Consultation

March 19th, 2018 by James Goudie KC in Decision making and Contracts

In Kebbell Developments Ltd v Leeds City Council (2018) EWCA Civ 450 Singh LJ said in relation to an alleged duty of consultation at common law:-

“61.    … on its facts, Moseley concerned a situation in which there was a statutory duty of consultation. There was therefore no issue in that case about the existence of a duty of consultation.

  1. In my respectful view, it is important to be careful to distinguish between different senses of the word “consultation” which can sometimes be found in the authorities on this subject. First, there may be cases in which there is no dispute about the existence of an obligation to consult which is imposed upon a public authority. Very often the source of that obligation will be legislation, so there will be a statutory duty of consultation. In such cases the context will usually be not an individual decision which affects a particular person or persons but rather the formulation of general policy or draft legislation.
  2. The issue which may then arise is what the exact content of that duty of consultation requires. That was considered in the well known case of Gunning … :

“First, … consultation must be at a time when proposals are still at a formative stage. Second, … the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third … adequate time must be given for consideration and response and, finally, fourth, … the product of consultation must be conscientiously taken into account in finalising any statutory proposals.” Read more »

 

Wales

March 14th, 2018 by James Goudie KC in Capital Finance and Companies

The Local Authorities (Capital Finance and Accounting) (Wales) (Amendment) Regulations 2018 (SI 2018/325 (W.61)) amend the Local Authorities (Capital Finance and Accounting) (Wales) Regulations 2003 by: introducing new definitions of “securitisation transaction” and “money market fund”; providing that a securitisation transaction must be treated as a “credit arrangement” for the purposes of the Local Government Act 2003 s.7; making a substitution to provide for the calculation of the cost of a securitisation transaction; replacing the term “fixed asset” with the current terminology in local government accounting practice; making it clear that sums received by the local authority in respect of the redemption of a bond on its maturity, or disposal of a bond, must not be treated as a capital receipts, unless the bond was acquired before 1 April 2018 and the expenditure on acquisition was treated as “capital expenditure”; inserting a new reg.8A which provides that the value of any consideration received as a result of a securitisation transaction by a local authority must be treated as a capital receipt; removing the requirement that only capital receipts received in respect of a disposal of an interest in land other than housing land may be used to meet the costs of, or incidental to, the disposal, provided such costs do not exceed 4% of the capital receipt arising from the disposal; removing the requirement for expenditure by local authorities on the acquisition of loan capital to be treated as “capital expenditure”; extends the ability of local authorities to defer charging liabilities for back pay due to equal pay claims to revenue account until the date on which the local authority must pay that back-payment; and removing the reference to one of the documents identified as constituting “proper practices” for the purposes of the Local Government Act 2003 s.21.

 

Reverter of school site

March 13th, 2018 by James Goudie KC in Land, Goods and Services

Rittson-Thomas v Oxfordshire County Council (2018) EWHC 455 (Ch) concerned two grants of land under Section 2 of the School Sites Act 1841 (“the 1841 Act”). It gave rise to a question concerning the exercise of the power of sale contained in Section 14 of the 1841 Act. Although the operation of the 1841 Act has been amended by the Reverter of Sites Act 1987 (“the 1987 Act”), the 1841 Act remains in force, and has, it seems, generated a good deal of litigation. However, the question at the heart of this case had not previously fallen for determination. Read more »

 

Possession Order

March 8th, 2018 by James Goudie KC in Housing

In Davies v Hertfordshire County Council (2018) EWCA Civ 379 the Court of Appeal considered whether a failure by the Council to comply with its statutory duties under Section 11 of the Children Act 2004 could provide a defence to a claim for possession.  Sharp LJ said:-

“17.    The obligation imposed on those who are subject to the statutory duty under section 11 is not confined to the making of strategic arrangements: it is to ensure that decisions affecting children have regard to the need to safeguard them and promote their welfare. That does not mean however that the particular function being carried out is redefined, and the reach or impact of the section 11(2) duty is qualified both by the nature of the function being carried out, and what the particular circumstances require: …” Read more »

 

State Aid

March 8th, 2018 by James Goudie KC in Capital Finance and Companies

Does a transfer of property-related assets from the public to the private sector constitute State Aid. This was the issue before the Grand Chamber of the ECJ in Case C-579/16 P, FIH Holding A/S v FIH Erhversbank A/S, Judgment on 6 March 2018.  The Court reiterated:

(1) Classification of a measure as “State aid” for the purposes of Article 107(1) TFEU requires all of the conditions set out in that provision to be fulfilled;

(2) First, there must be an intervention by the State or through State resources;

(3) Second, the intervention must be liable to affect trade between Member States;

(4) Third, it must confer a selective advantage on the recipient;

(5)  Fourth, it must distort or threaten to distort competition; Read more »

 

