Liability

October 23rd, 2013 by James Goudie KC in Judicial Control, Liability and Litigation

The appeal to the Supreme Court in Woodland v Essex County Council [2013] UKSC 66 arose from a tragic incident at a swimming pool in Essex when the appellant suffered a serious hypoxic brain injury during a school swimming lesson.  She was then aged 10.  She was a pupil at a Junior School for which the County Council as local education authority, was responsible. The swimming lesson took place in normal school hours, as required by the National Curriculum.

The appellant was assigned to a group being taught by a swimming teacher.  A lifeguard was also in attendance. It was alleged on the appellant’s behalf that both negligently failed to notice that she had got into difficulties in the water, causing her to suffer the injury. Neither was employed by the Council.  Their services had been provided to the Council pursuant to a contract.

The appellant issued proceedings for negligence against a number of parties, including the Council. Her case against the Council included an allegation that it owed her a “non-delegable duty of care”, with the result that it was liable for any negligence on the part of either the teacher or the lifeguard.  The Council denied that it owed such a duty.  It applied to strike out this allegation against it.

The allegation was struck out in the High Court.  This decision was upheld in the Court of Appeal.

However, the Supreme Court unanimously allowed the appeal against the order striking out the allegation of a non-delegable duty. The case will now return to the High Court to determine whether the appellant was in fact a victim of negligence.

The question before the Court was the scope of the Council’s duty to pupils in its care: was it a duty to take reasonable care in the performance of the functions entrusted to it only if it performed those functions itself, through its own employees; or was it to procure that reasonable care was taken in their performance by whomever it might get to perform them – a non-delegable duty?

The starting point is that non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based.  They are therefore exceptional.   However, English law has recognised that non-delegable duties can arise in cases with the following characteristics:

 (1)              the claimant is a patient or child or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury;

(2)              there is an antecedent relationship between the claimant and the defendant independent of the negligent act or omission itself (i) which puts the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm in the performance of those obligations and not just a duty to refrain from conduct which will foreseeably damage the claimant;

(3)              the claimant has no control over how the defendant chooses to perform those obligations;

(4)              the defendant has delegated some function which is an integral part of the positive duty which he has assumed towards the claimant and the third party is exercising the defendant’s custody or care of the claimant and the element of the control that goes with it; and

(5)              the third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him.

The Supreme Court says that it is fair, just and reasonable to impose such duties. It is consistent with the long-standing policy of the law to protect those who are inherently vulnerable and subject to a significant degree of control. It is wholly reasonable that a school should be answerable for the performance of part of its own educational function. Parents are required by law to entrust their child to a school and have no knowledge or influence over the arrangements that the school may make to delegate specialised functions, or the competence of the delegates. It is not an open ended liability and will only cover functions which the school has assumed for itself a duty to perform rather than to arrange for its performance, and only where control over the child has been delegated. The recognition of this duty has become more significant as a result of increased outsourcing of educational and supervisory functions but only replaces duties which the school formerly owed when the functions were performed by its staff.

On the facts of this case, as pleaded by the appellant, the Council had delegated the control of the appellant to third parties to carry out an integral part of its teaching function during school hours, in a place where the school chose to carry out this part of its functions. If it is found that the third parties were negligent, then the Council will be in breach of duty.

 

Decision Making and Contracts

October 9th, 2013 by James Goudie KC in Decision making and Contracts

R (Buck) v Doncaster MBC (2013) EWCA Civ 1190 raises important issues as to the division of powers between a directly elected executive and the full council of a local authority.  At first instance Hickinbottom J made the general observation that, if, by an appropriately worded budget amendment, the full Council could override executive decisions of the Mayor, and replace those decisions with their own, the ultimate executive decision-making power would not lie with the Mayor, but with the full Council, contrary to the intention of the Local Government Act 2000 governance scheme.  The Court of Appeal agreed.  The Master of the Rolls said (at para 17) that, in view of the objective of the relevant provisions of the 2000 Act, it would be extraordinary (and frustrate the evident intention of Parliament) if the full Council could direct the Mayor whether and, if so, how to spend the money which had been authorised by the budget.  It would mean that the full Council could take over responsibility for almost any executive matter, simply by writing some sufficiently specific provision about it in the annual budget.  If the budget-setting powers of the full Council extend to prescribing exactly what expenditure is to be incurred in what specific respects, then it can use those powers to determine exactly what the executive authority will do.  Nor is there any limit to the degree of detail into which such prescription could descend.  This kind of micro-management by the full Council was plainly not intended by the 2000 Act. 

