In R (RB) V Devon County Council, Judgment 19 October 2012, it was held that a change of provider of an Integrated Children’s Service (“ICS”) engaged the PSED at various stages of the procurement process, including the decision to retain the ICS under a single provider and the award of preferred bidder status, but not the possibility of future (post contract) changes in the provision of the ICS, until the detail of such changes was sufficiently well established. However, anything other than declaratory relief was refused, on account of urgency, the fact that the PSED had been addressed at the intention to award contract stage, lack of detriment to the claimant family, and quashing being detrimental to the children of Devon generally.
Public Sector Equality Duty (“PSED”)
October 24th, 2012 by James Goudie KC in Human Rights and Public Sector Equality Duty
Performance Indicators (WALES)
October 24th, 2012 by James Goudie KC in Best ValueThe Local Government (Performance Indicators) (Wales) Order 2012, SI 2012/2539 (W.278) specifies performance indicators for the purpose of s8 in Part 1 of the Local Government Wales Measure 2009, by reference to which Welsh county and county boroughs’ performances will fall to be measured from 1 April 2013. Such “improvement authorities” must make arrangements to exercise their functions so that any applicable performance standard is met. The Order identifies by reference to Schedules which indicators will be used to measure the performance of which functions: Social Services, Housing, Education, Waste Management, Transport and Culture and Sport.
Towns and Village Greens
October 22nd, 2012 by James Goudie KC in Land, Goods and ServicesClause 12 of the Growth and Infrastructure Bill amends the Commons Act 2006 (“CA 2006”) so as to allow landowners to deposit a map and statement to protect their land from registration as a town or village green, whilst allowing access to it. ·Clause 13 excludes the right to apply to register land as a town or village green under s15(1) of CA 2006 where any specified event related to the past, present or future development of land occurs. Such events are known as ‘trigger events’ and these are specified in the table set out in Sch 1A to CA 2006, which is inserted by this clause. An example of such an event is the point when an application for planning permission is first published. Sch 1A also specifies terminating events which correspond to each trigger event and cause the exclusion of the right to apply under s15(1) to lift. Clause 14 amends an existing power to allow regulations to prescribe more flexible fees in relation to applications under Part 1 of CA 2006, including applications to register land as a town or village green.
The Explanatory Notes to the Bill state in relation to these Clauses:
“154. The rationale for reform is that currently applications for registering land as a town or village green under section 15(1) of the Commons Act 2006 are considered in isolation from the planning process. This in some cases leads to development which has planning permission being delayed or prevented. One of the recommendations of the Penfold review of non-planning consents was to review the operation of the regime for registering town or village greens in order to reduce the impact of current arrangements on developments which have planning permission. Implementation of this recommendation is achieved through clause 13, which aims to stop the registration system for town or village greens being used to stop or delay planned development. The reforms will protect local communities’ ability to promote development in their areas through local and neighbourhood plan-making. The proposals also aim to reduce the financial burden on authorities in determining applications and the costs to landowners whose land is affected by applications.”
The Explanatory Notes further state (para 156) that “it is highly debatable whether the right to use land registered as a town or village green for lawful sports and pastimes is a civil right since it is a form of local public right rather than a property right”, but in any event that “since the proposed measures do not determine the existence of any recreational rights, it is considered that Article 6 is not engaged; (para 160) that “it is considered that a right to use land registered as a town or village green for lawful sports and pastimes is not a possession for the purposes of Article 1 Protocol 1 (“A1P1”) and therefore this Article is not engaged; and (para 161) that, if the right to use a town or village green for lawful sports and pastimes were a possession, the Government considers that A1P1 would be “unlikely to be engaged”, since the right to apply for land to be registered as a town or village green “is not an existing possession”, but is “merely the right to apply for a future possession”, and that it is also considered that, in removing the right to apply for town or village green registration in certain circumstances, there is no interference with any claim since the legislation will affect future rather than existing applications
Remedies in Judicial Review
October 17th, 2012 by James Goudie KC in Judicial Control, Liability and LitigationIn Walton v The Scottish Ministers [2012] UKSC 44, concerned with the construction of an Aberdeen bypass, Lord Carnwath observed, at para 103, that the issue of discretion may in practice be “closely linked” with that of standing, and may be “important in maintaining the overall balance of public interest” in appropriate cases. Lord Carnwath said:
” … I see discretion to some extent as a necessary counterbalance to the widening of rules of standing. The courts may properly accept as “aggrieved”, or as having a “sufficient interest” those who, though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment. However, if it does so, it is important that those interests should be seen not in isolation, but rather in the context of the many other interests, public and private, which are in play in relation to a major scheme …”
At paragraph 112 Lord Carnwath said:
“The applicant will be refused a remedy, where he complains only of a procedural failure (whether under statutory rules or common law principles), if that failure has caused him personally no substantial prejudice. Where, however, a substantive defect is established, going either to the scope of the statutory powers under which the project was promoted, or to its legality or rationality … the court’s discretion to refuse a remedy will be much more limited. These general principles must of course be read in the context of the statutory framework applicable in a particular case.”
