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.

 

Local Elections & Localism Act

April 2nd, 2012 by James Goudie KC in Elections and Bylaws

Local Elections

The Local Government (Wales) Measure 2011 imposes a duty on a local authority to conduct a survey after each ordinary election, asking prescribed questions of councillors and unsuccessful candidates.  The Local Election Survey (Wales) Regulations 2012, SI 2012/685 (W.93) prescribe the questions that must be asked and the form in which they may be asked.  They relate to gender, sexual orientation, language, race, age, disability, religion or belief, health, education and qualifications, employment, work as a councillor, party affiliation, involvement with the third sector and length of political activity.

Localism Act

Note the Localism Act 2011 (Consequential Amendments) Order 2012, SI 2012/961, and the Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012, SI 2012/965.

 

Public Procurement and Appearance of bias/Delay in Judicial Review

March 30th, 2012 by James Goudie KC in Best Value

Public Procurement

In Case C-599/10, SAG v Upro, the CJEU in a Judgment on 29 March 2012, reiterated (para 40) that the procurement regime “… does not preclude … the correction or amplification of details of a tender where appropriate, on an exceptional basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender”.

However (para 41) on the exercise of the discretion thus enjoyed by the contracting authority, “that authority must treat the various tenderers equally and fairly, in such a way that a request for clarification does not appear unduly to have favoured or disadvantaged the tenderer or tenderers …”.  Moreover (para 42) a request for clarification of a tender may be made only after the contracting authority has looked at all the tenders.  Furthermore (para 43) that request must be sent in an equivalent manner to all undertakings which are in the same situation, unless there is an objectively variable ground capable of justifying different treatment of the tenderers in that regard; and in addition (para 44) that request must relate to all sections of the tender which are imprecise or which do not meet the technical requirements of the tender specifications.

The CJEU also (paras 27-34) addressed issues relating to abnormally low tenders.  Contracting authorities are required to examine the details of tenders which are abnormally low.  For that purpose they are obliged to request the tenderer to furnish the necessary explanations to prove that those tenders are “genuine”.  The existence of a proper exchange of views, at an appropriate time in the procedure for examining tenders, between the contracting authority and the tenderer, to enable the latter to demonstrate that its tender is genuine, constitutes a fundamental requirement, in order to prevent the contracting authority from acting in an arbitrary manner and to ensure healthy competition between undertakings.

Appearance of bias/Delay in judicial review

See R (Berky) v Newport City Council [2012] EWCA Civ 378, in which the Court of Appeal’s holdings included that (1) the decision not to require an environmental statement was not erroneous in law, (2) the appearance of bias on the part of one member of the Planning Committee was not sufficient, absent evidence that the member exercised an undue influence over the other members, to vitiate the Committee’s 8-1 decision, and (3) (by a majority) there had been undue delay leading to prejudice both to other interests and to good administration and relief should be refused.

 

Village Greens, Public Procurement & Freedom of Information

March 28th, 2012 by James Goudie KC in Best Value, Environment, Highways and Leisure

Village Green

In Newhaven Port and Properties Ltd v East Sussex County Council [2012] EWHC 647 (Admin) the claimant company and port authority applied for judicial review of the Council’s decision to register a tidal beach as a “town or village green” under s15 of the Commons Act 2006.  The beach formed part of the operational land of the port.  Ouseley J held that a tidal beach can be so registered, provided, however, that the nature, quality and duration of the recreational user satisfies the statutory test.

However, this beach could not be so registered, because that would conflict with its statutory function as operational port land.

Public Procurement

The Procurement Lawyers Association has issued a Working Group Paper on Framework Agreements, available on its website.

Freedom of Information

In Bailey v ICo and Nottingham County Council, EA/2011/0271, Decision on 27 March 2012, on the absolute exemption for personal data in FoIA s40, the FTT upheld non-disclosure about internal audit investigations and potential disciplinary proceedings involving employees in the Council’s Building Cleaning Service, on the basis that disclosure would be unfair and would breach the first data protection principle.  The FTT reiterated (para 18) what had been said in Waugh v ICo and Doncaster College, EA/2008/0038, that (para 40) there is a recognized high expectation that the internal disciplinary matters of an individual (even a senior member of staff) will be private and that the majority of the information will not be available to the public.

See also on Bolton v ICo and East Riding Yorkshire Council, EA/2011/0216, FTT Decision on 26 March 2011, on s40 and the remuneration and appointment of a Chief Executive, forthcoming blog by Anya Proops on www.panopticonblog.com.

 

Council Tax, Environment, Procurement/Land Sale

March 26th, 2012 by James Goudie KC in Best Value, Council Tax and Rates, Environment, Highways and Leisure

Council Tax

Note the Local Authorities (Alteration of Requisite Calculations) (Wales) Regulations 2012, SI 2012/521 (W.82).

