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.

 

Leisure

June 3rd, 2013 by James Goudie KC in Environment, Highways and Leisure

What is the relationship between judicial review and the intervention powers of the Secretary of State (“the SoS”) in relation to changes in local library provision? On 31 May 2013 the SoS announced her decisions not to direct Inquiries under the Museum and Libraries Act 1964 into such changes in the Isle of Wight and in Bolton.

The SoS stated the Principles as follows:-

“The Secretary of State has considered the duty of a local authority to provide a comprehensive and efficient service under section 7 of the 1964 Act. What constitutes a comprehensive and efficient service is a question involving a significant element of judgement. Those judgements are, in the first instance, for the local authority to make. It has good knowledge of local conditions and needs and has direct democratic accountability to the local population. This is a significant factor. The Secretary of State’s view is that decisions about local issues should ordinarily be taken by democratically elected local representatives accountable to local voters. The duty of the Secretary of State is one of superintendence. A wide range of approaches were open to the local authority when deciding how to provide a comprehensive and efficient library service. The Secretary of State also notes that the local authority is entitled to take account of cost in deciding whether a proposal is efficient.

The Secretary of State seeks to promote and secure the proper discharge of the statutory duties on local authorities.  She has power to direct a local inquiry. Her approach in deciding whether she is minded to intervene to direct an inquiry has been to ask herself whether, having regard to the duties on her and the local authority, there is good reason in all the circumstances for her to direct an inquiry at the present time.

In taking that decision, the Secretary of State has given consideration to a number of factors. They include:

  • Whether there is any serious doubt or uncertainty as to whether the Council is (or may cease to be) complying with its legal obligation to provide a comprehensive and efficient library service.
  • Whether the Council appears to be acting in a careless or unreasonable way.
  • Whether the decision is or may be outside the proper bounds of the Council’s discretion, such as a decision to stop serving a particularly vulnerable group.
  • Whether the Council, has failed to explain, analyse or properly justify its proposals.
  • Whether the local proposals are likely to lead to a breach of national library policy.
  • Whether substantial further investigation is needed. A local inquiry would be more likely to be appropriate in a case where there are substantial uncertainties as to compliance with the statutory duty, and inadequate public consultation and discussion of proposals.  The converse is also true.
  • The advantages of local decision making by democratically accountable local representatives.
  • The cost and delay of an inquiry.
  • Whether there is any further good reason why a local inquiry would be appropriate or inappropriate.

The Secretary of State has also borne in mind that too ready an intervention would risk preventing or discouraging prompt and efficient reforms of library services. Equally, failing to intervene in an appropriate case would risk the delivery of an efficient and comprehensive service.”

There were two particular features in the case of the Isle of Wight.

First, as regards community libraries, the SoS said:-

“For the purposes of her assessment as to whether to order a local inquiry, the Secretary of State has based her view solely on the council run libraries, and the mobile library service.  The community libraries have not been taken into account, although they appear to be successful and to form an important part of Island life.  Accordingly, if the community service were to be taken into account, it would only reinforce the Secretary of State’s view.”

Second, the SoS noted that a claim for judicial review of the changes failed, and that permission was refused on grounds not only that there had been delay in bringing the claim, but also that, in any event, the claim was not of sufficient merit to justify the grant of permission.  She said:-

“In the view of the Secretary of State it is clear that the Isle of Wight continues to offer a comprehensive and efficient library service through its core libraries and mobile library service.  The Secretary of State has taken into account that the Court has decided that the changes were lawful (and it was unarguable to suggest the contrary).”

 

Rates

June 3rd, 2013 by James Goudie KC in Council Tax and Rates

Premises will be “wholly or mainly used for charitable purposes”, for the purposes of assessing whether a registered  charity is entitled under Section 43(6)(a) of the Local Government Finance Act 1988 to mandatory charitable relief from non-domestic rates only if the charity makes extensive use of the premises for charitable purposes.  In Public Safety Charitable Trust v Milton Keynes Council [2013] EWHC 1237 (Admin) Sales J held that merely some charitable use of the premises was not enough, following Kenya Aid Programme v Sheffield City Council [2013] EWHC 54 (Admin).

 

Leisure

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

The costs of enforcing a licensing system (of sex establishments) against unlicensed operators (who may not have applied for authorisation) cannot be reflected in licence fees charged by a local authority (under the Local Government (Miscellaneous Provisions) Act 1982).  So the Court of Appeal has held in Hemming v Westminster City Council [2013] EWCA Civ 591, upholding Keith J.  This is because such costs are not (proportionate) costs of “authorisation procedures and formalities” under an “authorisation scheme”.  They are therefore prohibited by the EU Services (in the Internal Market) Directive and the Provision of Services Regulations 2009, SI 2009/2999.  In order to justify a (licence) fee or charge it has to be shown that it is related to the cost of the actual authorisation process: Beatson LJ at para 84.  The Court rejected (para 98) the “consequentialist arguments” about the effect on other regulated areas advanced by the Council in support of its construction.  The Court, however, accepted (para 103) that not only can costs in investigating the suitability of an applicant be reflected in the fee, so too, in the case of an application to renew a licence, can be the costs of monitoring the applicant’s continued suitability and compliance with the licence terms.  Enforcement against licensed operators is to be distinguished from enforcement against unlicensed operators.