Full Council has no power to interfere with the executive function of the Mayor, except where the Mayor proposes to exercise the function in a way that is (i) contrary to, or not wholly in accordance with, the authority’s budget, or (ii) is contrary to a plan or strategy adopted or approved by the authority.  So what does determining a matter in a manner “contrary to or not wholly in accordance with the authority’s budget” mean?  At para 20, the Master of the Rolls, with whom McCombe LJ and Gloster LJ agreed, said: “In my view, it means determining a matter which will result in incurring expenditure in excess of that for which budget approval has been given by the full council.  That does not only mean that the executive may not incur expenditure in excess of the aggregate of the entire budget, although it certainly includes such a restriction  on the executive’s spending power.  …  it also means that the executive may not incur expenditure in excess of heads of expenditure specified in the budget.” 

To summarise, the full Council may allocate more or less funds than are requested by the Mayor in his proposed budget.  It is the final arbiter of what goes into the budget.  The budgetary process is geared to avoiding any budget deficit by ensuring that the revenue expenditure will not be exceeded.  But it does not allow the full Council to micro-manage the authority’s functions and interfere with the executive functions of the Mayor.  The full Council cannot require the Mayor to expend money in a particular way, or, unless he proposes to act in a way contrary to the plans and strategies reserved to the full Council, to expend money on a particular function. 

As regards “contrary to a plan or strategy”, the Master of the Rolls said:

“24.       … The language of “plan or strategy”,  read in the context of the Functions Regulations, denotes something that operates at a general level.  It cannot embrace any and every decision that may be taken on an individual issue.  If it did, it would undermine the basic distinction between executive and non-executive functions which lies at the heart of the relevant part of the 2000 Act.  The basic idea is that the full council may in certain respects set the policy framework for the authority, but its detailed implementation is a matter for the executive (provided that what it does is not contrary to and is wholly in accordance with the budget).” 

 

Decision Making and Contracts

October 7th, 2013 by James Goudie KC in Decision making and Contracts

In R (T) v Sheffield City Council [2013] EWHC 2953 (QB) 4 mothers challenged by judicial review the decision of the Council to stop paying subsidies to 20 nurseries.  They did so on 5 grounds: (1) failure to consult fairly; (2) breach of the PSED; (3) breach of the best value duty; (4) breach of duties imposed by the Childcare Act 2006 (“CA 2006”); and (5) irrationality.  All the challenges failed.

As regards flawed consultation, Turner J observed (para 30) that whether consultation is undertaken at a formative stage “is bound to be fact sensitive” and that “the important point” is that “when the process starts the ultimate decision should still be fully capable of being moulded and influenced by the response”.  At paras 32 and 35 he stated:-

“32. It is also important to put the issue of consultation into context. There will be many cases in which it will not be possible precisely to time the beginning (or even the end) of the consultation process. For example, it is by no means unusual for particular proposals to have been preceded by earlier different but related proposals upon which there has already been some level of pertinent consultation. The existence of the prior period of consultation does not, of course, obviate the need to consult further but it may have an important influence on the timing, content and duration of the process of consultation which follows.”

“35. The time reasonably to be allowed for a response to a consultation process is, again, a highly fact sensitive issue. Once more, context is important. Where, as here, the issue upon which consultation is to take place is one in which interested parties have already been recently engaged the time reasonably required for any formal consultation period may well be shorter than in circumstances where the proposal is without precursors.

As regards the PSED, under Section 149 of the Equality Act 2010, Turner J said (para 53):-

“Of course, a mere generic, background level of concern is not of itself sufficient to comply with the requirements of the Act but it is not insignificant that those responsible for taking the decision in this case were not approaching their responsibilities from a position of ignorance about the social and demographic context in which they were operating. Further, Cabinet members were engaged in the process of assessing and developing proposals as part of a continuous process and the records of meetings are snapshots only of the route which they are following.

