Direct Action: Natural Justice

October 12th, 2017 by James Goudie QC in Planning and Environmental

A local planning authority has power to take direct action. This is pursuant to Section 178 of the Town and Country Planning Act 1990 (“the TCPA”).  That empowers the LPA to enter land and take the steps required by an enforcement notice once the period for compliance with the notice has expired. Read more »

 

State Aid

October 11th, 2017 by James Goudie QC in Capital Finance and Companies

There is an obligation on public authorities to recover unlawful State Aid. The nature of this obligation has been considered by Advocate General Sharpston in an Opinion delivered on 10 October 2017 in Case C-363/16, European Commission v Hellenic Republic. Read more »

 

Direct Effect of EU Directives

October 11th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

In Farrell v Minister for the Environment, Ireland, Case C-413/15, ECJ Judgment on 10 October 2017, the Court has reaffirmed Foster v British Gas and other cases that where a person is able to rely on a Directive against emanations of the State he or she may do so regardless of the capacity in which the public authority is acting, whether as public authority or e.g. employer, and that “unconditional and sufficiently precise” provisions of a Directive, whether or not transposed into domestic law, can be relied on against emanations of the State (such as local authorities).

 

 

Ordinary Residence

October 6th, 2017 by James Goudie QC in Social Care

In R (Barking and Dagenham LBC) v SoS for Health (2017) EWHC 2449 (Admin) Barking and Dagenham Council (“Barking”) challenged a decision by the Defendant, the Secretary of State for Health, that the second interested party, HR, was ordinarily resident in its area for the purposes of the provision of care services to him. As a consequence, Barking assumed responsibility for funding HR’s care. Barking contended that HR’s care should be funded by the London Borough of Redbridge, the First Interested Party, the authority for the area where HR grew up and was physically resident until he moved to accommodation in Barking in August 2012. Read more »

 

Secure Tenancy

October 6th, 2017 by James Goudie QC in Housing

The Court of Appeal has held in Harris v Hounslow LBC (2017) EWCA Civ 1476 that a secure tenant was not entitled to a statutory review of the local housing authority’s decision to apply for an anti-social behaviour  possession order, because he had applied outside the 7 day period laid down by Section 85ZA(2) of the Housing Act 1985.  Nor can the 7 day period be extended or waived.  The purpose of this mandatory ground for possession (the most serious cases of anti-social behaviour) is swifter relief for victims, witnesses and the community. In the public interest speedy relief is of the essence.  Lewison LJ added (para 27) that “the general application of public law principles must not be allowed to undermine the legislative scheme of this mandatory ground of possession”.

 

Procurement

October 6th, 2017 by James Goudie QC in Decision making and Contracts

The Judgment of Coulson J in Cemex v Network Rail [2017] EWHC 2392 (TCC) is of interest on a number of aspects of procurement challenges.  On applications for an extension of time to serve the Particulars of Claim the Judge said:- Read more »

 

State Aid

September 29th, 2017 by James Goudie QC in Capital Finance and Companies

For a measure to be classified as aid within the meaning of Article 107(1) TFEU, all the conditions set out in that provision must be fulfilled. First, there must be an intervention by the State or through State resources. Secondly, the intervention must be likely to affect trade between Member States. Thirdly, it must confer an advantage on the recipient by favouring certain undertakings or the production of certain goods. Fourthly, it must distort or threaten to distort competition. The application of Article 107(1) TFEU may entail a verification as to whether an entity should have been regarded as an undertaking, within the meaning of EU competition law. Read more »

 

Disqualifying Criteria

September 19th, 2017 by James Goudie QC in Standards

On 18 September 2017 CLG issued a public Consultation Paper, for response by 8 December 2017, on proposals for updating prospectively the Local Government Act 1972 Section 80 and other criteria disqualifying individuals from being elected, or holding office, as a local authority member or co-opted member or directly elected mayor or member of the London Assembly. Anyone given an Anti-Social Behaviour Injunction or a Criminal Behaviour Order under the Anti-Social Behaviour, Crime and Policing Act 2014, or added to the Sex Offenders’ Register under the Sexual Offences Act 2003, would no longer be able to hold office. Those subject to a Sexual Risk Order would not be disqualified.

 

Consumer Protection

September 19th, 2017 by James Goudie QC in Land, Goods and Services

In Camden LBC v Foxtons Ltd [2017] UKUT 349 (AAC) the Council successfully appealed to the Upper Tribunal (Judge Levenson) against Foxtons, Estate Agents, using the term “administration fees” in their letting agencies work.  This was (paragraph 25) a breach of Section 84(3)(c) of the Consumer Credit Act 2015.  The wording did not provide a description of each fee that was sufficient to enable a person who is liable to pay to understand the service or cost that is covered by the fee or the purpose for which it is imposed.

 

Avoiding Service Disruption

September 7th, 2017 by James Goudie QC in Decision making and Contracts

The best possible service to the public, without disruption, and with minimal risk to service recipients, is a factor in favour of allowing a public contract award to be implemented. In Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC) Coulson J was concerned with a procurement challenge to the Trust’s award of a managed services contract (“the MSC”) in respect of pathology services. Read more »