In Tyne & Wear Passenger Transport Executive v National Union of Rail etc Workers (2021):EWHC 1388 (Ch) it is held that a collective agreement can be rectified. Rectification is not confined to legally binding contracts: para 58 and following. The jurisdiction to rectify is quite general. It may be exercised in respect of a “wide range of contracts and documents inter partes.”
Habitats
May 28th, 2021 by James Goudie KC in Planning and EnvironmentalIn R (Wyatt) v Fareham BC (2021) EWHC 1434 (Admin) Jay J dismissed 8 grounds for judicial review of the Council’s decision to grant outline planning permission for a housing development, notwithstanding advice to the contrary from Natural England on habitats grounds and in accordance with the precautionary principle. Applying an appropriate margin of appreciation, in an area which is technical and complex, the Judge was not persuaded, on a Wednesbury basis, that the assessment carried out for the purposes of the planning application was otherwise than sufficiently precautionary.
Rate Relief
May 28th, 2021 by James Goudie KC in Council Tax and RatesThe issue in Nuffield Health v Merton LBC (2021);EWCA Civ 826 was whether Nuffield Health, a registered charity, was entitled to mandatory relief from non-domestic rates in respect of its occupation of fitness and well-being centres, notwithstanding that membership fees at market rates were payable. The statutory basis of the claimed relief was that (1) it was a charity, as Nuffield Health is, or the trustees of a charity, AND (2) the hereditament was used “wholly or mainly for charitable purposes”, as defined in the Charities Act 2011, that is “for the public benefit”. The Court considers the public benefit test.
Breach of Procurement Rules
May 28th, 2021 by James Goudie KC in Decision making and ContractsIn R (Trinity College) v SoS for MHCLG (2021) EWHC 1355 (Admin) the commercial arm of Trinity College Cambridge applied unsuccessfully for judicial review of the refusal by the SoS to grant it funding under the European Regional Development Fund for the creation of a research hub at the Cambridge Science Park. In relation to the main project building contract, the claimant, albeit not a contracting authority, was in breach of the procurement rules applicable to ERDF projects. The SoS was bound to reject the application because the amount of the grant would have to be reduced and then the project would not be a viable candidate for ERDF support.
Pension Fund Consequences of TUPE Transfers
May 27th, 2021 by James Goudie KC in Land, Goods and ServicesWhen a local authority enters into a contract for services with a body that is admitted to the LGPS terms may be agreed with respect to pension risk. R (Enterprise Managed Services Ltd ) v SoS for MHCLG and Northamptonshire Councils (2021):1436 (Admin) concerns when the contract comes to an end and the contractor/employer exits the LGPS and there is a deficit in relation to the liability to pay benefits.
In this context the LGPS Regulations have been amended. Bourne J holds that the amendments are lawful. They are not invalidated as being unjustifiably and unlawfully retroactive and retrospective, contrary to any of common law, ECHR Arts 6, 14 and 1/1, or EU State Aid provisions.
Allocation Schemes
May 27th, 2021 by James Goudie KC in HousingPart 6 of the Housing Act 1996 deals with the allocation of permanent social housing. Every local housing authority has to have in place allocation scheme. This must be framed so as to secure that a “reasonable preference” is given to certain persons. These include those occupying overcrowded accommodation.
AONB
May 24th, 2021 by James Goudie KC in Planning and EnvironmentalR (Cross) v Cornwall Council (2021);EWHC 1423 (/Admin) was a successful judicial review of a grant of planning permission for a proposed development in an Area of Outstanding National Beauty. The Council had failed to provide adequate reasons. Fairness required a formulated statement of reasons at common law, even though the proposed development was only of one dwelling, because (para 76) :-
- The site was in a highly sensitive cliff-top setting on the Heritage Coast and in the AONB;
- The Committee departed from the Officers’ Report and the Development Plan;
- The Officer Recommendation was that the development would give rise to unacceptable harm to the AONB; and
- There was extensive public opposition to the development.
Calculation of Limitation Period
May 21st, 2021 by James Goudie KC in Judicial Control, Liability and LitigationThe issue in Matthew v Selman (2021) UKSC 19 was whether, where a cause of action accrues at, or on the expiry of the midnight hour at the end of a day, the following day counts towards the calculation of the limitation period. The Supreme Court holds that, in a midnight deadline case, such as an action brought in tort, contract or breach of trust, subject to respectively Sections 2, 5 and 21 of the Limitation Act 1980, there is a complete undivided day following the expiry of the deadline, which should be included when calculating the limitation period. This is different from the situation where a cause of action accrues part-way through a day, and the general rule excludes that day for limitation purposes.
Green Belt
May 20th, 2021 by James Goudie KC in Planning and EnvironmentalIn Sefton MBC v SoS (2021) EWHC 1082 (;Admin) the Court interpreted paras 143 and 144 of the NPPF. Read together, they emphasised the seriousness of harm to the green belt. That is to ensure that the decision-maker has in mind the nature of the “very special circumstances” requirement before development is approved. They do not however mandate a mathematical exercise in relation to each element of harm. There is a single exercise of planning judgment to assess whether there are very special circumstances which justify the grant of planning permission notwithstanding the particular importance of the green belt.