In R (TP) v SoS for DWP (2019) EWHC 1116 (Admin) Swift J said:-
Contra Proferentem in Leases
May 3rd, 2019 by James Goudie KC in Land, Goods and ServicesIn Earl of Plymouth v Rees (2019) EWHC 1008 (Ch) the Court set out the interpretation principles applicable to a clause in a lease that reserved rights to the landlord, as follows:-
Standard of Judicial Review
May 2nd, 2019 by James Goudie KC in Judicial Control, Liability and LitigationThe scrutiny of review is dependent upon the circumstances of a particular case. Both reasonableness and proportionality review involve considerations of weight and balance. The intensity of the scrutiny and the weight to be given to any primary decision maker’s view depend on the context. Similarly, the requirements of procedural fairness depend on context. This includes the statutory framework within which the decision sought to be taken was impugned. The factors upon which the degree of scrutiny of review particularly depend include (1) the nature of the decision under challenge, (2) the nature of any right or interest it seeks to protect, (3) the process by which the decision under challenge was reached, and (4) the nature of the ground of challenge. See paragraph 669 of the Divisional Court decision in relation to a third runway at Heathrow, R (Friends of the Earth) v SoS for Transport (2019) EWHC 1070 (Admin), at paragraphs 147-153 inclusive.
Extension of Time
May 2nd, 2019 by James Goudie KC in Planning and EnvironmentalWhether Kerr J was wrong when he exercised his discretion to extend time for a challenge to be brought by a claim for judicial review against a planning permission granted more than five and a half years before the claim was issued was the question at the heart of the appeal in R (Thornton Hall Hotel Ltd) v Wirral MBC (2019) EWCA Civ 737. The appeal raised two main issues: first, in view of the delay of more than five and a half years, whether the Judge erred in extending time for the claim to be brought, under CPR r.3.1(2)(a); and second, having regard to the substance of the claim, whether he was wrong not to exercise his discretion to refuse relief under Section 31(6) of the Senior Courts Act 1981. The appeal was dismissed on both issues.
Temporary Accommodation
April 26th, 2019 by James Goudie KC in HousingMohammed v Barnet LBC (2019) EWHC1012 (QB) was an appeal against a decision by HHJ Luba QC at the Central London County Court, following the trial of a preliminary issue in relation to proceedings for possession of residential premises sought by the London Borough of Barnet (“the Council”). By his decision the Judge concluded that the agreement for occupation between the Appellant, Ms Mohamed, and the Council is not an agreement that attracts the security of tenure provisions of the Housing Act 1985 (“the Act”). The appeal raised the issue of whether the occupation of accommodation by Ms Mohamed has secure status for the purposes of Part IV of the Act or whether, as the Council contends, it is a simple non-protected arrangement. This turns on the construction of paragraph 6(b) of Schedule 1 to the Act. In particular; does paragraph 6(b) require a single provision providing for vacant possession on expiry of a specified period or when required? Or, is it sufficient, in the present case, to simply provide for possession “when required”? Thornton J dismissed the appeal.
Applications for Planning Permission
April 25th, 2019 by James Goudie KC in Planning and EnvironmentalIn Gladman Developments Ltd v Canterbury City Council (2019) EWCA Civ 669, in dismissing an appeal from Dove J, Lindblom LJ, at paragraphs 21/23, restated the correct approach to determining an application for planning permission. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the determination to be made “in accordance with the [development] plan unless material considerations indicate otherwise”. The development plan thus has statutory primacy, and a statutory presumption in its favour – which government policy in the NPPF does not.
Statutory Interpretation
April 25th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn R (VIP Communications Ltd) v SSHD (2019) EWHC 994 (Admin) Morris J allowed an application for judicial review and held that a Direction made by the SoS, under a regulatory framework put in place following the implementation of EU Directives, was ultra vires his statutory powers, and therefore unlawful. Morris J, at paragraph 50, stated the principles of statutory interpretation, as follows:-
Allocation Policy
April 23rd, 2019 by James Goudie KC in HousingIn conjoined appeals, (2019) EWCA Civ 692, R (Gullu) v Hillingdon LBC and R (Ward) v Hillingdon LBC, the Court of Appeal considered the lawfulness of Hillingdon’s housing allocation policy. The policy prioritised people who had been resident in the local area for 10 years. That was found to discriminate indirectly against protected groups.
Lewison LJ, with whom Underhill and King LJJ agreed, identified the issue as follows:-
“Hillingdon LBC’s housing allocation policy provides that, subject to exceptions, a person who has not been continuously living in the borough for at least 10 years will not qualify to join the housing register. One of the exceptions is that an unintentionally homeless person who does not satisfy the residence requirement is entitled to join the register; but is placed in band D. Two challenges were brought against the lawfulness of that policy, on the ground that it is indirectly discriminatory on the ground of race; and cannot be justified. One, by Irish Travellers, succeeded before Supperstone J (R (TW) v London Borough of Hillingdon [2018] EWHC 1791 (Admin), [2018] PTSR 1678). The other, by a Kurdish refugee of Turkish nationality, failed before Mostyn J (R (Gullu) v London Borough of Hillingdon [2018] EWHC 1937 (Admin), [2019] HLR 4). Since the courts below reached different answers on substantially the same challenge, I granted permission to appeal.” Read more »
Procedural Fairness/Tameside Duty
April 18th, 2019 by James Goudie KC in Decision making and ContractsWhen a decision-maker is minded to make a decision adverse to someone on the basis of their dishonesty or other reprehensible conduct he is required as a matter of procedural fairness to indicate that suspicion clearly and give the applicant an opportunity to respond. This principle has been reaffirmed in Balajigari v SSHD (2019) EWCA Civ 673, from paragraph 46, where the Court of Appeal said:-
“46. … the question of whether there has been procedural fairness or not is an objective question for the court to decide for itself. The question is not whether the decision-maker has acted reasonably, still less whether there was some fault on the part of the public authority concerned.”
“59. … although sometimes the duty to act fairly may not require a fair process to be followed before a decision is reached … fairness will usually require that to be done where that is feasible for practical and other reasons. … Read more »