Procedural Fairness

June 27th, 2012 by James Goudie KC in Council Tax and Rates

R (Dudley MBC) v SoS for CLG [2012] EWHC 1729 (Admin) concerned a decision by the SoS to change the way in which he would make payments pursuant to s88B of LGFA 1988/s31 of LGA 2003 under a PFI scheme.  There were five grounds of challenge. The first, procedural fairness, relating to consultation, succeeded.  The other four failed. They were breach of a substantive legitimate expectation; application of a rigid and inflexible policy; failure to take relevant facts into account/error of fact; and breach of the PSED under s149 Eq A 2010.

As to the first ground, Singh J considered both whether there was a duty of consultation, and, on the basis that there was, the requirements of a lawful consultation.  As to the former, there were two bases on which the Council argued that it was entitled to be consulted before the decision was taken to withdraw the PFI grant on a declining balance basis and to replace it with the annuity basis. The first was that it had a legitimate expectation that there would be consultation based on the defendant’s past practice. The second was that, quite apart from such a procedural expectation, the claimant had an expectation that its grant would continue to be paid on the declining balance basis and that fairness required that, before it was withdrawn, it would be consulted on this issue. Singh J observed that it was important to note that, in making the second of those arguments, the Council for this purpose relied on its expectation not to argue that the SoS was not entitled to reach the decision he did at all (that was the subject of a separate ground, based on the doctrine of substantive legitimate expectation), but that, before he did so, he had to follow a fair procedure. In other words, for this purpose, the Council submitted that its expectation gave rise to procedural rights, not substantive rights.

So far as the Council’s first argument was concerned, Singh J observed that in principle a legitimate expectation of consultation (i.e. a procedural expectation) can arise either from a promise that there will be consultation or from a past practice of such consultation. In the present case, the Council did not suggest that there was any promise of consultation. However, it did contend that there had been a past practice of consultation. Singh J, however, was not persuaded by that argument. All that the Council was able to rely on was the fact that in 2004 the SoS did consult when consideration was given to introducing the annuity basis as an alternative to the declining balance basis. In Singh J’s judgment, one incident of consultation of that type could not amount to a practice of consultation such as to give rise to a legitimate expectation of such consultation in the future.

However, the Council’s second argument did not depend on either a promise or a past practice of consultation. The starting-point is that, if a decision-maker intends to take a decision which affects a person’s rights, the duty to act fairly (in earlier parlance “natural justice”) will usually be required by public law, which will imply such a duty into a statutory scheme even when none is expressly laid down.

Singh J considered a number of previous authorities, concluded that the SoS’s decision “fundamentally altered the nature of the commitment” which had previously been made by the SoS to fund capital projects, that the impact on the Council was “pressing and focussed”, that there was a small and limited class of local authorities that were affected by the SoS’s decision, and that (para 69): “To make the decision abruptly without consultation would, in the circumstances of the present case, be so unfair as to amount to an abuse of power”.

Singh J went on to consider whether the requirements of a lawful consultation had been met.  He concluded that they had not.  Consultation had not been at a formative stage of the decision-making process.  The decision letter invited representations only as to how the impact of the decision might be mitigated in the Council’s case, but not about the principle of the decision itself.

As regards the PSED, Singh J said:

“93.      I accept the defendant’s submissions in relation to this ground of challenge. As the authorities have frequently stressed, what is “due regard” is such regard as is appropriate in all the circumstances. In my judgement, the defendant was not required to have regard to the matters set out in section 149 of the Equality Act for two main reasons.

94.       First, the suggested impact is a contingent and indirect one. The defendant’s decision was a financial one. It will frequently be the case that the central government makes financial decisions of a general kind which leave up to individual local authorities the manner of their implementation. The relevant authorities may have a choice about whether they cut or reduce a particular service or how they find alternative funding for it if they feel that service should continue. The local authority concerned may well have to perform the Public Sector Equality Duty itself before it decides which of various courses it should take in order to implement the financial decision of the central government.

95.          Secondly, and in any event, the defendant was entitled to take the view that he did, that the detrimental consequences which the claimant suggests would flow from the decision under challenge are not only contingent but lie some years ahead in the future, given the funding that the defendant has made available to the claimant until 2015. The defendant’s simple submission was that, in those circumstances, the duty may arise in 2015 but cannot be said to have arisen now. There are too many vicissitudes in life for a court to be able to say that the defendant has breached the Public Sector Equality Duty as things stand at present. I accept that submission by the defendant.”

