Review

February 1st, 2019 by James Goudie KC in Standards

The Committee on Standards in Public Life, chaired by former M15 head, Lord Evans of Weardale, on 30 January 2019 issued a 110 page Report to the Prime Minister, following its review of local government ethical standards in England. The Report concludes that, whilst the consistency and independence of the system could be enhanced, there is no need to reintroduce a centralised body, and that local authorities should retain ultimate responsibility for implementing and applying the Seven Principles of Public Life in local government.

The Report makes 23 Recommendations. The Report also contains a list of 15 “best practice” recommendations, directed to local authorities.

 

Delay in applying for Judicial Review

January 31st, 2019 by James Goudie KC in Judicial Control, Liability and Litigation

In Maharaj v National Energy Corporation of Trinidad and Tobago (2019) UKPC 5 the Privy Council considered provisions resembling those in England and Wales relating to delay in making an application for leave to apply for judicial review, and, in particular, the precise significance of the presence, or absence, of prejudice to the rights of any person, or detriment to good administration, resulting from the grant of leave, or of any relief.  Lord Lloyd-Jones said:-

“26. The classic exposition of the approach to delay in applications for judicial review in England and Wales is to be found in the speech of Lord Goff of Chieveley in Caswell. … even if there is good reason for extending time, the court may still refuse leave on grounds of prejudice or detriment. Caswell concerned the inter-relationship of section 31 of the Supreme Court Act 1981 and RSC Order 53, rule 4.2 Lord Goff agreed with the reasoning and conclusion of Ackner LJ in Jackson that even though a court may be satisfied that there was good reason for the failure to apply promptly or within three months, the delay, viewed objectively, remains “undue delay” and the court therefore retains a discretion to refuse to grant leave or the relief sought on the substantive application on the grounds of delay if it considers that it would be likely to cause substantial hardship or prejudice or would be detrimental to good administration. … The court, however, had the power to grant leave despite the fact that the application was late if it considered that there was good reason to exercise that power. … Read more »

 

Community Infrastructure Levy

January 30th, 2019 by James Goudie KC in Planning and Environmental

On the requirement for substantial compliance by a notice for exemption from the levy, see R (Shropshire Council) v SoS (2019) EWHC 16 (Admin). The decision of the Court of Appeal in R v SoS, ex p Jeyeanthan (2000) 1 WLR 354 was distinguished.  The Judge said:-

“29. Jeyeanthan helps to answer the question what is to happen if a person undertaking a particular act has failed to comply with all the requirements prescribed for that act. But that can be a relevant question only if the actor has actually engaged in the regulated conduct. If the path of compliance has not, so to speak, been trodden at all, there is likely to be little scope or need for analysis of error or omissions in attempted or partial compliance. Read more »

 

Air Quality

January 29th, 2019 by James Goudie KC in Planning and Environmental

The duty of the Secretary of State under Directive 2008/50 and the Air Quality Standards Regulations 2010 is to ensure the preparation and implementation of an Air Quality plan. The duty as “competent authority” does not extend to exercising his power in any particular way, such as by calling in a planning application for his own determination. So held in R (Shirley) v SoS, Canterbury City Council Interested Party (2019) EWCA Civ 22.

 

Conservation Areas

January 29th, 2019 by James Goudie KC in Planning and Environmental

On the relationship between the Strategic Environmental Assessment Directive and the Habitats Directive, see the Opinion of Advocate-General Kokott, delivered on 24 January 2019, in Cases C-43/18 and C-321/18.

 

Stop Notices

January 29th, 2019 by James Goudie KC in Planning and Environmental

There is an entitlement to compensation in respect of any loss or damage directly attributable to any prohibition contained in a stop notice. However, such compensation has to be for an ascertainable loss. The loss has to be attributable to the prohibition in the stop notice, not some other cause. The entitlement to compensation is there predicated on there being, in the relevant period, some actual loss, not a hypothetical one. What matters is the circumstances as they actually were while the notice was in force, not some other, imaginary, scenario.

Moreover, compensation is excluded for the prohibition of “any activity” that “when the notice is in force, constitutes or contributes” to a breach of panning control. It is immaterial that the activity might not be in breach of planning control by the time it was carried out.

So held in Huddleston v Bassetlaw District Council (2019) EWCA Civ 21.

 

PSED

January 28th, 2019 by James Goudie KC in Human Rights and Public Sector Equality Duty

Dylan Powell v Dacorum Borough Council (2019) EWCA Civ 23 concerned an application for an order suspending a warrant for possession.  The warrant had been issued, at the request of the Council, as landlord, in enforcement of a possession order of residential premises.  The issue on the appeal was whether the application, which was refused, should have succeeded, on the basis that, in pursuing the enforcement, the Council acted in breach of the PSED.  The appeal was dismissed. Read more »

 

Heritage Assets/Development Plan Policies

January 24th, 2019 by James Goudie KC in Planning and Environmental

R (Liverpool Open and Green Spaces Community Interest Company) v Liverpool City Council (2019) EWHC 55 (Admin) was two claims by the applicant community interest company (LOGS) against the grant of planning permissions by the defendant local planning authority (the LPA). The first permits relocation and laying out of a miniature railway with associated buildings and parking. The second permission is for the building of 39 new dwellings and conversion of a historic house and grounds into

12 apartments. The site for these proposed developments is an area of open land at Calderstones Park, Liverpool (the park). LOGS is concerned to prevent the developments which, it says, would unlawfully change the character of the park. Read more »

 

Religious Rights

January 24th, 2019 by James Goudie KC in Human Rights and Public Sector Equality Duty

R (Atta Ul Haq) v Walsall Metropolitan Borough Council (2019) EWHC 70 (Admin) was a claim for judicial review in which the Claimant challenged the lawfulness of a policy adopted by the Defendant, Walsall Metropolitan Borough Council, entitled ‘Rules and Regulations in respect of Cemeteries and Crematoria’ (the “Cemetery Policy”), specifically those provisions which preclude individuals from erecting raised edging around the grave of a deceased person. The Claimant is a practising Barelvi Muslim. His father was a prominent member of the community and an Imam, passed away on 21 June 2015 and was buried on the following day at Streetly Cemetery. It is administered by the Defendant local authority. The Defendant had refused to give the Claimant permission for the erection of a four-inch raised marble edging around his father’s grave. The Claimant’s request arises from his religious belief that the grave is sacrosanct and stepping on the grave is an offensive, religiously proscribed act that must be prevented. Read more »

 

Ultra Vires

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

Local Authorities in Bermuda, such as the capital, Hamilton, do not have a General Power of Competence.  Nonetheless the decision of the Privy Council on 21 January 2019 in Mexico Infrastructure Finance LLC v The Corporation of Hamilton (2019) UKPC 2 is of general interest.  The Privy Council ruled 3-2 that the Corporation had acted beyond its powers, because “municipal” is a word of limitation and the Corporation was not acting for a “municipal purpose”. Read more »

 

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