In MANSFIELD CARE LTD v NEWMAN ( 2024 ) EAT 128 the President of the EAT holds that an ET erred in finding that TUPE was applicable. A care home was closing down. The care home residents were being moved to one of 2 care homes. There were 2 categories of residents: privately funded and local authority funded. The ET found that there were (1) a business transfer, in respect of the privately funded residents and a service provision change in respect of publicly funded residents. The EAT disagreed. The ET’s reasoning did not support the identification of an economic identity divided in that way that retained its identity, or the identification of an organised grouping of employees that had the principle purpose of carrying out services for the publicly funded residents.
REVOCATION OF CERTIFICATE
July 31st, 2024 by James Goudie KC in Planning and EnvironmentalR ( MEHTA ) v KENSINGTON & CHELSEA ( 2024 ) EWHC1986 ( Admin ) concerned the Council’s decision to revoke a Certificate of Lawful Proposed Use or Development on the basis that materially false information had been given in support of the application for the Certificate. The Court observed, at para 35, that a local authority’s decision to revoke a Certificate comprises 3 elements : ( 1 ) there must be a finding that false statements were made, or information withheld; ( 2 ) there needs to be a finding that any false statements or withheld information were material; and ( 3 ) if positive findings are made in each of those, then it is for the authority to decide whether to exercise its discretion to revoke the Certificate.
ECHR ARTICLES 9 and 10
July 31st, 2024 by James Goudie KC in Human Rights and Public Sector Equality DutyIn SUTCLIFFE v SoS for Education ( 2024 ) EWHC 1878 ( Admin ) the Court observes that Articles 9 and 10 of the European Convention of Human Rights, the freedoms of religion and expression, are both qualified rights, subject to the public interest balance test. It was fundamental that teachers should not only educate but should also safeguard the wellbeing of children in their care, and treat them with dignity and respect. Insofar as the Teachers’ Standards qualified a teacher’s Article 9 and 10 rights, such qualifications were proportionate.
HOUSING TARGETS
July 31st, 2024 by James Goudie KC in Planning and EnvironmentalThe Government has announced an overhaul of the planning system. Measures include to give all Councils in England new, mandatory, housing targets’ updating the method used to calculate housing targets, and requiring Councils to ensure houses are built in the right places and development is proportionate to the size of existing communities.
The default answer to brownfield development is to be : “ Yes. “ Land released in Green Belts is to be subject to “ golden rules”. Changes are to be made in relation to right to buy and capital receipts.
There will be a Planning and Infrastructure Bill, and revisions to the NPPF before the end of 2024.
NPPF
July 31st, 2024 by James Goudie KC in Planning and EnvironmentalA Government Consultation seeks views on revisions to the NPPF and on a number of wider planning policy reforms, including planning fees, Local Plan intervention criteria, and thresholds for Nationally Significant Infrastructure Projects.
NEW TOWNS
July 31st, 2024 by James Goudie KC in HousingThe Government has published a Policy Statement on a new generation of New Towns. These would be large scale communities of at least 10, 000 new homes each. Locations will be recommended within 12 months.
There will be a NEW TOWNS CODE. This will be a set of rules that developers will have to meet to make sure New Towns are well connected, well designed, sustainable and attractive.
EXTENSION OF TIME
July 29th, 2024 by James Goudie KC in Judicial Control, Liability and LitigationRIDLEY v KIRTLEY ( 2024 ) EWCA Civ 884 holds that the exercise of discretion to extend time for the lodging of an appeal to the EAT should recognize the legally significant decision between the case of an appellant who lodged a notice of appeal and nearly all the required documents within the time limit, and one who lodged nothing until after the time limit had expired.
TUPE
July 29th, 2024 by James Goudie KC in Judicial Control, Liability and LitigationIn BICKNELL v NHS NOTTINGHAM (2024) EAT 103, applying NICHOLLS V CROYDON LONDON BOROUGH COUNCIL (2019) ICR 542, it is held that the commissioning of services is not itself an economic entity for the purposes of TUPE following a reorganisation, unless the person commissioning the services is also providing those services on the market. For commissioning to be an economic activity, the commissioner had to supply goods and services on the market. If NICHOLLS was wrong, that had to be corrected by the Court of Appeal.
RIVAL APPLICATIONS
July 24th, 2024 by James Goudie KC in Planning and EnvironmentalWhere Lidl and Aldi had each applied for planning permission to develop a discount supermarket on different parcels of land outside a Town Centre, but within the same settlement, it had been unlawful for the LPA to have granted planning permission to Aldi without comparing its proposal to that of Lidl. The need to undertake a comparison is a ” material consideration” only if it is so obviously material that it would be irrational not to assess it. However, here that high threshold was met on the facts so held in LIDL v EAST LINDSEY DC (2024) EWHC 1641 ( Admin ).
VICARIOUS LIABILITY
July 23rd, 2024 by James Goudie KC in Judicial Control, Liability and LitigationThe question arising on the appeal in DJ v BARNSLEY MBC (2024) EWCA Civ 841 was whether a local authority can be vicariously liable for torts committed against a child by a foster carer who is also a relative of the child. This question was left open by the Supreme Court in ARMES v NOTTINGHAMSHIRE COUNTY COUNCIL (2018) AC 355. The Court of appeal in the Barnsley case held that, on the specific facts of that case, the authority was liable. That was on the basis that the relationship between the authority and the carers was akin to employment. The Court of Appeal did not however lay down a general rule that a local authority will always be vicariously liable for torts committed by foster carers who are related to the child. Nor did they give any indication about the circumstances in which vicarious liability might arise under the present legislation and regulatory regime.