R (Friends of Finsbury Park) v Haringey LBC [2016] EWHC 1454 (Admin) was an unsuccessful application for judicial review to quash a decision of Haringey Council to hire Finsbury Park, which the Council owns, for a licensed music festival. Supperstone J observed (para 7) that the Park has played host to large scale events, including commercial concerts, attended by tens of thousands of people, for many years.

Supperstone J referred (paras 9-13) to the Council’s Events Policy, (paras 14-21) to the festival promoter’s Premises Licence, (paras 22-35) to the Council’s review following complaints about the event the previous year and consultation about the 2016 event.

There were four grounds of challenge. The most fundamental was to the Council’s vires. The statutory provisions upon which the Council relied included Section 145 (provision of entertainments) of the Local Government Act 1972. Supperstone J concluded (para 45) that Section 145, of itself and standing alone, provided the Council with the necessary power to permit the festival to take place in the Park.  The power included (para 47) closing the Park to members of the public, save for those who pay for admission, and closing the Park to the extent and for the time necessary to set up and take down the event infrastructure, and to hold the event safely for the benefit of those members of the public who wish to buy tickets to attend it.  Further (para 49) Section 145 does not state that its exercise is subject to any other enactment, or that it is to be read or qualified by any such enactment.  Section 44 of the Public Health Amendment Act 1890 is an additional power that the authority may rely upon should it so choose.

Supperstone J, applying well-settled principles, also dismissed a consultation challenge, on the basis of some of the information being allegedly “positively misleading” and the shortness (14 days) of the consultation period. The consultation was (para 60) adequate for its purpose. Moreover, Supperstone J added:

“61.      If, contrary to my view, there should have been more, or a longer period of, consultation, I consider, in the light of the consultation that there was this year and in previous years in relation to essentially the same event, it is highly likely that the outcome for the Claimant would not have been substantially different (Senior Courts Act 1981 s.31(2A)).”

Other challenges that were dismissed included that the Council had failed to deal with the application as a “key decision” and that the Council was in breach of other process requirements. The fact that the income the Council would earn would help the Council meet its Parks Budget did not mean that the decision was a key decision.  The decision was correctly designated as not being a key decision.  Nor was there any failure to record the decision or to make documents available.  Again, Supperstone J added:

“76.      I consider it highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred (s.31(2A) Senior Courts Act 1981). There was nothing in the decision or the report that would, in my view, have led to any further representations by the Claimant that would have made any substantial difference to the outcome.”

The felling by a local highway authority of trees in the highway, including its pavements and verges, is not “development” under the Town and Country Planning Act 1990. It does not require planning permission, or an environmental impact assessment, or consultation.  On the contrary, when such a tree is a source of danger or obstruction or needs to be moved in order to facilitate highway repairs, the authority is under a statutory obligation to remove the tree pursuant to its Highways Act 1980 duty to repair and maintain the highway.  So held in R (Dillner) v Sheffield City Council (2016) EWHC 945 (Admin).

In Case C-147/15, Provincia di Bari v Edilizia Mastrodonato srl, Advocate General Kokott, in her Opinion delivered on 21 April 2016, observed that the Italian Region of Apulia continually confronts the ECJ with environmental questions.  By way of example only: how, in the light of the Habitats Directive, are certain decisions of a City Council to be judged? Does that Directive prohibit the installation of wind turbines in bird protection areas?  Was there any illegal waste disposal site in that Region or not?  She further observed that perhaps these cases have contributed to an increased awareness of the competent authorities, so that they were keeping a critical eye upon plans for backfilling a former quarry with waste.

In any event, the authorities were in dispute with the operator of such a project as to which the strict provisions of the Landfill Directive are applicable or just the general law on waste. At the basis of the dispute is the fact that the Mining Waste Directive refers to the Landfill Directive for the backfilling of excavation voids with waste. The Court must now ascertain whether this reference is to the legal ground or the legal consequences, that is whether the conditions for application of the Landfill Directive must be met or whether its legal consequences are applicable to backfilling without further examination. This question is influenced by differences in the language versions in which the reference to the Landfill Directive is formulated. Moreover, the Court must in particular address whether and under which conditions the backfilling of a quarry with waste is a waste recovery operation or a waste disposal operation.

In order to clarify whether the backfilling of the quarry falls under the Landfill Directive, the Advocate General identified three questions: (1) whether the Landfill Directive is always applicable to the backfilling of a quarry with waste; (2) whether the Landfill Directive is applicable only to operations consisting of waste disposal or also to recovery; and (3) whether the backfilling of a quarry with waste is to be seen as disposal or recovery.

