ISSUES FOR PROPERTY LAWYERS

Case Notes

The UK government announced a ban on the sale of new petrol and diesel cars from 2040 and by 2050, their aim is that almost every vehicle on UK roads should be zero emissions.

As we have seen, electric vehicles are becoming increasingly popular in the UK and worldwide and with it are the concerns due to the lack of charging infrastructure in place nationwide. As a result public and private charging facilities need to be greatly expanded to ensure the UK EV market can grow in line with expectations.

There are two charging point models currently:

1. Stand-alone installations where the land is leased or owned directly by the charging point owner
2. Models where charging points are installed by the charging point owner under a license arrangement on land owned or leased by third parties (e.g. in supermarket car parks or service stations)

There are a number of issues for commercial property lawyers:

• When acting for developers it is important to understand that the client may want to seek to combine charging points with other technologies to maximise potential revenue streams and to mitigate the cost of grid reinforcement – for example, by co-locating with solar panels or battery storage facilities.
• It may be necessary for developers to pay for reinforcement works to achieve connections with higher capacity – this can be prohibitive, especially where the location is only suitable for a small number of charging points.
• No matter whether a licence, option for lease, agreement for lease or lease itself will need to be drafted to allow for such additional developments (whether intended at the time of construction of the charging points, or further down the line). In addition planning issues need to be considered.
• As technology develops existing charging installations may need retrofitting and documentation will need to allow it.
• Wayleaves and easements for the construction and installation of electricity cabling and substations might be required. Fortunately EV charging points are likely to be near to existing grid connections where there are car parks, service stations or business premises.
• Where reinforcement or additional connections are needed to supply charging points and support their capacities, in addition to the reinforcements and connection costs themselves, a developer should consider early the likely cost of obtaining relevant easements, wayleaves and access rights. Landowners and their agents are much more alive now to the potential value of such rights, and should be contacted early in order to obtain the appropriate rights.
• The Alternative Fuels Infrastructure Regulations 2017 which came into force on 9 October 2017. These regulations put in place standards for sockets and vehicle connectors, impose requirements for intelligent metering and require operators to make EV charging points accessible to the public on an open and non-discriminatory basis. There are civil penalties in place if these requirements are not met.
• The requirements which could be put in place under the Automated and Electric Vehicles Act 2018 (AEVA 2018) will also need to be observed. These will deal with issues around access, functionality and the information which will need to be provided to the consumer by those offering public charging points. Part 2 of the of the AEVA 2018 gives the Government powers to create multiple regulations to deal with the installation and operation of EV charging points as the UK EV market expands and the number of charging points increase. The powers include the ability to introduce regulations to ensure that all EVs can charge at any charging point and introduce requirements on how operators provide access to charging points.
• Consumer legislation requires consideration. A fee for the use of a charging point has to be fair, easily and clearly comparable, transparent and non-discriminatory. This will necessitate business models for charging points factoring in consumer pricing. Further, operators of charging points will need to comply with the various consumer laws applying to various aspects of their business, including relating to any online or app-based sales, customer services provisions and so on.
• The electricity supply licence regime applies to the supply of all electricity in the UK, including the sale of electricity through a charging point. Failing to comply with the supply licence provisions is a criminal offence. In practice, there are exemptions which may be applicable to avoid the need to supply a licence where EV charging points are located. The available exemptions will depend on the nature of the infrastructure set up, however the rules are complex and any business models, supply arrangements (and the documents recording this) should be carefully considered to ensure that an exemption applies and a licence is not required.
• When dealing with leaseholds, depending on the terms of the lease, landlord consent may be required for alterations. If the charge point will sit outside, additional rights for access and maintenance may be required together with an obligation to repair.
• Other issues relevant to leaseholds including the need for clear allocation of responsibilities, and consideration should be given to provisions relating to possible reinstatement at the end of the term, applicability of rent review, service charge, security of tenure and insurance.

What about planning considerations for EV charging points?

The Town and Country Planning Order 2011 (SI 2011 2056) introduced permitted development rights for EV charging points in public and private car parks but planning permission may be required for charging points installed elsewhere.

