Section 77 of the Criminal Justice and Public Order Act 1994 enables a local authority to give a Direction that persons and any others with them leave land remove a vehicle or vehicles and any other property they have with them on the land if “ it appears “ to the authority that persons are fir the time being residing in a vehicle or vehicles within that authority’s area on any land forming part of a highway, on any other unoccupied land, or on any occupied land without the consent of the occupier. In R ( SO ) v THANET DISTRICT COUNCIL ( 2023) EWCA Civ 398 the Court of Appeal hold, at para 34, that the necessary state of affairs must exist at the time when the decision is taken to give the Direction. That is the point at which the authority decides what appears to it to be the case.
DIRECTION TO LEAVE LAND AND REMOVE VEHICLES
April 14th, 2023 by James Goudie KC in Land, Goods and Services
UNLAWFUL EVICTION/HARASSMENT
April 4th, 2023 by James Goudie KC in HousingPart 1 ( Sections 1-4 inclusive ) of the Protection from Eviction Act 1977 ( the 1977 Act ) is concerned with Unlawful Eviction and Harassment. Section 1 (2) provides that if any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof or attempts to do so he shall be guilty of an offence unless he proves that he believed and had reasonable cause to believe that the residential occupier had ceased to reside in the premises. In WU v CHELMSFORD CITY COUNCIL ( 2023 ) EWCA Crim 338 the Court of Appeal says that the subsection ( 2 ) offence is not equivalent in every respect to the concept of eviction under landlord and tenant law. It is concerned with deprivation of occupation rather than of possession. It is rights focussed. The actus reus of unlawful eviction under subsection (2) requires (i) that the resident occupier has been subject to actual physical deprivation of occupation and (ii) that the Defendant’s conduct had put, or kept, the occupier out of physical occupation. Read more »
VILLAGE GREEN
April 3rd, 2023 by James Goudie KC in Land, Goods and ServicesR (STRACK) v SOS (2023) EWHC 655 (Admin) concerned an application for de-registration of a village green under the Commons Act 2006 and the scope of “neighbourhood” for the purposes of de-registration. Section 16(1) sets out the factors to be considered on such an application. One of those factors is “the interests of the neighbourhood”. The Court holds that the use of that word in Section 16 is different from its use in Section 15. A neighbourhood for the purpose of the former is broader than a “neighbourhood” within a locality for the purposes of the latter. When considering a de-registration application, “neighbourhood” is to be taken as referring to “local inhabitants”, without recourse to the history of the original registration.
SUBSIDY CONTROL
April 3rd, 2023 by James Goudie KC in Capital Finance and CompaniesIn the transfer of the business of BULK ENERGY case (2022) EWHC 717 (Admin) a Divisional Court states that, in addition to the Subsidy Control Act 2022 and Regulations and Statutory Guidance thereunder, the TCA has been fully implemented into the UK’s domestic law by means of a blanket, generic implementation. Domestic subsidy control law to that extent means what the TCA says; but how the principle of proportionality should be applied in the particular context is also a matter of domestic law; and a wide margin of appreciation is to be afforded to a public authority when considering commercial circumstances in a private market and the market operator investment principle.
SERVICE OF NOTICE
March 23rd, 2023 by James Goudie KC in HousingThe appeal in BIRMINGHAM CITY COUNCIL v BRAVINGTON (2023) EWCA Civ 308 raises issues as to whether Section 233 of the Local Government Act 1972 (“the 1972 Act”) applies in relation to the service by a local authority of a notice under Section 83ZA of the Housing Act 1985 (“the 1985 Act”) and if it does, whether the requirements of Section 233 were met on the facts of this case and the consequences of that.