Executive Power
August 21st, 2012 by James Goudie KC in Decision making and ContractsIn R (Buck) v Doncaster MBC [2012] EWHC 2293(Admin) Hickinbottom J considered the respective powers of an Elected Mayor and his Executive Cabinet on the one hand and the Full Council on the other hand and the division and demarcation between them. He held that the Executive had acted lawfully in declining to implement a purported direction by a two thirds majority of Full Council relating to the provision of library services. This was an executive function. It made no difference that the direction was by way of an amendment by Full Council to the authority’s annual budget as proposed by the Mayor. The Mayor’s decision not to spend the allocated funds in accordance with the terms of the amendment was not “contrary to or not wholly in accordance with, the budget”.
The starting point of course is that under the Local Government Act 2000 the default position is that a function being an executive function is the default position. That is the case save where specific provision provides that they are non-executive. This generally resolves itself in England into a matter of interpretation of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000, SI 2000/2853, as frequently amended. The vast majority of an authority with executive arrangements business is executive business.
There are, however, a range of non-executive functions. These include approving the authority’s budget and adopting various plans and strategies.
Nonetheless, the role of the Full Council in the budget process is limited to the allocation of resources to meet the authority’s potential expenditure for a future period (usually the next financial year), which enables it to set an appropriate level of council tax. This means that executive functions cannot be exercised in a way which means the budget would be exceeded. It does not mean that the obligation to estimate revenue expenditure that will be incurred by the authority in the following year entails a power for Full Council to prescribe that certain expenditure must be spent by the executive in certain ways. The legislative regime as to how executive and non-executive functions should be divided cannot be upset by provisions relating to the calculation of council tax. The budgetary process is geared to ensuring that there is no budget deficit. It does not allow Full Council to micro-manage the authority’s functions and interfere with executive functions, only to allocate more or less funds to the Mayor.
As Hickinbottom J put it at para 64:-
“It is open to the full Council to amend the budget, wholly or in some of its constituent parts, downwards, thereby depriving the Mayor of the available funds to do what it might otherwise wish to do in the way in which it might wish to do it. If the budget is cut, that will not of course force the Mayor to perform an executive function only in the way the full Council may wish; he may decide to perform it in a different way, with the reduced funds allocated to him. Similarly, the full Council might amend the budget upwards, making additional funds available to the Mayor to spend in exercising his functions; but, equally, that does not force the Mayor to perform the executive function only in the way the full Council may wish.”
At para 75 Hickinbottom J concluded:-
“If, as I have found, the true construction of the regulatory scheme is that the decision as to how to provide library services is an executive decision for the Mayor, and not a decision for the full Council, it cannot have been improper for the Mayor to come to his own decision, as charged by the statute, rather than complying with the direction of the full Council, who had no proper part to play in that specific decision at all. Indeed, as Mr Giffin submitted, for the Mayor and the Cabinet to have merely followed the direction of the full Council, treating it as binding on them (as the Claimant contends it was) would itself have been unlawful, as it would have improperly fettered the decision-making discretion of the executive in relation to those facilities.”
Collective agreements
July 30th, 2012 by James Goudie KC in Decision making and ContractsIn Anderson v London Fire & Emergency Planning Authority, UKEAT/0505/ 11/SM, the EAT considered whether a term in a Collective Agreement with respect to the third year of a three year pay deal was apt to be incorporated in the contracts of employment of the Authority’s employees, and, if so, how that term should be interpreted. The Authority’s Collective Agreement with the Trade Unions gave the employer two options for the pay increase in the third year. It did not state which took precedence. The EAT held that the term had been incorporated.
The term was not insufficiently certain, either because it provided for a pay increase to be determined partly by reference to a sum to be agreed between third parties, or because it provided for the paying party to choose between two alternative methods of calculation.
The EAT however upheld the ET’s dismissal of the employees’ claims. The ET did not err in holding that the subjective intentions of the parties to the Collective Agreement were irrelevant when considering its interpretation. Nor did they err in having regard to the wording of the Collective Agreement rather than the negotiations which led up to it, even if paying the higher of the two options had been discussed. Nor was it material that the Union negotiator told the ET that he would not have agreed that management could choose the pay increase option which was most advantageous for them.
