ECHR ARTICLES 8 & 10

May 22nd, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

There can be a tension between the  Article 8 right to private life under Article 8 of the ECHR  and the right to freedom of expression under Article 10. This is addressed by the Court of Appeal in STOUTE v NEWS GROUP NEWSPAPERS (2023) EWCA Civ 523. The basic principle is that a claim for misuse of private information will succeed only if both of two conditions are satisfied : (1) the claimant has a reasonable expectation of privacy in respect of the information; and (2) the right to privacy outweighs the defendant’s right in the circumstances to freedom of expression.

Various circumstances are relevant to whether a reasonable expectation of privacy exists. Various criteria have been established as relevant to the balance between the rights.

The circumstances and criteria include that (i) photographs require special consideration, because they are particularly intrusive, 9ii) a person is less likely to have a reasonable expectation of privacy with respect to a photograph taken in a public place, but that is not an absolute rule, and (iii) such a claim is more likely to succeed if the photograph involves the depiction of something private.

 

BIODIVERSITY

May 18th, 2023 by James Goudie KC in Environment, Highways and Leisure

On 17 May 2023 DEFRA has published Guidance on understanding the duty upon public authorities, including local authorities, under the Environment Act 2021, to conserve and   enhance biodiversity, and how to comply with that duty, including what must be done by 1 January 2024. The Guidance addresses, amongst other matters, when to meet the duty, objectives and goals, strategies and policies, local nature recovery, species conservation, protected sites, managing land and buildings, education and raising awareness, internal processes, preparing for biodiversity net gain, and reporting biodiversity policies and actions.

 

Ombudsman

May 12th, 2023 by James Goudie KC in Non Judicial Control

In R (PIFFS ELM LTD) v COMMISSIONER FOR LOCAL ADMINISTRATION IN ENGLAND (2023) EWCA Civ 486 the Court of Appeal rules that the Local Government Ombudsman has no jurisdiction to withdraw a final report and reopen a completed investigation. Moreover, a Court of law should decide purely legal questions.

 

Injunction

May 12th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

In TRANSPORT FOR LONDON v PERSONS UNKNOWN (2023) EWHC 1038 (Admin) a final injunction is granted against named defendants and persons unknown. They were supporters of, and activists connected with, INSULATE BRITAIN. The injunction prohibits them from blocking identified roads and bridges during their protests.

 

CONTRACT FORMATION

May 11th, 2023 by James Goudie KC in Decision making and Contracts

The time from which the term of a lease is to commence is essential to the creation of a binding agreement for lease. In PRETORIA ENERGY v BLANKNEY ESTATE (2023) EWCA Civ 482 the Court of Appeal says that if the start date cannot be deduced with reasonable certainty that is a very powerful indicator that the agreement is incomplete and there was no intention to contract.

 

HOMELESSNESS

May 4th, 2023 by James Goudie KC in Housing

Section 208(1) of Housing Act 1996 requires a local housing authority to take reasonably practicable steps to accommodate a homeless applicant in-borough. The authority should have and should follow a policy. MOGE v EALING LBC (2023) EWCA Civ 464 concerned the adequacy of the Council’s searches for accommodation in-borough. The Court of Appeal says that authorities are not required to gve an exact account of every search and enquiry that had been made to find accommodation as close as possible. It should explain in general terms what had been done to apply its relevant published policy.

 

IMMEDIATE ACTION TO REMOVE DANGER

April 27th, 2023 by James Goudie KC in Planning and Environmental

Section 78 of the Building Act 1984 gives a local authority power to take steps to deal with a building or structure which is in a dangerous state, such that immediate action is needed to remove the danger. Does this power abrogate the ned to obtain planning permission, where this would otherwise be required in order to take the necessary steps? Yes, says Lane J in R ( Samuel Smith Old Brewery ) v Redcar & Cleveland BC ( 2023 ) EWHC 878 ( Admin).The exercise of the power is not contingent upon any need to have obtained planning permission. The fact that planning permission was required, but not obtained, by the Council before commencing demolition of the property, an unlisted building in a conservation area, did not mean that that the Council acted outside the Section 78 power.

 

DIRECTION TO LEAVE LAND AND REMOVE VEHICLES

April 14th, 2023 by James Goudie KC in Land, Goods and Services

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.

 

UNLAWFUL EVICTION/HARASSMENT

April 4th, 2023 by James Goudie KC in Housing

Part 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 Services

R (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.

 

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