TUPE

December 11th, 2017 by James Goudie QC in Decision making and Contracts

Case C-472/16, Siguenza v Ayuntamiento de Valledolid, in which Advocate General Tanchev delivered his Opinion on 6 December 2017, concerns a music teacher previously employed by a company that had been running a municipal music school, following the school having been run by the municipality directly.  The case raised yet again the question under what such circumstances the loss of a service contract to a competitor following a tendering exercise is to be regarded as the transfer of an economic entity so as to require the new contractor to take over staff of the previous contractor.  The specific features of the particular case were (1) a concession that expired before the competitor took over, (2) a delay of 5 months before the competitor resumed the activity and (3) the fact that none of the 26 persons employed by the previous employer were taken over, albeit the tangible assets were taken over. The Advocate General concluded that there was no transfer.

There was no economic entity: at the time the school resumed it had ceased to exist as an entity.  If there was an economic entity, it did not retain its identity: most of the factors which indicate whether the old and the new entity are identical militated against there being a transfer.

 

Reasons

December 6th, 2017 by admin in Planning and Environmental

In Dover District Council v CPRE Kent [2017] UKSC 79 the Supreme Court reviewed various statutory rules relating to the provision of reasons for planning decisions, observing that these rules are to be found in subordinate legislation and that it is hard to detect a coherent approach to their development. The three main categories of planning decision are: (i) decisions of Secretaries of State and inspectors, (ii) decisions by local planning authorities in connection with planning permission, and (iii) decisions, at any level, on applications for EIA development. Read more »

 

Human Rights Time Bar

December 6th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

Section 7(5)(a) of the Human Rights Act 1998 provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place. In O’Connor v BSB (2017) UKSC 78 the Supreme Court considered whether a discrimination claim was time-barred, and, reversing the Court of Appeal, unanimously held that it was not. Read more »

 

New Towns

December 5th, 2017 by James Goudie QC in Planning and Environmental

CLG is consulting on draft Local Authority Oversight Regulations under the New Towns Act 1981 which would enable in England the creation, via a strong evidence basis and further Statutory Instruments, of locally led New Town Development Corporations, where local areas consider that they will be an effective vehicle for new garden towns and cities. The consultation period is only 4 weeks, from 4 December 2017 until 2 January 2018.

 

Legitimate Expectation

December 4th, 2017 by James Goudie QC in Decision making and Contracts

In Save Britain’s Heritage v SoS for CLG and Westminster City Council (2017) EWHC 3059 (Admin) Lang J held that there was no duty on the SoS to give reasons for a decision not to call in the controversial planning application for the Paddington Cube development.  There had been a practice that could well have given rise to a procedural legitimate expectation that reasons would be given for non-intervention. However, that practice had ceased.  There was no longer an established practice to that effect. On the contrary, the established practice had become that reasons would not be given. The earlier practice and statements sought to be relied upon had been superseded.  They could no longer found a legitimate expectation that reasons would be given.  No misleading representation had been made at the relevant time.  Anyone active in planning matters should have been aware of the well-publicised change. If any expectation remained, it had ceased to be a legitimate one. There was no legal requirement to issue a formal statement of the change.  Practice and policy are subject to change.

 

State Aid

December 4th, 2017 by James Goudie QC in Capital Finance and Companies

The Ricoh Arena saga continues. In JR1 Coventry City Football Club’s owners, SISU, failed up to the Supreme Court in their State Aid challenge to Coventry City Council’s £14.4m loan to the company, ACL, which the Council half owned that operates the Arena. The Market Economy Investor Principle was satisfied.

SISU have now brought JR2, which is to be heard on 2/3 May 2018. This seeks to challenge as State Aid the Council’s subsequent deal with Wasps Rugby Club.  On 28 November 2017 the Court of Appeal gave interlocutory rulings, allowing SISU to amend its claim, provided that the case on State Aid was confined to the lease extension granted by the Council to ACL, and allowing the introduction of expert evidence.

 

Neighbourhood Development Plans (Ndps)

December 1st, 2017 by James Goudie QC in Planning and Environmental

R (Oyston Estates Ltd) v Fylde Borough Council and St Anne’s-on-the-Sea Town Council (2017) EWHC 3086 (Admin) is concerned with time limits for a judicial review of a NDP. The concept of an NDP was introduced into the law by provisions in The Localism Act 2011, inserting the relevant provisions into the Planning and Compulsory Purchase Act 2004 (the 2004 Act) and the Town and Country Planning Act 1990 (the 1990 Act). The making of the NDP was initiated by the Town Council in April 2013 under Section 38A(1) of the 2004 Act. Read more »

 

Working Time

November 29th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

On 29 November 2017 the European Court of Justice (“the ECJ”) has given Judgment in Case C-214/16, King v The Sash Window Workshop Ltd, in which Mr King sought an allowance in lieu of annual leave not taken, or taken but not paid, for the years 1999 to 2012, the entire period of his engagement by the Defendant. The Defendant rejected the claim on the basis that Mr King was self-employed.  By the time the case reached the ECJ it was common ground that Mr King was nonetheless a “worker” for the purposes of the Working Time Directive. Read more »

 

ECHR Articles 8 and 14

November 29th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916 an issue arose whether a provision in the Fatal Accidents Act (“the FAA”) was compatible with Article 14 of the ECHR (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life), and therefore whether the bereavement damages regime under the FAA falls within the ambit of Article 8, so as to engage Article 14.  In order to bring herself within Article 14, Ms Smith did not have to show that the State had infringed her rights under Article 8.  She did need to show that her complaint fell within the “ambit” of Article 8.

Read more »

 

Shortfall in supply

November 27th, 2017 by James Goudie QC in Housing

Paragraph 49 of the National Planning Policy Framework states that housing applications should be considered in the context of the (paragraph 14) presumption in favour of sustainable development and that policies for housing supply should not be regarded as up to date if the Local Planning Authority is unable to demonstrate a five-year supply.

In Hallam Land Management Ltd v SoS for CLG and Eastleigh Borough Council (2017) EWHC 2865 (Admin) Supperstone J ruled (paragraphs 22/23) that where there is a shortfall the SoS is not required in every case to determine the precise extent of the shortfall.  The key question is whether the housing land supply is above or below five years. Read more »