Town and Village Greens

February 6th, 2014 by James Goudie KC in Environment, Highways and Leisure

What is the effect of lapse of time on an application under Section 14 of the Commons Registration Act 1965 for rectification of a registration as a town or village green?  This was the issue before the Supreme Court in Adamson v Padico (267) Limited and Taylor v Betterment Properties (Weymouth) Limited, (2014) UKSC 7, on appeal from [2012] EWCA Civ 250 and 262, in which Judgment was given on 5 February 2014.  The Supreme Court observed as follows.

The starting point is the 1965 Act itself, which lays down no limitation period for Section 14 applications. Section 14 has no bias either for or against rectification. The principles of good administration require not only a conclusive register but also that the register is accurate and has been lawfully compiled. The focus is primarily on justice as between the applicant and the local inhabitants.  Where the applicant is the owner of the land, his rights have been severely curtailed when they should not have been and the inhabitants have acquired rights which they should not have. The lapse of time is not however immaterial. The best analogy is with the doctrine of laches which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice, if it is to bar the remedy.

Knowledge of the facts is unlikely to be a problem as landowners have an opportunity to object to the registration before it is made and subsequent purchasers are able to consult the register before deciding to buy. The fact that a purchaser bought the land with notice of the registration is unlikely to make much difference as he still suffers harm from the curtailment of his rights harm from the curtailment of his rights.   The crux of the matter is usually the question of detriment or prejudice, of which there are at least four relevant kinds: (i) detriment to the local inhabitants, although this may not be weighty given that this is a right they should never have had; (ii) detriment to other individuals who may have made decisions to purchase property near the land based on the register; (iii) detriment to public authorities and those they serve in, for example, the allocation of land for residential development; and (iv) detriment to the fair hearing of the case after the lapse of time. Even after a long delay there must be some material from which to infer that public or private decisions have been taken on the basis of the existing register which have operated to the respondent’s significant detriment.

 

Lease of Land

January 28th, 2014 by James Goudie KC in Land, Goods and Services

In refusing to offer a solicitor a new lease of her office premises a local authority had abused its powers.  So held the High Court in R (Trafford) v Blackpool BC [2014] EWHC 85 (Admin).  The stated reason for the refusal was that her firm had brought claims against the Council on behalf of clients seeking compensation for injuries alleged to have been caused by the negligence of the Council, predominantly in highways “tripping” type claims.

The Judge held that the Council had exercised its “wide discretion” under Section 123 of the Local Government Act 1912 for an improper purpose and was “fundamentally tainted by illegality” on that basis; and that the decision was both Wednesbury unreasonable and procedurally unfair.

The Council’s main defence was that its decision was not amenable to judicial review.  The issue was as to whether or not, and if so in what circumstances, a public body acting under statutory powers in deciding whether or to not to enter into, renew or terminate a contract will come under public law duties, and if so which ones.  Having reviewed the authorities, the Judge concluded that the decision was in principle amenable to judicial review.  He stated:-

“55.    Having considered these authorities my conclusions are as follows:

(1) In a case such as the present, involving a challenge to a decision of a public body in relation to a contract, it is necessary to consider:

(a) by reference to the contract in question, to the relevant statutory power, to the statutory framework (if relevant), and to all other relevant matters, whether or not, and if so to what extent, the defendant is exercising a public function in making the decision complained of;

(b) whether, and if so to what extent, the grounds of challenge involve genuine and substantial public law challenges to the decision complained of, or whether, and if so to what extent, they are in reality private law challenges to decisions made under and by reference to the terms of the relevant contract.

(2) In a case involving a challenge to a decision of a public body acting under a statutory power but in relation to a contract and in the absence of a substantial public function element, a claimant will nonetheless normally be entitled to raise genuine and substantial challenges based on fraud, corruption, bad faith, and improper motive (in the sense identified by De Smith of the knowing pursuit of an improper purpose).

(3) The extent to which a claimant will be entitled to raise genuine and substantial public law challenges beyond those limited classes will depend on a careful analysis of all of the relevant circumstances so as to see whether or not there is a relevant and sufficient nexus between the decision in relation to the contract which is challenged and the grounds complained of.”

 

 

Non-Domestic Rating

January 28th, 2014 by James Goudie KC in Council Tax and Rates

The Non-Domestic Rating (Designated Areas) Regulations 2014, SI 2014/98 form part of the scheme for local retention of non-domestic rates.  The purpose of the Regulations is to designate areas in relation to which a proportion of the non-domestic rating income (as calculated in accordance with the Regulations) is to be retained by the local authority all or part of whose area falls within the designated area.

