LIABILITY TO REVIEW DEATH

January 16th, 2025 by James Goudie KC in Judicial Control, Liability and Litigation

In R ( CHARNWOOD BOROUGH COUNCIL ) v SSHD ( ( 2025 ) EWHC 33 ( Admin ) the Court upheld a ministerial decision under Section 9 of the DOMESTIC VIOLENCE, CRIME AND VICTIMS ACT 2004 requiring the local authority to conduct a DOMESTIC HOMICIDE REVIEW ( DHR ). The authority was the lead authority for the local COMMUNITY SAFETY PARTNERSHIP. They were responsible for deciding whether to conduct a DHR.

Section 9 sets out the criteria for a DHR. These include where a death appeared to have resulted from violence, abuse or neglect by a partner.

Stacey J said that Section 9 was deliberately open textured. It used non-legalistic language. The evidential threshold is low. It is less than a balance of probabilities test.

A useful synonym for APPEARS is “ looks like “. There was no benefit in defining it further, It was an objective test.

For something to RESULT from something else, there had to be a causal connection. However, it did not have to be the primary or sole cause. A looser connection, a material or sufficient contribution, was significant.

The word NEGLECT bore its ordinary and natural meaning. That was the fact of not giving enough care or attention. Nothing more technical or sophisticated was required. One incident could be sufficient to amount to neglect. Criminal law definitions helpful.

 

ENVIRONMENTAL INFORMATION

January 13th, 2025 by James Goudie KC in Planning and Environmental

In the EIR Regulation 12(5)(d) relates to the confidentiality of “ proceedings”. What constitutes a “ proceeding “ for this purpose? Does it embrace pre-application planning advice? No, said the FTT in JOPLING v RICHMOND (2024) UKFTT 163 (GRC). There is now a FTT decision to the contrary : MEIRA v LAMBETH (2025) UKFTT 18 (GRC) at paras 20-34 inc, paras 96-98 inc, especially para 97, and paras 120-126 inc, especially para 121.

 

Waste Authority Liability

January 9th, 2025 by James Goudie KC in Judicial Control, Liability and Litigation

In HOWELLS v NEWPORT CITY COUNCIL [2025] EWHC 22 (Ch) the Claimant said that a hard drive containing the private key to his Bitcoin was deposited in error at a Landfill Site owned and operated by the Council. He said that without the hard drive containing the private key he was unable to access the Bitcoin. He wants the landfill to be excavated in order to find the hard drive. The Council has refused. His claim against the Council failed and was dismissed. Judgment was given for the Council.

The issue was as to the ownership of, and rights of access to, the Claimant’s Hard Drive that went into the Council’s Landfill. The Council’s case, that succeeded, was that it, the Council, owned the Hard Drive, and that the Claimant had no right to have it or to gain access to it. The Judge agreed. This was because the Control of Pollution Act 1974 Section 14(6)(c) provides that “anything” delivered to the authority by another person in the course of using the facilities “shall belong” to the authority and may be dealt with accordingly. This was (paras 28, 34 and 37) a “complete answer to the claim”. “Belong” was (para 30) a normal English word. The words “shall belong to the authority” are (para 32) “unqualified and unrestricted”, and the words “and may be dealt with accordingly” are important and confer a “practical right”. The authority is not concerned with the possible existence of competing proprietary interests in the deposited waste.

The Judge added (para 33) that there was no proper basis for implying any limitation into the words of the provision, and every reason for not doing so. The authority’s freedom to deal with items delivered to it as refuse cannot sensibly be contingent on things on which it has no knowledge or control.
A proprietary restitution claim was (paras 39 and 41) “misguided”. An equitable proprietary claim and/or a case based on constructive trust (para 46 and following) had no realistic prospect of success. The Council (para 54) had regard to its own wider responsibilities and the interests of the people of Newport.

 

CHARITABLE RELIEF

January 3rd, 2025 by James Goudie KC in Council Tax and Rates

In St BENEDICT’S LAND TRUST v KING’S LYNN & W NORFOLK BC (2024) EWHC 3118 (Ch) it is held that a claim about a local authority’s refusal of charitable relief in respect of an hereditament can be brought as a private law claim or by judicial review proceedings.

