The growing popularity of electric vehicles is still somewhat small when compared to fuel powered vehicles, but it is slowly increasing due to the introduction of low emission vehicles zones in several major cities as well as various purchasing incentives for individuals. Additionally, the UK and regional governments have all proposed legislation which would phase out the sale of petrol and electric cars, with the current date for this being set as 2035 for the UK.
In addition, with the focus on net zero being ever present, both the UK Government and national governments have implemented targets and legislation to increase the numbers of electric vehicles. The UK Government has set out a path for all new cars in Great Britain to be zero emission by 2035 and in Scotland, Holyrood have introduced the the Building (Scotland) Amendment Regulations 2022 will require developers to provide for electric vehicle charging in the development and construction of new buildings as well as buildings which are subject to "major renovation". As such, while the existence of EVCPs may not generally be required, they will sooner or later become the norm and those that chose not to install them may be seen as falling short of their green initiatives/ESG targets. The need for developers, institutional landlords/occupiers to review their green policies and consider the installation of such charging points is therefore critical.
Considerations
So what are the considerations when deciding whether or not to install EVCPs? As with any alteration to a property, the owner must have the correct consents in order to proceed with the installation. If you are the owner of the property and wish to install EVCPs, you must first have the relevant planning permission if installation is not a permitted development right. Whether or not the installation would be a permitted development will depend on which legal jurisdiction you reside in. In England, this may be permitted under the Town and Country Planning (General Permitted Development) (England) Order 2015, schedule 2 part 2, whereas in Scotland, this is may be permitted under the The Town and Country Planning (General Permitted Development) (Scotland) Order 1992). You should contact your local authority for further guidance on this matter if required. You will also need to consider an application for grid connection will need to be submitted. It may be that the EVCP operator will undertake/assume responsibility for procuring the necessary consents (this will depend on the nature of the relationship between the owner/occupier and the EVCP operator) but you should ensure these are in place prior to proceeding with any installation.
If you are not the owner of the property (e.g. a tenant), then in addition, you may need to obtain landlord consent to alter the property and to lay the required connections into the charging points. Without this, you risk being in breach of your lease and the landlord will be entitled to rely on contractual remedies available to them such as damages as well as requiring the removal of the EVCP infrastructure it. Similar considerations need to be made where the property is sub-let and it may be that the head lease is partially surrendered to accommodate the grant of a new lease to the EVCP operator.
The EVCP operator can then take a lease directly from the owner for the charging points or they may enter into a framework agreement with the EVCP operator for the right to use the EVCP kit.
If you determine that the best way forward is for a lease to be granted, then there are a number of commercial points that will need to be considered depending on which legal jurisdiction you are in. In England and Wales, you must include provision for the security of tenure under the Landlord and Tenant Act 1954. In Northern Ireland, a business tenancy for a term greater than 9 months is protected and the Landlord and Tenant cannot 'contract out' of security of tenure provisions. As such, both parties should be aware of the consequences of any such lease. There is no security of tenure in Scotland. In all jurisdictions, you may wish to consider "lift and shift" provisions to allow the Landlord to relocate the infrastructure of the EVCPS as well as any easements (i.e. servitudes in Scotland) as required for the provider to be connected to the electricity grid.
If the existing grid connection is not satisfactory then a new substation may be required in order to support the EVCP infrastructure. Where this is the case, the substation lease will need to be separately negotiated with the IDNO/DNO as the case may be.
Finally, you will need to consider the tax implications of any income earned from these charging points as well as any SDLT or LBTT payable for any lease back from tenants of the relevant area and the income derived from it as required.
If you are considering whether or not to install EVCPs and wish for any further advice on anything noted above, please do contact Darren Walsh or Shane Toal for assistance.
This article was written by Louise Clark
