February 26th, 2024 by James Goudie KC in Planning and Environmental

Local authorities are relevant authorities for the purpose of the consolidating EU based Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, S.I. 2017/572. Regulation 4 prohibits granting consent for an “EIA development”, without consideration of “environmental information”, as defined. Regulation 5 relates to the EIA process; and Regulation 6 relates to when development is EIA development. In R (Boswell) v SoS for Transport (2024) Read more »



February 23rd, 2024 by James Goudie KC in Council Tax and Rates

The Non-Domestic Rating ( Designated Areas ) Regulations 2024, S.I. 2024/183, designate areas in England for the purpose of local retention of non-domestic rates pursuant to Section 59A of and para 39(1) of Schedule 7B to the Local Government Finance Act 1988,as inserted by the Local Government Finance Act 2012. The Regulations provide rules for calculating in respect of a billing authority in England all or part of whose area falls within a “ designated area “ the billing authority’s non-domestic rating income in respect of the designated area for a specified year, and the proportion of that income that is to be disregarded for the purposes of specified calculations under Schedule 7B.



February 22nd, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

The mere infringement of a provision of the GDPR is not in itself sufficient to confer a right to compensation, but any person who has suffered damage as a result of an infringement of the GDPR has the right under Article 82, to receive compensation.  There have been a number of recent CJEU Judgments on Article 82, in Cases C-340/21, on Cyberattack Data Breach Liability, Case C-667/201, on Health Data Processing, Case C687-21, on Negligence in Data Handling, and Case C-456/22, on Thresholds of Non-Material Damage, where data subjects sought compensation for damage arising from the publication of their names, on the internet, by a Municipality, without their consent, as part of the Agenda for a Municipal Council Meeting.  As the Irish Legal News identifies, a number of conclusions may be drawn from these and earlier cases including that the right to compensation for damages for breach of the GDPR requires a claimant to establish an infringement of the GDPR, that he has suffered damage, and that there is a causal link between the infringement and the damage suffered; the fact of an infringement of the GDPR gives rise to a presumption that the technical and organisational measures adopted by the control/processor were insufficient, but that presumption can be rebutted by a data controller; the concept of damage is broadly interpreted, with no de minimis threshold; non-material damage may include a loss of control over personal data or fear about potential future misuse, but actual damage must be proven by a claimant; and the damages regime provided by Article 82 serves a compensatory function only, and does not have a punitive or deterrent function.


Multiple Occupation

February 22nd, 2024 by James Goudie KC in Housing

Welwyn Hatfield BC v Wang (2024) UKUT 24 (LC) was concerned with whether Notices of Intent to impose a financial penalty under Section 249A of the Housing Act 2004 were invalid for containing insufficient information. By para 3(a) of Schedule 13A to that Act a Notice of Intent has to  set out the “reasons” for proposing to impose the financial penalty.  The Upper Tribunal says that these reasons have to be “sufficiently clearly and accurately expressed” to enable the recipient landlord to exercise the right, conferred by paragraph 4 of Schedule 13A, to make written representations to the local housing authority about its proposal, to enable the authority to decide whether or not to impose the financial penalty, and, if so, how much.  Similarly, by para 8(b) of Schedule 13A, the final notice had to set out “the reasons for imposing the penalty”.  Those reasons too had to be sufficiently clearly and accurately expressed to enable the recipient landlord to decide whether to exercise the right to appeal to the Tribunal against the decision to impose the penalty or the amount of that penalty.  Those reasons had to be directly referable to the condition of the licence in relation to which it was said that there had been non-compliance on the landlord’s part, and they had to identify clearly and accurately the particular respects in which it was said that there had been non-compliance.  Local housing authorities had to bear firmly in mind that the imposition of a financial penalty was an alternative to a criminal prosecution, and it had to be treated with  the same level of seriousness and transparency.



February 14th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In tort a person owes a duty of care not to cause physical damage to another person’s property. If there is a breach of that duty there is a liability to pay damages. The measure of the damages is compensation for (i) the reduced value of the property and (ii) any financial loss consequent on the physical damage. The Supreme Court unanimously allows the appeal ARMSTEAD v ROYAL SUN ALLIANCE ( 2024 ) UKSC 6, and holds that a claimant in the tort of negligence can recover, as damages, the amount of a contractual liability that the claimant owes to a third party, when that contractual liability is incurred as a result of the defendant’s wrongful act in negligently damaging the claimant’s property. Such a loss is not “ pure economic loss “; and where the question is whether a loss is too remote from a tort, the burden of proof in respect of remoteness is on the defendant.



February 14th, 2024 by James Goudie KC in Planning and Environmental

The Town and Country Planning ( General Permitted Development ) ( England ) ( Amendment ) Order 2024 S.I. 2024/141, made on 13 February 2024, and coming into force on 5 March 2024, amends the GDPO, by, amongst other respects, permitting the use of commercial, business and service us to use as dwelling houses. It will no longer be necessary that the building has been vacant for a continuous period of at least 3 months.



February 13th, 2024 by James Goudie KC in Planning and Environmental

The Department for Levelling Up, Housing and Communities has commenced Consultations on (1) changes to several existing permitted development rights and (2) changes to national planning policy to support brownfield development.



February 13th, 2024 by James Goudie KC in Planning and Environmental

The two claims in REDROW HOMES LTD v SoS for LEVELLING UP, HOUSING AND COMMUNIIIES and HERTSMEREBOROUGH COUNCIL and in MEAD REALISATIONS LTD v SoS and NORTH SOMERSET COUNCIL ( 2024 ) EWHC 279 ( Admin ) raised issues about both the interpretation and the application of the sequential test in national policy on flood risk.
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February 12th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

Article 6 of the ECHR provides for a fair hearing when the determination by a public authority of civil rights and obligations is engaged. However, internal disciplinary proceedings will not generally engage Article 6.

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February 12th, 2024 by James Goudie KC in Planning and Environmental

There is a duty not only to conserve but also to enhance biodiversity. Section 135 of the Environment Act 2023,  on biodiversity net gain, pre-development biodiversity value and habitat enhancement, comes into force from 12 February 2024 : S.I. 2024 No. 92 ( C. 6 ).With some exemptions, all major housing developments are now required to deliver at least a 10% benefit for nature. Biodiversity Gain Requirements, linked to Biodiversity Plans, and with a concept of “ irreplaceable habitat “ , will be a condition of planning permissions. This follows six sets of Regulations made in January 2024 on biodiversity : S.I.s 2024 /45-50inv.