 

Public Sector Equality Duty (“PSED”)

June 13th, 2012 by James Goudie KC in Local Authority Powers

In R (Siwak) v Newham LBC (2012) EWHC 1520 (Admin) Cranston J held that the local authority had not failed to comply with the PSED under s149 of Equality Act 2010.  Policies under formulation were the subject of equality analysis.  It was not for the Court to micro-manage the process.  Consultation before proposals were formulated would have been premature.

 

 

Compulsory Acquisition of Land

May 28th, 2012 by James Goudie KC in Land, Goods and Services

In R (Barnsley MBC) v SoS for CLG [2012] EWHC 1366 (Admin), Judgment of Foskett J on 24 May 2012, the Council made a CPO in respect of land in its area registered as a Village Green.  The Council relied upon s121 of LGA 1972 and s2 of LGA 2000.  The SoS took the view, however, that these provisions did not provide an enabling power.  He regarded the CPO as invalid, and declined to confirm it.  The Council brought judicial review proceedings to challenge his view.  The Judge agreed with the SoS.

The Council could acquire land by agreement under s120 of LGA 1972 for the purposes of the benefit, improvement or development of their area.  That was not, however, enough for a CPO under s121, as s121(2)(a) made clear.  The question therefore was whether s2 of LGA 2000 could be invoked.  Foskett J concluded that s2 was not intended to alter the LGA 1972 situation in relation to CPOs.

 

Community Right to Challenge

May 22nd, 2012 by James Goudie KC in Council Tax and Rates

On 17 May 2012, in exercise of powers conferred by sections 81 and 235 of the Localism Act 2011, the Secretary of State made the Community Right to Challenge (Expressions of Interest and Excluded Services) (England) Regulations 2012, SI 2012/1313.  They will come into force on 27 June 2012.  Regulation 3 and Schedule 1 specify requirements for expressions of interest for the purposes of Section 81(1)(b).  Regulation 4 and Schedule 2 specify services that are to be excluded for the purposes of Section 81(5), in some cases only until 1 April 2014.  The Secretary of State has also issued Statutory Guidance on the Community Right to Challenge.

RATES AND COUNCIL TAX

The Local Government Finance Bill, carried over from the last Session, completed its passage through the House of Commons on 21 May 2012.  In conjunction with the Bill, CLG has issued numerous publications. With respect to the Business Rates Retention Scheme they are:

·                      The economic benefits of local business rates retention

·                      The central and local shares of business rates  – A Statement of Intent

·                      Renewable energy projects – A Statement of Intent

·                      Pooling Prospectus

·                      The Safety Net and Levy – A Statement of Intent

With respect to Localising Support for Council Tax” they are:

·                      A Statement of Intent

·                      Funding arrangements consultation

·                      Taking work incentives into account

·                      Vulnerable people – key local authority duties (including, Chapter 2, the Public Sector Equality Duty, Chapter 3, duty to mitigate the effects of child poverty, Chapter 4, the Armed Forces Covenant, and Chapter 5, duty to prevent homelessness).

 

Council Tax and Public Procurement

May 14th, 2012 by James Goudie KC in Best Value, Council Tax and Rates

COUNCIL TAX

In Harrow LBC v Ayiku [2012] EWHC 1200 (Admin) Sales J held that the word “or” in the Council Tax (Exempt Dwellings) Order 1992, art 3 Class N, had a disjunctive meaning, therefore it was sufficient for the non-British spouse of a foreign student to satisfy one or other of the two conditions, namely being prevented from taking paid employment or being prevented from claiming benefits, in order to qualify as a “relevant person” who was exempted from liability to pay council tax.

PUBLIC PROCUREMENT

In Case C-368/10, Commission v Netherlands, Decision on 10 May 2012, the ECJ has reaffirmed, in the context of the supply to and management for a public authority of automatic coffee machines, that “both the principle of equal treatment and the obligation of transparency which flows from it require the subject-matter of each contract and the criteria governing its award to be clearly defined from the beginning of the award procedure … the formulation of the award criteria being such as to allow all reasonably well-informed tenderers exercising ordinary care to know the exact scope thereof and thus to interpret them in the same way”.