 

Rates

May 31st, 2013 by James Goudie KC in Council Tax and Rates

Does the fact that no more than a minute fraction of the area encompassed within premises is used (by the presence of blue-tooth apparatus) prevent occupation being rateable occupation?  No, holds Wilkie J in Sunderland City Council v Stirling Investment Properties Ltd [2013] EWHC 1413 (Admin).  Wilkie J further holds, applying Arbuckle Smith v Greenock Corporation [1960] AC 813, that it is not relevant, for the purpose of rateable occupation, that the nature of the use to which the hereditament is put is different than that which was described in the rating list. There is nothing in the legislation which limits the ability of a local authority to levy rates to occupation for a purpose which is identical to the description of the hereditament in the rating list. The issue of any apparent disconnect between the nature of the occupation of an hereditament and its description in the rating list is a matter for the valuation officer to address if he thinks that a new, or additional, hereditament may have been brought into existence.

 

Local Authority Powers

May 20th, 2013 by James Goudie KC in Local Authority Powers

Should Birmingham City Council have been granted an Injunction, with a power of arrest attached, restraining an individual from entering a prescribed area of the City, save for certain limited purposes, and from associating with 19 named persons or gathering with them in any public place within the City, and ordering him to undertake prescribed activities?  That was the issue that went from the Birmingham County Court to the Court of Appeal in Birmingham City Council v James [2013] EWCA Civ 552, in which Judgment was given on 17 May 2013.

The factual background was as follows.  For some time Birmingham and some other major cities have suffered from the activities of urban street gangs composed of large numbers of young men. In most cases the gangs are identified by the particular neighbourhoods in which they are based and which they regard as their own territory. Street gangs are responsible for a large amount of crime, particularly violent crime and crime involving drugs and the use of firearms. Violence of a very serious kind, including the use of automatic weapons, is liable to break out when one gang invades the territory of another or when one gang takes reprisals for actual or perceived slights by another.

The legal background is as follows. In the past the Council has attempted to make use of its powers under Section 222 of the Local Government Act 1972 in order to disrupt the activities of gangs by obtaining Injunctions restraining individual gang members from entering parts of the city and associating with other gang members. However, in Birmingham City Council v Shafi [2008] EWCA Civ 1186, [2009] 1 WLR 1961 the Court of Appeal held that Section 222 did not give local authorities substantive powers but was merely procedural in nature, allowing them to exercise powers formerly vested only in the Attorney General. The Court held that although it is possible in some circumstances to obtain an Injunction to prevent a breach of the criminal law, the appropriate way to obtain relief of the kind sought in that case was for the local authority to apply for an ASBO.  The provisions in Part 4 of the Policing and Crime Act 2009 were enacted in response to the Court’s decision in Birmingham City Council v Shafi. Section 34 gives the Court power, on the application of chief constables or local authorities, to grant Injunctions prohibiting the persons to whom they are addressed from acting in ways that would promote gang-related violence or requiring them to act in certain ways, including undertaking prescribed activities.

The Court of Appeal upheld the Injunction.

Moore-Bick LJ said:-

“11.       I do not think it helpful to introduce the concept of mens rea into section 34(2). Although the section is clearly directed primarily to deliberate conduct amounting to participation in, or encouragement of, gang-related violence, it is possible that in some, no doubt unusual, cases it could be held to apply to certain kinds of conduct which could be said to amount to inadvertent encouragement. However, the question does not arise in this case and it is neither necessary nor desirable to explore precisely where the boundary lies.  …”

“13.       … Following the decision of this court in Birmingham City Council v Shafi, in which the view was expressed that an ASBO, rather than an injunction in support of the criminal law, was the appropriate means by which to restrain the defendant from taking part in gang-related violence, Parliament enacted Part 4 of the Policing and Crime Act 2009, which makes specific provision for the granting of injunctions for that purpose. There can be no doubt, therefore, that Part 4 represents Parliament’s considered response to the particular problem of gang-related violence. Although some kinds of gang activity may be classified under the generic description of anti-social behaviour, section 1(1) of the Crime and Disorder Act 1998 was not enacted with a view to dealing specifically with the consequences of gang culture. It is much broader in nature and is apt to apply to anti-social behaviour of all kinds. Section 34, as its terms indicate, is aimed at a particular kind of mischief and the choice of the civil standard of proof appears to have been a deliberate response to the view expressed by the majority in Birmingham City Council v Shafi about the appropriate standard of proof in proceedings for an injunction of the kind that the Council was seeking. In those circumstances I do not think it can possibly have been the intention of Parliament that when considering whether it is necessary to grant a gang injunction the court should ask itself whether an ASBO would provide an adequate remedy. If the condition in subsection (2) is satisfied, it is sufficient that the court consider whether it is necessary to impose a restriction on the respondent’s activities to achieve one or other of the purposes set out in subsection (3). The judge held that if the defendant’s conduct fell within both pieces of legislation the Council could make an application under whichever it considered the more convenient or appropriate. In principle I think that is right, but in any event I am unable to accept that an application under section 34 was inappropriate. …”