In general, a secure tenancy cannot be brought to an end by the landlord except by obtaining an order for possession and executing it. To obtain an order for possession, a landlord normally has to serve a notice pursuant to Section 83 of the 1985 Act and establish one or more of the grounds set out in Schedule 2 to the Act. However, the Anti-social Behaviour, Crime and Policing Act 2014 introduced an alternative basis for recovering possession through the insertion of what is now Section 84A of the 1985 Act. Section 84A provides (to quote its heading) an “Absolute ground for possession for anti-social behaviour”. By Section 84A(1), the Court is required to make a possession order where it is satisfied that one of the conditions specified in subsections (3)-(7) is met. Read more »
ECHR ARTICLES 2 AND 8
March 23rd, 2023 by James Goudie KC in Human Rights and Public Sector Equality DutyR (ANGELL) v SOS for HEALTH and SOCIAL CARE (2023) EWHC 495 (Admin) is concerned with whether there is a breach of the ECHR by failing adequately to inform the public about potential health risks. Stacey J states that Judicial Review is not an appropriate vehicle for determining contested scientific matters: paras 59 and 60. She further states that ECHR Article 2 requires the establishment of a framework designed to provide effective deterrence against threats to the rights of life: paras 62-66 inclusive, and for the purpose of Article 8 severe environmental pollution could affect private and family life: paras 48, 49 and 67. State authorities have a positive obligation to provide access to essential information enabling individuals to assess risks to their health and lives: paras 50 and 76. In certain circumstances that duty can extend to providing such information, rather than merely providing access to it: para 51.
LOCAL GOVERNMENT BULLETIN
March 22nd, 2023 by James Goudie KC in Decision making and ContractsFamiliar principles in relation to consultation are restated in R (BETTER STREETS FOR KENSINGTON AND CHELSEA) v KENSINGTON AND CHELSEA RLBC (2023) EWHC 536 (Admin), in which it is held that there was no duty on the local authority to consult before deciding whether to reinstate temporary cycle lanes that it had removed.
The Court would be cautious about inferring that a duty to consult had arisen in the case of a democratically elected public authority (para 37). A duty to consult might arise where there had been an established practice of consultation, or where, in exceptional circumstances, not consulting would lead to conspicuous unfairness (para 38).
Even where, in a rare case, a common law duty to consult arose, the authority would have considerable leeway to decide the nature of the consultation exercise (para 39). A finding that a consultation exercise was unlawful by reason of unfairness would be based on a finding that something had gone clearly and radically wrong (para 40). An action founded on alleged breach of promise had to demonstrate not just a broken promise but also unfairness amounting to an abuse of power (para 44).
In deciding whether anything had gone wrong, a Court would have regard to the GUNNING/COUGHLAN/MOSELEY criteria (paras 41-43 inc and 47).
Local Government Ombudsman
March 14th, 2023 by James Goudie KC in Non Judicial ControlIn R ( Milburn ) v Local Government and Social Care Ombudsman ( 2023 ) EWCA Civ 207 parts of a Complaint to the Ombudsman were excluded, pursuant to Section 26 of the Local Government Act 1974, because the Complainant had made, and/or could have made an Appeal to the First Tier Tribunal (Special Educational Needs and Disability ).
Procurement
March 14th, 2023 by James Goudie KC in Decision making and ContractsBOXXE Ltd v SoS for JUSTICE ( 2023 ) EWHC 533 ( TCC ) is useful in relation to the adequacy of damages and applications to lift automatic sanctions, and in relation to the approach tp calculating the limitation period in procurement disputes and when it is that knowledge of the grounds of challenge arises.
Compulsory Purchase
March 9th, 2023 by James Goudie KC in Land, Goods and ServicesIn STOCKPORT MBC v PERSONS UNKNOWN (2023) UKUT 53 ( LC ) it is held that where a local authority had acquired land under a CPO, but had been unable to identify the owner of the land, it was NOT required to serve a Notice to Treat, under Section 5 of the Compulsory Purchase Act 1965, prior to payment into Court of the amount of compensation determined by the UT and completion of the vesting of the land by Deed Poll. The Section 5 requirement to give a notice to treat to persons interested in the land applied only where such persons were “known to” the acquiring authority after making “diligent enquiry”.