BREXIT

November 12th, 2018 by James Goudie QC in Local Authority Powers

The Local Government (Miscellaneous Amendments) (EU Exit) Regulations 2018 amend four statutory instruments in the field of local government finance legislation in consequence of the UK’s exit from the European Union. They amend the definition of a “prescribed educational establishment” in the Council Tax (Discount Disregards) Order 1992 (S.I. 1992/548) so that those institutions in the UK continue to be included in this definition after the UK leaves the EU; remove the definition of “prescribed investment” from the Local Authorities (Funds) (England) Regulations 1992 (S.I. 1992/2428), amend the Local Authorities (Contracting Out of Investment Functions) Order 1996 (S.I. 1996/1883) to remove references to qualifications from other member states and amend the definition of “money market fund” in the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (S.I. 2003/3146).

 

Pooled Investment Funds

November 9th, 2018 by James Goudie QC in Capital Finance and Companies

The Government has announced that it intends to:-

  • Require local authorities to account for fair value movements in financial instruments in accordance with proper practices as set out in the Code on Local Authority Accounting published by CIPFA
  • Introduce a mandatory statutory override requiring local authorities to reverse out all unrealised fair value movements resulting from pooled investment funds. This will be effective from financial year commencing 1 April 2018
  • Extend the proposed period for which the statutory override applies to five years. The Government will keep use of the override under review
  • Require Local Authorities to disclose the net impact of the unrealised fair value movements in a separate unusable reserve throughout the duration of the override
  • Introduce a 2 year extension of the unequal pay regulation.

There will be no override for the expected loss model or for the extra disclosures that the new standard requires. Read more »

 

Housing supply

November 8th, 2018 by James Goudie QC in Planning and Environmental

In Cheshire East Council v SoS for HCLG (2018) EWHC 2906 (Admin) the claimant Council sought an Order quashing the decision of the SoS’s Inspector to grant outline planning permission for 29 dwellings.  The central issue in the claim was whether the Inspector misunderstood and/or misapplied paragraph 47 of the first NPPF, in particular with the requirement for LPAs to demonstrate a five-year “deliverable” housing supply. Read more »

 

Transfer of functions on merger

November 5th, 2018 by James Goudie QC in Land, Goods and Services

The Local Government (Boundary Changes) Regulations 2018, SI 2018/1128, provide that, when two or more councils come together through a merger to create a single, district council, there is a smooth transition, in practical terms, from the predecessor councils (the councils that will be abolished on the reorganisation date) to the successor council (the new council that is being created for the whole of the area). The Regulations provide for incidental, consequential, transitional and supplementary arrangements in consequence of any Orders made by the SoS under Section 10 of the Local Government etc Act 2007.

 

Public contracts

October 25th, 2018 by James Goudie QC in Decision making and Contracts

What is a contract for pecuniary interest? What is a public contract?  What therefore is the scope of the public procurement regime? Do the Teckal or Hamburg Waste derogations apply? These were the questions before the ECJ in Case C-606/17 IBA Molecular Italy Sri v Aziende ULSS No. 3.

“Public contracts” for the purpose of that regime are of course contracts “for pecuniary interest” concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.   “Contracting authorities” means the State, regional or local authorities, “bodies governed by public law”, associations formed by one or several of such authorities or one or several of such bodies governed by public law. Read more »

 

Law Changed By Statute

October 23rd, 2018 by James Goudie QC in Planning and Environmental

City of York Council v SoS for CLG (2018) EWHC 2699 (Admin) is the latest in a long line of cases going back to, at least, Victorian times, where the law is changed by statute and a disagreement then arises about the impact of the change on the legal position of the parties. Section 16 of the Interpretation Act 1978 (the 1978 Act) may bear on the issue.

Read more »

 

The One Succession Rule

October 23rd, 2018 by James Goudie QC in Housing

In Haringey Council v Simawi (2018) EWHC 2733 (QB) the Defendant sought declaratory relief in relation to the “one succession rule”, set out in Sections 87-88 of the Housing Act 1985 (“The 1985 Act”). He asked that the Court either:

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Discontinuance Notices

October 22nd, 2018 by James Goudie QC in Planning and Environmental

The unsuccessful appellant in Putney Bridge Approach Ltd v SoS for CLG and Hammersmith & Fulham Council [2018] EWCA 2268 owns an office building called Riverbank House (“the site”) on the north side of the River Thames, just over Putney Bridge. On 6 October 2016, the Council as the local planning authority (“the LPA”) served a Discontinuance Notice (“DN”) on the appellant requiring it to discontinue the use of the site for the display of illuminated advertisements. Both the appellant, and the company operating the advertisements (JC Decaux Limited) sought to appeal the DN. The SoS appointed an inspector who, by way of Appeal Decisions dated 29 August 2017, refused the appeals. The appellant sought to challenge the Appeal Decisions in the Planning Court, but the challenge was rejected by Ouseley J, and by the Court of Appeal.

Read more »

 

Disqualification

October 19th, 2018 by James Goudie QC in Standards

On 18 October 2018 the Government announced new disqualification rules to prevent people found guilty of serious crimes, notably sex crimes, from serving as councillors and mayors. The new strengthened rules are designed to prevent people found guilty of serious crimes from serving on local councils. The new rules will mean any person who is subject to an Anti-Social Behaviour Injunction, a Criminal Behaviour Order, a Sexual Risk Order or who is on the Sex Offenders’ Register, will no longer be able to stand for elected office in their community.  Current conditions make clear that anyone convicted of an offence carrying a prison sentence of more than 3 months is banned from serving as a local councillor. The new measures will strengthen this further by bringing disqualification rules to include the alternatives to a prison sentence as a barrier to becoming a councillor. Anyone convicted of a serious offence that results in a sentence covered under the new disqualification criteria will be banned from standing for election, or would be forced to step down if they were convicted whilst in post. Read more »

 

Bias

October 19th, 2018 by James Goudie QC in Decision making and Contracts

When does involvement at an earlier stage give rise to an appearance of bias? That was the issue in Stubbs v The Queen [2018] UKPC 30.

Two sub-issues were whether it was material that the previously involved individual would now be part of a panel; and whether any apprehension of bias was assuaged by the passage of time. Neither factor was accepted as being a sufficient justification for non-recusal. Read more »