Listed Buildings

May 21st, 2020 by James Goudie QC in Planning and Environmental

An item being on a listed building list is not conclusive of it being a “ building”. When considering what free standing items, such as garden objects or structures, qualify as a “ building” protected in the listed building context the relevant criteria are (1) size, (2) permanence, and (3) degree of physical attachment. So held by the Supreme Court in Dill v SoS for MHCLG (2020’ UKSC 20.


Rateable Occupation

May 21st, 2020 by James Goudie QC in Council Tax and Rates

ATMs installed inside and outside supermarkets and shops are not separate hereditament. They remain in the rateable occupation of the retailers, not of the parties which operate them. So has the Supreme Court held in Cardtronics v Sykes (2020) UKSC 21. It is analogous to the situation of a lodging house. There is a single hereditament in the rateable occupation of the landlord.



May 14th, 2020 by James Goudie QC in Local Authority Powers

Numerous statutory powers are expressed in terms of what is “ expedient “ or “ necessary or expedient “. What is meant by “ expedient”? The use of the word “ expedient” suggests that “ a broad balance or judgment is to be made by the decision-maker”. So said Lieven J at para 43 in Open Spaces Society v SoS for DEFRA (2020) EWHC 1085 ( Admin ), a case on diversion of a public footpath, in accordance with Section 119 of the Highways Act 1980.


State Aid

May 13th, 2020 by James Goudie QC in Capital Finance and Companies

Case T-8/18, easy jet Airline Co Ltd v EU Commission, General Court Judgment, about airports in Sardinia, addresses a range of features of State Aid law, including state resources, selective advantage, distortion of competition, affecting trade between member states, and compatibility with the internal market, and, from para 169, especially at paras 185, 200-203, 212 and 218, the Market Economy Operator Principle.


Interim Injunctions

May 12th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

A School’s appeal against the refusal of an interim injunction was dismissed in R ( Governing  Body of X ) v OFSTED (2020) EWCA Civ 594. The injunction sought was to restrain OFSTED from publishing a Report. The Report graded the School as inadequate. The Court of Appeal addressed the approach to interim injunctions in public law proceedings.


Ultra Vires

May 7th, 2020 by James Goudie QC in Decision making and Contracts

On the application of the ultra vires doctrine to contracts with public bodies, see SFM v Christ the King College and Isle of Wight Council (2020) EWHC 1118 (Comm). The Judge held that the contract in question was a finance lease rather than an operating lease, I.e. a form of borrowing, and beyond the College’s capacity and ultra vires.




May 6th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

It is fundamental to disclosure obligations in litigation that it must not be the client who makes the selection of which documents are relevant and disclosable. That is the responsibility of the solicitor.

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Policies and Consistency

May 4th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

When there is a statutory discretion is there a requirement to have and publish a policy on the exercise of that discretion? No, says the Northern Ireland Court of Appeal in the context of the discretion of the Secretary of State for Northern Ireland, under the Northern Ireland Act 1998, implementing the Belfast Agreement, to hold a border poll : Application by Raymond McCord for Judicial Review (2020) NICA 23. The case is of general interest on policies, on the rule of law, and on general administrative law principles of consistency, equal treatment, transparency and accountability.

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May 1st, 2020 by James Goudie QC in Planning and Environmental

In Case C-254/19, Friends of the Irish Environment v Irish Planning Board, Advocate-General Kokott has on 30 April 2020 delivered her Opinion in relation to the extension of a development consent for the construction of a liquefied natural gas regasification terminal next to two Special Areas of Conservation. The consent was for 10 years. The works had not started. The extension would be for a further 5 years. The primary question was whether the extension was a plan or project within Article 6 of the Habitats Directive. Yes, says the A-G. Therefore it is subject to an appropriate assessment of the implications for wild flora and fauna.


Remote Hearings

May 1st, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

Three Court of Appeal Judgments on one day, from an identically constituted Court, on local authorities and remote coronavirus hearings. L (Adoption) (2020) EWCA Civ 577 on covert sibling tests and ECHR Article 8. A (Children) (2020) EWCA Civ 583 providing general guidance. B (Children) (2020) EWCA Civ 584 on procedural principles.