The Committee on Standards in Public Life has on 29 January 2018 initiated a review of and consultation upon local government ethical standards, for responses by 18 May 2018. The consultation questions are: Read more »
Environmental Information
January 29th, 2018 by James Goudie KC in Planning and EnvironmentalRegulation 12(5)(a) of the Environmental Information Regulations 2004 is a qualified exception from disclosure requirements on the ground of adverse effect upon public safety. In Natural England v Information Commissioner, EA/2017/0160, with respect to culling of badgers, the FTT, on 24 January 2018, stated:-
“66. Natural England’s case as to the law was largely accepted by the other parties. We also accept that: the term “public safety” in the EIRs should be read as importing the concept of “public security” referred to in the Aarhus Convention and the Directive. We accept that, in principle, harm or an increased risk of harm to one person or their property could engage the exception and that there is no additional requirement for there to be widespread disorder and chaos. We find, however, that the placement of “public safety” in a composite exception in the EIRs which also includes international relations, defence and national security must also be accorded some significance. Read more »
Housing need
January 23rd, 2018 by James Goudie KC in HousingIn Jelson Ltd v SoS for CLG and Hinckley & Bosworth BC (2018) EWCA Civ 24 the Court of Appeal has restated (1) that national policy and guidance does not dictate exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need, against which to test the relevant supply, (2) that responsibility for the assessment of housing need lies with the decision-maker, and that (3) the scope for a reasonable and lawful planning judgment is broad.
Rateable value
January 23rd, 2018 by James Goudie KC in Council Tax and RatesAscertainment of the rateable value of a non-domestic hereditament requires that each individual hereditament should be individually assessed and the application of a hypothesis. If the property is in rateable occupation at all, the rateable value is taken to be an amount equal to “the rent at which it is estimated the hereditament might reasonably be let from year to year” on the three assumptions set out in paragraph 2 of Schedule 6 to the Local Government Finance Act 1988. Read more »
Legitimate Expectation
January 15th, 2018 by James Goudie KC in Decision making and ContractsIn Richborough Estates Ltd v SoS for CLG (2018) EWHC 33 (Admin) the Claimants challenged the Defendant’s decision to issue a Written Ministerial Statement (“WMS”) in relation to national planning policy concerned with housing and neighbourhood planning, together with a subsequent associated change to the National Planning Practice Guidance (“the PPG”). Read more »
BIAS
January 15th, 2018 by James Goudie KC in Decision making and ContractsR (Legard) v Kensington and Chelsea RLBC (2018) EWHC 32 (Admin) concerns the Council’s decision to permit a Neighbourhood Plan, for the designation of land as a Local Green Space, pursuant to paragraph 77 of the NPPF, to proceed to a Referendum. The various grounds of complaint included allegations of apparent bias, breaches of the requirements of fairness, and ultra vires. Read more »
Fracking
January 15th, 2018 by James Goudie KC in Planning and EnvironmentalDid the DoS for CLJ err in law in granting planning permission for exploration works to test the feasibility of extracting shale gas by the process of hydraulic fracturing – commonly known as “fracking” – at two sites in Lancashire? That was the basic question in Frackman v SoS for CLJ (2018) EWCA Civ 9.
The Court of Appeal said that the case did not raise any novel or controversial point of law. Nor had there been any error of law. A reference to the CJEU was refused. The SoS had not misconstrued or misapplied Policy. Nor were his decisions vitiated by procedural unfairness. Also dismissed, distinguishing Application by Friends of the Earth for Judicial Review (2017) NICA 41, were complaints that he had failed to heed relevant EU principles, that he had failed to act in accordance with environmental impact principles, and that he had failed to apply “the precautionary principle”. Read more »
Insolvency Proceedings
January 11th, 2018 by James Goudie KC in Judicial Control, Liability and LitigationIn China Town Development Co Ltd v Liverpool City Council (2017) EWHC 3347 (Ch) the High Court granted an injunction preventing the City Council from presenting a winding-up petition. There was a genuine argument that a premium for two leases was not due on completion of the first lease. Barling J concluded that insolvency proceedings were not the appropriate vehicle for resolving a genuine dispute on substantial grounds as to the interpretation of the agreement or whether it should be rectified. The principles were restated as to interpretation and rectification of contracts.
Unmanned Car Park
January 2nd, 2018 by James Goudie KC in Environment, Highways and LeisureIn Cook v Swansea City Council (2017) EWCA Civ 2142 the Court of Appeal upheld a finding that the Council had not breached its duty under the Occupiers’ Liability Act 1957 to take reasonable care to ensure that visitors would be reasonably safe when using in icy conditions an unmanned car park, owned and operated by the Council, and had not been negligent. The Car Park in question is one of 46 car parks operated by the Council. Situated in a suburb of Swansea, it is a small 24 hour pay and display car park (with spaces for 40 cars) which is open to the elements. Like the vast majority of the Council’s car parks, the Car Park is unmanned (the exceptions are three multi-storey car parks and three park and ride car parks). In bad weather the manned car parks will be gritted. The unmanned car parks do not get gritted. The Council operates a reactive system of gritting in its unmanned car parks, whereby it does not pre-emptively grit them but does so only when it receives a report from a member of the public about a dangerous area. Read more »
Contract Awards
January 2nd, 2018 by James Goudie KC in Decision making and ContractsIn MLS (Overseas) Ltd v SoS for Defence (2017) EWHC 3389 (TCC) O’Farrell J restated the principles as follows:-
(1) Any procurement must be conducted in accordance with the obligations of (i) transparency. (ii) equality of treatment, (iii) procedural fairness, (iv) good administration, and (v) fairness: paragraphs 55 and 58;
(2) Any decision is required to be (i) rational and (ii) free from manifest error: paragraph 58; Read more »