 

Non-Domestic Rates

January 22nd, 2014 by James Goudie KC in Council Tax and Rates

The Non-Domestic Rating (Small Business Rate Relief) (England) (Amendment) Order 2014, SI 2014/43 (“the 2014 Order”), amends the Non-Domestic Rating (Small Business Rate Relief) (England) Order 2012 (“the 2012 Order”) to provide for a temporary extension to the increase in small business rates relief in England until 31 March 2015 and to extend the scope of the relief where small businesses expand.

The 2012 Order prescribes the conditions for eligibility for small business rate relief and the rates of relief in relation to eligible hereditaments.  A hereditament is only eligible where it is the sole hereditament occupied by the ratepayer, but additional hereditaments are disregarded where their rateable value is not more than £2,599 and the aggregate rateable value of all hereditaments occupied by the ratepayer does not exceed £25,499 if situated in Greater London or £17,999 if situated outside Greater London.  The 2014 Order substitutes new provisions for Articles 3(6) and 4(7) of the 2012 Order so that where a ratepayer starts to occupy an additional hereditament, the ratepayer does not lose the benefit of the relief for the first 12 months of occupation.

Where the eligibility criteria are satisfied a ratepayer’s daily liability for non-domestic rates in respect of that hereditament is determined under Section 43(4A) of the Local Government Finance Act 1988.  Section 43(4A) provides for the calculation in accordance with the formula (A x D) divided by (C x E) where: A is the rateable value of the hereditament; D is the small business non-domestic rating multiplier for the financial year; C is the number of days in the financial year; and E is such amount as is prescribed in relation to the hereditament by the Secretary of State by Order. Article 4 of the 2012 Order prescribes the amount of E for the financial years beginning on 1 April 2012 and 2013 and Article 3 of the 2012 Order prescribes the amount of E for subsequent financial years.

The 2014 Order amends the 2012 Order to apply Article 4 of the 2012 Order to the financial year beginning on 1 April 2014.  The effect of this amendment is to extend the temporary doubling of the level of small business rate relief for a further year.  Article 4 will also continue to apply in respect of days falling within the financial years which started on 1 April 2012 and 1 April 2013.

 

Council Tax

January 22nd, 2014 by James Goudie KC in Council Tax and Rates

The purpose of the Billing Authorities (Anticipation of Precepts) (Amendment) (England) Regulations 2014, SI 2014/35, is to enable billing authorities in England making council tax calculations in accordance with Section 31A of the Local Government Finance Act 1992 (“the 1992 Act”) to anticipate a precept from a local precepting authority.  The legislative context is that Sections 73 to 79 of the Localism Act 2011 (“the 2011 Act”) made amendments to the calculations which billing authorities, major precepting authorities, and local precepting authorities in England must make to determine their basic amounts of council tax for a financial year. The obligation to calculate a budget requirement for a year was replaced with an obligation to calculate a council tax requirement. Under the new provisions an authority’s council tax requirement for a financial year is the amount the authority requires from council tax alone in order to finance its budget for the year and this amount is used to calculate the authority’s basic amount of council tax. Section 74 of the 2011 Act inserted a new Section 31A into the 1992 Act requiring a billing authority to calculate its council tax requirement each financial year, and Section 32 of the 1992 Act was modified to apply to Wales only rather than to England and Wales. The Regulations make a minor amendment consequential on the changes made by the 2011 Act to update the definition of “calculations” in the Billing Authorities (Anticipation of Precepts) Regulations 1992 in relation to England to refer to the new Section 31A inserted by the 2011 Act.. This will enable billing authorities in England making their calculations in accordance with Section 31A of the 1992 Act to anticipate a precept from a local precepting authority under Section 41 of the 1992 Act if that precept has not been issued in time for their calculations.

 

Breach of Code of Conduct

January 8th, 2014 by James Goudie KC in Standards

In R (Dennehy) v Ealing LBC (2013) EWHC 4102 (Admin) a Councillor’s application for permission to apply for Judicial Review of a decision by a Standards Committee that he had breached the Council’s Code of Conduct failed.  The Committee had found that a post on the Councillor’s blog about Southall residents failed to treat others with respect and brought the Council and the office of Councillor into disrepute.  The Judge concluded that the decision and the sanctions imposed were plainly a proportionate interference with the Councillor’s ECHR Article 10 rights in the light of the other interests identified in the ECHR.  The sanctions were to request an apology and the publication of a neutral notice of the decision on the Council’s website and in the local newspaper.  The Judge noted that the comments about Southall residents were contained in a separate section of the blog from those which raised legitimate topics of political debate. “They were not the expression of a political view, but an unjustified personal and generic attack on a section of the public. The subjects of the speech were not politicians but ordinary members of the public and, as such, the comments did not attract the higher level of protection applicable to political expressions and the comments would plainly have undermined confidence in local government, the preservation of which is a recognised aim of the code”.