 

Queen’s Speech, Local Government Finance and Elections

May 11th, 2012 by James Goudie KC in Elections and Bylaws

QUEEN’S SPEECH

Bills already introduced pursuant to the Queen’s Speech on 9 May 2012 include Local Government Finance Bill and Electoral Registration and Administration Bill, both accompanied by Explanatory Notes, which in each case address ECHR compatibility.

LOCAL GOVERNMENT FINANCE

Most of the Local Government Finance Bill applies only in relation to England.

The Bill will introduce a rates retention scheme, enabling local authorities to retain a proportion of the business rates generated in their area.  The Secretary of State (“the SoS”) will be required to prepare a local government finance report each year, which sets out the central and local share percentages of non-domestic rates. It will also set out which payments are required to be made by billing authorities and major precepting authorities (“relevant authorities”) to the SoS, into the main non-domestic rating account, and which payments are required to be made by the SoS to relevant authorities, from the main non-domestic rating account. The SoS will also be required to establish a levy account and make regulations as to whether payments are required from any relevant authority. Payments may be made from the levy account for “safety net authorities” in accordance with regulations to be made by the SoS. The SoS may also make regulations as to transitional protection payments for authorities, to take account of transitional relief. Billing authorities will also be required to make payments to major precepting authorities, under regulations to be made by the SoS.  A number of relevant authorities may also be designated as a pool of authorities, which will then be treated for most purposes of the new provisions as a single authority. The SoS may designate certain areas of England and provide through regulations that a proportion of the rates are to be retained by billing authorities in those areas. Similarly, the SoS may also designate certain classes of hereditament and provide that rates are to be retained by billing authorities whose area includes the designated class.

The Bill also contains provisions, in the context of abolition of council tax benefit, with respect to council tax and council tax reduction schemes and discounts.  The Bill includes powers for the SoS to make requirements about the schemes which local authorities must make by 31 January 2013 relating to the financial year beginning on 1 April 2013. A scheme must set out the classes of person who are entitled to a reduction, the reductions which are to apply to those classes and the procedure by which a person may apply for a reduction. The SoS has power to prescribe classes of persons which must be included in a scheme and the reductions which must apply to them.  A billing authority must consult before making a scheme and each financial year it must consider whether to revise or to replace its scheme. The SoS has power to make provision for the procedure for preparing a scheme or a revision to a scheme.

ELECTIONS

The Electoral Registration and Administration Bill extends to both England and Wales.

Part 1 of the Bill relates to Individual Electoral Registration.  The provisions will require that each elector must apply individually to be registered to vote after the transition to the new system; make transitional arrangements over two years, including using data matching to verify entries, and providing for the ‘carry forward’ of electors who are not automatically verified and fail to register under the new system in the first year, so that they remain on the first register published under the new system (likely to be the register used for the 2015 general election); create a legislative framework to allow alternative channels for registration, such as online registration, to be offered; provide for the use of data matching to verify applications, check existing entries in registers and find individuals who do not currently appear on the register; make provision for an annual canvass which is compatible with the new registration system and provide a power to amend or abolish the annual canvass in future, subject to a report by the Electoral Commission and an order requiring the approval by a resolution of each House of Parliament; ensure that all those wishing to vote by post or proxy will need to be registered under the new registration system to utilise these voting methods after the first annual canvass under the new system; and introduce a civil penalty for those who fail to make an application when required to do so by an Electoral Registration Officer (“ERO”).

The Bill also includes provisions in Part 2 in relation to the administration and conduct of elections.  The clauses relating to the administration and conduct of elections include provisions to allow Police Community Support Officers to enter polling stations (as police constables can currently); to remove the automatic postponement of parish and community council elections in England and Wales that currently occurs when a Parliamentary or European Parliamentary general election falls on the ordinary day for local government elections; to enable regulations to be made to place EROs under a duty to give notifications about rejected postal votes, and specify the circumstances where this duty arises; and to provide that the SoS may, upon a recommendation from the Electoral Commission, withhold or reduce a Returning Officer’s fee for reasons of poor performance.

