The Local Audit (England and Wales) (Amendment) (EU Exit) Regulations 2019 will enable EU qualified auditors currently auditing local public bodies to continue to work in the UK, for a transitional period, in the event of a “no deal”. The Regulations are pursuant to powers in Section 8 of the European Union (Withdrawal) Act 2018, and are subject to the negative resolution procedure. There are now 238 Withdrawal Act Statutory Instruments.
Street Works
February 19th, 2019 by James Goudie KC in Environment, Highways and LeisureSection 50 of the New Roads Street Works Act 1991 provides a power for a street or highway authority to grant a licence, subject to Schedule 3 conditions, to permit a person to undertake street works. The power has been considered by Dove J in Calor Gas Ltd v Norfolk County Council (2019) EWHC 308 (Admin). The claimant’s case proceeded, firstly, on the basis that the policy operated by the Council in relation to Section 50 licences was contrary to the statutory scheme. Dove J said:-
Permitted development
February 14th, 2019 by James Goudie KC in Planning and EnvironmentalIn Westminster City Council v SoS (2019) EWHC 176 (Admin) Ouseley J held that under the GPDO, the whole development for which prior approval as permitted development was sought had to fall within the Class of development relied on. If part fell outside the Class, it was not a permitted development. Under Schedule 2 Part 16 Class A, a proposed telephone kiosk had to be “for the purpose” of the telephone network. A kiosk with a large digital advertising panel was not entirely for that purpose and did not fall within the Class. It was not permitted development.
Functions of a Public Nature
February 13th, 2019 by James Goudie KC in Human Rights and Public Sector Equality DutyFearn and Others v Board of Trustees of the Tate Gallery (2019) EWHC 246 (Ch) is an injunction case brought in nuisance and under the Human Rights Act 1998 (“the HRA”) to protect what are said to be Article 8 rights of privacy in flats in a development on the south side of the Thames adjacent to the Tate Modern. One issue, under Section 6(3)(b) of the HRA, was whether the Tate, given Section 2(2) of the Museums and Galleries Act 1992, significant public funding, and controls by state officials, is a “hybrid” public authority against whom the HRA can be directly enforced.
Mann J addressed the law on “hybrid” public authorities from paragraph 108 of his Judgment, and the question whether the Tate is such an authority from paragraph 121. At paragraph 123 he said that the Tate displayed, to some degree, some of the factors which are said in the authorities to be relevant to the question whether the Tate is exercising public functions. None of them, however, were determinative. Read more »
Whether there is a binding contract
February 13th, 2019 by James Goudie KC in Decision making and ContractsWhether an agreement was complete and enforceable despite there being no express identification of the event which would trigger the payment obligation was one of the issues before the Supreme Court in Wells v Devani (2019) UKSC 4. This gave rise to questions whether there was a binding contract and as to whether there was an implied term.
The Supreme Court said as regards whether there was a binding contract:-
“17. The question whether there was a binding contract between Mr Devani and Mr Wells required a consideration of what was communicated between them by their words and their conduct and whether, objectively assessed, that led to the conclusion that they intended to create a legally binding relationship and that they had agreed all the terms that the law requires as essential for that purpose….
- It may be the case that the words and conduct relied upon are so vague and lacking in specificity that the court is unable to identify the terms on which the parties have reached agreement or to attribute to the parties any contractual intention. But the courts are reluctant to find an agreement is too vague or uncertain to be enforced where it is found that the parties had the intention of being contractually bound and have acted on their agreement. …”
Loss of a chance
February 13th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn Perry v Raleys (2019) UKSC 5 the Supreme Court said that loss of chance damages have been developed by the Courts to deal with the difficulties arising from the assessment of counter-factual and future events. In both types of situation, the Courts, at times, depart from the ordinary burden on a claimant to prove the facts required for a successful claim on the balance of probabilities (i.e. more likely than not) standard. However, this does not mean that the basic requirement that a negligence claim requires proof that loss has been caused by the breach of duty is abandoned. The correct approach is to require a claimant to prove what he or she would have done on the balance of probabilities, while what others would have done (if relevant) depends on a loss of chance evaluation. These principles apply equally to negligence claims based on loss of the opportunity to achieve a better outcome in a negotiated transaction and ones, as in this case, based on loss of the chance to bring a legal claim.
Discrimination
February 11th, 2019 by James Goudie KC in Decision making and ContractsThe prohibition of discrimination based on nationality is enshrined in Article 18 TFEU and Article 21(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). The broader non-discrimination principle of which it is an expression is among the fundamental values of the EU (Article 2 TFEU), and among the rights protected by the Charter (Article 21). The principle of non-discrimination is a manifestation of the principle of equality of individuals before the law. The principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. Read more »
Allocation Policy
February 11th, 2019 by James Goudie KC in HousingHillingdon LBC’s 2016 housing allocation policy, pursuant to Section 166A of the Housing Act 1996, was found in some respects to be unlawful in TW v Hillingdon LBC (No. 1) (2018) PTSR 1678. Lawfulness requires compliance not only with the provisions of that Act, but also compliance with the Equality Act 2010, and with obligations under Section 11 of the Children Act 2004. In particular, in TW (No. 1) Supperstone J declared Hillingdon’s 10 year residence qualification to be
Proportionality
February 6th, 2019 by James Goudie KC in Decision making and ContractsIn R (MAS) v SoS for DEFRA (2019) EWHC 158 (Admin), Morris J, at paragraphs 53/54, stated the principles of proportionality as follows:-
(1) Proportionality is a general principle of EU law;
(2) Its application in any particular case is always highly fact-sensitive;
(3) It applies to national measures falling within the scope of EU law;
(4) It applies only to measures interfering with protected interests;
(5) Protected interests include the fundamental freedoms governed by the EU Treaties;
(6) Where the issue is the validity of a national measure, it is for the national Court to reach its own conclusion on proportionality; Read more »