 

Land

May 13th, 2013 by James Goudie KC in Land, Goods and Services

From 25 June 2013 the Secretary of State will be able to give a General Consent to local authorities to dispose, for less than the best consideration reasonably obtainable, of land held for planning purposes, when the Growth and Infrastructure Act 2013 (No. 1) Commencement Order, SI 2013/1124 (C.49) brings into force, in relation to England, Section 8 of the Act, which amends Section 233 of the Town and Country Planning Act 1990.  Section 8 also extends to such disposals the protection for purchasers contained in Section 128 of the Local Government Act 1972.

 

Non Judicial Control

May 13th, 2013 by James Goudie KC in Non Judicial Control

Following the Queen’s Speech, the Local Audit and Accountability Bill (“the Bill”) was introduced in the House of Lords on 9 May 2013.  The effect of the Bill would be to abolish the Audit Commission and to establish new arrangements for the audit and accountability of local public bodies (or “relevant authorities” as set out in Schedule 2 to the Bill) in England.  The Bill also amends the legislative framework under the Localism Act 2011 for council tax referendums, to provide that increases set by levying bodies are taken into account when local authorities determine whether they have set an excessive amount of council tax each year. It also contains measures relating to local authority compliance with the Code of Recommended Practice on Local Authority Publicity.

The Bill consists of seven Parts and 13 Schedules.  Part 1 (Clause 1 and Schedule 1) provides for the abolition of the existing audit regime.

Part 2 sets out basic requirements and concepts.  Clause 3 imposes a requirement to keep accounting records and to prepare an annual statement of accounts, which must (Clause 4) be audited.

Part 3 imposes a requirement (Clause 7) to impose an external and independent auditor on the advice (Clauses 8 and 9) of an independent auditor panel (Clause 10) and to publish information about the appointment.  Clauses 14 and 15 relate to limitation of auditor liability; and Clause 16 to resignation and removal of an auditor.

Part 4 relates to eligibility and regulation of local auditors.

Part 5 is concerned with the role and conduct of local auditors. The scope of the audit is set out in Clauses 19 and 20, and largely replicates existing provisions in the Audit Commission Act 1998. Clause 18 and Schedule 6 set out the role of the Comptroller and Auditor General of the National Audit Office in setting the audit standards through codes of audit practice and guidance. Clauses 23 to 30 set out the additional duties of local auditors in undertaking audits of relevant authorities, retaining the current roles in, for example, reporting in the public interest when necessary or taking questions and objections from local government electors.  By virtue of Clause 21 a local auditor has a right of access to documents and information that relate to the relevant authority and are necessary for the purpose of the auditor’s functions under the Bill. The auditor may also require persons to provide information or explanations. Under Clause 22 a person who obstructs that access or fails to comply with a requirement (without reasonable excuse) commits an offence. Clause 25 makes provision about the inspection of accounting records and any documents supporting those records. The Court of Appeal in Veolia ES Nottinghamshire Ltd -v- Nottinghamshire CC [2010] EWCA Civ 1214 found in respect of the forerunner to this provision (Section 15 of the Audit Commission Act 1998) that it should be read down so as to exclude from that right confidential information unless its disclosure was justified in the public interest so as to ensure the provision was compatible with ECHR. Clause 25 therefore makes express provision in this regard. Information may not be disclosed if its disclosure would prejudice commercial confidentiality and there is no overriding public interest in favour of its disclosure.

Part 6 of the Bill is concerned with data matching.  Apart from transferring the power to conduct data matching exercises from the Audit Commission to the Secretary of State or the Minister for the Cabinet Office, the data matching powers set out in Schedule 9 (which is given effect to by Clause 32) are largely the same as the provisions inserted into the Audit Commission Act 1998 by the Serious Crime Act 2007.

Part 7 of the Bill contains miscellaneous and supplementary provisions. These include Clause 38, relating to local authority publicity, and Clause 39, relating to council tax referendums.  Clause 38 amends the Local Government Act 1986 to provide the Secretary of State with the power to give directions requiring one or more local authorities in England to comply with one or more of the recommendations made in a code of practice issued under Section 4 of that Act (a Code of Recommended Practice on Local Authority Publicity). A direction could apply to a single named authority, to a number of named authorities, to all authorities in a particular class, or to all authorities to which the code applies. It also sets out the procedures to be followed prior to making a direction and for the withdrawal or modification or withdrawal of a direction. Clause 39 amends Chapter 4ZA of Part 1 of the Local Government Finance Act 1992 to include the cost of levies within a billing or major precepting authority’s calculation of whether its council tax is excessive, and so requires a council tax referendum to be held. In effect, this means amending the meaning of “relevant basic amount of council tax” which is the primary trigger for council tax referendums from the current definition which excludes levies, to one that includes levies.  Clause 38 comes into force 2 months after the Act is passed.  Clause 39 comes into force on the day the Act is passed.

 

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