 

Standards

May 4th, 2012 by James Goudie KC in Standards

In R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin) Mr Calver was a member of Manorbier Community Council who successfully challenged the decision of the Panel to dismiss his appeal against a decision by Prembrokeshire County Council Standards Committee censuring him for a number of comments or blogs posted by him on a website he owned and controlled.  Beatson J said, at para 5 of his Judgment: “The overarching question before the court is whether the defendant’s decision that the claimant’s comments put him in breach of the Code of Conduct erred in law or is otherwise flawed in public law terms. The answer to that question principally depends on whether the Panel’s decision failed to give sufficient weight to the claimant’s right to free expression under the common law and Article 10 of the European Convention of Human Rights (“the Convention”). This in turn involves considering whether the defendant erred in finding the comments did not constitute political expression attracting an enhanced level of protection under Article 10, and whether or not they attract that enhanced level of protection, whether the decision that thirteen of the comments broke the Code of Conduct and to censure the claimant was a disproportionate interference with his right under Article 10.”

Beatson J ruled (paras 66-67) that (1) the Committee and the Panel were entitled to conclude that Cllr Calver’s comments breached the Code of Conduct: they were sarcastic and mocking; (2) the Panel was entitled to take a cumulative view of the effect of the postings: the use of a sarcastic tone about colleagues on the Council over a long period would justify a conclusion that Cllr Calver had not shown respect and consideration for his colleagues on the Council; and (3) the Panel was entitled to conclude that the tone of the postings publicly ridiculed his fellow members, particularly in the light of the number of postings and their cumulative effect.

However, it was necessary then to go on to consider whether, a finding of breach of the Code of Conduct being prima facie an infringement of Article 10, it was justified.   Beatson J said: 

“73.     It is common ground that the court, in considering whether the Panel failed to accord sufficient weight to the claimant’s rights to freedom of expression, has to decide for itself whether those rights were accorded sufficient weight, having due regard to the decision of the Panel. The court must “have due regard” to the judgment of the primary decision-maker, in this case the Panel. This is because the Panel, the statutory regulator, consists of persons identified by Parliament to apply the Code because of its knowledge and experience of local government: … But “due regard” does not mean that the process is only one of review: it is the court which has to decide whether the Panel has violated the claimant’s right to freedom of expression.

74.       The Code seeks to maintain standards and to ensure that the conduct of public life at the local government level, including political debate, does not fall below a minimum level so as … “to engender public confidence in local democracy”. … There is a clear public interest in maintaining confidence in local government. But in assessing what conduct should be proscribed and the extent to which sarcasm and ridicule should be, it is necessary to bear in mind the importance of freedom of political expression or speech in the political sphere …”

“76.     It is in the context of what constitutes “respect and consideration” and “bringing your office or authority into disrepute” in a local government context that the Panel’s expertise is of particular relevance. …”

Beatson J went on, however, to find that the Panel had fallen into error in a number of respects.  He concluded (para 80) that the Panel took an over-narrow view of what amounts to political expression, and (para 81) that no account was taken in the Panel’s decision about the need for politicians to have thicker skins than others.  Those errors limited the weight that could be given to its findings.  It thus fell to the Court to determine the issue of proportionately according to the Panel’s decision less weight than it would otherwise have.  Beatson J concluded (para 84):  “… in the light of the strength of the right to freedom of expression, particularly in the present context, and the fact that the majority of the comments posted were directed at other members of the Community Council, the Panel’s decision that they broke the Code is a disproportionate interference with the claimant’s rights under Article 10 of the Convention.”

 

 

Public Sector Equality Duty ‘PSED’

April 25th, 2012 by James Goudie KC in Local Authority Powers

In R (Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496 the Court of Appeal held that the Council had had “due regard to the PSED when making changes to its funding of community legal advice services”.  At para 30 Elias LJ said:

“I would emphasise the need for the court to ask whether as a matter of substance there has been compliance; it is not a tick box exercise.  At the same time the courts must ensure that they do not micro-manage the exercise. Furthermore,, … it is only if a characteristic or combination of characteristics is likely to arise in the exercise of the public function that they need be taken into consideration. I would only add the qualification that there may be cases where that possibility exists in which case there may be a need for further investigation before that characteristic can be ignored. …”

At para 35 Elias LJ said:

“The purpose of the duty is to require consideration of equality implications at the time policy is drafted. The fact that it is a continuing duty does not mean that there has to be further detailed consideration when the general framework is made concrete, or whenever there are minor changes of detail. It would make administration intolerable and grossly inefficient if every aspect of policy left to officers’ discretion had automatically to be returned for further consideration of the equality implications.”

