In R ( WILKINSON ) v ENFIELD LBC ( 2024 ) EWHC 1193 ( Admin ) it is held that the Council was entitled, under Section 123 of the Local Government Act 1972 ( LGA 1972 ), to grant a 25 year lease of part of a park in its area to a professional football club, and to do so freed from a trust for enjoyment by the public under Section 164 of the Public Health Act 1875 ( the1875 Act ). The Council had a wide power under Section 123 of LGA 1972. However, for land forming part of an open space it had to fulfil the requirements of Section 123 ( 2A ) before it could lawfully dispose of such land under Section 123 ( 1 ). Conversely, having fulfilled those requirements, it could, as a result of Section 123 ( 2 B ), dispose of such land freed from any trust arising solely by virtue of the land being held in trust for the enjoyment of the public under Section 164 of the 1875 Act.
ENFORCEMENT NOTICE
June 5th, 2024 by James Goudie KC in Planning and EnvironmentalSection 285 of the Town and Country Planning Act 1990 relates to the validity of enforcement and other notices. In BARKING & DAGENHAM LBC v Aziz ( 2024 ) EWHC 1212 ( Admin ) Fordham J holds that even though an enforcement notice has been registered it is still open for a finding to be made that a defendant could not reasonably have been expected to know that the enforcement notice had not been issued.
LICENCE CONDITIONS
June 5th, 2024 by James Goudie KC in HousingIn NEWCASTLE CITY COUNCIL v ABDALLAH ( 2024 ) UKUT 140 ( LC ) the Upper Tribunal ( Lands Chamber ) rules that Section 233 of the Local Government Act 1972, on service of notices by local authorities, applies to aa authority’s request for information to be provided in compliance with licence conditions under the Housing Act 2004.
ELIGIBILITY FOR HOUSING ASSISTANCE
June 5th, 2024 by James Goudie KC in HousingIn FERTRE V VALE OF WHITE HORSE DC ( 2024 ) EWHC 1234 ( KB ) the Court refuses the authority’s application to strike out an appeal against its decision that an EU national was not eligible for housing assistance. She had made a second application, based on changed circumstances. She had conceded that she was no longer homeless. She had not abandoned her appeal. It was not an abuse of process. It was not academic. If there had been error of law during the initial application the applicant would have the enduring benefit of a determination of threshold eligibility for assistance. Also there was a public interest in the point in issue.
The points of principle are that ( 1 ) the mere fact of making a fresh application does not automatically or impliedly constitute the abandonment of a prior application subject to an extant appeal; A successful fresh application might render the appeal pointless, and liable to be struck out as academic, but it could not, without some clear expression of interest or unequivocal conduct, amount to an abandonment of the appeal; ( 3 ) When there is a change of circumstances the Court has to consider whether the appeal has become academic; ( 4 ) A risk of future homelessness could be a sufficient interest such that an appeal is not academic; and ( 5 ) a point in issue can be of considerable public importance with broader ramifications where the legal issues are of wider significance affecting most income-related welfare benefits which could affect a large cohort of EU nationals.
PLANNING CONTROL POWERS
May 28th, 2024 by James Goudie KC in Planning and EnvironmentalWhere the land meets the sea, the planning control powers conferred on LPAs by TCPA 1990 extend to the foreshore, but do not extend below the mean low water mark. So held by Holgate J in R ( PARKES ) v DORSET COUNTY COUNCIL ( 2024 ) EWHC 1253 ( Admin ).
LIABILITY FOR NEGLIGENT OMISSION
May 23rd, 2024 by James Goudie KC in Judicial Control, Liability and LitigationGREAT LAKES REINSURANCE v RAV ( 2024 ) UKPC 11 revisits when there is a duty of care in the tort of negligence with respect to an omission to confer a benefit. Restrictive principles going beyond foreseeability and proximity must be applied : para 20. One of the recognized exceptional principles must be established : para 21. Liability may be based on a relevant ASSUMPTION OF RESPONSIBILITY, referring to N v POOLE BOROUGH COUNCIL ( 2020 ) AC 780, and to HXA v SURREY COUNTY COUNCIL, YXA v WOLVERHAMPTON CITY COUNCIL ( 2024 ) 1 WLR 335, where claims for failing to protect children from abuse were struck out for lack of any assumption of responsibility.
FAIRNESS
May 22nd, 2024 by James Goudie KC in Decision making and ContractsIn ESCOBAR v SSHD ( “)”$ ) EWHC 1097 ( Admin ) it is held that whereas an administrative decision cannot have legal effect unless and until it has been communicated to the individual in question, a decision could have effect where notification had been provided, but the individual, for whatever reason, had not read it.