As regards the best value duty under Section 3 of the Local Government Act 1999, and Guidance issued by the Secretary of State, Turner J concluded (para 67):-

“There is no substance in the complaint that the defendant impermissibly distorted the outcome of its decision making process in a way calculated to preserve funding for itself as opposed to the nurseries. In any event the Guidance, thankfully, does not require a formulaic “pound for pound” approach. …”

As regards CA 2006, Turner J said:-

“70. Section 1 of the 2006 Act is described as a “general duty” and cannot be approached in the context of the position of an individual or individuals. It is necessary to look at the population of those affected as a whole. In this case, it was perfectly open to the defendant to conclude that the decision to prioritise intervention over subsidy would have the overall effect of improving the well-being of young children and to reduce inequalities in the well-being of young children in the Sheffield area. It is not for the court to substitute its own views for that of the democratically elected local authority.”

“71. Much the same can be said of section 3(2). I do not see how it can be contended that redistributing resources away from nursery subsidies and towards individual cases of need cannot, at least arguably, result in a better integrated provision of early childhood services and a maximisation of the benefit to be derived by young children and their parents. Whether it actually does or not is a matter upon which the defendant is in a far better position than this court to judge.

72.Within the factual parameters of this case it is difficult to see how section 3(3) could be any more than peripherally relevant if at all. This sub-section too applies to all those children and parents affected by the actions of the decision maker and cannot be applied to a limited class in isolation. The withdrawal of funding from twenty nurseries does not on the face of it constitute a general failure to identify parents or prospective parents who would otherwise be unlikely to take advantage of early childhood services. There is simply no evidence in support of this contention and it is misconceived as a matter of law.

73. The duty under section 6 is more obviously pertinent to the issues arising in this case but it is subject to the constraints of reasonable practicability. This issue was clearly and directly considered by the defendant. The requirements of section 6 are also set out in the overarching EIA. There is simply no legitimate basis in this case upon which this court can substitute its own view as to what is or is not reasonably practicable for that reached by the defendant.”

As regards irrationality, Turner J said:-

“77. I am in no doubt that the claimants genuinely believe that the defendant’s decision was irrational in the sense that they consider that the balance of argument was firmly weighted in favour of the retention of the grants, at least for some further period, and they cannot understand why this did not happen. It is not, however, for this court to attempt to re-balance the arguments and form its own conclusion on their respective merits.”

Turner J’s conclusion was as follows:-

78. The twenty nurseries affected by this decision which provide valuable facilities to the families which they serve are to be commended on the contribution they have made and continue to make to their local communities. I hope that, despite the termination of the subsidies, they are all able to survive and flourish but I must recognise that some may not. In an ideal world, it would not be necessary to make hard choices about the distribution of funds between competing but thoroughly meritorious causes but, particularly in the present economic climate, sacrifices even of highly socially desirable initiatives are sometimes unavoidable. Councils are democratically elected to make decisions and some of these are bound to be contentious and unpopular. Ultimately, however, the decision in this case, controversial as it undoubtedly was, complied with the standards imposed by public law and must remain undisturbed.”

 

Decision Making and Contracts

September 20th, 2013 by James Goudie KC in Decision making and Contracts

R (Nash) v Barnet LBC [2013] EWCA Civ 1004 (“Nash”) concerned whether a decision and an impending decision by Barnet Council to outsource a high proportion of its functions and services to private-sector organisations was lawful.  The judicial review challenge was brought by a local resident.  There were three grounds of challenge: non-compliance with “best value” consultation obligations; breach of the PSED; and breach of fiduciary duty to council tax payers.  A procurement challenge was not pursued. 

The challenge failed at a rolled-up hearing: [2013] EWHC 1067 (Admin), (2013) LGR 515.  The Court of Appeal dismissed the Claimant’s appeal. 

The first question was whether the claim was in time.  The Claimant sought to rely on the House of Lords decision in R (Burkett) v Hammersmith & Fulham LBC [2002] 1 WLR 1593 (“Burkett”), where outline planning permission had been preceded by a resolution approving the award subject to certain conditions, and the resolution was subject to, amongst other things, completion of a Section 106 agreement; and where property rights were affected. 

