One of the questions in R ( DAW ) v STAFFORDSHIRE COUNCIL ( 2024 ) EWHC 963 ( Admin ) was whether there was a lawful delegation to the Council Officer who made the Order pursuant to Section 101 ( 2 ) of the Local Government Act 1972. This was not a case in which the nature of the function was such that even in the absence of express delegation one officer may be regarded as having authority to act on behalf of another officer who is authorised to exercise the function. Of course, an officer who has been authorised may not sub-delegate the performance of that function to another officer. The Judge concluded that on the proper interpretation of the Council’s Constitution and Scheme of Delegation the Scheme was effective to delegate power to make the decision to the Officer who made the Order, provided that he exercised the power in accordance with the restrictions in the Scheme, as he did in the circumstances.
STATUTORY NUISANCE
April 30th, 2024 by James Goudie KC in Environment, Highways and LeisureThe issue before the Court of Appeal in R ( BALL ) v HINCKLEY & BOSWORTH COUNCIL ( 2024 ) EWCA Civ 433 was whether a local authority, as distinct from a Magistrates’ Court, has the power, to vary an Abatement Notice which it has issued against a statutory nuisance under Section 80 of the Environmental Protection Act 1990, either expressly or by necessary implication, and whether or not in conjunction with the incidental power in Section 111 of the Local Government Act 1972. No, says the Court, allowing the appeal. Nor was the General Power of Competence in Section 1 of the Localism Act 2011 applicable.
LAND DRAINAGE ACT
April 29th, 2024 by James Goudie KC in Environment, Highways and LeisureWORCESTERSHIRE COUNTY COUNCIL v PAIN ( 2024 ) EWHC 913 ( Admin ) concerns notices served under Section 24 of the Land Drainage Act 1991. The Court interprets the notices, considers the clarity and lawfulness of the requirement when properly interpreted, and addresses severability of the requirement from the balance of the notices.
VILLAGE GREEN
April 26th, 2024 by James Goudie KC in Land, Goods and ServicesIn R ( STRACK ) v SoS ( 2024 ) EWCA Civ 420 the issue was whether an Inspector determining an application to deregister part of a Village Green and exchange adjacent land under section 16 of The Commons Act 2006 fell into error by wrongly conflating ( 1) the rights of those with legal rights of recreation over the Village Green with ( 2 ) the interests of those local inhabitants who had no such rights. It was found that the Inspector had not erred. Both those rights and those interests were relevant considerations to which regard must be had. The weight given to each of these interests is a matter of judgment for the decision-maker in each case.
HUMAN RIGHTS CONSIDERATIONS AND HOMELESS PERSONS
April 25th, 2024 by James Goudie KC in Human Rights and Public Sector Equality DutyThe appeal in GHAOUI v WALTHAM FOREST LBC (2024) EWCA Civ 405 concerned the role of the Human Rights Act 1998 in the context of Part VII of the Housing Act 1996, which places duties upon local authorities in relation to homeless people. Specifically, how should human rights considerations be factored in to the assessment for suitability of accommodation. The Court of Appeal said, at para 36, that homelessness decisions may raise issues that engage Convention rights, but instances where a decision designed to relieve homelessness will amount to a violation will be rare. The question (para 37) is as to the lawful application of a proper definition of suitability to the circumstances of the case, identifying and weighing up relevant factors.
CONSULTATION
April 18th, 2024 by James Goudie KC in Decision making and ContractsIn R ( BMA ) v HM TREASURY ( 2024 ) EWCA Civ 355 Elisabeth Laing LJ says at paras 159 – 161 that where there is a legislative scheme that imposes substantial express duties of consultation and the legislation has expressly addressed the exact nature and precise incidence of the duty the Court should be “ very reluctant “ to supplement the scheme with extra consultation obligations unless there is a “ clear legal basis “ for their imposition. At para 160 she says that PLANTAGENET ALLIANCE at para95 is an accurate statement of the circumstances in which a duty to consult will be imposed by the common law.
HUMAN RIGHTS ACT
April 17th, 2024 by James Goudie KC in Human Rights and Public Sector Equality DutyIn SOS for BUSINESS v MERCER ( 2024 ) UKSC 12 the Supreme Court, in relation to Trade Union legislation that fails to provide protection against sanctions short of dismissal penalising participation in lawful strike action, considers Section 3 of the Human Rights Act 1998 ( the interpretative presumption ) and Section 4 ( declarations of incompatibility ), and partially allows the appeal. Read more »
EQUALITY ACT
April 16th, 2024 by James Goudie KC in HousingPart 3 of the Equality Act 2010 relates to Services and Public Functions. Part 4 relates to Premises. In R ( FG ) v KENSINGTON & CHELSEA COUNCIL ( 2024 ) EWHC 780 ( Admin ) a question is which Part is applicable to a disabled person’s claim under the Act with respect to an alleged failure by the local authority landlord to deal with noise and smell issues. The Judge holds that it is Part 4.
ENVIRONMENTAL INFORMATION
April 10th, 2024 by James Goudie KC in HousingMASTERMAN v INFORMATION COMMISSIONER ( 2024 ) UKFTT 289 ( GRC ) concerns a request for the licence conditions for a house in multiple occupation. The question arises whether the information sought from the local housing authority was “ environmental information “ subject to the Environmental Information Regulations rather than the Freedom of Information Act. The Tribunal held that it was the former. It was ( paras 47-51 inclusive ) about “ conditions of human life “. That includes conditions in which human beings live.