Several local authorities have introduced an obligation on developers to include EV charging points on new developments and the Governments ‘Road to Zero’ strategy has made clear the intention to make it an obligation to include charging point infrastructure in all new homes.

Planning permission is not required for the installation of wall-mounted electric vehicle charging points in areas lawfully used for off street parking – provided the electrical outlet must not exceed 0.2 cubic metres in size, and it can’t face onto, or be within, two metres of a highway. The point also can’t be within a site designated as a scheduled monument or within a listed building.

The rules for installing an upstand with a mounted electrical charging are similar. Planning permission is not required if the upstand outlet does not exceed 1.6 metres in height from the level of the surface used for the parking of vehicles. Installation cannot result in more than one upstand being provided for a single parking space.

The Government’s planning proposals

Residential Buildings:

The government proposes every new residential building with an associated car parking space to have a chargepoint. The Government proposes this requirement applies to buildings undergoing a material change of use to create a dwelling. The government proposes requiring every residential building undergoing major renovation with more than 10 car parking spaces to have cable routes for electric vehicle chargepoints in every car parking space.

New Non-Residential Buildings:

The government proposes every new non-residential building and every non- residential building undergoing a major renovation with more than 10 car parking spaces to have one chargepoint and cable routes for an electric vehicle chargepoint for one in five spaces.

Existing Non-Residential Buildings:

The government proposes a requirement of at least one chargepoint in existing non-residential buildings with more than 20 car parking spaces, applicable from 2025.

Schedule 2, Part 2, Class D of The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) states that planning permission is not required for the installation of a wall mounted electrical outlet for recharging of electric vehicles as long as the area is lawfully used for off–street parking.

For installation to be classed as permitted development, the electrical outlet (and its casing) must not:

• Exceed 0.2 cubic metres
• Face onto and be within two metres of a highway
• Be within a site designated as a scheduled monument
• Be within the curtilage of a listed building

Installing an upstand with a mounted electrical charging outlet
Schedule 2, Part 2, Class E of The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) states that planning permission is not required for the installation of an upstand with an electrical outlet mounted on it for recharging electric vehicles, as long as the area is lawfully used for off–street parking.

For installation to be classed as permitted development, the electrical upstand and the outlet  must not:

• Exceed 2.3 metres in height from the level of the surface used for the parking of vehicles. This limit is 1.6 metres where in the curtilage of a dwelling house or block of flats
• Be within two metres of a highway
• Be within a site designated as a scheduled monument
• Be within the curtilage of a listed building
• Result in more than one upstand being provided for each parking space

Turning to the issue of Building Regulations the Government proposes the creation of a new part to the English Building Regulations requiring electric vehicle charging infrastructure in new buildings and buildings undergoing material change of use and major renovation.

For residential buildings, the Road to Zero strategy set out that the government wants every new home to have a chargepoint, where appropriate. This includes newly built homes and homes created through a material change of use of an existing building. The Government proposes a requirement of a chargepoint in every new home with an associated parking space and proposed specifying that the chargepoints must have a minimum power rating output of 7kW, be fitted with a universal socket that can charge all types of electric vehicle currently on the market and meet relevant safety and accessibility requirements.

For new non-residential buildings the proposal is a requirement for new non-residential buildings and non-residential buildings undergoing major renovation with more than 10 parking spaces to have at least one chargepoint and cabling routes for one in five spaces.

The government does not think it is necessary to go further than this at this stage. The demand for chargepoints and the type of chargepoints needed at non-residential buildings is mixed, and will depend on how the building is used and the wider provision of chargepoints in the local area. The government does not therefore consider it appropriate to set a more prescriptive standard for all non-residential buildings through Building Regulations. We are, through this consultation, seeking views on this position.

The Government proposes to require one chargepoint in existing non-residential buildings with more than 20 car parking spaces. This will help create certainty for drivers that their destination will have at least one chargepoint, while not overburdening building owners or leading to an over-supply of chargepoints.

Practice Points

• Ensure consideration is given to electric vehicle charging point issues
• Deal with basics such as ensuring the appropriate easements are granted
• Take care to ensure there is flexibility with regard to supply such as enabling the upgrading, improving, repair and maintenance of cabling