Leisure

June 18th, 2013 by James Goudie KC in Environment, Highways and Leisure

Section 15(4) of the Commons Act 2006 (“CA 2006”), in relation to registration of town and village greens (“TVG”), is compatible with the right to peaceful enjoyment of possessions pursuant to Article 1 of Protocol 1 to the ECHR (A1P1).  So the Court of Appeal has held in R (Newhaven Port and Properties Ltd) v SoS for DEFRA, East Sussex County Council and Newhaven Town Council [2013] EWCA Civ 673. The Port did not argue that the TVG scheme as a whole is incompatible with A1P1. It accepted that that argument was barred by Oxfordshire County Council v Oxford City Council [2006] 2 AC 674.  The challenge was to Section 15(4) of CA 2006, which applies (broadly) where (a) a significant number of the inhabitants of any locality indulged “as of right” in lawful sports and pastimes on the land for a period of at least 20 years, (b) they ceased to do so before the time of the application but before the commencement of Section 15, and (c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b). By Section 15(1) any person may apply to the commons registration authority to register land to which Part 1 of CA 2006 applies in a case where subsection (2), (3) or (4) applies.

The Port argued that the effect of Section 15 (4) was to deprive it of the statutory defence by which it could have defeated any application which had been made before the Section came into force, namely by demonstrating that use had not continued until the date of the application. The Port argued that in so doing Section 15 (4) is incompatible with A1P1.  It was common ground that CA 2006 (and Section 15 (4) in particular) is an interference with the Port’s peaceful enjoyment of its possessions because it significantly restricts what activities the owner can carry out on the registered land. Thus A1P1 is engaged. It was also common ground that the jurisprudence of the European Court of Human Rights has established that A1P1 involves three distinct rules: the general principle of the peaceful enjoyment of possessions; a rule against deprivation of property, and right on the part of states to control the use of property in the general interest but subject to the striking of a fair balance between that interest and those of the property owner.  It was also common ground that registration of a TVG does not involve a deprivation of possessions, because legal title remains with the owner. This was, therefore, a case of control of use, falling within the second paragraph of A1P1. Lastly it was common ground that the interference had taken place subject to conditions provided for by law; in the sense that the law is clear and accessible. The key issues, therefore, were whether the contested legislation pursues a legitimate aim; and, if it does, whether the means by which it does so are reasonably proportionate to achieving that aim.

The Court of Appeal held that Section 15(4) does have a legitimate aim.  The key issue was that of proportionality.  The Court of Appeal held that the means by which Section 15(4) pursued the legitimate aim, including the period of grace being 5 years rather than a shorter period, are not manifestly without reasonable foundation.  It had been open to the Port to prevent the twenty years use as of right from coming into existence at all.  The Port’s bye-laws amounted to consent to the uses on which the local inhabitants relied.  If the Port had displayed the bye-laws on the quayside or the sea wall the whole problem would have been eliminated.  Moreover, all landowners have effectively been put on notice that those using their land for recreational purposes may well be asserting a public right to do so if their use of the land is more than trivial or sporadic. 

 

Leisure

June 3rd, 2013 by James Goudie KC in Environment, Highways and Leisure

What is the relationship between judicial review and the intervention powers of the Secretary of State (“the SoS”) in relation to changes in local library provision? On 31 May 2013 the SoS announced her decisions not to direct Inquiries under the Museum and Libraries Act 1964 into such changes in the Isle of Wight and in Bolton.

The SoS stated the Principles as follows:-

“The Secretary of State has considered the duty of a local authority to provide a comprehensive and efficient service under section 7 of the 1964 Act. What constitutes a comprehensive and efficient service is a question involving a significant element of judgement. Those judgements are, in the first instance, for the local authority to make. It has good knowledge of local conditions and needs and has direct democratic accountability to the local population. This is a significant factor. The Secretary of State’s view is that decisions about local issues should ordinarily be taken by democratically elected local representatives accountable to local voters. The duty of the Secretary of State is one of superintendence. A wide range of approaches were open to the local authority when deciding how to provide a comprehensive and efficient library service. The Secretary of State also notes that the local authority is entitled to take account of cost in deciding whether a proposal is efficient.

The Secretary of State seeks to promote and secure the proper discharge of the statutory duties on local authorities.  She has power to direct a local inquiry. Her approach in deciding whether she is minded to intervene to direct an inquiry has been to ask herself whether, having regard to the duties on her and the local authority, there is good reason in all the circumstances for her to direct an inquiry at the present time.