AGGREGATION of DWELLINGS in MULTIPLE OCCUPATION
May 22nd, 2024 by James Goudie KC in Council Tax and RatesIn R ( HOWARD GARDENS MANCO LTD ) v FORMELA OSBORNE ( LISTING OFFICER ) ( 2024 ) EWHC 1112 ( Admin ) it is held that a council tax listing officer’s decision pursuant to the Local Government Finance Act 1992 to list each en suite bedroom in shared student accommodation flats in Cardiff separately, rather than to treat them as a single dwelling, was lawful. She had followed the Valuation Office Agency policy on aggregation of dwellings in multiple occupation, and had provided reasons justifying a departure from it.
CONSULTATION
May 22nd, 2024 by James Goudie KC in Decision making and ContractsIn R (NCCL) v SSHD (2024) EWHC 1181 (Admin) a Divisional Court (Green LJ and Kerr J) address a consultation issue from para 131, state the basic principles as follows:-
“152. The law governing the obligation to undertake public consultation is now reasonably well settled. A public body or decision maker owes no general duty in all cases to consult interested persons before deciding upon a measure. But the decision maker may become subject to such a duty in certain circumstances. A duty to consult may be enacted by a statutory provision. If the duty is statutory, the scope of the obligation is determined primarily by the terms of the statute. The process ordained in the statute must be followed and must, in addition, be undertaken in a fair manner.
153. A duty to consult may arise at common law in the second, third and fourth cases identified in the judgment of the Court in R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin), at paragraph [98(2)] where: (i) there has been a promise to consult; (ii) there has been an established practice of consultation; and (iii) where exceptionally a failure to consult would lead to conspicuous unfairness…
154. It is however common ground that where a consultation exercise is carried out voluntarily, it must be carried out “properly and fairly” …
155. Not every process of communication and discussion by a public body with chosen interlocutors engages an obligation to carry out a full consultation exercise meeting the requirements of the Gunning criteria …”
“159. It is important to recognise the purpose of public consultation … its purpose “has various strands”: first, to improve the quality of decision making; secondly, to ensure fairness is accorded to those who may be affected by a regulatory change and to avoid the sense of injustice they may feel if they are not consulted; and thirdly, as “part of a wider democratic process” …
160. Thus, the purpose of consulting goes beyond merely informing the reasoning in support of the eventual decision. Consultation should ensure that the decision is both of high quality and justly reached. Fairness in carrying out a consultation is part of procedural fairness in decision making more generally. In Plantagenet, the Divisional Court treated the common law duty to consult as part of a wider common law duty of fairness, sitting alongside the two other common law duties …: to make sufficient enquiry and to have regard to relevant considerations.
161. As in other contexts where procedural fairness is at issue, what fairness demands will depend on the facts of the case and the context. Whether those demands have been satisfied in a particular case is a matter for the court, not the decision maker.”
“170. The Gunning criteria [do not] necessarily embody the totality of the requirements in all cases where consultation is undertaken on a voluntary basis. The criteria are valuable and might cover very many cases but the test is ultimately one of fairness, a “protean concept”…
171. We start with a question: who must be consulted? The answer to this is context sensitive, in a statutory consultation, the legislation may provide the answer, which may be such persons as the decision maker considers appropriate, or some similar formulation. In such cases, it is for the decision maker to decide, subject to rationality, who is appropriate to be consulted. The Court would not interfere merely because other persons not selected, could have been found appropriate.
172. In other cases, there might be no statutory duty to consult or even no duty to consult at all. …”
“181. … we take the law to be as stated by Elias LJ in the Milton Keynes case: there may be circumstances where a voluntary but selective consultation exercise will render a decision taker pursuant to it unlawful. Such cases might be relatively rare. The Court will tread with care in characterising as a consultation a process of Government engagement with those from whom it seeks advice.”
“184. Ground IV succeeds. A voluntary consultation was undertaken. It was however one-sided and not fairly carried out. For this reason it was procedurally unfair and unlawful.”
The interest of the case is not confined to consultation. At paragraph 115 the Court said:-
“The principles of Parliamentary sovereignty and the separation of powers have their genesis in the common law and it the duty of the courts to protect those principles…
The issue … is whether those constitutional principles are violated when the Executive uses a statutory power to make subordinate legislation for an object and purpose which it has earlier failed to achieve by primary legislation.”
The answer (paragraph 118) was: “No”.