The Court of Appeal said (para 45) that the Council “was entitled to emphasize the general importance of compliance with the time limits set for judicial review proceedings, given the various public interests generally involved in public law cases”. 

The essence of the argument on behalf of the Claimant was that even if she could have raised her challenge at an earlier stage, there was no obligation on her to do so, that Burkett permitted her to raise the legal challenge at the time of the final decision to do the act, that all the Council had decided to do in 2010/2011 was to initiate a procurement process, and thereafter move on from time to time to the next stage of the process, and that the Council had not committed to awarding any contract, let alone any particular contract, until its December 2012 decision. 

The Court of Appeal, however, ruled that Burkett, properly analysed, “simply will not bear so open-ended an application”.  They agreed with the first instance Judge as follows:- 

“I do not believe that Burkett is authority for the proposition that in every situation in which a public-law decision is made at the end of a process which involves one or more previous decisions – what I will refer to as “staged decision-making” – time will run from the date of the latest decision, notwithstanding that a challenge on identical grounds could have been made to an earlier decision in the series. In my judgment it is necessary in such a case to analyse carefully the nature of the latest decision and its relationship to the earlier decision(s). I believe the true position to be as follows. If the earlier decision is no more than a preliminary, or provisional, foreshadowing of the later decision, Burkett does indeed apply so that the later, “final”, decision falls to be treated as a new decision, the grounds for challenging which “first arise” only when it is made. But if the earlier and later decisions are distinct, each addressing what are substantially different stages in a process, then it is necessary to decide which decision is in truth being challenged; if it is the earlier, then the making of the second decision does not set time running afresh. I accept that the distinction may in particular cases be subtle, but it is in my view nonetheless real and important.” 

Burkett was concerned with a merely provisional decision.  In Nash the Council was not provisionally resolving to enter any outsourcing contract at all.  What the Council was doing was actually deciding to enter into a procurement process by way of competitive dialogue.  That process then, and in accordance with the Public Contracts Regulations (“the PCR”) 2006, proceeded in stages.  Thus, in contrast with the initial resolution in Burkett, work was lawfully and foreseeably done and money was expended precisely because of such decisions.  The decisions thus had and were intended to have legal effect: not, of course, in terms of sanctioning a binding contract in terms of authorising and causing the initiation of the procurement process, with attendant inevitable heavy expenditure and significant use of time and resources.  Without such decisions, those things could not and would not have been done.  Those decisions are thus properly to be regarded as substantive.  They are not to be regarded as contingent or provisional, even though there was no guarantee at all that any outsourcing contract or contracts might ultimately result.  A failure to comply with the procedure at any stage inevitably undermines the integrity of all that follows. Accordingly, the right of action is complete immediately and cannot be improved by allowing the procedure to continue to a conclusion. Where there has been a failure to comply with the proper procedure the later award of the contract does not constitute a separate breach of duty; it is merely the final step in what has already become a flawed process. The approach adopted in Burkett can simply be transposed to a procurement challenge whether under the PCR or by way of judicial review. 

The Court of Appeal further observed that there was “nothing in fairness or certainty” such as to justify the Claimant not issuing proceedings until after the final decision.  The prior decisions had been made at public meetings, had been published and were widely known.  On the contrary, considerations of fairness and certainty “all weigh strongly in favour of the Council”.  The Court of Appeal added:-

“It is inconceivable that the Council (or the potential tenderers) would have gone down the very costly and time-consuming process of procurement and competitive dialogue had it been envisaged that a challenge on the grounds of lack of consultation on the whole strategy of outsourcing might at the very end of the day be made. That is quite different from the inherent and understood risk that the procurement process might not ultimately result in any concluded procurement contract.”

 

Highways

July 31st, 2013 by James Goudie KC in Environment, Highways and Leisure

In Vernon Knight Associates v Cornwall Council [2013] EWCA Civ 950 the Council unsuccessfully appealed against a decision that it was liable for damage caused by floodwater escaping from one of the roads in the County when drains it had installed in the road had become blocked.  The road was known to be a high flood risk.  The Council’s system to prevent such blockages was adequate.  However, the Council’s contractor on two occasions did not follow his normal practice.  This caused the flooding. There was no adequate explanation for the failure to attend the road during exceptionally heavy rainfall.

