In Nottingham City Council v Parr (2017) EWCA Civ 188 the Court of Appeal held that it was not unlawful to impose a licence condition restricting the occupation of a house in multiple occupation to full-time students. Although the licensing regime concerned the physical characteristics of the relevant property, the personal characteristics and activities of potential occupiers will often be relevant and require investigation in contexts connected both with HMOs and with housing standards generally.
Standing Orders
March 28th, 2017 by James Goudie KC in Decision making and ContractsThe Local Authorities (Standing Orders) (Wales) (Amendment) Regulations 2017, S.I. 2017/460 (W.98) amend the Local Authorities (Standing Orders) (Wales) Regulations 2006 (S.I. 2006/1275) (W. 121) to make provision about membership and the quorum for meetings of relevant authorities. “Relevant authorities” for the purpose of new Regulation 4A (1) of the 2006 Regulations, inserted by Regulation 3(3) include, in addition to county and county borough councils, joint planning boards and National Park authorities.
The Amendment Regulations apply to committees and sub-committees of relevant authorities by which a relevant function is discharged. A “relevant function” is a function exercisable in relation to an application under the Town and Country Planning Act 1990.
Regulation 2(3) of the 2017 Regulations inserts new Regulation 4A and new Schedule 2A in the 2006 Regulations, to require a relevant authority to include in their Standing Orders a requirement that the quorum for their meetings must include at least half of the committee’s members.
Standing orders must also restrict the appointment of substitute members to committees.
Secure Tenancy
March 28th, 2017 by James Goudie KC in HousingIn Turley v Wandsworth LBC [2017] EWCA Civ 189 the Court of Appeal held that a condition in the Housing Act 1985 s.87(b) which required, up until 1 April 2012, that the long-term partner of a secure tenant had to have resided with the secure tenant throughout the 12-month period prior to the secure tenant’s death in order to succeed them, was not manifestly without reasonable foundation. Even if the situations of common law spouses and married or civil partnership spouses were analogous for the purpose of ECHR art. 14, the difference in treatment between them was justified and proportionate.
As regards justification, local authority secure tenancies are a valuable and limited resource. Although it has long been policy to grant a limited right of succession to family members for whom the property had also been their home, regard has also to be had to the interests of those on the waiting list and of local authorities in making best use of housing stock. It had therefore been policy to require a degree of permanence in the relevant relationship. That requirement was inherently satisfied in the case of spouses who had entered into a legal marriage or civil partnership. However, there was no such formal commitment in the case of a common law spouse or other family member of the kind defined in s.113. As part of that balance of interests, it was legitimate to seek to limit rights of succession to family members whose relationship was of a permanent character. It was also legitimate, subject to the issue of proportionality, to treat that requirement as sufficiently satisfied in the case of legal spouses, but not by other relationships which did not involve the same formal commitment. Read more »
Costs Funding
March 23rd, 2017 by James Goudie KC in Human Rights and Public Sector Equality DutyIn HB v A Local Authority and The Local Government Association (2017) EWHC 524 (Fam) MacDonald J rejected an argument that the High Court had by reference to ECHR Articles 6 and/or 8 to order a local authority to fund the legal costs of a person denied legal aid on means test grounds without breach of the ECHR and lawfully. The argument constituted an impermissible attempt to circumvent the jurisdiction of the Administrative Court operating by reference to judicial review principles. Nor did the inherent jurisdiction of the High Court with respect to children give it the power to require a local authority to incur expenditure to fund the legal representation of a litigant who had been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament. Authority for public expenditure required clear statutory authority. This had to be in clear, express and unambiguous language. Within that context, a general power or duty could not be used to circumvent a clear statutory code. The examples of cost funding jurisdictions relied on as indicating that the Court could properly find a power under the inherent jurisdiction to make a costs funding order against the local authority each had as their foundation a clear and unambiguous statutory power to award funds for a specific purpose. There was no suggestion in the statutory code that Parliament intended the civil Courts to be able to make orders providing the funding for advice and representation outside the terms of the statutory scheme. In circumstances where the Legal Aid Agency had taken a lawful decision by reference to a lawful and comprehensive statutory scheme to refuse legal aid, an order under the inherent jurisdiction for public funding from an alternate public authority for the same purpose would plainly constitute an attempt to sidestep a clear statutory code using a general power.
