In SIMONE v CHANCELLOR OF THE EXCHEQUER (2019) EWHC 2689 (Admin) Lewis J said, at para 63, with respect to Section 149 of the Equality Act 2010, that it is helpful to identify the specific function(s) that the public authority is exercising. This is because it is in the exercise of its functions that a public authority is under a duty to have due regard to the specified matters. Lewis J added that the question of what regard is due will be influenced by a number of factors, including, but not limited to (1) the nature of the decision being taken, (2) the stage of the decision-making process that has been reached, and (3) the particular characteristics of the function being exercised.
GPOC
October 7th, 2019 by James Goudie KC in Decision making and ContractsIn QUALTER v PRESTON CROWN COURT AND CHESHIRE WEST AND CHESTER COUNCIL (2019) EWHC 2563 (Admin) a Divisional Court emphasised the breadth of the General Power of Competence under Section 1 of the Localism Act 2011 as compared with the well-being power under Section 2 of the Local Government Act 2000. GPOC authorised a trading standards investigation into energy brokers. Investigations into fraudulent activity are not subject to the expediency test in Section 222(1) of the Local Government Act 1972 : they are different in this respect from a prosecution. The Court said that it is clear from the terms of Section 1 of the Localism Act that Parliament intended that the powers of local authorities should be “ widened” ( but not unfettered ). “ Any Court must be very slow to interfere with a local authority’s exercise of their general power. “
Air Quality
October 2nd, 2019 by James Goudie KC in Planning and EnvironmentalGladman Developments Ltd v SoS for CLG and Swale Borough Council (2019) EWCA Civ 1543 is concerned with the likely effects of a proposed housing development on air quality, the Air Quality Directive, 2008/50/EC, the national air quality plan and the NPPF, and mitigation measures proposed by the developer. The Air Quality Directive is transposed into domestic law by the Air Quality Standards Regulations 2010. The Council had published an Air Quality Management Area Action Plan.
PSED
October 2nd, 2019 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (Parkin) v SoS for Work and Pensions (2019) EWHC 2356 (Admin) Elisabeth Laing J at paragraph 88 identified four key features relevant to that case (in relation to universal credit) of the many decisions about the scope of Section 149 of the Equality Act 2010: (i) Section 149 does not require a substantive result; (ii) it implies a duty to make “reasonable inquiry” into the obvious equal impacts of a decision; (iii) it requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy; and (iv) complying with it is not a box-ticking exercise.
Injunctions against persons unknown
September 30th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationAn injunction should not be granted against persons unknown when the wording of the injunction sought to restrain tortious conduct is wide enough to include persons who had not committed, or threatened to commit, any civil wrong. In Canada Goose v Persons Unknown (2019) EWHC 2459 (QB) Nicklin J said, at paragraphs 62-89 and 144-163, that the class of people potentially captured as “persons unknown” was not Read more »
Expenses Incurred
September 19th, 2019 by James Goudie KC in Elections and BylawsIn R (Good Law Project) v Electoral Commission (2019) EWCA Civ 1567 the Court of Appeal was concerned with the interpretation of the phrase “expenses incurred”, which is to be found throughout election legislation, and dates from the middle of the nineteenth century. The Court observed, at paragraph 82, that it did not appear to have caused any great difficulty in practice. The Court referred, at paragraph 83, to the Cockermouth Division case (1901) 5 O’M v H 155, and said:-
Non-Party Costs Order
September 19th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn Aldemir v Cornwall Council (2019) EWHC 2407 (Admin) Swift J held that Magistrates acting pursuant to their appeal jurisdiction under Section 181(2) of the Licensing Act 2003 had the power to make a non-party costs order in favour of the licensing authority whose decision was appealed. However, in this case the procedure followed when the costs orders were made was found to be flawed. Swift J said:-
Injunctions
September 19th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn Redcar & Cleveland BC v PR (2019) EWHC 2305 (Fam) Cobb J considered the circumstances in which interim injunctions are granted to local authorities under the Court’s inherent common law jurisdiction to protect vulnerable adults. That jurisdiction is not confined to cases where a vulnerable adult is disabled by mental incapacity from making his or her own decision about the matter in hand, and cases where an adult, although not mentally incapacitated, is unable to communicate his decision. The jurisdiction extends to a wider class of vulnerable adults, where there is evidence of vulnerability and a need to protect the vulnerable person, and statutory processes would not offer the level of protection needed. Nor is the jurisdiction excluded if the order amounts to a deprivation of liberty, at any rate if any such deprivation does not exceed six weeks. Cobb J said (paragraph 46):-
Environmental Impact Assessment
August 28th, 2019 by James Goudie KC in Planning and EnvironmentalShould two developments have been assessed as a single “ project” for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011? That was the issue in R (WINGFIELD) v CANTERBURY CITY COUNCIL (2019) EWHC 1975 (Admin). Lang J held that this is a matter of judgment for the competent authority, subject to challenge only on public grounds.
She listed the relevant factors. They include common ownership, simultaneous determination and functional interdependence on the one hand; and ability to stand alone on the other hand.
ECHR Article A1P1
August 27th, 2019 by James Goudie KC in Human Rights and Public Sector Equality DutyWhen do contractual rights and expectations amount to A1P1 possessions? When does goodwill qualify for A1P1 Protection? These were the linked substantive issues in SOLARIA ENERGY UK v DBEIS (2019) EWHC 2188 (TCC).