In R ( STRACK ) v SoS ( 2024 ) EWCA Civ 420 the issue was whether an Inspector determining an application to deregister part of a Village Green and exchange adjacent land under section 16 of The Commons Act 2006 fell into error by wrongly conflating ( 1) the rights of those with legal rights of recreation over the Village Green with ( 2 ) the interests of those local inhabitants who had no such rights. It was found that the Inspector had not erred. Both those rights and those interests were relevant considerations to which regard must be had. The weight given to each of these interests is a matter of judgment for the decision-maker in each case.
HUMAN RIGHTS CONSIDERATIONS AND HOMELESS PERSONS
April 25th, 2024 by James Goudie KC in Human Rights and Public Sector Equality DutyThe appeal in GHAOUI v WALTHAM FOREST LBC (2024) EWCA Civ 405 concerned the role of the Human Rights Act 1998 in the context of Part VII of the Housing Act 1996, which places duties upon local authorities in relation to homeless people. Specifically, how should human rights considerations be factored in to the assessment for suitability of accommodation. The Court of Appeal said, at para 36, that homelessness decisions may raise issues that engage Convention rights, but instances where a decision designed to relieve homelessness will amount to a violation will be rare. The question (para 37) is as to the lawful application of a proper definition of suitability to the circumstances of the case, identifying and weighing up relevant factors.
CONSULTATION
April 18th, 2024 by James Goudie KC in Decision making and ContractsIn R ( BMA ) v HM TREASURY ( 2024 ) EWCA Civ 355 Elisabeth Laing LJ says at paras 159 – 161 that where there is a legislative scheme that imposes substantial express duties of consultation and the legislation has expressly addressed the exact nature and precise incidence of the duty the Court should be “ very reluctant “ to supplement the scheme with extra consultation obligations unless there is a “ clear legal basis “ for their imposition. At para 160 she says that PLANTAGENET ALLIANCE at para95 is an accurate statement of the circumstances in which a duty to consult will be imposed by the common law.
HUMAN RIGHTS ACT
April 17th, 2024 by James Goudie KC in Human Rights and Public Sector Equality DutyIn SOS for BUSINESS v MERCER ( 2024 ) UKSC 12 the Supreme Court, in relation to Trade Union legislation that fails to provide protection against sanctions short of dismissal penalising participation in lawful strike action, considers Section 3 of the Human Rights Act 1998 ( the interpretative presumption ) and Section 4 ( declarations of incompatibility ), and partially allows the appeal. Read more »
EQUALITY ACT
April 16th, 2024 by James Goudie KC in HousingPart 3 of the Equality Act 2010 relates to Services and Public Functions. Part 4 relates to Premises. In R ( FG ) v KENSINGTON & CHELSEA COUNCIL ( 2024 ) EWHC 780 ( Admin ) a question is which Part is applicable to a disabled person’s claim under the Act with respect to an alleged failure by the local authority landlord to deal with noise and smell issues. The Judge holds that it is Part 4.
ENVIRONMENTAL INFORMATION
April 10th, 2024 by James Goudie KC in HousingMASTERMAN v INFORMATION COMMISSIONER ( 2024 ) UKFTT 289 ( GRC ) concerns a request for the licence conditions for a house in multiple occupation. The question arises whether the information sought from the local housing authority was “ environmental information “ subject to the Environmental Information Regulations rather than the Freedom of Information Act. The Tribunal held that it was the former. It was ( paras 47-51 inclusive ) about “ conditions of human life “. That includes conditions in which human beings live.
ADJUSTMENT OF CONTRACT
April 10th, 2024 by James Goudie KC in Decision making and ContractsIn RENTOKIL v MILLER ( 2024 ) EAT 37 Judge Auerbach’s rulings on “ reasonable adjustments “ under the Equality Act 2010 included that ( 1 ) the Act referred simply to “ such steps as it is reasonable to have to take to avoid the disadvantage “ did not attempt to restrict or sub-categorise what form such steps might take in a given stage, ( 2 ) the proposed step did not have to be guaranteed to work, and ( 3 ) for the purposes of a “ reasonable adjustment “ claim it does not matter what went on in the mind of the decision-maker at the time : there is no mental element.
CLIMATE CHANGE
April 10th, 2024 by James Goudie KC in Environment, Highways and LeisureThe European Court of Human Rights has delivered Grand Chamber rulings in three climate changes. In one of these, SCHWEISS v SWITZERLAND a complaint was made about the consequences of global warming on living conditions and health. The complaint was that the Swiss authorities were not taking sufficient action to mitigate the effects of climate change.
The Court found that the European Convention of Human Rights encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life. The Court held that there had been a violation of the right to respect for private and family life and that there had had been a violation of the right of access to the Court. The Court found that the Swiss Confederation had failed to comply with its positive obligations under the Convention concerning climate change.
TRAVELLERS
April 9th, 2024 by James Goudie KC in Human Rights and Public Sector Equality DutyIn WARD V SoS for Levelling Up, Housing and Communities ( 2024 ) EWHC 676 ( Admin ) Lang J sets out the following principles : ( 1 ) the impact of development on the green belt is a matter of planning judgment, not law ; ( 2 ) the law to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker, not the Court; ( 3 ) under the NPPF inappropriate development is by definition harmful to the green belt and should not be approved except in very special circumstances; ( 4 ) although a child’s best interests are a primary consideration they are not determinative of a planning issue. The Judge also considers Article 8 of the ECHR in relation to the special position of gypsies as a minority group.