CONSULTATION

November 7th, 2025 by James Goudie KC in Decision making and Contracts

R ( NAHT and others ) v OFSTED ( 2025 ) EWHC 2891 ( Admin) is concerned with whether OFSTEDfailed to conduct a legally sufficient Consultation in relation to a renewed inspection framework and its alleged serious negative effects. Saini J sets out the relevant legal principles at para 72. At para 73 he said in relation to the 1st (formative stage ) and 4th (conscientious consideration ) Gunning requirements for a fair and open-minded consultation :-

“ As helpfully explaned in JUDICIAL REVIEW : SUPPERSTONE< GOUDIE & WALKER ( 7th edn, 2024 ) at 10.35, the first and fourth GUNNING requirements are interrelated. In practical terms, there must be some specific proposal on which to consult, otherwise there would be no focus for the representations from the consultees. This presupposes that the public body will have formed at least a tentative view as to what it wants to do. Accordingly a public body may properly consult upon a PREFERRED OPTION. But there is a red line : it must not have closed its mind to any changes, otherwise there could be no scope genuinely to consider the representations made.”

 

REASONS

November 7th, 2025 by James Goudie KC in Planning and Environmental

STOP PORTLAND WASTE INCINERATOR v SoS for HCLG, POWERFUL PORTLAND LTD & DORSET COUNCIL (2025) EWHC 777 ( Admin ) is concerned with a decision on a Planning Appeal in relation to part of a Policy in a Development Plan and an Application, to Dorset Council, as Waste Planning Authority, for a detailed planning permission for a energy recovery facility. The challenge was a reasons challenge. At para 27 Holgate LJ highlighted some points of particular relevance :-

  1. To be legally adequate, the reasons for a decision need only provide conclusions on the principal important controversial issues, and NOT on every material consideration or matter raised;
  2. Reasons (a) must not give rise to a substantial doubt as to whether the decision-maker erred in law and (b) should enable unsuccessful opponents of the development proposed to understand how the policy or approval underlying the decision may impact upon future such applications;
  3. Decision Letters should be read in a straightforward manner, recognizing that they are addressed to parties well aware of the issues involved and the arguments advanced;
  4. A reasons challenge will succeed ONLY if the party aggrieved can satisfy the Court that it has genuinely beed SUBSTANTIALLY PREJUDICED by the failure to produce an adequately reasoned decision

 

DISPOSAL OF LIBRARY BUILDING TO TRUST

November 5th, 2025 by James Goudie KC in Land, Goods and Services

In R ( Margery Kempe Trust ) v Norfolk County Council, the Garage Trust Interested Party (2025) EWHC 2840 ( Admin ) the Council had declared King’s Lynn Central Library surplus to its requirements. It instructed its Director of Property to dispose of the building through a closed market exercise, to chaity and community groups in the first instance. These included the Claimant and the IP. The subsequent decicion challenged was to sell the Carnegie Library building to the IP. The Claimant’s wide ranging challenge failed on all 8 grounds.

 

NATURAL JUSTICE ? PROCEDURAL FAIRNESS

October 31st, 2025 by James Goudie KC in Judicial Control, Liability and Litigation

HART v WING-SAN CHIN (2025) UKPC 51 summarises at para 32 the law on when a person should receive NOTICE in advance of ADVERSE COMMENTS OR FINDINGS as a matter of natural justice and procedural fairness :

  1. The standards of fairness are not immutable;
  2. They are not to be applied identically in every situation;
  3. The requirements in any case depend, crucially, upon the particular facts and circumstances;
  4. Fairness will very often require that a person who may be ADVERSELY AFFECTED by the decision will have an OPPORTUNITY to make representations on his own behalf, either before the decision is taken, with a view to producing a favourable result, or, after it is taken, with a view to procuring its modification, or both;
  5. Fairness will often require that the person affected is INFORMED OF THE GIST of the case that he/she has to answer;
  6. The more finality there is in the conclusions reached by an inquiry and reflected in its report and the greater the strength of their expression, the more that is required to be done to ENSURE THAT THE PROCESS IS FAIR;

Breach of the requirement of fairness is a serious matter, even if it is devoid of practical consequences.

 

NEGLIGENCE

October 30th, 2025 by James Goudie KC in Judicial Control, Liability and Litigation

Public authorities and public sector professionals are prima facie subject to the same general principleas as private persons. In KHAMBA v HARROW LBC (2025) EWHC 2803 (KB) Foster J holds, at para 40, that when a local authority is exercising statutory functions under the Mental Health Act 1983 there is NO ASSUMPTION OF RESPONSIBILITY unless such a duty of care would be imposed under conventional principles of tort. Public authorities and public sector professionala are, in the same way as private individuals, generally not under any DUTY TO PREVENT the occurrence of harm to third parties. At para 55 she says that the mere foreseeability of harm is not a sufficient basis for a duty of care to arise.

 

VAT

October 30th, 2025 by James Goudie KC in Land, Goods and Services

In NORTHUMBERLAND HEALTH CARE NHS FOUNDATION TRUST v HMRC (2025) UKSC 37 the Supreme Court is concerned with the provision of car parking for reward at or near a hospital site. The Court addresses VAT on “economic activities”, when a supply of goods and services by a public body is not to be treated as a supply by a taxable person, and when a public body is to be treated as acting as a public authority and there is a “special legal regime.” The Supreme Court also addresses the issue of distortion of competition.

 

POLLUTION AND WASTE

October 29th, 2025 by James Goudie KC in Planning and Environmental

On 28 October 2025, the House of Lords Environment and Climate Change Committee has issued a publication and made Recommendations in relation to WASTE CRIME; and on 29 October 2025 OFWAT has launched a CONSULTATION on proposed changes to PERFORMANCE COMMITMENTS IN RELATION TO POLLUTION.

 

BUSES

October 29th, 2025 by James Goudie KC in Environment, Highways and Leisure

A Committee of Public Accounts Report, published on 29 October 2025, raises concerns over ACCESSIBILITY FOR ELDERLY AND DISABLED PEOPLE and makes a number of Recommendations to the Department for Transport.

 

TORTIOUS LIABILITY

October 29th, 2025 by James Goudie KC in Judicial Control, Liability and Litigation

On tortious liability, see MARPLES v SoS for EDUCATION (2025) EWHC 2794 (Ch) : (1) on misfeasance in public office, including targeted malice, at paras 158-177; and (2) on negligence, including assumption of responsibility and pure economic loss, at paras 178-210.

 

ENVIRONMENTAL PROTECTION

October 29th, 2025 by James Goudie KC in Planning and Environmental

See R ( BADGER TRUST ) v NATURAL ENGLAND (2025) EWHC 2761 (Admin) on (1) justification for redactions in disclosed decision-making documents : parties cannot contract out of their open justice principles obligations : para 13; and (2) AARHUS Cost Caps : in deciding whether to allow a variation, the central issue is prohibitive expensiveness : para 29.

 

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