Jackson LJ, having reviewed the authorities in relation to the liability of land owners for non-feasance in respect of natural nuisance, extracted the following principles (para 49):

“(i)        A landowner owes a measured duty in both negligence and nuisance to take reasonable steps to prevent natural occurrences on his land from causing damage to neighbouring properties. 

(ii)         In determining the content of the measured duty, the court must consider what is fair, just and reasonable as between the two neighbouring landowners. It must have regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the costs of such measures and the resources of both parties.

(iii)        Where the defendant is a public authority with substantial resources, the court must take into account the competing demands on those resources and the public purposes for which they are held. It may not be fair, just or reasonable to require a public authority to expend those resources on infrastructure works in order to protect a few individuals against a modest risk of property damage.”

The Council submitted it was only an adjoining owner by reason of its position as a highway authority.  Bearing in mind the many demands upon the Council’s resources, the Court should not impose unduly onerous requirements.  As to this factor, Jackson LJ said (para 57):  “… it is correct that the council is a highway authority with a large network of roads to maintain and the principal duty of preserving the safety of road users. On the other hand, precisely the same measures were needed both to protect motorists against flooded roads and to prevent flood damage occurring to adjacent properties. These measures were to check and clear the drains.”

Jackson LJ said (para 58) that the point made about resources is an important one and cannot be lightly dismissed, but concluded (para 59) that, even after making due allowance for the pressures on local authorities, the duty on the Council did require it to keep the drains functioning properly.  Moreover (para 61) the availability of insurance was not a factor of any great relevance.  At para 63 Jackson LJ said:

“Whilst I accept that there are limits on what can be expected from local authorities in relation to flood prevention, I do not accept that the judge applied too high a standard of care in the present case. He properly took into account all the relevant circumstances. Although he was carrying out a multifactorial assessment, he properly highlighted those factors which were particularly significant. I therefore reject the council’s first and principal ground of appeal.”

 

Highways

July 22nd, 2013 by James Goudie KC in Environment, Highways and Leisure

R (Attfield) v Barnet LBC [2013] EWHC 2089 (Admin) is a judicial review of the Council’s decision to increase the charges for residents’ parking permits and visitor vouchers in Controlled Parking Zones in its area.  The claim succeeded before Lang J.  She held that the increase in charges, pursuant to s45(2)(b) of the Road Traffic Regulation Act 1984 (“the RTRA”) was unlawful, because its purpose was to generate a surplus on the Special Parking Account, maintained under Section 55 of the RTRA, beyond the monies needed to operate the parking scheme, to fund other transport expenditure, such as road repair and concessionary fares.  She rejected the Council’s argument that it was entitled to exercise its powers under s45 (such amount as the authority may prescribe) for the purpose of raising a surplus to use for any transport functions, provided that they come within the scope of s122 of the RTRA.  Lang J said, at para 59:

“The purpose of section 122 is to impose a duty on local authorities to exercise their functions under the Act in accordance with the objects set out therein. It is necessarily couched in general terms because it applies to a remarkably broad range of functions in the RTRA 1984, e.g. traffic schemes, pedestrian crossings, school crossings, street playgrounds, speed limits, bollards, traffic wardens, removal and immobilisation of vehicles, as well as different types of parking facilities. I do not consider that section 122 was intended to authorise a local authority to raise a levy on parking permit holders, pursuant to section 45(2)(b), to fund any project which met the objects set out in section 122. Such an intention is not expressly stated, nor can it properly be implied. The RTRA 1984 is not a revenue-raising or taxing statute.”

Lang J concluded that the amount of the charge is limited to the amount the authority considers appropriate for the purposes of parking regulation, not for other transport purposes.  She observed, however (para 57):

“… the authority has a discretion to set charges to reflect its parking policies.  It is not restricted to levying a charge only to cover the base cost of running the schemes.”

