In R (Client Earth) No. 3 v SoS for the Environment (2018) EWHC 315 (Admin) Garnham J held (paragraphs 80 and 104) that the DEFRA 2017 Air Quality Plan, in its application to 45 local authority areas, does not contain measures sufficient to ensure substantive compliance with Directive 2008/50/EC and the implementing 2010 English Regulations.
Succession to secure tenancy
February 21st, 2018 by James Goudie KC in HousingIn Haringey LBC v Simawi (2018) EWHC 290 (QB) the Council refused to allow the Defendant to succeed to a secure tenancy on the basis of the “no second succession rule”. The Defendant contended that this rule, contained in Sections 87-88 of the Housing Act 1985 (“HA 1985”), is incompatible with Articles 8 and 14 of the ECHR. In summary, it was contended that the relevant sections of HA 1985 treat differently a tenant whose partner dies and a tenant whose marriage/civil partnership with his/her partner had broken-down. In the former case, the tenant is treated as a successor under Sections 87-88 of HA 1985. In the latter case, if the tenancy was assigned under a property assignment order made in matrimonial proceedings, then the person remaining in residence would become a tenant de novo. In consequence, the Defendant contended that a child who would otherwise satisfy the succession requirements of HA 1985 is treated less favourably if his/her parent was a sole tenant because of death than as a result of relationship breakdown. Read more »
Planning Impacts
February 19th, 2018 by James Goudie KC in Planning and EnvironmentalLimiting carbon emissions in an effort to arrest global warming and climate change is a major policy objective of the government. EU law and national law, in the form of the Climate Change Act 2008, impose challenging national targets to reduce carbon emissions and seek to encourage a shift to utilising renewable sources of energy. That policy objective is also carried into Section 10 of the NPPF, headed “Meeting the challenge of climate change, flooding and coastal change”.
On 18 June 2015 a written ministerial statement (“the Statement”) was made by the SoS for CLG. It set out new considerations touching applications for planning permission for wind turbines. The Statement included that in specified circumstances LPAs can find for a proposal, if following consultation, they are satisfied it has “addressed” the planning impacts identified by affected local communities and therefore has their backing. The Statement is a “material consideration” for the purposes of Section 38(6) of the Planning and Compulsory Purchase Act 2004. It is capable of outweighing policy in the development plan for the area. Read more »
Adequacy of damages
February 16th, 2018 by James Goudie KC in Decision making and ContractsIn the public procurement case of Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform 2018/20, the Irish Court of Appeal declined to lift an automatic suspension, holding that (1) the claimant could obtain only Francovich damages, (2) damages were therefore not an adequate remedy for the claimant, and (3) the fact that damages are not an adequate remedy may well be decisive in terms of evaluation of where the greatest risk of possible injustice and the balance of convenience lies.
ECHR Article 1/1
February 15th, 2018 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (Mott) v Environment Agency (2018) UKSC 10 the Supreme Court ruled that in the case of “control” short of “expropriation” consideration must be given to whether the effects are “excessive and disproportionate” (para 32), drawing a “fair balance” between public and private interests (para 33), and that compensation is potentially relevant (paras 33-35). Nonetheless (para 37), (1) the national authorities have a “wide margin of discretion” in the imposition of necessary environmental controls, (2) A1/P1 of the ECHR gives “no general expectation of compensation for environmental effects”, and (3) where an authority has given proper consideration to the issue of “fair balance”, the Courts should give weight to their assessment.
Automatic Suspension
February 12th, 2018 by James Goudie KC in Decision making and ContractsLancashire Care NHS Foundation Trust v Lancashire County Council (2018) EWHC 200 (TCC) concerns yet another application to lift an automatic suspension on the award of a contract imposed by virtue of the claimants issuing a claim form, within the necessary time period, challenging the results of a procurement exercise for that contract in which they were unsuccessful. Fraser J refused to lift the automatic suspension.
The procurement the subject matter of these proceedings concerns Public Health and Nursing Services to be provided to children and young persons from birth up to the age of 19, including services that concern children and adolescent mental health, across the county of Lancashire. It therefore involves a sizeable population and includes some of the most vulnerable members of society. The procurement exercise and the contract are both subject to the Public Contract Regulations 2015 (“the Regulations”). Read more »
GPOC
February 8th, 2018 by James Goudie KC in Decision making and ContractsThe General Power of Competence (“GPOC”) in Section 1 of the Localism Act 2011 (“LA 2011”) and its exclusion, by Section 4 of LA 2011, when an authority is acting “for a commercial purpose”, but not through a limited company, has been considered in Peters v Haringey LBC (2018) EWHC 192 (Admin). The case is concerned with the Haringey Development Vehicle (“the HDV”). The purpose of the HDV is to create a partnership, by way of a limited liability partnership (“LLP”), between the Defendant Council, and a private sector body, Lendlease, and to bring private sector finance, experience and expertise to the task of developing the Council’s land for its better use, and so achieving the Council’s strategic aims in housing, affordable housing and employment. The Claimant challenged by way of judicial review a decision made by the Council through its Cabinet, on 20 July 2017, to confirm Lendlease after a procurement process as the successful bidder to become the Council’s partner in the HDV, and also approved the structure of the HDV. Read more »
PRUDENTIAL FRAMEWORK
February 5th, 2018 by James Goudie KC in Capital Finance and CompaniesStatutory Guidance (3rd Edition) on Local Government Investments, under Section 15(1)(a) of the Local Government Act 2003, and effective for financial years commencing on or after 1 April 2018, has been published on 2 February 2018. Also on 2 February 2018, Statutory Guidance (4th Edition) on Minimum Revenue Provision has been issued, under Section 21(1A) of the 2003 Act. Both were preceded by consultation on proposed changes and are accompanied by a summary of consultation responses and the Government’s responses to those responses. This document states:-
“Following consideration of the consultation responses the Government, in summary, intends to:
- make some technical changes to the Investments Guidance and the MRP Guidance reflecting respondents’ feedback;
- amend proposals related to the Useful Economic Lives of assets;
- implement the Investments Guidance for 2018-19, but allow flexibility on when the additional disclosure first needs to be presented to full Council or its equivalent; and
- defer implementation of MRP Guidance to 2019-20. This is in recognition of the fact that it is very late in the 2018-19 budget setting cycle.”
Legitimate Aim and Proportionality
February 1st, 2018 by James Goudie KC in Decision making and ContractsOn 29 January 2018 the Employment Appeal Tribunal (Sir Alan Wilkie) handed down Judgment in discrimination cases relating to the transitional provisions put in place by for example the London Fire and Emergency Planning Authority, under the Public Service Pensions Act 2013, as part of major changes to public sector pensions following the Hutton Report.
The EAT ruled that, in favouring those closer to retirement age, a legitimate social policy aim was being pursued that was capable of justifying direct discrimination. The EAT further ruled that an ET must make up its own mind as to whether the transitional provisions in support of that legitimate aim are proportionate having regard to their discretionary effect. That is not a matter for a “margin of discretion”.