Judicial Review

December 10th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Attorney General of Trinidad and Tobago v Ayers-Caesar, (2019) UKPC 44, Lord Sales for the majority of the Privy Council, reiterated, at paragraph 2, that (1) the threshold for the grant of leave to apply for judicial review is “low”; and (2) all that is to be examined is whether there is “an arguable ground for judicial review which has a realistic prospect of success”; but (3) wider questions of the public interest may have “some bearing” on whether leave should be granted; and (4) if the Court is “confident” at the leave stage that the legal position is “entirely clear” and to the effect that “the claim could not succeed”, it would “usually be appropriate” for the Court to dispose of the matter at that stage.

Read more »

 

Water and Sewerage Charges

December 3rd, 2019 by James Goudie QC in Housing

Royal Borough of Kingston-upon-Thames v Moss (2019) EWHC 3261 (Ch) was concerned with council houses and flats where the supply of water is not metered, and where the water authority does not bill the council tenants, but does bill the Council. Mr Moss, a secure tenant, was obliged to pay “water charges” to the Council, his landlord. The issue was as to the calculation of those charges, pursuant to the tenancy Read more »

 

Injunction

December 3rd, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

Injunctions may be granted to restrict street protests in order to pursue the legitimate aims of preventing disorder and protecting others, as being lawful, necessary and proportionate in a democratic society, and not discriminatory. So held in Birmingham City Council v Afsar (2019) EWHC 3217 (QB), concerned with Read more »

 

Judicial Review

December 3rd, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

Judicial Review is available when a public function is being exercised: Section 31 of the Senior Courts Act 1981 and CPR 54.2(1). A body may not be exercising a public function for all purposes. The question then is whether it is exercising a public function in the particular context and for the particular purposes. The applicable legal principles have been revisited by a Divisional Court (Davis LJ and Warby J) in R (Liberal Democrats and SNP) v ITV (2019) EWHC 3282 (Admin) from paragraph 65. The Court said, at paragraph Read more »

 

Proportionality

November 27th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

B (Secure Accommodation Order) (2019) EWCA Civ 2025 is an appeal by a local authority against the refusal of its application for a secure accommodation order under Section 25 of the Children Act 1989. The appeal raised important and overlapping questions on the interpretation of Section 25, including whether, when considering such an application, the Court is obliged to carry out an evaluation of “proportionality”, pursuant to Articles 5 and 8 of the ECHR. Baker LJ addressed the HRA and proportionality from paragraph 74.  On the meaning of “deprivation of liberty” in Article 5 he referred to Guzzardi v Italy (1980) 3EHRR 332 at paragraphs 92-93 and  P v Cheshire West and Cheshire Council (2014) UKSC 19, to the “degree and intensity of control” that amounts to “a deprivation of liberty”, and to in practice an Order under Section 25 involving a “deprivation of liberty” under Article 5, and an interference with the child’s right to respect for private and family life under Article 8.

Read more »

 

Consultation

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

Who should be notified of a consultation? What positive steps must be taken to make consultees aware of the invitation to express their views? This has been considered by Steyn J in R (British Blind and Shutter Association) v Secretary of State for HCLG (2019) EWHC 3162 (Admin). She ruled (paragraph 53) that there is a duty to take positive steps. However, she added (paragraph 54): “The duty to take such positive Read more »

 

Homelessness

November 20th, 2019 by James Goudie QC in Housing

In Waltham Forest LBC v Saleh (2019) EWCA Civ 1944 the Court of Appeal held that, in conducting a review of a homelessness decision the review officer had to reconsider the decision in the light of all the relevant circumstances at the date of the review, and was not limited to a reconsideration of the facts as they stood at the date of the original decision. For that reason, a review officer who was asked to reconsider a decision to provide accommodation for a family outside the local housing authority’s own district ought to have taken account of the availability, as at the date of review, of any suitable accommodation either within or closer to that district.

 

Planning permission and donation

November 20th, 2019 by James Goudie QC in Planning and Environmental

R (Wright) v Resilient Energy Severndale Ltd and Forest of Dean District Council (2019) UKSC 53, in which the Supreme Court gave Judgment on 20 November 2019, on appeal from (2017) EWCA Civ 2102, concerns a challenge by way of judicial review by the respondent, Mr Wright, to the grant of planning permission by the second appellant (the “Council”) to the first appellant (“Resilient”) for the change of use of land at a farm in Gloucestershire from agriculture to the erection of a wind turbine. In its application for planning permission, Resilient proposed that the turbine would be built and run by a community benefit society and that an annual donation would be made to a local community fund. The Council took this donation into account in granting planning permission and made the permission conditional on the development being undertaken by the community benefit society and the provision of the donation. Read more »

 

Purdah

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 »