Environment

Note the Controlled Waste (England and Wales) Regulations 2012, SI 2012/811; and the Environmental Protection Act 1990 (Commencement No. 19) Order 2012, SI 2012/898 (C.28), repealing on 1 April 2012 s1 of the Refuse Disposal (Amenity) Act 1978 (provision by local authorities for disposal of refuse).

Procurement/Land Sale

In R (Midlands Co-Operative Society Ltd) v Birmingham City Council [2012] EWHC 620 (Admin) Hickinbottom J held (1) that a land disposal by the Council to Tesco did not engage the public procurement regime, because there was no commitment by Tesco, legally enforceable by the Council, to perform relevant works, either in a Section 106 agreement or at all; and (2) that the Council had achieved the best consideration outcome required by LGA 1972 s123.

 

Non-Domestic Rating & Capital Finance

March 9th, 2012 by James Goudie KC in Council Tax and Rates, Local Authority Powers

Non-Domestic Rating/Wales

Note the Non-Domestic Rating (Small Business Relief) (Wales) (Amendment) Order 2012, the Non-Domestic Rating (Deferred Payments) (Wales) Regulations 2012 and the Non-Domestic Rating (Demand Notices) (Wales) (Amendment) Regulations 2012, respectively Sis 2012/465 (W.76), 466 (W.77) and 467 (W.78).

Capital Finance

Note the Local Authorities (Capital Finance and Accounting) (England) (Amendment) (No 2) Regulations 2012, SI 2012/711, which amend the provisions in SI 2003/3146 dealing with the treatment of receipts from disposals made pursuant to Part 5 of the Housing Act 1985: the paying down of housing debt is made a permissible use of receipts, and a cap is set on those receipts that might be retained to cover part of the cost of re-purchasing former council homes.

 

Highways & Village Greens

March 8th, 2012 by James Goudie KC in Environment, Highways and Leisure

Dedication of Highway

The dedication to the public by a local highway authority of highways was inferred by the Privy Council in J & O Operations Ltd v Kingston & St Andrew Corporation [2012] UKPC 7, relying (para 13) on Espley v Wilkes (1872) LR 7 Ex 298 and (para 14) Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620.

Village Green

In Adamson v Kirklees MBC [2012] EWCA Civ 262 the Court of Appeal held, allowing an appeal from Vos J, that although land should not have been registered as a village green (because, agreeing with Vos J, it had not been used by the inhabitants of a single locality), it would not be just to rectify the public register after a delay of over 12 years in seeking rectification. Sullivan LJ said (para 37):

“While Parliament did not prescribe a time limit for making applications under section 14, it must have envisaged that persons adversely affected by an erroneous amendment of the register would take reasonably prompt action ton secure rectification, and would not sleep on their rights. All other things being equal, the longer the delay in seeking rectification the less likely it is that it will be just to order rectification”; and (para 39)

“While it must be desirable, in principle, that errors in a public register should be rectified, the delay of over 12 years in seeking rectification of the register in this case was, by the standards of any reasonable legal process, so excessive as to make it not just to rectify the register.”

Patten LJ, on the other hand, could see no injustice (para 44) in a deprivation of rights to which one was never entitled, absent (para 43) some “significant or material prejudice attributable to the delay” which makes it just to refuse to restore to the owner of the land its full legal rights. Patten LJ thought (para 45) that there was a public dimension which militated strongly in favour of ordering rectification of the register. Carnwath LJ, however, agreed (para 66) with Sullivan LJ’s reasoning and conclusions. Carnwath LJ (at para 67) said that, on the basis that ECHR Art 1/1 was engaged:

“The administrative process of amendment of the register does not meet the requirements for independent determination under article 6. The rectification procedure fills the gap. I agree that for that reason a precise analogy with judicial review time-limits is not appropriate.”

He continued (at para 68):

“However, article 6 does not require the right to be kept open indefinitely. I agree with Sullivan LJ that the public nature of the register requires the balance to include considerations of public administration, … Although that is provided for expressly in the judicial review legislation, I see no reason why the concept of “justice” under the 1965 Act should not be wide enough to include similar considerations. Justice in this context need not turn on proof of individual prejudice, but is wide enough to cover general prejudice to the public (including planning authorities) who are entitled to rely on the register to order their affairs, public and private. … It is probably not appropriate for the court to lay down a specific time-limit, where Parliament has declined to do so. But for my part, I would be regarding a delay beyond the normal limitation period of six years as requiring very clear justification. On the facts of this case, I agree with Sullivan LJ that on any view the delay was too long.”

 

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