She answered the first question that backfilling with waste other than extractive waste is subject to the Landfill Directive when the conditions of application of that Directive are met.

She responded to the second question, as to the scope of application of the Landfill Directive, as follows. The distinction between the disposal and the recovery of waste is of central importance in the EU law on waste. In the hierarchy of waste, disposal is in last place, being the worst option, whereas recovery is in the second to last place. Recovery is therefore in principle to be preferred over disposal. Recovery serves as a sensible use of waste, as the waste replaces other materials which would otherwise have been used to fulfil a particular function.  Recovery of waste through the deposit of waste onto or into land does not fall under the Landfill Directive.

She concluded that the Landfill Directive is not applicable to recovery of waste, but only to the disposal of waste through its deposit onto or in the ground. However, only after suitable waste is completely recovered through some procedure, and thus has acquired the same properties and characteristics as a raw material used for backfilling, could it fall outside the application of the law on waste.

Thirdly, in order to establish whether the specific provisions of the Landfill Directive or just the general stipulations of the Waste Directive apply to backfilling quarries with waste, it must be clarified whether, or under which conditions, this use is to be seen as waste disposal or waste recovery.  She said that this question is to be answered on the basis of the currently applicable Waste Directive, as so far no waste has been deposited in the quarry. All waste coming into question must as a result be treated in accordance with the currently applicable provisions. The fact that the authorisation procedure for backfilling the quarry was initiated when the consolidated former Waste Directive was still in force cannot alter that conclusion. The definition of “disposal” in Article 3(19) of the Waste Directive encompasses any operation which is not recovery, even where the operation has as a secondary consequence the reclamation of substances or energy. Article 3(15) of the Waste Directive defines “recovery” on the other hand as any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. This definition largely corresponds to the case-law of the Court on the old Waste Directive. 

Recovery has two conditions, namely that first the waste must serve a useful purpose and secondly must replace materials which would otherwise have been used to fulfil a particular function.  The first condition is essential, as only a useful employment of waste can even be recognised as a recovery of waste. The use of waste for backfilling quarries seems in principle to be useful. However, the definition of disposal already shows that the reclamation of substances or energy does not preclude a disposal, and that a useful employment of waste in itself is not sufficient. More crucial to a recovery operation is that the waste replaces materials which would otherwise have been used to fulfil a particular function. The UK rightly points out this characteristic. Because of high costs, this Member State doubts that quarries would typically continue to be backfilled when no waste is available for it. The fact that backfilling may possibly be a condition of the authorisation for the quarry alters nothing, as authorisation as a general rule reflects the plans of the operator and can also normally be changed if it should emerge that backfilling would cause disproportionate costs.

At first glance this view is surprising, as the ECJ has already in principle recognised backfilling as a recovery operation. However, those cases concerned the backfilling of galleries which, without long term backfilling, were in danger of collapsing, which could result in damage on the surface.  Comparable risks for disused quarries are clearly much more limited. Where such risks exist, complete backfilling is probably not necessary to counter them. It does not appear necessary in every case to backfill a quarry in order to be able to use that land for other purposes.

Accordingly says the Advocate General the UK is correct in its view that the competent national authorities must carefully assess whether other materials are in fact being replaced through backfilling a quarry with waste. An important indicator in this regard is whether the operator of the quarry has to pay for the waste used or whether he is paid for its use. In the latter case there are strong grounds for the assumption that the quarry would not be backfilled without the waste and it is therefore a case of waste disposal. 

The third part of the question is to be answered in the sense that backfilling a quarry with waste other than extractive waste constitutes a waste recovery operation if the competent authorities determine that the waste serves a useful purpose by actually replacing other materials, which in particular requires the suitability of the waste as a replacement for those materials.

The Broads Authority (“the Authority”) has rebranded “the Broads” as the “Broads National Park”, in order to attract tourists. The Broads are not, however, a National Park under the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”).  Was the rebranding lawful?  Yes, held Holgate J in Harris v Broads Authority (2016) EWHC 799 (Admin).  He held that the adoption of a brand name for marketing purposes did not breach the 1949 Act.

Sections 144 and 265A of the Local Government Act 1972 (“the 1972 Act”) authorised the Authority to encourage persons, whether by advertisement or otherwise, to visit the Broads for recreation. It could therefore do anything incidental to the discharge of that function: Section 111(1) of the 1972 Act.  That included promoting the Broads in the UK or overseas.  That included adopting a brand name.  That was a separate matter from legal status. The 1949 Act had no legal monopoly over the use of the term “National Park” and did not prohibit its use outside the legislative scheme under the 1949 Act.

