Section 38 ( 6 ) of the Planning and Compulsory Purchase Act 2004 requires that if regard is to be had to the Development Plan for the purposes of any determination to be made under the Planning Acts the determination must be made in accordance with the Plan, unless MATERIAL CONSIDERATIONS , including national policy as expressed in the NPPF, indicate otherwise. In MID-SUFFOLK DC v SoS ( 2024 ) EWHC 930 ( Admin ) the Judge observes, at paras 122-138 inc, that there is however no prescribed format as to the way in which the reasoning on the considerations should be set out. The question is whether Section 38 ( 6 ) has been applied as a matter of substance. Mere failure to mention factors does not mean that there was a failure to take them into account in making the decision, provided that it is apparent that the decision-maker was well aware of each of these factors and was taking them into account.
FRESH EVIDENCE
May 8th, 2024 by James Goudie KC in Judicial Control, Liability and LitigationIn TAYTIME LTD v SoS ( 2024 ) EWHC 1053 ( Admin ) Lang J summarises, at paras 55-59 inc, when fresh evidence will be admissible in a judicial or statutory review. Generally the Court does not consider evidence that was not before the decision-maker. Fresh evidence will be admitted only in limited circumstances. These are ( 1 ) to show what material was before the decision-maker, ( 2 ) to demonstrate a jurisdictional fact or procedural error or misconduct by the decision-maker, ( 3 ) where the interests of justice require it, ( 4 ) where there is a legal challenge on the grounds that the decision-maker failed to investigate adequately and the evidence would demonstrate what would have been discovered if due enquiry had been made, or (5) in the consideration of remedy.
LIABILITY of AUTHORITIES and INDIVIDUALS
May 7th, 2024 by James Goudie KC in Judicial Control, Liability and LitigationPart 8 of the Equality Act 2010 ( Sections 108-112 inclusive ) contains ancillary provisions about liability of employers and principals ( Section 109 ) and liabilities of employees and agents ( Section 110 ). In BALDWIN v CLEVES SCHOOOL ( 2024 ) EAT 66 the School was held liable under Section 209, and it is held that if the conditions for individual liability on the part of an individual employee or agent as set out in Section 110 are satisfied then a contravention of Section 110 must be found. There is no discretion.
PUBLIC LAW OBLIGATIONS
May 7th, 2024 by James Goudie KC in Decision making and ContractsFriends of the Earth v Secretary of State ( 2024 ) EWHC 995 ( Admin ) concerns the process to achieve net zero greenhouse gas emissions by 2050 and carbon budgets. Clive Sheldon J says at para 117 that there is no free-standing obligation in public law that information about risk is to presented in a particular way. How the risk is presented to the decision-maker can be impugned only if the content of what is provided does not enable a statutory evaluation exercise to be carried out lawfully. At para 127 he says that Wednesbury unreasonableness may be made out when there is an unexplained evidential gap or leap in reasoning which fails to justify the conclusion reached by the decision-maker.
APPEAL AGAINST ENFORCEMENT NOTICE
May 3rd, 2024 by James Goudie KC in Planning and EnvironmentalThe basic question in SECRETARY OF STATE v CALDWELL ( 2024 ) EWCA Civ 467 was whether an Inspector who determined an Appeal against an Enforcement Notice issued under SECTION 172 of TCPA 1990 misapplied the important principle in the MURFITT case and the established limitations upon that principle.. The Notice required the cessation of residential use on land and the demolition of a bungalow built upon it. The principle is that LPAs when enforcing against against a material change of use can require the removal of operational development connected to the change of use for the purpose of restoring the land to its condition before the development took place.
The Court of Appeal identified a number of points from para 39. First, the MURFITT principle must not be overstated. It must be operated within the bounds of the statutory scheme. Second, the principle does not extend to works that are more than ancillary or secondary to the change of use. Third, the principle is “ narrow “. Fourth, the principle does not support the removal of a building or other operational development that is a separate development in its own right. Fifth, whether the principle is engaged in a particular case will always be a matter of fact and degree.
TRAFFIC ORDER
April 30th, 2024 by James Goudie KC in Environment, Highways and LeisureOne 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.