November 7th, 2019 by James Goudie QC in Decision making and Contracts

“Purdah” is upon us. It lasts until 12 December 2019, only shortly before the Christmas/New Year break. It is as well to recall a case noted in this Bulletin on 11 May 2017, the decision of Garnham J in relation to the last General Election, on 8 June 2017, announced on 18 April 2017, and local government elections which were to take place on 4 May 2017, R (Client Earth) v SoS for Environment etc (2017) EWHC 1618 (Admin). The main point that the Judge made was that “purdah” is not a rule of law, and that it does not, and did not in that case, override obligations to comply with statutory duties. Read more »


Business rate avoidance schemes

November 6th, 2019 by James Goudie QC in Council Tax and Rates

In cases brought by the Secretary of State [2019] EWHC 2890 (Ch) the High Court declined to wind up companies in the public interest that operated business rate avoidance or mitigation (but not evasion) schemes. The companies relied upon the exemption from business rate of companies that are being wound-up, compulsorily or (creditors or members) voluntarily. The respondent companies operated schemes to allow landlords of vacant commercial premises to avoid paying business rates. That was achieved by the landlords leasing the properties to a special purpose vehicle (SPV) incorporated by the respondents, with the effect that the SPV became the property owner for the purpose of business rates. Each lease had a fixed term of three years and provided that its purpose was to transfer liability for business rates to the SPV, that the landlord would pay a monthly fee, and that the landlord was able to determine the lease at any time on payment of a determination premium, which increased as time passed. Once the SPV held several leases, it would be placed in members voluntary liquidation. The respondents accepted that the determination premium provisions were entirely artificial and had been devised with a view to creating something of value to the SPV so that the liquidator would be required to maintain the members voluntary liquidation for the duration of the lease, so as not to lose the opportunity of receiving the determination premium. Read more »


Finney v Welsh Ministers and Carmarthenshire County Council

November 6th, 2019 by James Goudie QC in Planning and Environmental

In Finney v Welsh Ministers and Carmarthenshire County Council (2019) EWCA Civ 1868, yet another wind turbine case, the Court of Appeal held that on an application under Section 73 of TCPA 1990 to vary a conditions of planning permission the LPA had no power to change the description of the development, including the height of the turbine to which the description attached. On such an application it is only the conditions that matter. First instance authority to the contrary was wrong.


The One Succession Rule

November 4th, 2019 by James Goudie QC in Housing

The decision of Murray J in Haringey Council v Simawi (2018) EWHC 2733 (QB), Local Government Bulletin 23 October 2018, has now been upheld on 31 October 2019, by the Court of Appeal, (2019) EWCA Civ 1770. Lewison LJ, with whom Bean and Baker LJJ agreed, began his Judgment as follows:-

“1.        The issue on this appeal is whether the statutory provisions governing succession to secure tenancies unlawfully discriminate against Mr Simawi because of his status.”

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October 28th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In cases under Article 14 of the ECHR, in conjunction with Article 1/1, J.D. and A v UK, concerned with benefit reductions, the Strasbourg Court, on 24 October 2019, stated general principles, including the following:-

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Consultation, etc.

October 25th, 2019 by James Goudie QC in Decision making and Contracts

In Electronic Collar Manufacturers Association v SoS for DEFRA (2019) EWHC 2813 (Admin) Morris J considered a number of consultation and other challenges.  He summarised general principles on consultation at paragraph 27. From paragraph 109 he addressed together consultation and appearance of pre-determination. He said as to the law:-

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Environmental Bill

October 24th, 2019 by James Goudie QC in Environment, Highways and Leisure

The Government has introduced a 130 Clause Environment Bill, with 20 Schedules, in the context of exiting the EU.  Parts 1 and 2 relate to Environmental Governance, that had been the subject of a Draft Bill, including environmental targets, improvement plans, environmental monitoring and environmental principles, and a new Office for Environmental Protection. Part 3 relates to Waste and Resource Efficiency; Part 4 to Air Quality and Environmental Recall; Part 5 to Water; Part 6 to Nature and Biodiversity; and Part 7 to Conservation Covenants. The provisions include recycling and other obligations upon local authorities, pollution control and other powers for local authorities, and the mandating of net gain in biodiversity through the planning system.


Legal advice privilege

October 24th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Curless v Shell International Ltd (2019) EWCA Civ 1710 the Court of Appeal has upheld the decision of an Employment Judge to strike out parts of a disability discrimination and victimisation claim on the basis that they referred to an email which attracted legal advice privilege.  The employer (SI Ltd) was seeking advice on whether the claimant (C) –who had already made a claim of a failure to make reasonable adjustments – might be either offered voluntary severance or dismissed on the grounds of redundancy as part of a restructuring exercise. The Court of Appeal viewed this as the sort of advice which employment lawyers give ‘day in, day out’. It did not agree with the EAT’s interpretation that this was advice to act in an underhand or iniquitous way by ‘cloaking’ a discriminatory dismissal as a redundancy. Read more »


Equitable relief from forfeiture

October 24th, 2019 by James Goudie QC in Land, Goods and Services

On the banks of the Manchester Ship Canal, Vauxhall Motors has a large manufacturing plant. It drains surface water and treated industrial effluent into the Canal. It does so pursuant to a licence from the Canal Company. This is a valuable right, similar to an easement. It is terminable if Vauxhall are late in their payment of the licence fee.  Inadvertently, Vauxhall was late with one instalment. The Canal Company terminated the Licence. Vauxhall asked the High Court to grant equitable relief from forfeiture. Relief was granted. The Court of Appeal upheld the grant of relief: (2018) EWCA Civ 1100.  The position has now been addressed by the Supreme Court, who have unanimously dismissed the Canal Company’s appeal: (2019) UKSC 46, especially from paragraph 35, per Lord Briggs. Read more »


Looked-after needs

October 23rd, 2019 by James Goudie QC in Social Care

R (Aburas) v Southwark LBC (2019) EWHC Civ 2754 (Admin) was, as the Judge put it, a claim for judicial review is found on that part of the legal map where there is an intersection between (i) local authority functions of assessing and meeting adult needs for care and support under Part I of the Care Act 2014 (CA14) and (ii) human rights arguments invoking the Convention rights in Article 3 (protection from inhuman and degrading treatment) and Article 8 (right to respect for private and family life) of Schedule 1 to the Human Rights Act 1998 (HRA98).   The essence of the claimant’s argument was that, linked to but wider than being destitute and in need of accommodation and subsistence, he had a ‘looked-after need’ of support by a social worker to access food and medication, which support required for its effective delivery the provision of accommodation, refusing which supported accommodation had consequences so serious as to breach his Convention rights. The essence of the Council’s’ defence of the claim was that, even if (which was not accepted) the claimant was destitute and in need of accommodation and subsistence, it is to the Home Secretary through Asylum Support that he must look for human rights-compatible action, the Council having lawfully discharged its statutory ‘looked-after needs’ functions under CA14 read with HRA98. Read more »