Legitimate Expectation

On whether there is a substantive legitimate expectation on the basis of a representation made by a public authority, see R (Godfrey) v Southwark LBC [2012] EWCA Civ 500.  Pill LJ said:

“51.      A rigorous standard is to be applied when a substantive legitimate expectation is claimed on the basis of a representation or promise by a public authority. The duty of public authorities to exercise powers in the public interest must be kept in mind. Only when, in the court’s view, to fail to give effect to the promise would be so unfair as to amount to an abuse of power, should it override other considerations …

52.       While the approach to legitimate expectation must be fact sensitive, … an earlier approach of the local planning authority to an issue, even if amounting to a planning policy, cannot have primacy over the statutory duty of the council to assess the current situation.”

 

 

Judicial Review

April 23rd, 2012 by James Goudie KC in Judicial Control, Liability and Litigation

The Judgment of Lindblom J in The Manydown Co Ltd v Basingstoke and Deane BC [2012] EWHC 977 (Admin) repays attention. The Claimant sought to challenge by judicial review 2 decisions of the Council: (1) the Council’s refusal to reconsider its position on the development of a site that it owns (and is the subject matter of a Joint Development Partnership Agreement with the Claimant); and (2) a decision of the Council’s Cabinet approving a selection of sites for development which did not include this site. The Council had acquired the site under ss226/227 of TCPA 1990 for housing development, and still held it under statutory planning powers. The selection of other sites was in a consultation draft pre-submission Core Strategy which, when adopted, will be the principal component of the LDF for the Council’s area.

There were 3 main issues: (1) whether judicial review was excluded by s113 of Planning and Compulsory Purchase Act 2004; (2) whether the 2 decisions were lawful; and (3) if either or both were unlawful, what relief, if any, should be granted.

On jurisdiction, Lindblom J concluded (paras 81-88) that the proceedings for judicial review were not precluded by s113 of the 2004 Act. The Judge said:-

“83. … the present claim does not seek to question a “relevant document” of the kind to which section 113 refers. It impugns two decisions, each of which, in a different way, affects the parameters of the process that will culminate in the adoption of the Core Strategy under section 23 of the 2004 Act. They are, in that sense, decisions antecedent to, and not part of, the process. …

84. Under the provisions of section 113(1)(c), (2), (3), (4) and (11)(c) it is a development plan document that may be questioned only upon its adoption, and within six weeks of that date – not some prior step on the part of the local planning authority, even one that might vitiate the development plan document itself once it has been adopted. Adoption – or approval, as the case may be – is of more than merely formal significance. It is a defining characteristic of the “strategies, plans and documents” embraced in the statutory jurisdiction under section 113.

85. I cannot see how the preclusive provision in section 113(2) could catch a decision such as that taken by the Council on 15 December 2011. That decision was, in effect, a decision not to promote land owned by the Council in a plan-making process. In my view it lies well beyond the ambit of section 113. It is, however, plainly susceptible to proceedings for judicial review.

86. Nor do I accept that the decision taken by the Council’s Cabinet on 23 January 2012 lies within the reach of the preclusive provision. That decision had the effect of approving a pre-submission draft of the Core Strategy for consultation, the results of which would later inform the preparation of the submission draft. Such a decision does not, in my judgment, constitute a local development document being adopted as such by resolution of the local planning authority. These proceedings were begun before even the pre-submission Core Strategy had crystallized in a document published for consultation. And they do not seek to question any development plan document as such, either adopted or in draft.

87. Therefore, I do not think it is necessary to decide in this case whether a pre-submission draft of a core strategy qualifies as a “relevant document” within section 113. But I would hold that it does not. …

88. The conclusion that these proceedings are not ousted by section 113(2) seems both legally right and pragmatic. In a case such as this an early and prompt claim for judicial review makes it possible to test the lawfulness of decisions taken in the run-up to a statutory process, saving much time and expense – including the expense of public money – that might otherwise be wasted. In principle, it cannot be wrong to tackle errors that are properly amenable to judicial review, when otherwise they would have to await the adoption of the plan before the court can put them right. Improper challenges – including those caught by the ouster provision in section 113(2) – can always be filtered out at the permission stage.”