 

Leisure

July 5th, 2013 by James Goudie KC in Environment, Highways and Leisure

What is a local authority entitled to take into account when deciding whether or not to renew a sex establishment licence for a lap dancing club?  That was the issue before the Court in Thompson v Oxford City Council [2013] EWHC 1819 (Admin).  Haddon-Cave J held that the fact that the character of an area was in the process of changing was a relevant consideration when deciding upon the appropriateness or otherwise of such a licence in accordance with Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, as amended by Section 27 of the Policing and Crime Act 2009.

At paragraph 50 of his Judgment he summarised the general principles to be derived from the authorities regarding the licensing of sex establishments as follows:-

(1)        Local authorities are granted a very wide statutory discretion to decide whether or not a licence should be granted;

(2)        Local authorities can take into account “any strong body of feeling in the locality” which objects to the existence of a sex shop there, although this does not include moral objections to its activities;

(3)        The legislation expressly contemplates that the circumstances in which a licence has been granted or renewed may change and there can be no expectation of annual renewal;

(4)        Local authorities have “a very broad power to make an evaluative judgment” whether the grant of a licence would be inappropriate having regard to “the character of the relevant locality”: this imports “a significant evaluative power” at two levels: first, in assessing whether the grant or renewal of the licence would be “inappropriate” (a very broad and general concept); and, secondly, in assessing the character of the relevant locality, which, again, involves questions of fact and degree and local knowledge which import, at that level also, a broad power of evaluative judgment to be exercised by the local authority;

(5)        There is no radical conceptual divide between “the character of the relevant locality” and “the use to which any premises in the vicinity are put”: the former is a concept calling for “a compendious and general evaluative judgment to be made by the authority”, having regard to a range of factors which may be relevant to that question, including not least the use to which properties within the relevant locality happen to be put, the latter simply provides an additional ground for refusal if, eg, it cannot be said that it would be inappropriate to grant a licence given the general character of the locality, but the use of particular premises within the vicinity does give cause for concern viz eg a church, or primary school;

(6)        The considerations were intended by Parliament to be considerations for the local authority’s own evaluative judgment, subject only to the Court’s supervisory jurisdiction on a claim by way of judicial review.

At paragraph 68 the Judge said:-

“…  licensing decision-makers are entitled to take into account both the present and future “character” of an area. There is no reason to limit the reference to “character” only to the present character of the area. Indeed, it would make no sense to do so in the context of prospective licences which were to be granted for 12 months in the future. Prospective licences required a prospective view. The fact that an area is developing and in a continued state of change is a relevant consideration to why renewal might be inappropriate.”

 

Highways

June 19th, 2013 by James Goudie KC in Environment, Highways and Leisure

In Cusack v Harow LBC [2013] UKSC 40 the Supreme Court has held, reversing the Court of Appeal, that the Council as highway authority was not required to pay compensation for the erection of barriers preventing a property owner accessing a public highway from his property.  The Council had power to proceed under Section 80, which does not provide for compensation, rather than Section 66(2) of the Highways Act 1980 (“HA 1980”), which does provide for compensation.  The Supreme Court observed that, albeit the owner of a property adjoining a highway has a common law right of access to the highway, without restriction, from any part of his or her property, that right has been greatly limited by statutory provisions and there is no general right to compensation when action is taken to restrict a property owner’s right of access to an adjoining highway.

Canons of statutory construction, including the principle that a specific statutory provision excludes the application of an inconsistent and more general statutory provision, have a valuable role to play as guidelines embodying logic or common sense.  However, the distinction between general and specific statutory provisions was of no assistance in this case because neither Section 66(2) nor Section 80 of HA 1980  could be regarded as more specific or less general then the other.  HA 1980 is a consolidating statute and is the result of a complex history extending over more than 130 years. It contains a variety of overlapping and sometimes inconsistent powers. The Council was entitled to rely on the clear wording of Section 80 in order to erect the barriers. It did not matter that the Council could use Section 66(2) to achieve the same objective. However, a highway authority’s use of Section 80 could be challenged if, for example, it circumvented the specific prohibitions of the use of the power conferred by Section 66(2).

