Street Works

February 19th, 2019 by James Goudie QC in Environment, Highways and Leisure

Section 50 of the New Roads Street Works Act 1991 provides a power for a street or highway authority to grant a licence, subject to Schedule 3 conditions, to permit a person to undertake street works. The power has been considered by Dove J in Calor Gas Ltd v Norfolk County Council (2019) EWHC 308 (Admin). The claimant’s case proceeded, firstly, on the basis that the policy operated by the Council in relation to Section 50 licences was contrary to the statutory scheme. Dove J said:-

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February 19th, 2019 by James Goudie QC in Non Judicial Control

The Local Audit (England and Wales) (Amendment) (EU Exit) Regulations 2019 will enable EU qualified auditors currently auditing local public bodies to continue to work in the UK, for a transitional period, in the event of a “no deal”. The Regulations are pursuant to powers in Section 8 of the European Union (Withdrawal) Act 2018, and are subject to the negative resolution procedure. There are now 238 Withdrawal Act Statutory Instruments.

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Permitted development

February 14th, 2019 by James Goudie QC in Planning and Environmental

In Westminster City Council v SoS (2019) EWHC 176 (Admin) Ouseley J held that under the GPDO, the whole development for which prior approval as permitted development was sought had to fall within the Class of development relied on. If part fell outside the Class, it was not a permitted development.  Under Schedule 2 Part 16 Class A, a proposed telephone kiosk had to be “for the purpose” of the telephone network.  A kiosk with a large digital advertising panel was not entirely for that purpose and did not fall within the Class.  It was not permitted development.


Loss of a chance

February 13th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Perry v Raleys (2019) UKSC 5 the Supreme Court said that loss of chance damages have been developed by the Courts to deal with the difficulties arising from the assessment of counter-factual and future events. In both types of situation, the Courts, at times, depart from the ordinary burden on a claimant to prove the facts required for a successful claim on the balance of probabilities (i.e. more likely than not) standard. However, this does not mean that the basic requirement that a negligence claim requires proof that loss has been caused by the breach of duty is abandoned. The correct approach is to require a claimant to prove what he or she would have done on the balance of probabilities, while what others would have done (if relevant) depends on a loss of chance evaluation. These principles apply equally to negligence claims based on loss of the opportunity to achieve a better outcome in a negotiated transaction and ones, as in this case, based on loss of the chance to bring a legal claim.


Whether there is a binding contract

February 13th, 2019 by James Goudie QC in Decision making and Contracts

Whether an agreement was complete and enforceable despite there being no express identification of the event which would trigger the payment obligation was one of the issues before the Supreme Court in Wells v Devani (2019) UKSC 4.  This gave rise to questions whether there was a binding contract and as to whether there was an implied term.

The Supreme Court said as regards whether there was a binding contract:-

“17.    The question whether there was a binding contract between Mr Devani and Mr Wells required a consideration of what was communicated between them by their words and their conduct and whether, objectively assessed, that led to the conclusion that they intended to create a legally binding relationship and that they had agreed all the terms that the law requires as essential for that purpose….

  1. It may be the case that the words and conduct relied upon are so vague and lacking in specificity that the court is unable to identify the terms on which the parties have reached agreement or to attribute to the parties any contractual intention. But the courts are reluctant to find an agreement is too vague or uncertain to be enforced where it is found that the parties had the intention of being contractually bound and have acted on their agreement. …”

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Functions of a Public Nature

February 13th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

Fearn and Others v Board of Trustees of the Tate Gallery (2019) EWHC 246 (Ch) is an injunction case brought in nuisance and under the Human Rights Act 1998 (“the HRA”) to protect what are said to be Article 8 rights of privacy in flats in a development on the south side of the Thames adjacent to the Tate Modern. One issue, under Section 6(3)(b) of the HRA, was whether the Tate, given Section 2(2) of the Museums and Galleries Act 1992, significant public funding, and controls by state officials, is a “hybrid” public authority against whom the HRA can be directly enforced.

Mann J addressed the law on “hybrid” public authorities from paragraph 108 of his Judgment, and the question whether the Tate is such an authority from paragraph 121. At paragraph 123 he said that the Tate displayed, to some degree, some of the factors which are said in the authorities to be relevant to the question whether the Tate is exercising public functions. None of them, however, were determinative. Read more »


Allocation Policy

February 11th, 2019 by James Goudie QC in Housing

Hillingdon LBC’s 2016 housing allocation policy, pursuant to Section 166A of the Housing Act 1996, was found in some respects to be unlawful in TW v Hillingdon LBC (No. 1) (2018) PTSR 1678. Lawfulness requires compliance not only with the provisions of that Act, but also compliance with the Equality Act 2010, and with obligations under Section 11 of the Children Act 2004. In particular, in TW (No. 1) Supperstone J declared Hillingdon’s 10 year residence qualification to be

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Adult Education

February 11th, 2019 by James Goudie QC in Local Authority Powers

From August 2019, some functions which relate to adult education, and the associated adult education budget, will be devolved to 6 Mayoral Combined Authorities (“MCAs”), and delegated to the Mayor of London (“MoL”). The Secretary of State for Education (“the SoS”) has entered into a Memorandum of Understanding (“MoU”) with the MCAs, and a separate MoU with the MoL.  Both MoUs relate to functions set out in the Apprenticeships, Skills, Children and Learning Act 2009 (“ASCAL 2009”), and exercised through the Education and Skills Funding Agency (“the ESFA”). In the case of the MoL the (revocable) delegated functions are exercisable by him only and are not capable of further delegation. The functions are to be carried out in accordance with the Greater London Authority Act 1999.

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February 11th, 2019 by James Goudie QC in Decision making and Contracts

The prohibition of discrimination based on nationality is enshrined in Article 18 TFEU and Article 21(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). The broader non-discrimination principle of which it is an expression is among the fundamental values of the EU (Article 2 TFEU), and among the rights protected by the Charter (Article 21). The principle of non-discrimination is a manifestation of the principle of equality of individuals before the law.  The principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way.  Read more »


Scheme for allocation of social housing

February 6th, 2019 by James Goudie QC in Housing

R (Z and others) v Hackney LBC and Agudas Israel Housing Association (2019) EWHC 139 (Admin) challenged the arrangements made by AIHA for the allocation of social housing properties owned or controlled by AIHA, which in present circumstances in effect preclude any persons who are not members of the Orthodox Jewish community from becoming tenants of such properties. The claim also challenges the lawfulness of Hackney’s arrangements as a local housing authority for the nomination of applicants to these properties, which again in present circumstances in effect precludes any persons who are not members of the Orthodox Jewish community from receiving nominations for the properties owned by AIHA. In short, the claimants contended that these arrangements discriminated against them because they are not members of the Orthodox Jewish community, and are unlawful, principally, under the Equality Act 2010. Read more »