Turning to lawfulness, at para 94 Lindblom J referred to several “well-known and uncontroversial principles of public law”:-

“(1) When a public body is entrusted with an apparently unfettered discretion, it must exercise its power reasonably and in accordance with the relevant statutory purpose (see Smith v East Elloe RDC [1956] AC 736, in particular the speech of Lord Radcliffe at p.767).

(2) Powers conferred on a local authority by statute can validly be used only in the way that Parliament, when conferring the power, is presumed to have intended (see Porter v Magill [2002] 2 AC 357, in particular the speech of Lord Bingham of Cornhill at p.463D-H).

(3) An authority may not exclude or limit the future exercise by it of its powers (see R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407, in particular the speech of Lord Browne-Wilkinson at p.496G to p.497B).

(4) If it asks itself the wrong question or misinterprets its powers or makes a mistake of fact, an authority may unlawfully fetter its discretion (see R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, in particular the speech of Lord Browne-Wilkinson at p.551D-E).

(5) An authority generally has a duty to consider whether it should exercise its powers (see Stovin v Wise [1996] AC 923, in particular the speech of Lord Hoffmann at p.950B).

(6) An authority may not enter into any contract, or take any action, incompatible with the due exercise of its statutory powers or the discharge of its functions (see Birkdale District Electric Supply Co v Southport Corporation [1926] AC 355, in particular the speech of the Earl of Birkenhead at p.364).

(7) An authority owes a fiduciary duty to its taxpayers, which includes the duty to use the full resources available to it to the best advantage (see Bromley LBC v Greater London Council [1983] AC 768, in particular the speech of Lord Diplock at p.829G to p.830F).

(8) An authority must discharge its functions so as to promote – and not so as to thwart or act contrary to – the policy and objects of the legislation conferring the power under which the land was acquired and is held (see Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997, in particular the speech of Lord Reid at p.1030B-D, p.1033A, and p.1045G). In applying the Padfield principle the court must consider the decision-maker’s purpose in the action it took and whether this was it calculated to promote the policy of the Act (see R v Braintree District Council, ex parte Halls (2000) 80 P&CR 266, in particular the judgment of Laws LJ at para.36).

(9) No less clear are the corresponding general principles that govern the functions of a public body as landowner. An authority’s powers as the owner of land are not to be equated with those of a private landowner. It must act to further the statutory object for which it acquired and holds the land, exercising its statutory powers only for the purpose for which those powers were conferred (see R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037, in particular the judgment of Sir Thomas Bingham MR at p.1042G-H and p.1046B).”

As to familiar principles applying to decision-making by a public body, Lindblom J, at para 95, set out the following:-

(1) An authority must not take into account irrelevant material or fail to take into account that which is relevant (see Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, in particular the judgment of Lord Greene MR, at pp.233 and 234). It must not act irrationally or perversely (ibid.). In R v Parliamentary Commissioner for Administration, ex parte Balchin [1996] EWHC Admin 152 Sedley J, as he then was, summarized the principle (at para. 27):

“[The claimant] does not have to demonstrate, as respondents sometimes suggest is the case, a decision so bizarre that its author must be regarded as temporarily unhinged. What the not very apposite term ‘irrationality’ generally means in this branch of the law is a decision which does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic.”

(2) An authority’s decision would be unlawful if based on a material mistake of fact (see, for example, the judgment of Sullivan J, as he then was, in Haringey LBC v Secretary of State [2008] EWHC 2101, at paras. 11, 12 and 16).

(3) In applying relevant policy, the decision-maker must understand the policy correctly (see the judgment of Woolf J, as he then was, in Gransden v Secretary of State for the Environment (1987) 54 P&CR 86, at p.94). If he departs from policy he must acknowledge that fact, and set out cogent reasons for doing so (see, for example, the judgment of Purchas LJ in Carpets of Worth Ltd v Wyre Forest District Council (1991) 62 P&CR 334, at p.342). Policy statements are to be interpreted objectively in accordance with the language used, read in its proper context (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13, at paras. 17 to 21).”

The Judge concluded that:-

(1) Given the statutory power under which the site was acquired and continues to be held, the notion that the site is not available for development lacked any evidential or logical basis: para 135; and

(2) There was a patent inconsistency between the Council’s ownership of the land for the purpose of promoting the development and its persistence in seeking to prevent the site’s allocation in the Core Strategy: para 137.