Secure Tenancy
March 23rd, 2017 by James Goudie KC in Housing
The substantial issue on the appeal in Dove v Havering LBC [2017] EWCA Civ 156 related to whether the “tenant condition”, pursuant to Section 81 of the Housing Act 1985, was satisfied, in order for the tenancy to be a secure tenancy. The tenancy in this case was a joint tenancy. The first limb of the condition was satisfied because both tenants were individuals. The issue was whether at least one of them occupied the dwelling-house as her only or principal home at the time when the notice to quit would otherwise have taken effect. Lewison LJ said:-
“17. There is now a considerable body of learning on what amounts to occupation of a dwelling as an only or principal home. There are two parts to the question: (a) does the person in question occupy the dwelling as a home and (b) if so, does he or she occupy it as his or her only or principal home? Read more »
Introductory Tenancy
March 23rd, 2017 by James Goudie KC in HousingThe purpose of introductory tenancies is to provide what the Housing Act 1996 refers to as a trial period in which the landlord may determine the tenancy without having to establish the grounds for possession required in the case of a secure tenancy. This gives a social landlord an opportunity to form a view about the suitability of the tenant against a background of historic anti-social behaviour without becoming subject to the restrictions imposed in respect of a secure tenancy. The trial period is normally one year but can be extended for a further six months: see ss.125 and 125A.
Although the statutory grounds for possession do not have to be satisfied, the tenant is given a measure of protection by s.128 of the Act which provides that:
“(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section. Read more »
Pension Ombudsman
March 23rd, 2017 by James Goudie KC in Non Judicial ControlSection 146 of the Pension Schemes Act 1993 sets out the functions of the Pensions Ombudsman (“the PO”). The PO may investigate and determine various specified matters. These include a complaint made to him by an actual or potential beneficiary of an occupational pension scheme who alleges that he or she has sustained injustice in consequence of “maladministration”. There is no statutory definition of “maladministration”. It is well established that it is a “broad concept”, which goes further than a violation of legal rights. There can be “maladministration” even if a person’s legal rights are not infringed. In Baugniet v Teachers’ Pensions [2017] EWHC 501 (Ch) the High Court repeated with respect to the powers of the PO that:-
(1) The PO must decide disputes in accordance with established legal principles rather than by reference to what he himself considers to be fair and reasonable;
(2) In general, the PO does not have the power to make an order that the Court could not make, although the PO is not tied to the precise form of relief a court would grant;
(3) Injustice resulting from maladministration not involving infringement of legal rights may be afforded a remedy, such as an apology and/or modest compensation for distress or inconvenience;
(4) Absent very exceptional circumstances, an award for maladministration not involving infringement of legal rights should not exceed £1,600.
Habitats
March 21st, 2017 by James Goudie KC in Planning and EnvironmentalAshdown Forest is a Special Area of Conservation (“a SAC”). This designation, in 2005, was pursuant to the Habitats Directive (“the Directive”). The designation was given for a number of reasons, including the SAC’s extensive areas of lowland heath, which is vulnerable to nitrogen dioxide pollution from motor vehicles. The SAC covers 2,729 hectares and lies wholly within the area of Wealden District Council. This is the local planning authority for Wealden District, save for that part of it (to the south) which falls within the South Downs National Park.
In Wealden District Council v SoS for CLG and others [2017] EWHC 351 (Admin) there was a challenge to quash part of the Lewes District Plan known as the Joint Core Strategy 2010-2030 (“the JCS”). The JCS was jointly prepared under the Planning and Compulsory Purchase Act 2004 by Lewes District Council and the South Downs National Park Authority as local planning authorities. The JSC forms part of the statutory development plan for the district of Lewes, including the extent of the National Park which falls within it. Read more »
Green Belt
March 14th, 2017 by James Goudie KC in Planning and EnvironmentalIn Samuel Smith Old Brewery v North Yorkshire County Council [2017] EWHC 442 (Admin) Hickinbottom J held that, depending on the specific circumstances of a case, visual impact might be taken into account by a planning decision-maker when considering the impact of a proposed development on the openness of a green belt area. Factors such as visual impact, purpose, and degree of permanence and reversibility, were not matters to which, as a matter of law, a planning decision-maker had to have regard in every case in which a proposed development was in a green belt area, or even in every such case in which openness was an issue. They were factors to which the decision-maker might have regard if, on the facts of the particular case, in the exercise of his judgment and discretion he thought it right to do so. In other words, the decision-maker had a margin of appreciation within which he might decide just which consideration should play a part in his reasoning process.
Procurement Decisions
March 10th, 2017 by James Goudie KC in Decision making and ContractsIn R (Wylde) v Waverley Borough Council (2017) EWHC 466 (Admin) Dove J held that the claimants, who were not “economic operators” with an interest in securing the contract which was the subject of their claim, but who were a group of local councillors and residents who opposed a large scale development in Farnham Town Centre, lacked standing for a judicial review claim that the development contract had been varied, in order to decrease the sum payable by the developer to the Council for the land in question, contrary to the contracting authority’s procurement law duties. Dove J applied the Court of Appeal decision in R (Chandler) v SoS for Children, Schools and Families (2010) LGR 1 and concluded that R (Gottlieb) v Winchester City Council (2015) EWHC 231 (Admin), the Winchester Silver Hill case, had been wrongly decided on the standing issue. The claimants were unable to demonstrate any direct impact upon them from the variation not being regarded by the Council as a new contract and the Council’s decision that no competitive tendering exercise was required. Any competition would be with respect to the same development that the claimants opposed.