Procurement Bill

November 22nd, 2022 by James Goudie KC in Decision making and Contracts

The Procurement Bill has reached its Report Stage in the House of Lords. The Government has tabled further amendments. These include : –

  • A new duty on the face of the Bill to require contracting authorities to have regard to the participation of SMEs.
  • Making it clear that CAs may not generally require audited accounts to test the financial standing of bidders as part of the conditions of participation, or insurance relating to the performance of the contract to be in place before the award of the contract.
  • A new statutory duty on the Government to provide a central digital platform, free of charge.
  • Raising contract thresholds for publication of information.
  • Changing the test for conflicts of interest.
  • Implementing Recommendations of the Delegated Powers and Regulatory Reform Committee Report on 14 June 2022.


Accommodation for Asylum Seekers

November 16th, 2022 by James Goudie KC in Planning and Environmental

Section 95 of the Immigration and Asylum Act 1999, read together with Regulations, imposes a duty on the Home Secretary to provide “ support” for asylum seekers who appear to her to be, or to be likely to become destitute. Someone who does not have adequate accommodation is destitute. Support includes accommodation. Under Section 98 she is under a duty to provide temporary support in the form of accommodation to an asylum seeker, as defined, who appears to be destitute, until a Section 98 decision is taken.

Cases brought by Ipswich Borough Council and East Riding of Yorkshire Council (2022) EWHC 2868 (KB) concerned the lawful planning use  Hotels for which the Councils were local planning authority.  The Councils sought to take planning enforcement action. This was on the basis that use to accommodate asylum seekers would involve the use of the buildings as a  hostel, rather than a hotel, and thereby a material change of use without planning permission and  a breach of planning control. However, Holgate J refused the Councils injunctions under Section 187B of TCPA 1990. Read more »


Traffic Orders

November 10th, 2022 by James Goudie KC in Environment, Highways and Leisure

BOUCHTI  v ENFIELD LBE (2022) EWHC 2889 ( Admin ) concerned Permeant Traffic Orders under Section 6 of the Road Traffic Regulation Act 1984, and the statutory review of them, pursuant to a process akin to, but different from, judicial review. There are requirements that must be satisfied and the procedure followed. However, in this case, albeit the Council had failed to comply with the  relevant requirements, these failures had not caused the complainant substantial prejudice. Nor was the consultation process unfair in the circumstances. Allegations of a closed mind, irrationality, and breach of the Tameside duty were also amongst the grounds rejected. The advantages and disadvantages of continuing the measure were readily identifiable, and the task of balancing them was a matter of broad judgment.



Contractual Appeal Processes

November 4th, 2022 by James Goudie KC in Decision making and Contracts

An employment contract contains an express term conferring a contractual right for the employee to appeal against disciplinary action by the employer including dismissal. If the appeal is successful the dismissal is treated as of no effect. There has been a vanishing dismissal. Both employer and employee are contractually bound to treat the dismissal as having no effect and the employment relationship as having remained in existence throughout. The employee cannot claim that there has been an unfair dismissal and does not have an option whether to return to work or not.

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Successive grants of planning permission

November 3rd, 2022 by James Goudie KC in Planning and Environmental

The Appeal to the Supreme Court in HILLSIDE PARKS LTD v SNOWDONIA NATIONAL PARK AUTHORITY (2022) UKSC 30 raised issues of importance in planning law about the relationship between successive grants of planning permission for development of the same land. In particular, it concerned the effect of implementing one planning permission on implementing another planning permission relating to the same site. The case was concerned with operational development rather than change of use.

The Supreme Court made from para 19 observations on planning control and planning permissions, the duration of the latter, and the fundamental feature that a planning permission runs with the land. From para 22 the Court considered powers to vary a planning permission; at paras 26/27 the objective interpretation of a planning permission and what documents are significant in that connection, and from para 28 the position in relation to inconsistent planning permissions, and the leading case of PILKINGTON. Read more »


Vehicular Access

November 1st, 2022 by James Goudie KC in Environment, Highways and Leisure

In ANWAR v EALING LBC (2022) EWHC 2464 (KB) it is held that, where an occupier makes a request to a highway authority under Section 184(11) of the Highways Act 1980 to build a dropped kerb crossover, to allow vehicular access, and the crossing covers both that occupier’s property and a neighbouring property, there is no requirement to obtain the neighbour’s consent to the crossing. The Judge analysed Section 184. A highways authority could take action in respect of crossovers in 3 cases:

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Variation of Contracts

November 1st, 2022 by James Goudie KC in Decision making and Contracts

The extent to which an existing contract can be varied and the same contract continue as varied and when the purported variation or modification will amount to there being a new contract is a question that arises in at least two contexts.  One situation is in relation to the procurement of contracts and the EU driven public procurement regime. That is governed by that statutory regime. The other situation is when the question is governed by the common law of contract. It was the latter with which the Court of Appeal were concerned in Cobalt Data Centre v HMRC (2022) EWCA Civ 1422.

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Rectification of Contracts

October 28th, 2022 by James Goudie KC in Decision making and Contracts

Individual contracts of employment between local authorities and other bodies as employers and their employees commonly incorporate provisions from collective agreements with Trade Unions. To the extent that happens individual employees can seek rectification of the provisions on usual contractual principles. However, However, the collective agreements as such will not generally provide that they are legally enforceable. Then the Trade Union will not be able to seek rectification. That is because collective agreements are not themselves legally enforceable save where they so provide : Section 179 of TULRCA 1992. The equitable remedy of rectification is available only in respect of legally enforceable agreements : the Court of Appeal in Tyne & Wear Passenger Transport Executive v RMT (2022) EWCA Civ 1408.


Environmental Demonstrators

October 27th, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

BREEN v ESSO PETROLEUM (2022) EWCA Civ 1405 is concerned with an environmental protestor guilty of civil contempt of court and the appropriate sanction. The Court addresses in paras 6 & 7 the correct approach to sanctions in contempt cases and in paras 8-11, 13-15, and 72 the particular considerations in protestor cases. An important objective of the sanction is to ensure future compliance with the order in question. The importance of complying with court orders, no matter the sincerity of the protestor’s views, is paramount. In a democratic society, it is the duty of responsible citizens to obey the law and respect the rights of others, even where the law or other people’s activities are contrary to the protestor’s own moral conviction. There is no default position or presumption that a protestor in contempt of court will ordinarily receive a suspended sentence. There is no principle that immediate custody is appropriate only in cases of direct harm and disruption to the public.


Permitted Development Rights

October 27th, 2022 by James Goudie KC in Planning and Environmental

The exemption from the normal processes of development control for permitted development is held in R (Hayes) v Stroud DC (2022) EWHC 2661 (Admin) no longer to apply once the permitted use of a building within the planning unit for agricultural purposes  has ceased permanently and been replaced by another use or a combination of uses.