Nor did the branding have a misleading or confusing effect. A lawful name choice had been made.  The Authority had not sought to treat itself as a National Parks Authority.  Nor had it sought to treat the Broads as a National Park in the statutory sense; or to misrepresent the scope of its statutory functions.  There was no abuse of power.

In the context of branding or marketing, the term “National Park” uses ordinary language, and not a statutory concept, to evoke the nationally important qualities of the Broads and stimulate public enjoyment of, and potentially visits to, the Broads. The use of capital letters simply reflected that the Broads is a proper name. It did not alter the legal analysis.

Appointing an independent legal expert to conduct a non-statutory enquiry and make findings is an appropriate mechanism in determining town and village green applications. So reaffirmed Stewart J in Somerford Parish Council v Cheshire East Borough Council [2016] EWHC 619 (Admin), at paragraph 31(iv).  An allegation of lack of independence, or apparent bias, based on the suggestion that the situation looked like the registration authority paying a lawyer to give favourable advice was misplaced: paragraph 35.  The appointee was a barrister in independent practice.  However, parties must be given the opportunity to make further representations on additional material filed late: paragraph 44.  Moreover, in any case where there is a serious dispute on factual issues, a public inquiry will almost invariably need to be held, and determination of the application on the papers will not be appropriate: paragraph 74.

In the test case of Robert Lindley Ltd v East Riding of Yorkshire Council (2016) UKUT 6 (LC) a farming company claimed compensation from the Council under Sections 14 and 14A of the Land Drainage Act 1991 after part of its carrot crop was destroyed when floodwater was pumped out of a nearby village.  The Council was lead local flood authority and a risk management authority.  Nonetheless, it submitted that it was not liable, because (1) flood risk management work had to be of a permanent nature and the pumping operation had been temporary and (2) the crop was damaged when the pumping was carried out by the Environment Agency (“the EA”) and the Fire Service.  Both submissions failed.  As to the first, flood risk management work is not limited to permanent work: Paragraph 93.  As to the second, the relevant risk management authorities falling within the Flood and Water Management Act 2010 were the Council (as the lead local flood authority) and the EA.  The Fire Service did not fall within the definition.  As the lead local flood authority, the Council had failed to carry out its duty under the 2010 Act to investigate who were the relevant risk management authorities and whether they were exercising flood risk management functions.  If it had carried out that duty, there might have been less confusion as to what powers were being exercised.  On proper analysis, the EA had been co-operating with and assisting the local authority.  It had provided the pumps in response to the local authority’s request. The local authority had paid for all the pump fuel, including for the period when the EA was on site in the village.  Very little supervision of the pumps had been required other than to ensure they had sufficient fuel.  On those facts, the pumps had been on loan to the local authority from the time they were delivered. The local authority had exercised its powers to carry out the work and was liable for the damage caused.

A local authority is not entitled to recover VAT on charges for off-street car parking.  The authority is as a matter of principle not a “non-taxable person” for VAT purposes when it charges members of the public for off-street car parking.  Otherwise, there would be “significant distortions of competition”.  So the Court of Appeal has held in the test case of Isle of Wight Council v HMRC [2015] EWCA Civ 1303.

Off-street car parking (“OSCP”) is provided and charged for pursuant to the Road Traffic Regulation Act 1984 (“the RTRA”), specifically Sections 32, 55 and 122. Any surplus of income over expenditure in respect of OSCP falls into the local General Fund (under Section 91 of the Local Government Finance Act 1988), a single undifferentiated fund from which most local authority activities are financed.  Unlike on-street car-parking receipts, there is no ring-fencing of OSCP which restricts the application of any surplus.

The Court of Appeal concluded that:-

1. In a hypothetical world, in which VAT had never been imposed on OSCPP charges, those charges would have been lower: paragraphs 64-68;
2. Local authorities are permitted to set OSCP charges with a view to at least covering the cost of operating loss-making of free of charge car parks: paragraph 69;
3. When local authorities fix OSCP charges so as to give effect to the various traffic management, planning, economic and environmental policies properly to be taken into account in the provision of OSCP, it is entirely lawful and correct of them to have regard to the overall constraints of meeting the cost of providing OSCP: paragraph 70;
4. The absence of any liability of local authorities to pay VAT on OSCP charges would permit the authorities to meet the cost of providing OSCP while charging less to those using that facility: paragraph 72; and
5. If one supplier in the market for OSCP is able to have lower prices over time because of its special tax status that is likely significantly to distort competition: paragraph 76.

