NON-OBJECTION CLAUSES

March 28th, 2024 by James Goudie KC in Planning and Environmental

The question in R (SUFFOLK ENERGY SOLUTIONS) v SoS FOR ENERGY (2024) EWCA Civ 277 was whether the SoS acted unlawfully in dealing with a complaint by Suffolk Energy Solutions that the interested parties had “stifled” or “neutralised” the ability of landowners failing possible compulsory purchase to prevent objections to and information about a scheme of which development consent was being sought.  The issue was whether the use of “non-objections clauses” in a planning contract was legitimate.  The judicial review failed.

The Court of Appeal said, at paragraph 59:-

“…that no one can be required to give false evidence to a planning inspector or examiner.  But the question in issue is whether a party who has sold or is proposing to sell an interest in land may agree contractual obligations not to object to the grant of planning permission.”

The Court of Appeal continued:-

“61.     In our judgment, the use of non-objection clauses when a party has obtained an interest in land, or an interest in land conditional on the grant of planning permission, is permissible for two main reasons.  First, an applicant who owns land and seeks planning permission for a relevant use of that land is unlikely to object to that application.  That fact has not of itself been considered to undermine the integrity of the process for the granting of planning permission.

62. Secondly (and part of the reason why the integrity of the process for planning permission is not undermined by the fact that applicants owning land are unlikely to object to their own scheme), the planning process is inquisitorial in nature. The inquisitorial nature of the process means that it is for the decision-maker to ensure that there is sufficient information to enable an informed and lawful decision to be made on the application for planning permission … whether the effect of a non-objection clause has in fact meant that there is insufficient information to enable a planning decision to be made, or “impermissibly distorted the picture” … must always be a fact-specific inquiry.

63. …the environmental impact of a scheme which is an EIA development is addressed by the EIA Regulations.  The inquisitorial nature of the process, and the relevant statutory provisions, mean that in general, the non-objection and confidentiality clauses should not prevent the decision-maker from becoming aware of all the relevant planning and environmental considerations.  Of course, whether this is so in any individual case will always depend on the particular facts.

64. We do not consider that the answer is altered in circumstances where a developer is acquiring an interest in land, and that land, together with other land, forms part of the scheme and the non-objection clause applies to the scheme as a whole. There is only one scheme, and the developer is entitled to require a person whose land is being acquired not to object to the scheme, even if the scheme involves other land. This is for the two main reasons set out in paragraphs 61 and 62 above, though – as we have said – the fact-specific nature of the decision must always be kept in mind …”

 

HOMELESSNESS REVIEW

March 28th, 2024 by James Goudie KC in Housing

Regulation 7(2) of the Homelessness ( Review Procedures) Regulations 2018 is an important part of the mechanisms designed to ensure the fairness of the overall procedure. It is triggered if the reviewer decides that there is a “deficiency or irregularity” in the original decision , or in the manner in which it was made. In QUERINO v CAMBRIDGE CITY COUNCIL (2024) EWCA Civ 314 the Council argued that Regulation 7(2) can have no application where what is under review is an offer of accommodation and its suitability, and that there can be no scope for a reviewer to detect a “deficiency” in the decision to make the offer. The argument was that Regulation 7(2) was not engaged at all. The Court of Appeal, at paras 32-35 inc, rejected this argument.

 

WHISTLEBLOWING LIABILITY

March 26th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

According to the structure of the whistleblowing legislation, in order for employers to be fixed with liability, B ought to have some knowledge of what the claimant is complaining or expressing concern about. It is not enough that B knows that the claimant has made a claim to A. So observes Sheldon J in Nicol v World Travel, EA-2023-000036-JOJ.

 

PSED

March 20th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

When a breach of the PSED under Section 149 of the Equality Act 2010 is alleged, a failure, without good reason, to follow the Equality and Human Right’s Commission Guidance can be evidence of breach of duty. A breach was found in R ( DXX ) v SSHD ( 2024 ) EWHC 579 ( Admin ). The Commission’s Guidance about equality evidence, and in particular the collection of statistical data, was not followed.

