Disposal of Allotment Land

May 13th, 2019 by James Goudie KC in Land, Goods and Services

The main issue in R (Adamson) v Kirklees MBC (2019) EWHC 1129 (Admin) was whether the Council was obliged to obtain the consent of the Minister before deciding to dispose of certain land in its area currently in use as allotments by the claimant and others. That depended on whether the Council had “appropriated” that land for use as allotments, within Section 8 of the Allotments Act 1925, as amended. If it had, it could not dispose of the land without the consent of the Minister. The Council had not applied for such consent.

The Council wanted to use the land as part of the site of a new primary school it has decided to build. Mr Adamson is in favour of the new primary school but says it should not include the allotment land, unless the Minister agrees to that. He wishes to put the case to the Minister that the primary school site should be differently arranged so as to spare the allotment land. He and his fellow allotment holders were not satisfied with alternative allotment land offered to them by the Council.

Kerr J held that:-

  1. There is no required formal procedure for appropriation: paragraph 113;
  2. Whether appropriation occurred was a fact sensitive evaluation: paragraph 114;
  3. A considered and conscious decision had been taken, recorded in committee minutes, that the land should be zoned for use as allotments: paragraph 115;
  4. The appropriation issue must be determined in favour of Mr Adamson: paragraph 126; and
  5. The claim succeeded: paragraph 153.

 

ECHR Article 14

May 7th, 2019 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (TP) v SoS for DWP (2019) EWHC 1116 (Admin) Swift J said:-

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Contra Proferentem in Leases

May 3rd, 2019 by James Goudie KC in Land, Goods and Services

In 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:-

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Standard of Judicial Review

May 2nd, 2019 by James Goudie KC in Judicial Control, Liability and Litigation

The 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 Environmental

Whether 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.

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Temporary Accommodation

April 26th, 2019 by James Goudie KC in Housing

Mohammed 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.

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Applications for Planning Permission

April 25th, 2019 by James Goudie KC in Planning and Environmental

In 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.

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Statutory Interpretation

April 25th, 2019 by James Goudie KC in Judicial Control, Liability and Litigation

In 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:-

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Community Governance Review

April 23rd, 2019 by James Goudie KC in Local Authority Powers

R (Britwell Parish Council) v Slough Borough Council (2019) EWHC 998 (Admin) is two claims for judicial review by two parish councils challenging the Slough Borough Council (Reorganisation of Community Governance) Order 2019 (“the Order”). That Order provides for the abolition of the parishes of Britwell, and Wexham Court and the winding up and dissolution of each of the two parish councils for those areas. In essence, the two claimants, Britwell Parish Council and Wexham Court Parish Council, contend that the defendant, Slough Borough Council, which made the Order failed to have regard to relevant guidance. That required that there must, amongst other things, be clear and sustained local support for abolition of a parish council. The claimants contend that all the material before the defendant, including the consultation responses, responses from the parish councils and the results of local polls, showed that the majority of electors in the two parishes wished to retain, not abolish, the parish council. In those circumstances they contend that there was not clear and sustained local support for the abolition of the parish councils as required by the Guidance. They further contend that the defendant failed to have regard to the claimants’ role as representative democratically elected bodies and that the decision was irrational. Read more »

 

Allocation Policy

April 23rd, 2019 by James Goudie KC in Housing

In 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 »

 

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