 

DEVELOPMENT PLAN IN WALES

December 24th, 2024 by James Goudie KC in Planning and Environmental

In England and Wales, a local planning authority (LPA) determining an application for planning permission must have regard to the relevant provisions of the statutory development plan (s.70(2) of the Town and Country Planning Act 1990 – TCPA 1990). That determination must be made in accordance with the development plan unless material considerations indicate otherwise (s.38(6) of the Planning and Compulsory Purchase Act 2004 – PCPA 2004).

For any area in Wales, by s.38(4) of the PCPA 2004 the development plan comprises:
(1) The National Development Framework for Wales (NDFW)
(2) Any strategic development plan which includes all or part of that area;
(3) The local development plan for that area (LDP).

Each LPA in Wales must “prepare” a LDP for their area (s.62(1) of the PCPA 2004). A draft LDP is subject to public consultation and reconsideration in the light of responses from the public and consultees. When the LPA considers that the draft LDP is ready, they must submit it to the Welsh Ministers (WM) for independent examination by one or more Planning Inspectors, to determine whether the draft satisfies certain legal requirements and is “sound”. A person who has made representations seeking to change the draft LDP is entitled to be heard at the examination held by the Inspector. Many parties and statutory consultees may be involved in this process. At the conclusion of the examination, the Inspector must make recommendations as to whether or not the plan should be adopted, with or without modifications. He must also give reasons for those recommendations (s.64 of the PCPA 2004).

Section 67 of the PCPA 2004 deals with the adoption of a LDP. In summary:
(1) The LPA “may” adopt a LDP as “originally prepared” if the examining Inspector makes a recommendation to that effect, that is with no modifications (s.67(1)); or Read more »

 

REPUDIATORY BREACH OF CONTRACT

December 18th, 2024 by James Goudie KC in Decision making and Contracts

The law and principles applicable to termination of a contract for repudiatory breach do apply to leases. So held in RAMSBURY PROPERTIES LTD v OCEAN VIEW CONSTRUCTION LTD (2024) UKPC 40, at para 42. However (para 43) itu may be rare in the case of a lease, especially where the lease is long-term, for the breach to be sufficiently serious to be repudiatory. This is because a lease confers a proprietary interest in land and exclusive possession.

 

RIGHT TO BUY

December 17th, 2024 by James Goudie KC in Housing

In HACKNEY LBC v WEINTRAUB (2024) EWCA Civ 1561 the Court of Appeal holds, dismissing the appeal, that for the purposes of exercising the right to buy premises held under a secure tenancy, the “tenant condition” in the Housing Act 1985 was satisfied if the tenant was not currently living in the property, provided that they intended to return to live there as their only or principal home.  It was not relevant that the intention was to return as an owner, rather than as a tenant.  It was for the Court to decide whether any periods of absence on the tenant’s part broke the continuity of residence for the purposes of determining whether they occupied the premises in accordance with Section 81 of the 1985 Act.

 

SUBSIDY CONTROL ASSESSMENT

December 11th, 2024 by James Goudie KC in Capital Finance and Companies

A Department for Business and Trade publication provides guidance for public authorities on assessing whether a subsidy or scheme is consistent with  the principles of the Subsidy Control Act 2022.  It covers four areas of detail, to: identify the policy objective, ensuring it addresses a market  failure or equity concern, and determine whether a subsidy is the right tool to use; ensure that the subsidy is designed to create the right incentives for the beneficiary and bring about a change; consider the distortive impacts that the subsidy may have and keep them as low as possible; and carry out the balancing exercise.  Additional guidance on subsidies or schemes of interest and schemes of particular interest has also been published.

 

CHILDREN ACT DUTIES

December 11th, 2024 by James Goudie KC in Social Care

In R (DF) v Essex County Council (2024) EWCA Civ 1545 the Court of Appeal confirms that a child who is homeless for the purposes of Section 175 of the Housing Act 1996 will not necessarily require accommodation for the purposes of Section 20 of the Children Act 1989. The Children Act question whether a child requires accommodation is to be answered as a matter of factual evaluation, applying that phrase in its natural and ordinary meaning, and without reference to the homelessness definition in the Housing Act.

 

SECURE TENANCY

November 28th, 2024 by James Goudie KC in Housing

In HOWE v BRENT LBC (2024) EWCA Civ 1444 the Court of Appeal rules that where a family member of a secure tenant met the requirements of Section 123(1) of Housing Act 1985 at the time when the secure tenant served a notice under Section 122(1) validly requiring that the family member share their RIGHT TO BUY, the family member was due to be a JOINT SECURE TENANT, even if the family member’s qualifying status was not established until after the secure tenant’s death.

 

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