March 23rd, 2023 by James Goudie KC in Housing

The appeal in BIRMINGHAM CITY COUNCIL v BRAVINGTON (2023) EWCA Civ 308 raises issues as to whether Section 233 of the Local Government Act 1972 (“the 1972 Act”) applies in relation to the service by a local authority of a notice under Section 83ZA of the Housing Act 1985 (“the 1985 Act”) and if it does, whether the requirements of Section 233 were met on the facts of this case and the consequences of that.

In general, a secure tenancy cannot be brought to an end by the landlord except by obtaining an order for possession and executing it. To obtain an order for possession, a landlord normally has to serve a notice pursuant to Section 83 of the 1985 Act and establish one or more of the grounds set out in Schedule 2 to the Act. However, the Anti-social Behaviour, Crime and Policing Act 2014 introduced an alternative basis for recovering possession through the insertion of what is now Section 84A of the 1985 Act. Section 84A provides (to quote its heading) an “Absolute ground for possession for anti-social behaviour”. By Section 84A(1), the Court is required to make a possession order where it is satisfied that one of the conditions specified in subsections (3)-(7) is met.

The obligation to make a possession order imposed by Section 84A(1) of the 1985 Act is, however, subject to “any available defence based on the tenant’s Convention rights, within the meaning of the Human Rights Act 1998”, applies “only when the landlord has complied with any obligations it has under Section 85ZA (review of decision to seek possession)”. Section 85ZA allows a tenant to request a review of a landlord’s decision to seek an order for possession under Section 84A if the landlord is either a local housing authority or a housing action trust. Where such a request is duly made, the landlord must review its decision and notify the tenant in writing of its decision on the review.
A further restriction on proceedings for possession on the anti-social behaviour ground is to be found in Section 83ZA of the 1985 Act. By Section 83ZA(2), the Court is barred from entertaining proceedings for possession of a dwelling-house under Section 84A “unless the landlord has served on the tenant a notice under this section”. Such a notice must, among other things, state that the Court will be asked to make an order under Section 84A, set out the landlord’s reasons for deciding to apply for the order and inform the tenant of the right to request a review under Section 85ZA.
Section 233 of the 1972 Act requires a document to be given to or served on the person in question either by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address. “Proper address” is defined. Provision is made for when the address cannot after reasonable enquiry be ascertained.

The Court of Appeal holds, at paras 18 and 42-45 inclusive, that Section 233 of the 1972 Act does apply, for the reasons given in paragraphs 20-25 inclusive, and did apply to the Notice in the case. The Court of Appeal goes on to hold that the requirement of Section 233 were met and that the Notice had been duly served.



March 23rd, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

R (ANGELL) v SOS for HEALTH and SOCIAL CARE (2023) EWHC 495 (Admin) is concerned with whether there is a breach of the ECHR by failing adequately to inform the public about potential health risks. Stacey J states that Judicial Review is not an appropriate vehicle for determining contested scientific matters: paras 59 and 60. She further states that ECHR Article 2 requires the establishment of a framework designed to provide effective deterrence against threats to the rights of life: paras 62-66 inclusive, and for the purpose of Article 8 severe environmental pollution could affect private and family life: paras 48, 49 and 67. State authorities have a positive obligation to provide access to essential information enabling individuals to assess risks to their health and lives: paras 50 and 76. In certain circumstances that duty can extend to providing such information, rather than merely providing access to it: para 51.



March 22nd, 2023 by James Goudie KC in Decision making and Contracts

Familiar principles in relation to consultation are restated in R (BETTER STREETS FOR KENSINGTON AND CHELSEA) v KENSINGTON AND CHELSEA RLBC (2023) EWHC 536 (Admin), in which it is held that there was no duty on the local authority to consult before deciding whether to reinstate temporary cycle lanes that it had removed.

The Court would be cautious about inferring that a duty to consult had arisen in the case of a democratically elected public authority (para 37). A duty to consult might arise where there had been an established practice of consultation, or where, in exceptional circumstances, not consulting would lead to conspicuous unfairness (para 38).

Even where, in a rare case, a common law duty to consult arose, the authority would have considerable leeway to decide the nature of the consultation exercise (para 39). A finding that a consultation exercise was unlawful by reason of unfairness would be based on a finding that something had gone clearly and radically wrong (para 40). An action founded on alleged breach of promise had to demonstrate not just a broken promise but also unfairness amounting to an abuse of power (para 44).