 

Mayoral Elections

January 8th, 2014 by James Goudie KC in Elections and Bylaws

The draft Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2014 (“the 2014 Regulations”) amend the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007, SI 2007/1024 (“the 2007 Regulations”).  The 2014 Regulations make changes to the rules governing the conduct of local Mayoral Elections in England and Wales.  In doing so they apply or copy electoral conduct provisions in the Electoral Registration and Administration Act 2013 (“the ERA Act”) and associated secondary legislation for the purposes of those elections.  Many of the provisions in the 2014 Regulations replicate, for Mayoral Elections, amendments that have been made to the conduct of UK Parliamentary elections by the ERA Act or that will be made by the draft Representation of the People (England and Wales) (Description of Electoral Registers and Amendment) Regulations 2013 (the “draft 2013 Regulations”).

The 2014 Regulations are part of a wider package of Regulations and Statutory Instruments which make various changes to the rules for conducting elections and referendums and include the draft 2013 Regulations, the European Parliamentary Elections (Amendment) Regulations 2013 (S.I. 2013/2876) and the draft Neighbourhood Planning (Referendums) (Amendment) Regulations 2014.

The 2014 Regulations revoke the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2012 (S.I. 2012/2059) and the amendments made to the 2007 Regulations by those Regulations.

The changes are being made now, in conjunction with changes to other electoral legislation, so they can have effect at polls that take place on 22 May 2014 and thereafter.

 The 2014 Regulations make the following changes to the 2007 Regulations:

  • •  Changing the timetable for proceedings at the Election so that deadlines are consistent with other elections, facilitating the early despatch of postal votes when elections are combined. In particular, the deadlines for candidates’ nominations and withdrawals become 4pm on the nineteenth day before polling day, and the deadline for the publication of the statement of persons nominated becomes 4pm on the eighteenth day before polling day.
  • •  Enabling Police Community Support Officers to enter polling stations and counting venues under the same conditions as police constables in England and Wales.
  • •  Providing that voters waiting in a queue at the close of poll (i.e. at 10pm on polling day) for the purpose of voting may be issued with a ballot paper, and that those in the queue for the purpose of returning a postal ballot paper or voting statement may return it.
  • •  Updating voting forms for accessibility reasons. The 2014 Regulations also make amendments to the provisions on consent to nomination and the interpretation provisions.
  • •  In addition, changes made by the draft 2013 Regulations relating to postal and proxy voting will apply to Mayoral Elections.

 

 

Non-Domestic Rating

January 8th, 2014 by James Goudie KC in Council Tax and Rates

The Local Government Finance Act 1988 (Non-Domestic Rating Multipliers) (England) Order 2014, SI 2014/2, has been made in exercise of the powers conferred by paragraph 5(3) of Schedule 7 to the Local Government Finance Act 1988 (“the 1988 Act”). In relation to England and for the financial year beginning on 1st April 2014 (“2014-15”) the Order specifies an amount which is to be used in the calculation of the non-domestic rating and the small business non-domestic rating multipliers for that year.

Schedule 7 to the 1988 Act establishes a procedure by which the non-domestic rating and the small business non-domestic rating multipliers are calculated for a chargeable financial year. In relation to England and a year at the beginning of which new rating lists are not compiled, the small business non-domestic rating multiplier is calculated in accordance with paragraph 3 of Schedule 7 to the 1988 Act. The non-domestic rating multiplier for the year is then calculated in accordance with paragraph 3A of Schedule 7 to the 1988 Act by reference to that multiplier.

The calculation in paragraph 3 of Schedule 7 to the 1988 Act includes a variable referred to as “B”. Unless an order made by the Treasury provides otherwise, B is the retail prices index for September of the financial year proceeding the year concerned, which in relation to 2014-15 was 251.9.  Paragraph 5(3) of Schedule 7 to the Local Government Finance Act 1988 enables the Treasury by order to specify a different amount for B. Where the Treasury exercises this power the amount specified must be less the retail prices index for September of the financial year proceeding the year concerned.