The Judge said, at para 141:-

“ … I cannot see any escape from the conclusion that the Council’s decision was not only inconsistent with the purpose for which the Manydown land was acquired and held, but plainly contrary to that purpose. It thus offended the principle in Padfield. It was not calculated to promote the policy and objects of the statutory provisions underpinning the acquisition of the site (see the judgment of Laws LJ in ex parte Halls, at para. 36). … the … submission that the Council was seeking to ensure that the land was excluded from consideration in the Core Strategy process seems a reasonable inference to draw from the facts. … The Council has, in effect, sought to use its control of the Manydown site as a means of delaying the development of land that was acquired, with public money, for the express purpose of promoting development. That is not lawful.”

The Judge continued (emphasis added):-

“142. … the decision taken by the Council on 15 December 2011 was such as to fetter its discretion to revisit earlier decisions and to act in the light of circumstances as now they were. … Its effect was to prevent the Council from considering whether to end its self-imposed moratorium on the promotion of development on the Manydown land in time to seek the site’s allocation in the Core Strategy. If the Council’s powers as local planning authority were left unrestrained by the decision, its powers as landowner plainly were not.

143. … The site’s unavailability was, in reality, no more than a self-fulfilling prophecy. If the site was regarded by the Council as being unavailable for development, this was only because the Council itself had decided to treat it as if it were. And it had decided to do this only because it had suspended its promotion of the site for development. At any rate, it should have seen that this was an impediment it could remove, and, with it, the only remaining barrier to its promotion of the site for development …

144. It also seems to me that the decision made by the Council on 15 December 2011 was flawed by a failure to have regard to the purpose for which the Manydown land was acquired. This remained a relevant consideration, and an important one, notwithstanding that the Council was under no specific obligation to promote the site for development at any particular time, or for any particular scheme. …

145. Finally, I think the Council’s reliance on section 1 of the Localism Act was misplaced. … that was not the power under which the Manydown site was acquired, nor the power under which the Council had been managing the land. And, plainly, the Council was not purporting to act under section 1 of the Localism Act when reaching either of the two decisions challenged in these proceedings. That provision is not available to rescue an authority from the consequences of unlawful actions taken before it came into effect. And in my judgment it would not be right for this new power to be relied upon to justify an authority’s use or management of land inconsistently with the statutory purpose for which that land was acquired.

146. I turn to the Council’s Cabinet’s decision of 23 January 2012. In my judgment, in re-affirming its intention to proceed with the presubmission Core Strategy, and approving that document for consultation in a period running from 10 February 2012, on the basis that the Manydown land was not available for development within the meaning of that concept in PPS3, the Cabinet took an unlawful decision. …

147. It is not necessary to repeat everything I have said about the Council’s decision of 15 December 2011. Essentially the same analysis applies. The abiding problem was this. Either the members confused the concept of the site’s availability with the concept of its active promotion for development, or, if they did not, there was no rational basis for considering the land to be unavailable, or unlikely to become available if it commended itself to the Core Strategy Inspector as a strategic allocation. Whichever way one looks at it, therefore, the Cabinet’s decision was flawed.”

Finally, Lindblom J, at para 157, did not accept that he should withhold relief for the unlawfulness. The Claimant’s participation in the Core Strategy process does not afford it an alternative procedure by which to have the lawfulness of the Council’s conduct as landowner of the site subjected to independent scrutiny. At paras 160/161 the Judge said:-

“160. If relief is not granted, it seems unlikely that the Council will relent and consider its position afresh. Above all, however, the Council’s conduct as landowner is not, in itself, a matter for consideration in the plan-making process. The Inspector will have to judge whether the Core Strategy itself is sound, not whether the prior decisions of the Council as landowner were lawfully taken. And … until the Council as landowner has properly addressed its responsibilities in that role, and has done so with a firm grasp of the statutory purpose for which it acquired the Manydown land, the claimant will face an unfair disadvantage as a party to the Core Strategy process. Without the intervention of the court, there seems little prospect of that disadvantage being removed in time for the Manydown site to be effectively and fairly considered in the consultation and subsequent stages of the Core Strategy process.