In deciding whether anything had gone wrong, a Court would have regard to the GUNNING/COUGHLAN/MOSELEY criteria (paras 41-43 inc and 47).


Local Government Ombudsman

March 14th, 2023 by James Goudie KC in Non Judicial Control

In R ( Milburn ) v Local Government and Social Care Ombudsman ( 2023 ) EWCA Civ 207 parts of a Complaint to the Ombudsman were excluded, pursuant to Section 26 of the Local Government Act 1974, because the Complainant had made, and/or could have made an Appeal to the First Tier Tribunal (Special Educational Needs and Disability ).



March 14th, 2023 by James Goudie KC in Decision making and Contracts

BOXXE Ltd v SoS for JUSTICE ( 2023 ) EWHC 533 ( TCC ) is useful in relation to the adequacy of damages and applications to lift automatic sanctions, and in relation to the approach tp calculating the limitation period in procurement disputes and when it is that knowledge of the grounds of challenge arises.


Compulsory Purchase

March 9th, 2023 by James Goudie KC in Land, Goods and Services

In STOCKPORT MBC  v PERSONS UNKNOWN (2023) UKUT 53 ( LC ) it is held that where a local authority had acquired land under a CPO, but had been unable to identify the owner of the land, it was NOT required to serve a Notice to Treat, under Section 5 of the Compulsory Purchase Act 1965, prior to payment into Court of the amount of compensation determined by the UT and completion of the vesting of the land by Deed Poll. The Section 5 requirement to give a notice to treat to persons interested in the land applied only where such persons were “known to” the acquiring authority after making “diligent enquiry”.


Trust in favour of public

March 3rd, 2023 by James Goudie KC in Land, Goods and Services

Land which is subject to a statutory trust in favour of the public is held by a local authority for the purpose of the public’s enjoyment.  In order for an authority to dispose of this type of land it must comply with statutory consultation requirements under Section 123(2A) of the Local Government Act 1972 (LGA 1972).  The issue raised in R (DAY) v SHROPSHIRE COUNCIL (2023) UKSC 8 is what happens to the public right to use this type of land when the authority disposes of the land, but has failed to comply with these requirements. Read more »


Planning Officer Reports

February 15th, 2023 by James Goudie KC in Planning and Environmental

The legal principles relating to the Reports of Planning Officers are well settled. Nonetheless challenges based on such Reports continue to proliferate and Judges find it necessary to restate those principles. In R ( Armstrong ) v Ashford Borough Council ( 2023 ) EWHC 317 ( Admin ) at para 22 Bourne J summarised the principles as follows : (1) the weight to be given  to material considerations is for decision-makers to decide; (2) Reports to Planning Committees should be concise and focussed; (3) the assessment of how much and what information to include is for the expert judgment nf Planning Officers; (4) Judicial Review will not make headway on the basis of a defective Report unless the overall effect of the Report significantly misleads the committee about material matters which thereafter are left uncorrected at the Meeting of the Planning Committee; (5) Courts should make a fair reading of each Report as a whole; (6) Reports should be read bearing in mind that they are addressed to a knowledgeable readership, and in challenges to the decisions of democratically elected and experienced  members of Planning Committees Courts should proceed with prudence and caution.


EIA Assessment

February 8th, 2023 by James Goudie KC in Planning and Environmental

In R (Ashchurch Rural Parish Council) v Tewksbury  Borough Council (2023). EWCA Civ 101 a challenge to an EIA assessment succeeded: paras 70-104 inc; as did other grounds. At paras 32 & 33 the Court of Appeal restated the respective roles of the planning officer and the decision-maker.


Determination of application for planning permission

February 8th, 2023 by James Goudie KC in Planning and Environmental

In R  (Whitley Parish Council) v North Yorkshire County Council (2023) EWCA Civ 92 the Court of Appeal restates some basic propositions bearing on the determination of an application for planning permission under the statutory scheme.

  1. Albeit priority must be given to the Development Plan, that priority may be outweighed  by national planning policy, which may make some provisions of the Plan outdated.
  2. The function of the Planning Officer is not to decide the fate of the proposal, but to provide advice.
  3. The Court’s supervisory jurisdiction is to establish whether the authority’s decision-making has been vitiated by any error of law.

The Court also restated basic principles that govern the taking of a decision by a Pling Committee.