State Aid

March 8th, 2018 by James Goudie KC in Capital Finance and Companies

Case C-127/16 P, European Commission v French Republic, ECJ Judgment on 7 March 2018, has concerned unlawful State Aid by SNCF in the context of restructuring and recapitalisation and the application of the private investor test to an assignment of debts en bloc.   The Court stated as follows:-

(1) In interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part;

(2) The operative part of a Union act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption;

(3) State aid law is not concerned with the legal forms that transactions may take, but rather focuses on their economic reality; Read more »

 

Homelessness

March 5th, 2018 by James Goudie KC in Housing

The Homelessness (Review Procedure etc) Regulations 2018, SI 2018/223, set out the procedure to be followed by a local housing authority (“LHA”) when issuing a notice to bring their duties to an end in cases of an applicant’s deliberate and unreasonable refusal to co-operate. An applicant is a person who applies to a LHA for accommodation or assistance in obtaining accommodation and the authority have reason to believe they may be homeless or threatened with becoming homeless within 56 days and eligible for assistance. The Regulations revoke and replace the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 and sets out provisions for completing reviews, and specify the public authorities that will have a duty to refer people in England they consider may be homeless or threatened with becoming homeless within 56 days to LHAs.

The Legislative Context is that the Homelessness Reduction Act 2017 (“the 2017 Act”) introduces duties on LHAs to intervene at earlier stages to prevent homelessness and to take reasonable steps to relieve homelessness by helping those who are homeless to secure accommodation (the “prevention” and “relief” duties). It also requires LHAs to provide some new homelessness services to all people in their area and expands the categories of people who they have to help to find accommodation. Read more »

 

HMOs

March 5th, 2018 by James Goudie KC in Housing

The Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018, laid before Parliament on 23 February 2018, and coming into force on 1 October 2018, SI 2018/221 (“the 2018 Order”), changes the prescribed description of houses in multiple occupation (“HMOs”) that are required to be licensed by a Local Housing Authority (“LHA”) in England. The instrument replaces the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 (S.I. 2006/371) (“the 2006 Order”), which it revokes. This instrument has the effect of extending the scope of mandatory HMO licensing in England to certain HMOs of less than three storeys. Read more »

 

Rates Retention

March 5th, 2018 by James Goudie KC in Council Tax and Rates

The Non-Domestic Rating (Designated Areas) Regulations 2018, SI 2018/213, coming into force on 1 April 2018, form part of the scheme for local retention of non-domestic rates (“the rates retention scheme”). Their purpose is, to designate areas in relation to which a proportion of the non-domestic rating income raised is to be retained in its entirety by the local authority in all or part of whose area a designated area falls. The scheme was introduced on 1 April 2013 to give local government a direct share of local non-domestic rating income and thereby an incentive to promote local growth. These Regulations provide that when calculating how much rates income in a local authority area is to be shared between local government and central government, it will disregard the growth in rating income in designated areas. This will then allow the growth in those designated areas to be retained 100% by the billing authority. These Regulations designate further areas in which the 100% disregard will apply and provide rules for calculating the amount to be disregarded.

 

Housing

March 5th, 2018 by James Goudie KC in Housing

The Housing (Management Orders and Financial Penalties) (Amounts Recovered) (England) Regulations 2018, SI 2018/209, coming into force on 6 April 2018, set out how a local housing authority (“LHA”) must deal with any surplus monies recovered under management orders under Sections 110(5A) and 119(4B) of the Housing Act 2004 (“the 2004 Act”) and any financial penalties received under Section 23(8) of the Housing and Planning Act 2016 (“the 2016 Act”). The Legislative Context is that Section 26 of, and Schedule 3 to, the 2016 Act amend Chapter 1 of Part 4 of the 2004Act to enable interim or final management orders to be made to be made in respect of property let in breach of a banning order made under Section 16 of the 2016 Act. A banning order is an order that may be made by the First-Tier Tribunal where a landlord or property agent has been convicted of a banning order offence specified in Regulations under Section 14(3). The effect of a banning order is to ban a person from letting housing in England and/or engaging in English letting agent or property management work. Under a management order the LHA takes over the management of a property and receives any rent paid by its occupiers in place of the landlord. Under Sections 110 and 119 of the 2004 Act the LHA is entitled to retain monies to cover relevant expenditure related to the management of the property and any compensation payable to third parties. These Regulations make provision about how a LHA must deal with the amount of rent recovered under a management order made under Sections 107(2A) or 113(3A) or (6A) of the 2004 Act (management orders relating to property let in breach of a banning order) after relevant expenditure and any required compensation has been deducted (“the surplus”). The surplus may be retained by the LHA to fund its enforcement functions connected with the private rented sector. If the surplus is not used for that purpose the LHA must pay it into the Consolidated Fund. Read more »

 

« Older Entries
Newer Entries »