161 In my judgment, therefore, the unlawfulness in the decisions challenged in these proceedings can and should be addressed by suitable relief. Both quashing and mandatory orders are, in principle, appropriate. The remedies must be sufficient to compel a reconsideration of each of these two decisions, within a reasonable time, but without dictating an outcome that goes further than it should, and without causing needless delay to the Core Strategy process. It is necessary to require the Council to do two things: first, to reconsider its position on the promotion of the Manydown land in the light of what I have said about its responsibilities as landowner, and second, to reconsider the form of its pre-submission Core Strategy in the light of what I have said about its responsibilities as local planning authority. The effect of the order I intend to make should not be misunderstood. It is not to force the Council as landowner to promote the Manydown land for allocation in the Core Strategy. Nor is to force the Council as local planning authority to support such an allocation, or to depart from the strategy it has chosen. Rather, it is to ensure that neither as landowner nor as local planning authority, and neither by anything it does nor by anything it fails to do, will the Council prejudice its own Core Strategy process.”

 

Public Sector Equality Duty, Localism Act, Rating & Standards

April 16th, 2012 by James Goudie KC in Human Rights and Public Sector Equality Duty, Standards

 Surrey County Council conducted a review of its Library Service.  This culminated in a Report to the Council’s Cabinet.  The Recommendations in the Report included that there should be consultation about a community-partnership approach at selected Libraries.  The Report stated that such an approach would require skills new to the Service.  Specific reference was made to the need for training.  Following the consultation period, the Cabinet, having considered a further Report, described as a “progress update”, decided that Library provision in certain areas should be delivered via a community-partnership model whereby Libraries would be staffed by volunteers.  This decision was successfully challenged by judicial review in R (Williams) v Surrey County Council [2012] EWHC 867 (Admin).  Wilkie J held that the Council had breached its duty in s149 of Equality Act 2010 by failing to consider a relevant matter, namely the nature and extent of the equality training needs of the volunteers and the way in which such needs might be met.  By the time of the ultimate decision there must have been a significant amount of material which would have put flesh on the bare bones of the earlier conclusion that a change of this magnitude would require significant training of volunteers, particularly in respect of equality duties.  However, there was nothing in the later Report beyond a repetition that training would need to be provided.  What should have been included was the nature and extent of the equality training needs of volunteers which had emerged from the consultation with community groups and the way in which these training needs might be met.

The Supreme Court decision in McDonald v Kensington and Chelsea RLBC is now reported at [2012] LGR 107.

Localism Act

Note the Localism Act 2011 (Commencement No 5 etc) Order, SI 2012/1008 (C.32), bringing into operation various provisions of the Act on 4 April, 3 May, 4 May and 31 May 2012 and 31 January 2013; the Local Authorities (Arrangements for the Discharge of Functions) (England) Regulations, SI 2012/1019, enabling arrangements to be made for the discharge of functions, which are the responsibility of a local authority executive, by another local authority or an executive of another local authority, and enabling a local authority to make arrangements for the discharge of its functions, which are not the responsibility of an executive of that authority, by the executive of another local authority; the Local Authorities (Committee System) (England) Regulations, SI 2012/1020, specifying functions which cannot be delegated by a committee system local authority and therefore must be carried out by the full council of that authority, and dealing with overview and scrutiny committees within committee systems of local authorities; the Local Authorities (Overview and Scrutiny Committees) (England) Regulations, SI 2012/1021, giving such Committees power to obtain information from relevant partner authorities, and requiring executives of local authorities to exclude confidential information when publishing their responses to reports and recommendations of such Committees; the Overview and Scrutiny (Reference by Councillors) (Excluded Matters) (England) Order, SI 2012/1022, specifying descriptions of matters that cannot be referred to an overview and scrutiny committee by a member of the authority who is not also a member of the committee; and the Localism Act 2011 (Local Authority Governance Transitional Provisions) (England) Order 2012, SI 2012/1023.

Rating

Note the Non-Domestic Rating and Business Rate Supplements (Deferred Payments) (England) Regulations, SI  2012/994.

Standards

CLG has published an illustrative text that councils can, if they choose, use as a basis for their new Local Code of Conduct.

On “official capacity”, as distinct from political capacity, see the FTT Decisions on 4 April 2012 in Councillor Tambourides v Barnet LBC Standards Committee, Case No: LGS/2011/0573, and Councillor Abbas v Tower Hamlets LBC Standards Committee, Case No: LGS/2011/0574.

 

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