The Grand Chamber of the CJEU has ruled, in Case C-147/17, Sindicatul Familia Constanta v Directia Generala de Assistenta Sociala, that Article 1(3) of Directive 2003/88/EC concerning working time, read in conjunction with Article 2(2) of Directive 89/391/EEC, on the introduction of measures to encourage improvements in the safety and health of workers, must be interpreted as meaning that the work performed by a foster parent, under an employment contract with a public authority, which consists in taking in a child, integrating that child into his or her household and ensuring, on a continuous basis, the harmonious upbringing and education of that child, does not come within the scope of the Working Time Directive.
Development Agreements
November 20th, 2018 by James Goudie KC in Decision making and ContractsA development agreement is entered into by a local authority land owner with a private contractor (St Modwen). There has been a competitive process. That complies with the Council’s duty to obtain “best consideration” on a land disposal, pursuant to its duty under Section 123 of the Local Government Act 1972 (and its “best value” duty). A challenge to its compliance with the Section 123 duty fails, at first instance, and is not pursued on appeal. However, there had been no procurement process, as would be required, not for a land transaction, or transaction whose “main object” was a land transaction, but for a public works contract. A challenge in this respect also failed at first instance, but has been pursued on appeal.
Pooled Investment Funds
November 9th, 2018 by James Goudie KC in Capital Finance and CompaniesThe Government has announced that it intends to:-
- Require local authorities to account for fair value movements in financial instruments in accordance with proper practices as set out in the Code on Local Authority Accounting published by CIPFA
- Introduce a mandatory statutory override requiring local authorities to reverse out all unrealised fair value movements resulting from pooled investment funds. This will be effective from financial year commencing 1 April 2018
- Extend the proposed period for which the statutory override applies to five years. The Government will keep use of the override under review
- Require Local Authorities to disclose the net impact of the unrealised fair value movements in a separate unusable reserve throughout the duration of the override
- Introduce a 2 year extension of the unequal pay regulation.
There will be no override for the expected loss model or for the extra disclosures that the new standard requires. Read more »
Housing supply
November 8th, 2018 by James Goudie KC in Planning and EnvironmentalIn Cheshire East Council v SoS for HCLG (2018) EWHC 2906 (Admin) the claimant Council sought an Order quashing the decision of the SoS’s Inspector to grant outline planning permission for 29 dwellings. The central issue in the claim was whether the Inspector misunderstood and/or misapplied paragraph 47 of the first NPPF, in particular with the requirement for LPAs to demonstrate a five-year “deliverable” housing supply. Read more »
Transfer of functions on merger
November 5th, 2018 by James Goudie KC in Land, Goods and ServicesThe Local Government (Boundary Changes) Regulations 2018, SI 2018/1128, provide that, when two or more councils come together through a merger to create a single, district council, there is a smooth transition, in practical terms, from the predecessor councils (the councils that will be abolished on the reorganisation date) to the successor council (the new council that is being created for the whole of the area). The Regulations provide for incidental, consequential, transitional and supplementary arrangements in consequence of any Orders made by the SoS under Section 10 of the Local Government etc Act 2007.
Public contracts
October 25th, 2018 by James Goudie KC in Decision making and ContractsWhat is a contract for pecuniary interest? What is a public contract? What therefore is the scope of the public procurement regime? Do the Teckal or Hamburg Waste derogations apply? These were the questions before the ECJ in Case C-606/17 IBA Molecular Italy Sri v Aziende ULSS No. 3.
“Public contracts” for the purpose of that regime are of course contracts “for pecuniary interest” concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive. “Contracting authorities” means the State, regional or local authorities, “bodies governed by public law”, associations formed by one or several of such authorities or one or several of such bodies governed by public law. Read more »
The One Succession Rule
October 23rd, 2018 by James Goudie KC in HousingIn Haringey Council v Simawi (2018) EWHC 2733 (QB) the Defendant sought declaratory relief in relation to the “one succession rule”, set out in Sections 87-88 of the Housing Act 1985 (“The 1985 Act”). He asked that the Court either:
Law Changed By Statute
October 23rd, 2018 by James Goudie KC in Planning and EnvironmentalCity of York Council v SoS for CLG (2018) EWHC 2699 (Admin) is the latest in a long line of cases going back to, at least, Victorian times, where the law is changed by statute and a disagreement then arises about the impact of the change on the legal position of the parties. Section 16 of the Interpretation Act 1978 (the 1978 Act) may bear on the issue.
Discontinuance Notices
October 22nd, 2018 by James Goudie KC in Planning and EnvironmentalThe unsuccessful appellant in Putney Bridge Approach Ltd v SoS for CLG and Hammersmith & Fulham Council [2018] EWCA 2268 owns an office building called Riverbank House (“the site”) on the north side of the River Thames, just over Putney Bridge. On 6 October 2016, the Council as the local planning authority (“the LPA”) served a Discontinuance Notice (“DN”) on the appellant requiring it to discontinue the use of the site for the display of illuminated advertisements. Both the appellant, and the company operating the advertisements (JC Decaux Limited) sought to appeal the DN. The SoS appointed an inspector who, by way of Appeal Decisions dated 29 August 2017, refused the appeals. The appellant sought to challenge the Appeal Decisions in the Planning Court, but the challenge was rejected by Ouseley J, and by the Court of Appeal.