Remedies for Breach

August 2nd, 2019 by James Goudie QC in Decision making and Contracts

In AEW Europe Ltd v Basingstoke & Deane BC (2019) EWHC 2050 (TCC) it was held that a declaration of ineffectiveness was not available in the circumstances.  In Stagecoach v SoS for Transport (EWHC) 2047 (TCC) the Court considered limitation for private and public law claims and abuse of process.

 

PSED

August 1st, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

There is a failure to have due regard to the PSED before making a decision.  Must that decision be quashed?  No, says the Court of Appeal in Forward v Aldwyck Housing Group Ltd (2019) EWCA Civ 1334, in the context of a decision by a social housing association, exercising public functions, to bring possession proceedings against a physically disabled tenant, where it was highly likely that the decision would not have been substantially different if the breach had not occurred.

Read more »

 

Transfers of Governance

August 1st, 2019 by James Goudie QC in Local Authority Powers

The Home Secretary decided to approve proposals to transfer the governance of Fire and Rescue Services (“FRSs”) to the Police and Crime Commissioner (“PCC”) for the area. A challenge failed before Garnham J in R (Shropshire & Wrekin Fire Authority, Hereford and Worcester Fire Authority, and Cambridgeshire and Peterborough Authority) v SSHD (2019) EWHC 1967 (Admin).  The question of substance was whether the proposals were “in the interests of economy, efficiency and effectiveness” (“the 3Es”) within Section 4A(5) of the Fire and Rescue Services Act 2004 (“the 2004 Act”) as inserted by the Policing and Crime Act 2017.

Read more »

 

Secure Tenancy

July 29th, 2019 by James Goudie QC in Housing

In general, a secure tenancy cannot be brought to an end and possession obtained unless the local authority has both established one or more of the grounds set out in Schedule 2 to the consolidating Housing Act 1985 (“HA 1985”) and served a Notice pursuant to Section 83 of HA 1985.  The form that such a Notice must take is prescribed by Regulations.

Read more »

 

Discrimination

July 23rd, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Drexler) v Leicestershire County Council (2019) EWHC 1934 (Admin) Swift J restated the following principles:-

(1) The extent of the ambit of an ECHR right is a matter of assessment: paragraph 24;

(2) For an Article 14 discrimination claim to arise there is no requirement for the substantive right to be infringed: ibid;

Read more »

 

Traffic Regulation Order

July 22nd, 2019 by James Goudie QC in Environment, Highways and Leisure

The first instance decision in Trail Riders Fellowship v Hampshire County Council was noted in this Bulletin on 11 December 2018. An appeal has now been dismissed: (2019) EWCA Civ 1275. Sir Ross Cranston’s statement of the law was approved, save for the last part of proposition (iv). Longmore LJ said that there does have to be actual evidence that the balancing exercise required by Section 122 has been, in substance, conducted. It cannot be merely a matter of inference from the status of the decision-maker.

Read more »

 

Presumption Of Regularity

July 19th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Smart v Director of Personnel Administration (2019) UKPC 35 one issue was whether a decision challenged by judicial review was tainted by the existence of undisclosed documents. There seems to have been “an unfortunate lack of transparency” about an appointment process.   It also seemed unfortunate that the response to a Freedom of Information request was delayed. There was a lack of candour” in not disclosing correspondence.  Lord Carnwath referred, at paragraph 32, to the so-called “presumption of regularity” on the one hand and on the other hand the “well established duty” on a public authority to respond to a judicial review application with “all the cards face upwards on the table”.  The Privy Council, at paragraph 34, endorsed as the correct approach the following statement (emphasis added):-

“It is in this context of cooperation, where a court has granted leave to pursue judicial review and where the full and candid disclosure of the claimant’s evidence as well as the full, frank and uninhibited explanation – with all primary documents relevant to the challenge (subject only to lawful exemptions) of the public authority are before the court, that the process of evaluation contemplated by judicial review is to be undertaken. … the presumption of regularity ought not to operate as a shield behind which a public authority can hide by refusing to give evidence on the basis that it is for a claimant to prove his case. This is an erroneous and misplaced view of how the presumption of regularity ought to operate in public law matters. Indeed, a presumption of bona fides ought to willingly lead to full disclosure of all relevant information at the earliest opportunity – including in response to pre-action enquiries.

 

Consultation

July 12th, 2019 by James Goudie QC in Decision making and Contracts

In R (LF) v Buckinghamshire County Council (2019) EWHC 1817 (Admin) a judicial review challenge failed to a decision by the Council, by its Cabinet, to close 19, and retain 16, of its Children’s Centres, whilst ensuring the continuing use of the closed Centres for early years and community benefit. Andrews J was satisfied that the Council had carried out a fair Consultation before Cabinet made its decision, that it took the responses properly into account, and that it complied with all its relevant statutory duties.

There was an obligation on the Council under Section 5D of the Childcare Act 2006 to “secure that such consultation as they think appropriate” was carried out before any change was made in the services to be provided through a Children’s Centre or before the closure of any such Centre.  Andrews J said (paragraph 34) that gave the Council “a wide discretion as to what the consultation should comprise”, subject only to the requirements of statutory Guidance. Read more »

 

Neighbourhood Development Plans

July 10th, 2019 by James Goudie QC in Planning and Environmental

Section 61N of the Town and Country Planning Act 1990 is a bespoke and complete scheme for legal challenges to specified decisions and actions within the Neighbourhood Plan process.  The Section is self-contained and comprehensive. It leaves no gaps.  It provides for proceedings to be pursued before a Neighbourhood Plan is made. The six weeks’ time limit for challenging Neighbourhood Development Orders cannot be extended.  Claims must be brought at the particular stage at which a grievance arises.  So held in R (Oyston Estates Ltd) v Fylde Borough Council (2019) EWCA Civ 1152

 

Waste

July 9th, 2019 by James Goudie QC in Environment, Highways and Leisure

The European Court Judgment in Case C-624/17, Tronex BV, concerns the concepts of “waste” and “shipment of waste”. The Court said:-

“16      Regarding the concept of ‘waste’, it should be borne in mind that Article 3(1) of Directive 2008/98 defines it as any substance or object which the holder discards or intends or is required to discard…

17      In accordance with the Court’s settled case-law, the classification of a substance or object as waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’… Read more »