In Ardron v Sussex Partnership NHS Foundation Trust (2018) EWHC 3157 (QB) the NHS Trust was proceeding with a disciplinary hearing, alleging gross misconduct, by way of gross negligence. The Claimant sought an injunction to prevent the hearing. Jacobs J dismissed the claim. His holdings included (paragraphs 116-118) that the Trust had a prima facie case that the Claimant’s conduct amounted to a breach of its relationship of trust and confidence with her. He held that the absence of a sustainable case on breach of trust and confidence was not demonstrated by the fact that the employee was not suspended and continued to work, when specific monitoring measures had been put in place, the allegations against her had not yet been proved, and the outcome of the disciplinary process was not being prejudged.
Local Government Reorganisation
November 30th, 2018 by James Goudie KC in Best ValueMHCLG has on 29 November 2018, pursuant to the Local Government and Public Involvement in Health Act 2007, launched an eight week Consultation, for response by 25 January 2019, on a proposal from seven of the eight Northamptonshire councils (the exception being Corby Borough Council) for local government reorganisation in Northamptonshire. An independent inspection report, by Max Caller CBE, had found that the County Council, in this currently two-tier local government area, has failed to meet its “Best Value” duty under the Local Government Act 1999. MrCaller recommended that new single tier, i.e. unitary, authorities should be created. The Government accepted the unitary recommendation, and rejected the option of a single unitary covering the whole of Northamptonshire. Read more »
Legitimate Expectation
November 29th, 2018 by James Goudie KC in Decision making and ContractsThe Upper Tribunal (Fancourt J presiding) has in judicial review proceedings restated the principles for a claimant establishing or a defendant resiling from a legitimate expectation potentially established by published guidance from a public authority, as follows, in R (Vacation Rentals (UK) Ltd v HMRC), (2018) UKUT 383 (TCC):-
(1) The principle that substantive as well as procedural legitimate expectation should be protected is now well established as a ground for judicial review: Read more »
Unlawful Discrimination
November 29th, 2018 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (Stott) v SoS for Justice (2018) UKSC 59 the Supreme Court considered the scope of “other status” within the Article 14 prohibition of the ECHR. Lady Black, delivering the principal Judgment, said, at paragraph 80, that when considering an as yet unconsidered characteristic, a Court will have in mind the nature of the grounds it was thought right to list specifically. However, a strict ejusdem generis interpretation would be unduly restrictive. At paragraph 81, Lady Black said that, although “not open-ended”, the grounds within Article 14 are to be given “a generous meaning”.
Waste Sites
November 29th, 2018 by James Goudie KC in Environment, Highways and LeisureThe Environmental Protection (Miscellaneous Amendments) (England and Wales) Regulations 2018, S.I. 2018/1227 (“the 2018 Regulations”), make amendments to the Environmental Protection Act 1990 (“the EPA”) and the Environmental Permitting (England and Wales) Regulations 2016, S.I. 2016/1154 (“the EP Regulations”).
The 2018 Regulations amendments relate to matters including new conditions for environmental permits authorising certain waste operations, and provisions relating to flood risk activities and radioactive substance activities. Read more »
Restrictive Covenants
November 29th, 2018 by James Goudie KC in Land, Goods and ServicesIn Alexander Devine Children’s Cancer Trust v Millgate Developments Limited (2018) EWCA Civ 2679 the Court of Appeal considered the modification of restrictive covenants pursuant to Section 84 of the Law of Property Act 1925. The covenants in question prevented residential development on an area of open land. The modification applied for would allow such development. The Upper Tribunal had a discretion whether to modify the restrictive covenants or not. The Tribunal will not generally be inclined to reward parties who deliberately flout their legal obligations by deliberately breaching a restrictive covenant. Read more »
Listed Buildings
November 27th, 2018 by James Goudie KC in Planning and EnvironmentalThe appeal in Dill v SoS for CLG and Stratford-on-Avon District Council (2018) EWCA Civ 2619 gave rise to issues relating to the scope of what is meant by “listed building” under the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”); and, in the event of dispute, who determines whether something is a “listed building”. The issues arose in relation to two early 18th century limestone piers, each surmounted by a lead urn of the same era. In 1973, the items were moved to a Grade II listed building. In 1986, each of the items was separately Grade II listed. They were subsequently disposed of. The fact that they
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Village Greens
November 27th, 2018 by James Goudie KC in Land, Goods and ServicesThe Supreme Court has granted permission to appeal in conjoined cases R (Lancashire County Council) v SoS for DEFRA and R (NHS Property Services) v Surrey County Council on town and village greens, local authority owned land, and the important concept of “statutory incompatibility”.
Capital Finance
November 27th, 2018 by James Goudie KC in Capital Finance and CompaniesThe Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2018, SI 2018/1207 amend the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (the “2003 Regulations”). Regulation 3 amends regulation 23 of the 2003 Regulations in order to allow a local authority to use capital receipts to make a payment to an employee or officer under new regulation 30AA. Regulation 4 inserts a new regulation 30AA into the 2003 Regulations.
GPOC
November 26th, 2018 by James Goudie KC in Decision making and ContractsMHCLG is consulting on a proposal for the Secretary of State to make a Localism Order under the Localism Act 2011. This is in order to enable Harrogate BC to use GPOC, subject to Parliamentary approval, to host the race finish line for the 2019 UCI Road World Championships on a specific part of the Harrrogate Stray by, for the specific purpose of the Championships, temporarily lifting restrictions in the Harrogate Stray Act 1985. That is a private Act of Parliament. It makes provision for the management by the Council of the Stray. It restricts the Council’s flexibility to act, notwithstanding the significant social and economic benefits to the region that are expected from the event. The Order would follow two previous similar Orders.