 

TRAFFIC

March 19th, 2024 by James Goudie KC in Environment, Highways and Leisure

The Secretary of State for Transport has made a series of announcements to implement the PLAN FOR DRIVERS. The package includes Guidance on 20 mph speed limits bus lanes, and lane rental schemes, as well as on LTNs. It also gives warning of restrictions on a local authority’s ability to enforce traffic restrictions.

 

Consultation

March 19th, 2024 by James Goudie KC in Decision making and Contracts

In R ( Police & Crime Commissioner for West Midlands ) v SSHD (2024 ) EWHC 604 ( Admin )  Swift J considers aspects of the requirements for a fair and lawful consultation. First, at paras 9-20 inc, whether the consultation was undertaken with an open mind, the 1st & 4th GUNNING principles, or. there was a real possibility of predetermination, as distinct from predisposition. Second, at paras 21-42 inc, whether, in the context in which the consultation occurred, sufficient information was given to permit intelligent and informed responses, , the second GUNNING principle.

 

LTNs

March 18th, 2024 by James Goudie KC in Environment, Highways and Leisure

The Department for Transport has published draft statutory Guidance, to come into force from this Summer, for local authorities, on Low Traffic Neighbourhoods, and the implementation of new schemes, setting out that they must gain “ buy-in “ from local residents, businesses and emergency services. It warns that, if local authorities do not comply, they could see funding withdrawn, control being taken of their roads, and removal of access to DVLA data.

 

LAW ENFORCEMENT COOPERATION : FREE FLOW OF DATA

March 18th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

The free flow of data between the UK and the EU of course remains vital not only for effective law enforcement cooperation but also for trade and economic relations. Notwithstanding partial Brexit, currently the transfer of criminal investigation and commercial data is based on an EU adequacy decision, the UK GDPR, the EU Law Enforcement Directive, and the EU Commission’s processes. However, the adequacy direction expires next year, and there may be a divergence between the EU and UK data protection regimes. The House of Lords European Affairs Committee, chaired by Lord Ricketts, has launched an Inquiry into EU-UK data adequacy possible challenges to the adequacy regime, the factors that will influence a future  EU adequacy decision, and the implications should that decision be negative. Written evidence is sought by 3rd May, and there will be public evidence sessions over the next 3 months, with a view to a Report by July 2024.

 

LIMITATION

March 15th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

When does time start to run for limitation purposes on interest on costs where the order is for costs to be assessed? Not until the costs are assessed and become due, payable and enforceable, say the Court of Appeal in DEUTSCHE BANK v SEBASTIAN HOLDINGS ( 2024 ) EWCA Civ 245.

 

PROCEDURAL CHANGES

March 15th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

There is a well-established general presumption that changes to procedure apply not only to future proceedings but also to pending proceedings. This is because a procedural change is expected to improve matters and support the better administration of justice. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. A litigant has no right to complain that procedure is changed during the course of litigation unless it causes unfairness or injustice.

How fairness determines such retrospective application depends on several factors. These include the value of any rights which the new rule affects and the extent to which that value is diminished or extinguished. Light may be shed by consideration of the circumstances in which the legislation was enacted.

The essential question in MELKI v BOUYGUES ( 2024 ) EAT 36, at paras 25-29 inclusive, was whether changes to the Employment Appeal Tribunal Rules applying to pending proceedings was so unfair that the that the words used in the statutory instrument cannot have been intended to mean what they might appear to say. That was simply that the new Rules came into force on a specified date, without any transitional provision. The Rules had been amended to improve the fairness and justice of consideration of incomplete Notices of Appeal. The previous Rules were amended as they were too rigid in cases of minor errors and led to potential unfairness. The new Rule was proposed to draw a better balance between parties.

Whether it be the EAT Rules or the CPR Rules, Rules change from time to time. Unless a transitional provision is included stating the opposite , or unless there is more than modest unfairness to the respondent, the new provision applies to all litigation from the date it is expressed to come into force. There is no absurdity about the test being different before and after that date.