In Electronic Collar Manufacturers Association v SoS for DEFRA (2019) EWHC 2813 (Admin) Morris J considered a number of consultation and other challenges. He summarised general principles on consultation at paragraph 27. From paragraph 109 he addressed together consultation and appearance of pre-determination. He said as to the law:-
Environmental Bill
October 24th, 2019 by James Goudie KC in Environment, Highways and LeisureThe Government has introduced a 130 Clause Environment Bill, with 20 Schedules, in the context of exiting the EU. Parts 1 and 2 relate to Environmental Governance, that had been the subject of a Draft Bill, including environmental targets, improvement plans, environmental monitoring and environmental principles, and a new Office for Environmental Protection. Part 3 relates to Waste and Resource Efficiency; Part 4 to Air Quality and Environmental Recall; Part 5 to Water; Part 6 to Nature and Biodiversity; and Part 7 to Conservation Covenants. The provisions include recycling and other obligations upon local authorities, pollution control and other powers for local authorities, and the mandating of net gain in biodiversity through the planning system.
Legal advice privilege
October 24th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn Curless v Shell International Ltd (2019) EWCA Civ 1710 the Court of Appeal has upheld the decision of an Employment Judge to strike out parts of a disability discrimination and victimisation claim on the basis that they referred to an email which attracted legal advice privilege. The employer (SI Ltd) was seeking advice on whether the claimant (C) –who had already made a claim of a failure to make reasonable adjustments – might be either offered voluntary severance or dismissed on the grounds of redundancy as part of a restructuring exercise. The Court of Appeal viewed this as the sort of advice which employment lawyers give ‘day in, day out’. It did not agree with the EAT’s interpretation that this was advice to act in an underhand or iniquitous way by ‘cloaking’ a discriminatory dismissal as a redundancy. Read more »
Equitable relief from forfeiture
October 24th, 2019 by James Goudie KC in Land, Goods and ServicesOn the banks of the Manchester Ship Canal, Vauxhall Motors has a large manufacturing plant. It drains surface water and treated industrial effluent into the Canal. It does so pursuant to a licence from the Canal Company. This is a valuable right, similar to an easement. It is terminable if Vauxhall are late in their payment of the licence fee. Inadvertently, Vauxhall was late with one instalment. The Canal Company terminated the Licence. Vauxhall asked the High Court to grant equitable relief from forfeiture. Relief was granted. The Court of Appeal upheld the grant of relief: (2018) EWCA Civ 1100. The position has now been addressed by the Supreme Court, who have unanimously dismissed the Canal Company’s appeal: (2019) UKSC 46, especially from paragraph 35, per Lord Briggs. Read more »
Homelessness
October 23rd, 2019 by James Goudie KC in HousingGuiste v Lambeth LBC (2019) EWCA Civ 1758 was a housing (further) appeal which, as so often, raised the question whether the appellant had a priority need for homelessness accommodation on the basis that he was vulnerable, within the meaning of Section 189(1)(c) of the Housing Act 1996 (“HA 1996”). Henderson LJ, with whom Rose LJ and Theis J agreed, said, at paragraph 45, that the legal principles which apply in deciding whether an appellant is vulnerable, within the meaning of that provision, are mainly to be derived from the two leading cases of Hotak (in the Supreme Court) and Panayiotou (in the Court of Appeal). Henderson LJ stated, at paragraph 46, that the following principles may be derived from Hotak:-
“(a) Section 189(1)(c) is concerned with an applicant’s vulnerability if he is homeless. It directs an enquiry as to his situation if he remains or becomes a person without accommodation: see the judgment of Lord Neuberger of Abbotsbury PSC at [37]. Read more »
Whether development can be completed
October 16th, 2019 by James Goudie KC in Planning and EnvironmentalA development must be carried out fully in accordance with the permission said to authorise it, and cannot lawfully be completed if it has become physically impossible to complete it fully in accordance with that permission, unless the permission is to be construed as authorising independent acts of development. So confirmed in Hillside Parks Ltd v Snowdonia National Park Authority (2019) EWHC 2587 (QB).
Interim Relief
October 11th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn R ( BARKING AND DAGENHAM COLLEGE ) v OFFICE FOR STUDENTS (2019) EWHC 2667 ( Admin) Chamberlain J addressed the proper approach to the grant of interim relief, and in particular interim relief to restrain publication by a public authority. He said, at para 35, that the right of a section of the public to receive information which a public authority wishes to communicate to them in what it regards as the public interest must carry very substantial weight in the balancing exercise. He said, at para 37, that the authorities rightly impose a high hurdle : “ pressing grounds “; “ the most exceptional circumstances” or “ exceptional circumstances” for the grant of interim relief to restrain publication of a report by a public authority. He said, at para 39, that it is difficult to see why the strength of the public interest in favour of publication should depend on whether the public authority is acting pursuant to a duty or a power.
Interim Injunction
October 9th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn R ( LOCHAILORT INVESTMENTS ) v MENDIP DISTRICT COUNCIL (2019) EWHC 2633 ( QB ) the Court was concerned with an application for an interim injunction to stay a Referendum on a Neighbourhood Plan. On the balance of convenience, Stein J said, at para 28, that an important factor is the general public interest in permitting a public authority to continue to act in a manner which it considers to be in the public interest. However, she considered, at para 35, that the cost, disruption and uncertainty of proceeding with a Referendum in circumstances where the lawfulness of doing so is the subject of a challenge that has reasonable prospects of success, are matters which, in the circumstances of the case, weighed in favour of granting the injunction. Moreover, para 39, the status quo was the position before the planned Referendum has taken place.
Concession Contracts
October 8th, 2019 by James Goudie KC in Decision making and ContractsIn OCEAN OUTDOOR UK LTD v LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2019) EWCA Civ 1642 the Court of Appeal has dismissed Ocean’s appeal from O’Farrell J’s Judgment dismissing Ocean’s claim that the Concession Contracts Directive and Regulations applied to two leases of land owned by the Council either side of the Hammersmith Flyover on which are situated substantial structures which support large digital advertising screens. The Court of Appeal confirmed (1) that the leases were not “services” concessions contracts, (2) that they were not contracts “for pecuniary interest”, and (3) that in any event the land exemption applied. As to (1), the Directive and Regulations relate to services which are for the benefit of the contracting authority or its residents, in furtherance of the authority’s strategic objectives or to satisfy their statutory obligations. As to (2), an essential requirement of a contract for pecuniary interest is that the contractor assumes a legally enforceable obligation to carry out the services. As to (3), the land exemption is wide: the leases were genuine leases and agreements for the rental of land.