Once the route through Staffordshire and Cheshire is fixed, landowners will be able to serve blight notices on Government. This can cut short the CPO (Compulsory Purchase Order) process and help landowners to achieve a faster resolution.” Graham Neyt, Managing Partner at Beswicks Legal said: “Iain is a well-known and highly respected name in planning law and it is pleasing to have secured his services. He will have responsibility for the development of a planning and environmental team at Beswicks Legal. Iain’s track record in securing HS2 exceptional hardship claims in actions against the government is second to none. He also brings to Beswicks 20 years’ experience as a specialist in planning law during which he has acted for large companies and regeneration bodies in nationally significant infrastructure projects.” If you require any assistance with planning and environmental law, please call Iain Johnston on 01782 205000 or email iain.johnston@beswicks.com
Beswicks news
Construction Law Division supports Planning and Commercial Property Departments_ A new division providing both contentious and non-contentious construction law services has been established at Beswicks Legal. The unit includes an advisory service for Banks and funders of significant developmental projects. It also provides drafting services for developers and main contractors to ensure the suite of contract documents are appropriate and in place for individual projects. Karen Elder, who has experience in construction and engineering disputes will head the team. Karen Elder was appointed Partner at Festival Park last September at Beswicks Legal. A solicitor, author and accredited mediator, Karen has practiced in Stoke on Trent for over 20 years and says; “As part of the growth of the construction industry in recent times, as we emerge from the recession, Beswicks Legal can now present a one stop package to clients on property, planning and construction matters with an exceptional level of expertise. The inter-relation between each area of specialism is designed to give clients piece of mind, ease of instruction and the technical knowhow to satisfy the legal requirements of transactions at competitive rates. Clients require building projects to proceed seamlessly but where issues arise, they must be adequately protected. Bespoke contracts, Collateral Warranties, Performance Bonds, Parent Company Guarantees are all common place in such projects and once in place can provide the comfort the client deserves.� The provision of these construction law services is delivered as part of a team of legal advisors at Beswicks Legal. If you require any assistance with construction law, please call Karen Elder on 01782 205000 or email karen.elder@beswicks.com
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Beswicks news
Beswicks news
Seminar _ Planning & Construction Regional Issues & Legal Updates Tuesday 30th September 2014 5:15pm Beswicks Legal, Sigma House, Lakeside, Festival Park, Stoke-on-Trent, ST1 5RY
A buffet will be served on the evening.
Like to attend? Please reply to Claire Bellew on 01782 205000 or by email, claire.bellew@beswicks.com
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Guest Speakers
Graham Neyt
Iain Johnston
Karen Elder
Managing Partner at Beswicks Legal to give an introduction.
Partner at Beswicks Legal to give views on the current state of the Local Plan process in North Staffordshire, including Cheshire, focussing on the issue of housing supply AND also recent changes in the planning system which seek to assist the economy and the provision of more housing.
Partner at Beswicks Legal will provide an overview of the key construction contracts required and highlight how to avoid early stage pitfalls on development projects.
+44 (0)1782 205000 www.beswicks.com