For 2014-15 the Order specifies B as 249 for the purposes of paragraph 3 of Schedule 7 to the 1988 Act. This represents a 2% cap.  Otherwise the figure would have been 3.2%.

 

Local Authority Powers

November 21st, 2013 by James Goudie KC in Local Authority Powers

The General Power of Competence (GPOC) under Section 1 of the Localism Act 2011 was held inapplicable in R (MK) v Barking & Dagenham LBC [2013] EWHC 3486 (Admin).  The Court held that the local authority did not have power either under Section 17 of the Children Act 1989 or pursuant to GPOC to accommodate and provide basic subsistence to an “overstayer”.  The safety net power to accommodate a person who was temporarily admitted to the UK was for central government, under Section 4 of the Immigration and Asylum Act 1999, rather than for local government.  Neither GPOC nor the Children Act could be used in order to circumvent the prohibitions on other statutory means of relief which might otherwise be available to the claimant were it not for her immigration status.  There was a comprehensive statutory scheme reflecting Parliament’s intention to exclude those unlawfully in the UK from a whole range of benefits, including the ones relevant to this case.  Section 2 Localism Act restrictions applied to the Section 1 power.  The scope of “pre-commencement limitation” in Section 2(1) of the Localism Act was held (para 76) to be the same as under Section 3 of the Local Government Act 2000 as interpreted by the Court of Appeal in R (Khan) v Oxfordshire County Council [2004] EWCA Civ 309 from para 30.  At para 84 the Judge said that Section 1 of the Localism Act “was not intended by Parliament as a means of overriding a clear statutory scheme prohibiting the provision of benefits of all kinds to those unlawfully in the UK”.

 

Liability

November 6th, 2013 by James Goudie KC in Judicial Control, Liability and Litigation

Should an order for specific disclosure be made in a judicial review application even before permission has been granted and where permission has been refused on paper?   That was the issue raised in R (Sky Blue Sorts & Leisure Ltd) v Coventry City Council [2013] EWHC 3366 (Admin), where such disclosure was refused.

Mr Justice Silber observed that the application was “extremely unusual”, having been made after Males J had already determined on the papers that the Claimants’ grounds of review were unarguable.  Silber J noted that neither he nor any of his colleagues knew of any case in which an order for specific disclosure had been made on a judicial review claim before permission had been granted.

The Claimants argued that disclosure of certain documents referred to in the Council’s Summary Grounds of Resistance and supporting materials was “necessary” in order to resolve their application for permission ‘fairly and justly’, as required by the test in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650.

Silber J rejected these arguments and agreed with the Council that further disclosure was not necessary at this stage. In particular, His Lordship held that:

– “A renewed permission application is a different animal from a substantive hearing”, and permission would be granted where “on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case” (citing Lord Diplock in R v IRC ex p. Nat-Fed [1982] AC 617). In those circumstances, the Claimants already had “enough material to put forward a respectable case (if not their very best case) on most of the issues to be raised on the renewed permission application”; and

– There was no reason why the Claimants could not point to the Council’s decision not to disclose certain documents at the permission hearing, in order to support their argument that permission should be granted to investigate all of the facts in full.

His Lordship also mentioned that, if he had not dismissed the application for those reasons, then he might have dismissed it in any event, if he had concluded that the documents sought were not “highly relevant” to the issues, or because of the Claimants’ delay in making the application, which would have caused “serious prejudice” to the Council if the oral renewal hearing (listed for late November 2013) had to be postponed.

The owners of Coventry City Football Club had been refused permission to seek judicial review of the Council’s decision to loan £14.4m to the company that manages the Ricoh Arena (“ACL”), where the club used to play its home games. 

The Claimants argue that the loan was an unlawful State Aid, and that the Council had made the loan for the improper purpose of seeking “to compel [the Claimants] to relinquish ownership of the Club”. The Claimants also argue that the loan was irrational and ultra vires, and that the Council was guilty of misfeasance in public office.

After considering the application on the papers, Mr Justice Males on 31 July 2013held that:-

The claim had not been brought promptly, having been filed on the last day of the 3 month time limit or 1 day late, and there was no good reason for the delay;

– It was unarguable that the Council’s loan to ACL was a State Aid. The loan was made on commercial terms, and in order to protect the Council’s investment in ACL, in which it is a 50% shareholder; and

– The Claimants’ other grounds of review were also unarguable. The Council took its decision in order to protect its investment in ACL, and not in order to harm the Claimants’ commercial interests or to force them to relinquish ownership of the Club.

 

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