A Council’s Parks Constable is in service as a “member of a constabulary maintained by virtue of an enactment” within the meaning of Section 200(2) of the Employment Rights Act 1996. He or she is therefore precluded from bringing a claim for unfair dismissal.  By parity of reasoning, Trade Unions representing Parks Constables are precluded by Section 280 of the Trade Union and Labour Relations (Consolidation) Act 1992 from pursuing claims for a declaration and a protective award.  In Wandsworth LBC v Viking, UKEAT/0234/13/LA, the EAT (Slade J) has held that the above holds good notwithstanding Articles 8, 11 and 14 of the European Convention of Human Rights.

The Claimants were dismissed for redundancy. It was not suggested that their selection for redundancy was for any reason which would affect their reputation, their private or professional relationships.  Redundancy, said Slade J, can be regarded as “perhaps the least blameworthy reason for dismissal”.  None of the authorities supported the proposition that dismissal of itself engages Article 8.  In her judgment the claims did not engage Article 8.  Article 14 was inapplicable because Article 8 was not engaged.  It added nothing in the circumstance where the facts of the case were not within the ambit of Article 8.  There were no Article 8 rights to be safeguarded.

As regards Article 11, the right claimed was a remedy for failing to consult the Trade Union, UNISON, over proposed redundancies. Collective bargaining over employees’ interests falls within Article 11.  Loss of employment through redundancy affects employees’ interests.  Collective bargaining over job losses falls within Article 11. While the means of affording unions their Article 11 rights are left to Member States, Article 11 requires that they be given the means of enforcing those rights.  The UK has chosen consultation as the means of Trade Unions protecting employees’ interests in a redundancy situation.  Unlike representation of other local authority employees, the Claimants had been deprived of that right.  Accordingly, subject to Article 11.2, Article 11, taken together with Article 14, was engaged by the claims for protective awards.

The question therefore was whether the restriction on the exercise of rights by members of the police was lawful. This requires the restriction to be, amongst other things, proportionate.  The EAT was not in a position to rule on proportionality.

In Rollinson v Dudley MBC [2015] EWHC 3330 (QB) Haddon-Care J held that local highway authorities do not have a duty under Section 41(1) of the Highways Act 1980 to ensure that its roads, pavements and footpaths are clear of moss, algae, lichen or similar vegetation.  The Judge summarised the relevant principles as follows (paragraph 24): (1) the Section 41(1) duty, to maintain the highway, is properly to be understood as being to “repair” and “keep in repair” the highway; (2) the duty does not include a duty to remove surface-lying material, accretions, obstructions or spillages, whether or not dangerous; and (3) the duty does include a duty to keep the drains and substructure of the highway clear and in good repair.  The Judge held (paragraph 27) that none of those applicable principles or criteria applied in the case before him: (1) moss or algae is, by its nature, to be regarded as transient rather than permanent; (2) the presence of moss or algae cannot be said to amount to, or comprise, material “disturbance or damage” to a road, pavement or pathway or the surface thereof; and (3) moss or algae cannot be said to have become part of the “fabric” of the road, pavement or pathway.

What one might call the “normal” or “traditional” ownership rights of a highway authority lay at the heart of the dispute in Southwark LBC v Transport for London [2015] EWHC 3448 (Ch).  A Vesting Order, SI 2000 No 1152, provided for the vesting of certain highway property in TfL, in connection with the re-ordering of responsibilities for highways in the creation of TfL and its assumption of responsibility as a highway authority for certain roads in Greater London. The Order, by Article 2(1)(a), provided broadly that there were thereby transferred to TfL in relation to each GLA road “the highway, in so far as it is vested in the former highway authority”.

The dispute was as to the extent of the vesting by virtue of the expression “the highway”. Southwark LBC and The City of London were highway authorities for what are now GLA roads in their respective areas. The Vesting Order was obviously intended to have some vesting effect in relation to those roads.  The dispute was as to its extent. In the case of some parts of some of the highways the local authorities owned not merely the top part of the soil, but have full title to the whole of the freehold. The relevant dispute was as to whether, in those circumstances, TfL acquired any more than the relevant part of the surface that it would normally have as a highway authority.

Mann J observed (para 5) that it is well established where a highway is maintainable at public expense the highway authority which is responsible for it has not merely the obligation to maintain it, it also has a limited ownership (unless it has acquired ownership rights by conveyance).  That principle is set out in statute and in authority. He referred to the current statutory provision (which succeeds others) i.e. Section 263 of the Highways Act 1980, which provides, broadly, that every highway maintainable at the public expense, together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway.

Mann J concluded (paragraph 54):-

“In all the circumstances I do not consider that the arbitrator erred in law in proceeding on the footing that Article 2(1)(a) carried with it the freehold, or other estate, vested in the local authorities as highway authorities, and, in the vertical plane, that it was not confined to what I am calling the surface. …”