The EAT regarded the meaning of the relevant provision of the Collective Agreement as being clear. “Or” meant what it said. The Authority fulfilled their contractual obligation by paying in accordance with one alternative. The Authority was not obliged to pay whichever alternative would give the higher increase.
Highways
July 23rd, 2012 by James Goudie KC in Environment, Highways and LeisureWHAT IS A HIGHWAY?
In Kotegaonker v SoS for Environment etc and Bury MBC [2012] EWHC 1976 (Admin) Hickinbottom J held that a footpath linking two privately-owned sites, one containing a health centre and the other containing shops, could not be a public highway, either at common law or under the Highways Act 1980 s.31, because members of the public had no legal right of entry at either end of the path. They entered the health centre and the shops under licence from the respective landowners, not because they had an unrestricted right to do so. There was no statutory definition of the word “highway”. Common law did not have any authority directly on the issue. As a matter of principle, the concept of a highway that was unconnected to any other highway was incongruous, because such a way did not have all the requisite essential characteristics of a highway. Passing along a route as licensee did not constitute passing along it “freely and at … will”, since passage was at the will of the landowner, who could withdraw the licence at any time. The fact that the owners of the health centre and the shops at either end of the path had never imposed any restrictions was irrelevant to the terms of s.31, which required that the right of way had to be enjoyed by the public “as of right”.
PSED
Yet another first instance decision on the PSED: R (Hunt) v North Somerset Council [2012] EWHC 1928 (Admin). Applying the approach of the Court of Appeal in the Brent Libraries case, [2012] LGR 530, Wyn Williams J dismissed a judicial review challenge to North Somerset Council’s decision to approve, during its budget-setting process, a proposal to reduce financial provision for youth services and to review the ways in which such provision was made in its area. The Judge held that the Council had complied in substance with its duties under s.149 of the Equality Act 2010 and s.507B of the Education Act 1996.
Yes, Cost can be taken into Account
July 18th, 2012 by James Goudie KC in Decision making and ContractsIn Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34 the Council, in its capacity as Local Planning Authority, granted planning permission for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas. Three of the blocks had been completed. Work on the fourth had not commenced. Concerned that the storage facility constituted a danger to human life, the HSE applied for an order to revoke or modify the planning permission under s97 of the Town and Country Planning Act 1990. In refusing the application, the Council took into account its liability to pay compensation under s107 of the Act were it to revoke planning permission in respect of all four blocks, but it did not consider whether the application should be granted only in respect of the fourth block. The HSE brought judicial review proceedings challenging, among other things, the Council’s decision not to revoke or modify the planning permission. The Court of Appeal held by a majority that a decision under s97 of the Act was to be taken not in isolation but within the statutory framework of the Act which imposed a liability to pay compensation if an order was made under the section. Accordingly, the Council, when reconsidering the matter, would be entitled to take into account its liability to pay compensation under s107 of the Act.
The HSE appealed to the Supreme Court against this part of the decision of the Court of Appeal: the issue being whether it is always open to a LPA, in considering under s97 of the Act whether it appears to be expedient to revoke or modify a permission to develop land, to have regard to the compensation that it would or might have to pay under s107.
The SC unanimously dismissed the HSE’s appeal. Lord Carnwath said that, in simple terms, the question is whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing. As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective.
The SC held that s97 of the Act requires no different approach. The section requires the authority to satisfy itself that revocation is “expedient”, and in so doing to have regard to the development plan and other “material considerations”. The word “expedient” implies no more than that the action should be appropriate in all the circumstances. Where one of those circumstances is a potential liability for compensation, it is hard to see why it should be excluded. “Material” in ordinary language is the same as “relevant”. Where the exercise of the power, in the manner envisaged by the statute, will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant.
Under s97, a planning authority has a discretion whether to act, and, if so, how. If it does decide to act, it must bear the financial consequences. S97 creates a specific statutory power to buy back a permission previously granted. Cost, or value for money, is naturally relevant to the purchaser’s consideration.
Sufficient consistency is given to the expression “material considerations” if it is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted. Furthermore, in exercising its choice not to act under s97, or in choosing between that and other means of achieving its planning objective, the authority is to be guided by what is “expedient”. No principle of consistency requires that process to be confined to planning considerations, or to exclude cost. Possible difficulty in assessing precisely the likely level of compensation is no reason for not conducting the exercise, still less for leaving cost considerations out of account altogether.
However, the weight attributable to cost considerations will vary with the context. There may be situations where cost could rarely be a valid reason for doing nothing, but could well be relevant to the choice between effective alternatives.