Extinguishment of Public Right Of Way

July 20th, 2022 by James Goudie QC in Environment, Highways and Leisure

Trail Riders v SoS (2022) EWHC 1804 ( Admin ) concerns extinguishment of a public right of way under Section 67(1) of the Natural Environment and Rural Communities Act 2006 and the exceptions in Section 67(2). Syeyn J said that the exceptions should not be construed restrictively.

In relation to Section 67(2) (a) what was required was a factual assessment of whether the main lawful use by the public of the route during the 5 year period to 2 May 2006 was for mechanically propelled vehicles or not. The word “ main “ denoted chief or predominant use. The statutory provision did not direct the decision-maker as to the factors that should be taken into account. In making an assessment the character of the way was not a mandatory relevant consideration.


Subsidy Control Act 2022

July 7th, 2022 by James Goudie QC in Capital Finance and Companies

The new regime is due to come into force Autumn 2022. It will consist primarily of the provisions in the  subsidy control chapters of the Trade & Co-Operation Agreement with the EU, the Subsidy Control Act 2022, Regulations and Guidance from BEIS and the CMA. BEIS is currently consulting on Guidance under Section 79 of the Act.

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Damages for Breach of Contract

July 7th, 2022 by James Goudie QC in Decision making and Contracts

In a claim for damages for breach of contract by way of wrongful dismissal of an employee, as in Mackenzie v AA Ltd (2022) EWCA Civ 901, the least burdensome mode of performance, and the least costly method of lawfully terminating the contract, should be adopted. The Court of Appeal holds that it should, for the purpose of determining the employee claimant’s loss, be assumed that the employer would have performed its contractual obligations in the least burdensome way possible. Damages could not confer benefits which the contract did not oblige the employer to confer.


Intentional homelessness

July 1st, 2022 by James Goudie QC in Housing

When a homeless person applies to a local housing authority (LHA) for accommodation, the LHA needs to decide whether the applicant has become homeless intentionally. That may be the case if the applicant was evicted from their “last settled accommodation” for non-payment of rent which was affordable for them. Affordability depends on whether the applicant could have been able both to pay the rent and meet their “reasonable living expenses”.  In BAPTIE v KINGSTON UPON THAMES RLBC (2022) EWCA Civ 888 the LHA decided that both could have been done. The question raised by the appeal was whether that affordability decision was unlawful, because it was based on an irrational approach to the assessment of the applicant’s reasonable living expenses. The decision was ruled to have been lawful.

The Association of Housing Advice Services (AHAS) has produced Guidance, “Evidence base for cost of living and guidance for caseworkers”.  The LHA’s Review Officer had not erred in relying on it.  It was reliable objective evidence to which a Review Officer could have regard. SAMUELS v BIRMINGHAM CITY COUNCIL (2019) UKSC 28 is not authority to the contrary. See paragraphs 50-54 and 60-63 of the Judgment of Warby LJ, which with Asplin and Peter Jackson LLH agreed.


Local Government Ombudsman

July 1st, 2022 by James Goudie QC in Non Judicial Control

In PIFFS ELM LTD v COMMISSION FOR LOCAL ADMINISTRATION IN ENGLAND (2022) EWHC 1547 (Admin) the Court holds that the Local Government and Social Care Ombudsman (the LGO) has an implied power, under Section 30 in Part 3 of the Local Government Act 1974 (LGA 1974) to withdraw a Final Report, in order to conduct further investigation, under Sections 24A, 26 and 28, and potentially to issue a further Report, with a different outcome.

The statutory provisions confer a very wide discretion on the LGO to decide what complaints he/she should or should not investigate and whether or not to continue or discontinue any such investigation, subject to review by the Court on the usual public law grounds.  Authorities have emphasised the informal nature of the process.

The Courts have noted the utility of the practice of the LGO of inviting comments on their draft Report from the authority and the aggrieved person before the decision is issued. Read more »


Strikes and Other Industrial Action

June 29th, 2022 by James Goudie QC in Local Authority Powers

The Secretary of State for Business has laid before Parliament two Statutory Instruments: the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, and the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022.

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Charging for Leisure Facilities

June 24th, 2022 by James Goudie QC in Environment, Highways and Leisure

In R (Efthimiou) v City of London (2022) EWHC 1588 (Admin) the lawfulness of an  updated charging and fee collection policy for the Hampstead Ladies@ Pond was upheld. The challenge by a disabled swimmer failed. At para 119 and following the Judge said that, as a general principle, charging for leisure facilities is fundamentally fair and reasonable. The revised charges, albeit significant, are heavily subsidised and relatively modest.


Planning and Environmental Exempt Information

June 17th, 2022 by James Goudie QC in Planning and Environmental

The statutory framework for access to information at principal local authority meetings, including when the public may be excluded, as in Stride v Wiltshire Council (2022) EWHC 1476 (Admin), is set out in the Local Government Act 1972. Section 101A provides for such a meeting to be open to the public unless excluded by Resolution.

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Human Rights – R (Z) v Hackney LBC

June 17th, 2022 by James Goudie QC in Housing

In R (Z) v Hackney LBC (2020) UKSC 40, (2020) P.T.S.R. 1830, the Supreme Court held that a charitable housing association’s allocation policy, which effectively means that it allocated housing only to applicants from the Orthodox Jewish community, including some nominated by the local authority, was a legitimate and  proportionate means of meeting the housing needs of members of that community authority’s area, and was therefore not unlawfully discriminatory.

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Civil Procedure Rules

May 30th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

In PRIMAVERA ASSOCIATES LTD V HERTSMERE BOROUGH COUNCIL (2022) EWHC 1240 (Ch) the defendant local planning authority applied, with partial success, to strike out a witness statement made on behalf of the claimant property development company. The claimant alleged that the Council had been negligent in its planning process. Written statements are to contain evidence that the maker would be allowed to give orally. They are not to provide commentary on documents or engage in argument or include opinion. They must state how well the witness personally recalls the matter addressed and provide details of documents used to refresh memory in respect of matters of fact. They can provide relevant background information known to the witness.