The Human Rights Act 1998 did not preclude the Council from relying on Section 80 because it involved no breach of the right to peaceful enjoyment of property under Article 1 of the First Protocol to the ECHR (“A1P1”).  The erection of the barriers would be a control of the use of property, not a deprivation of property. The case concerned land development and town planning, in relation to which the State enjoys a wide margin of appreciation. The issue of the proportionality of the interference with A1P1 rights requires a broad judgment as to where a fair balance lies between competing general and individual interests.  The mere fact that another statutory route was available to the Council and that it required the payment of compensation did not itself lead to the conclusion that the Council’s reliance on Section 80 was disproportionate. There is no general rule under A1P1 that, where the State seeks to control the use of property and could do so under two different provisions which have different consequences in terms of compensation, it is obliged to use the provision which carries some (or greater) compensation.

 

Leisure

June 18th, 2013 by James Goudie KC in Environment, Highways and Leisure

Section 15(4) of the Commons Act 2006 (“CA 2006”), in relation to registration of town and village greens (“TVG”), is compatible with the right to peaceful enjoyment of possessions pursuant to Article 1 of Protocol 1 to the ECHR (A1P1).  So the Court of Appeal has held in R (Newhaven Port and Properties Ltd) v SoS for DEFRA, East Sussex County Council and Newhaven Town Council [2013] EWCA Civ 673. The Port did not argue that the TVG scheme as a whole is incompatible with A1P1. It accepted that that argument was barred by Oxfordshire County Council v Oxford City Council [2006] 2 AC 674.  The challenge was to Section 15(4) of CA 2006, which applies (broadly) where (a) a significant number of the inhabitants of any locality indulged “as of right” in lawful sports and pastimes on the land for a period of at least 20 years, (b) they ceased to do so before the time of the application but before the commencement of Section 15, and (c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b). By Section 15(1) any person may apply to the commons registration authority to register land to which Part 1 of CA 2006 applies in a case where subsection (2), (3) or (4) applies.

The Port argued that the effect of Section 15 (4) was to deprive it of the statutory defence by which it could have defeated any application which had been made before the Section came into force, namely by demonstrating that use had not continued until the date of the application. The Port argued that in so doing Section 15 (4) is incompatible with A1P1.  It was common ground that CA 2006 (and Section 15 (4) in particular) is an interference with the Port’s peaceful enjoyment of its possessions because it significantly restricts what activities the owner can carry out on the registered land. Thus A1P1 is engaged. It was also common ground that the jurisprudence of the European Court of Human Rights has established that A1P1 involves three distinct rules: the general principle of the peaceful enjoyment of possessions; a rule against deprivation of property, and right on the part of states to control the use of property in the general interest but subject to the striking of a fair balance between that interest and those of the property owner.  It was also common ground that registration of a TVG does not involve a deprivation of possessions, because legal title remains with the owner. This was, therefore, a case of control of use, falling within the second paragraph of A1P1. Lastly it was common ground that the interference had taken place subject to conditions provided for by law; in the sense that the law is clear and accessible. The key issues, therefore, were whether the contested legislation pursues a legitimate aim; and, if it does, whether the means by which it does so are reasonably proportionate to achieving that aim.

The Court of Appeal held that Section 15(4) does have a legitimate aim.  The key issue was that of proportionality.  The Court of Appeal held that the means by which Section 15(4) pursued the legitimate aim, including the period of grace being 5 years rather than a shorter period, are not manifestly without reasonable foundation.  It had been open to the Port to prevent the twenty years use as of right from coming into existence at all.  The Port’s bye-laws amounted to consent to the uses on which the local inhabitants relied.  If the Port had displayed the bye-laws on the quayside or the sea wall the whole problem would have been eliminated.  Moreover, all landowners have effectively been put on notice that those using their land for recreational purposes may well be asserting a public right to do so if their use of the land is more than trivial or sporadic. 

 

Litigation

June 11th, 2013 by James Goudie KC in Judicial Control, Liability and Litigation

The Civil Procedure (Amendment No.4) Rules 2013, SI 2013/1412 (L.14), in force from 1 July 2013, provide that planning judicial reviews must be brought within 6 weeks, procurement judicial reviews must be brought within the same time limits as in the Public Contracts Regulations, and that claims certified as totally without merit on the papers may not renew to an oral hearing.

 

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