In Case E-4/17, EFTA Surveillance Authority v Norway, Judgment on 21 March 2018, the EFTA Court considered a tender procedure launched by the Municipality of Kristiansand for the construction and operation of an underground car park.  The issue was whether the contracts constituted a public works concession.  The Court concluded that the contracts were of pecuniary interest (paragraph 73), they were of direct economic benefit to the municipality (paragraph 74), and constituted a public contract (paragraph 75); that the construction of the car park constituted works (paragraph 76); that the titles given to the contracts cannot be decisive (paragraph 77); that the crucial objective of the contracts was the construction of the car park, but there was an element of services inherent in the contract, the services element could not be singled out in a separate procedure, and the works and services elements of the contracts formed an indivisible whole (paragraph 79); that when contracts include elements of both works and services, it is the “main object” of the contract which determines the body of rules to be applied (paragraphs 80-82); that the main object was the works (paragraphs 83-84); and that the contracts were public works contracts (paragraph 85). Read more »

In Kebbell Developments Ltd v Leeds City Council (2018) EWCA Civ 450 Singh LJ said in relation to an alleged duty of consultation at common law:-

“61.    … on its facts, Moseley concerned a situation in which there was a statutory duty of consultation. There was therefore no issue in that case about the existence of a duty of consultation.

62. In my respectful view, it is important to be careful to distinguish between different senses of the word “consultation” which can sometimes be found in the authorities on this subject. First, there may be cases in which there is no dispute about the existence of an obligation to consult which is imposed upon a public authority. Very often the source of that obligation will be legislation, so there will be a statutory duty of consultation. In such cases the context will usually be not an individual decision which affects a particular person or persons but rather the formulation of general policy or draft legislation.
63. The issue which may then arise is what the exact content of that duty of consultation requires. That was considered in the well known case of Gunning … :

“First, … consultation must be at a time when proposals are still at a formative stage. Second, … the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third … adequate time must be given for consideration and response and, finally, fourth, … the product of consultation must be conscientiously taken into account in finalising any statutory proposals.” Read more »

Amey Birmingham Highways v Birmingham City Council (2018) EWCA Civ 264 concerned a local authority’s PFI highway maintenance contract. The contract was intended to run for 25 years.  It was a “relational contract”.  At paragraph 93, Jackson LJ, with whom Moylan LJ and Sir Stephen Tomlinson agreed, observed that: “Any relational contract of this character is likely to be of massive length, containing many infelicities and oddities.  Both parties should adopt a reasonable approach in accordance with what is obviously the long-term purpose of the contract.  They should not be latching onto the infelicities and oddities, in order to disrupt the project and maximise their own gain”.

Case C-518/15, Ville de Nivelles v Matzak, in which the ECJ gave Judgment on 21 February 2018, concerned the employment contract between the Town of Nivelles in Belgium and Mr Matzak, a volunteer firefighter for the Town.  The issue related to stand-by times and remuneration.  During periods of stand-by duty, every member of the volunteer fire service serving in the Nivelles fire station must remain at all times within a distance of the fire station such that the period necessary to reach it when traffic is running normally does not exceed a maximum of 8 minutes, and be particularly vigilant so as to remain within range of various technical means used to call staff and to leave immediately, by the most appropriate means, when staff on stand-by duty are called.

This involved the concepts of “working time” and “rest periods” in the Working Time Directive. Read more »

In the public procurement case of Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform 2018/20, the Irish Court of Appeal declined to lift an automatic suspension, holding that (1) the claimant could obtain only Francovich damages, (2) damages were therefore not an adequate remedy for the claimant, and (3) the fact that damages are not an adequate remedy may well be decisive in terms of evaluation of where the greatest risk of possible injustice and the balance of convenience lies.

Lancashire Care NHS Foundation Trust v Lancashire County Council (2018) EWHC 200 (TCC) concerns yet another application to lift an automatic suspension on the award of a contract imposed by virtue of the claimants issuing a claim form, within the necessary time period, challenging the results of a procurement exercise for that contract in which they were unsuccessful. Fraser J refused to lift the automatic suspension.

The procurement the subject matter of these proceedings concerns Public Health and Nursing Services to be provided to children and young persons from birth up to the age of 19, including services that concern children and adolescent mental health, across the county of Lancashire. It therefore involves a sizeable population and includes some of the most vulnerable members of society. The procurement exercise and the contract are both subject to the Public Contract Regulations 2015 (“the Regulations”). Read more »

The General Power of Competence (“GPOC”) in Section 1 of the Localism Act 2011 (“LA 2011”) and its exclusion, by Section 4 of LA 2011, when an authority is acting “for a commercial purpose”, but not through a limited company, has been considered in Peters v Haringey LBC (2018) EWHC 192 (Admin). The case is concerned with the Haringey Development Vehicle (“the HDV”).  The purpose of the HDV is to create a partnership, by way of a limited liability partnership (“LLP”), between the Defendant Council, and a private sector body, Lendlease, and to bring private sector finance, experience and expertise to the task of developing the Council’s land for its better use, and so achieving the Council’s strategic aims in housing, affordable housing and employment. The Claimant challenged by way of judicial review a decision made by the Council through its Cabinet, on 20 July 2017, to confirm Lendlease after a procurement process as the successful bidder to become the Council’s partner in the HDV, and also approved the structure of the HDV. Read more »

On 29 January 2018 the Employment Appeal Tribunal (Sir Alan Wilkie) handed down Judgment in discrimination cases relating to the transitional provisions put in place by for example the London Fire and Emergency Planning Authority, under the Public Service Pensions Act 2013, as part of major changes to public sector pensions following the Hutton Report.

The EAT ruled that, in favouring those closer to retirement age, a legitimate social policy aim was being pursued that was capable of justifying direct discrimination. The EAT further ruled that an ET must make up its own mind as to whether the transitional provisions in support of that legitimate aim are proportionate having regard to their discretionary effect.  That is not a matter for a “margin of discretion”.

In Richborough Estates Ltd v SoS for CLG (2018) EWHC 33 (Admin) the Claimants challenged the Defendant’s decision to issue a Written Ministerial Statement (“WMS”) in relation to national planning policy concerned with housing and neighbourhood planning, together with a subsequent associated change to the National Planning Practice Guidance (“the PPG”). Read more »

R (Legard) v Kensington and Chelsea RLBC (2018) EWHC 32 (Admin) concerns the Council’s decision to permit a Neighbourhood Plan, for the designation of land as a Local Green Space, pursuant to paragraph 77 of the NPPF, to proceed to a Referendum.   The various grounds of complaint included allegations of apparent bias, breaches of the requirements of fairness, and ultra vires. Read more »