Brexit notwithstanding, the UK remains subject to the EU State Aid regime administered by the EU Commission. On 19 March 2020 the Commission adopted a “ Temporary Framework “ for State Aid measures to support the economy during Covid-19 (the TF). The TF was amended on 3 April and 8 May 2020. A feature of the TF was that aid was not available for undertakings already in financial difficulty by 31 December 2019.
Invalid Notice
July 8th, 2020 by James Goudie KC in HousingAn assured tenancy cannot generally be brought to an end except through a Court Order that is subject to the landlord having served a Notice in accordance with Section 8 of the Housing Act 1988. It is held in Jarvis v Evans (2020) EWCA Civ 854 that a Section 8 Notice in breach of the Housing (Wales) Act 2014 is invalid. The Court of Appeal observes that if notices served in breach of the 2014 Act licensing regime were nonetheless effective tenants would be reliant on local authorities for enforcement of that regime, whereas local authorities have many demands on limited resources. The legislative intent was that tenants should not be left dependent on local authorities : paras 42(iv) and 45/46.
Disclosure
July 7th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn R (Charles) v SoS for FCO (2020) EWHC 1620 (Admin) a Divisional Court restated that in Judicial Review proceedings (1) standard disclosure is not automatic, (2) the right of inspection of documents referred to in a witness statement is not applicable, (3) a confirmation by a party that it has disclosed all relevant documents is conclusive unless there are grounds for supposing it to be mistaken, and (4) disclosure is of what is necessary for the just and fair determination of the issues.
Judicial review is not like other civil litigation as regards disclosure : para 20. However, there is a “duty of candour” on the parties : para 21.
Aarhus
July 6th, 2020 by James Goudie KC in Environment, Highways and LeisureIn Case C-826/18 from the Netherlands Advocate General Bobek’s Opinion dated 2 July 2020 says that all of (1) Article 6 of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, (2) Article 6 of Directive 2011/92/EU, as amended, on the assessment of environmental effects, and (3) Article 24 of Directive 2010/75/EU on integrated pollution prevention and control, confer full participation rights ONLY on “the public concerned”, NOT on the public at large.
Investigation
June 22nd, 2020 by James Goudie KC in StandardsFor the refusal of an injunction to stop the investigation of complaints against a councillor about his conduct, see Bishop v Public Services Ombudsman for Wales (2020) EWHC 1503 (Admin). The importance of expression in the political sphere is reiterated at para 13.
Judicial Review
June 17th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation“ Rolling” JR may be appropriate in some cases. JR does not relate exclusively to specific decisions with specific dates. It may also relate to continuing conduct, when there is a “ moving picture”, as in the adult social care case of R (Raja) v Redbridge LBC (2020) EWHC 1456 ( Admin).
Houses in Multiple Occupation
June 17th, 2020 by James Goudie KC in HousingIs a building an HMO? Yes, if the building has been converted into flats, albeit self contained and with no shared amenities, and two conditions are both satisfied : less than two thirds of the flats are owner-occupied; and the conversion work failed to comply, and still does not comply, with the “ appropriate building standards “, under the Building Regulations. So held in Hastings BC v Turner (2020) UKUT 184 (LC), interpreting Sections 254 and 257 of the Housing Act 2004, and allowing the Council’s appeal. There are five separate and alternative tests for determining whether a building is an HMO. One of them is satisfied in the above situation.
Compliance with the PSED
June 16th, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyAmongst the issues considered by a Divisional Court (Bean LJ and Cavanagh J) in a 55 page Judgment in Adiatu v HMT (2020) EWHC 1554 Admin was, from para 195, the scope of the PSED, including, from para 239, the question, which the Court answered in the affirmative, whether the public authority’s duty is to have regard to the equalities implications of the decision that is actually taken. The Court rules that it does not have to consider the equalities implications of other decisions that might have been taken instead : paras 242-245.