In taking that decision, the Secretary of State has given consideration to a number of factors. They include:

  • Whether there is any serious doubt or uncertainty as to whether the Council is (or may cease to be) complying with its legal obligation to provide a comprehensive and efficient library service.
  • Whether the Council appears to be acting in a careless or unreasonable way.
  • Whether the decision is or may be outside the proper bounds of the Council’s discretion, such as a decision to stop serving a particularly vulnerable group.
  • Whether the Council, has failed to explain, analyse or properly justify its proposals.
  • Whether the local proposals are likely to lead to a breach of national library policy.
  • Whether substantial further investigation is needed. A local inquiry would be more likely to be appropriate in a case where there are substantial uncertainties as to compliance with the statutory duty, and inadequate public consultation and discussion of proposals.  The converse is also true.
  • The advantages of local decision making by democratically accountable local representatives.
  • The cost and delay of an inquiry.
  • Whether there is any further good reason why a local inquiry would be appropriate or inappropriate.

The Secretary of State has also borne in mind that too ready an intervention would risk preventing or discouraging prompt and efficient reforms of library services. Equally, failing to intervene in an appropriate case would risk the delivery of an efficient and comprehensive service.”

There were two particular features in the case of the Isle of Wight.

First, as regards community libraries, the SoS said:-

“For the purposes of her assessment as to whether to order a local inquiry, the Secretary of State has based her view solely on the council run libraries, and the mobile library service.  The community libraries have not been taken into account, although they appear to be successful and to form an important part of Island life.  Accordingly, if the community service were to be taken into account, it would only reinforce the Secretary of State’s view.”

Second, the SoS noted that a claim for judicial review of the changes failed, and that permission was refused on grounds not only that there had been delay in bringing the claim, but also that, in any event, the claim was not of sufficient merit to justify the grant of permission.  She said:-

“In the view of the Secretary of State it is clear that the Isle of Wight continues to offer a comprehensive and efficient library service through its core libraries and mobile library service.  The Secretary of State has taken into account that the Court has decided that the changes were lawful (and it was unarguable to suggest the contrary).”

 

Leisure

May 31st, 2013 by James Goudie KC in Environment, Highways and Leisure

The costs of enforcing a licensing system (of sex establishments) against unlicensed operators (who may not have applied for authorisation) cannot be reflected in licence fees charged by a local authority (under the Local Government (Miscellaneous Provisions) Act 1982).  So the Court of Appeal has held in Hemming v Westminster City Council [2013] EWCA Civ 591, upholding Keith J.  This is because such costs are not (proportionate) costs of “authorisation procedures and formalities” under an “authorisation scheme”.  They are therefore prohibited by the EU Services (in the Internal Market) Directive and the Provision of Services Regulations 2009, SI 2009/2999.  In order to justify a (licence) fee or charge it has to be shown that it is related to the cost of the actual authorisation process: Beatson LJ at para 84.  The Court rejected (para 98) the “consequentialist arguments” about the effect on other regulated areas advanced by the Council in support of its construction.  The Court, however, accepted (para 103) that not only can costs in investigating the suitability of an applicant be reflected in the fee, so too, in the case of an application to renew a licence, can be the costs of monitoring the applicant’s continued suitability and compliance with the licence terms.  Enforcement against licensed operators is to be distinguished from enforcement against unlicensed operators.

 

Leisure

May 7th, 2013 by James Goudie KC in Environment, Highways and Leisure

The Growth and Infrastructure Bill has received the Royal Assent (“the 2013 Act”).  Section 16 of the 2013 Act will amend the law on the registration of new town and village greens under Section 15(1) of the Commons Act 2006 (“the 2006 Act”).  It does this by inserting new provisions –Section 15C and Schedule 1A into the 2006 Act – which exclude the right to apply to register land as a green when any one of a number of events, known as ‘trigger events’, have occurred within the planning system in relation to that land. The trigger events are prescribed by Schedule 1A to the Commons Act 2006. For example, where an application for planning permission is first publicised then the right to apply to register that land as a green is excluded. Decisions regarding whether land should be developed or not will be taken within the planning process.

The new Section 15C(2) of the Commons Act 2006 provides for ‘terminating events’, which are also set out in new Schedule 1A to that Act. If a terminating event occurs in relation to the land in question, then the right to apply for registration of a green under Section 15(1) is again exercisable. For example, if the right to apply to register land has been excluded because an application for planning permission has been publicised, the right to apply for registration of the land as a green again becomes exercisable if planning permission is refused and all means of challenging that refusal have run their course.

The change takes effect from 25 April 2013, and affects applications under Section 15(1) of the Commons Act 2006 made on or after that date.  Applications made before that date are unaffected.

The 2013 Act makes two other amendments directly related to the law on town and village greens.  First, Section 14 of the 2013 Act amends Section 15(3)(c) of the 2006 Act, which  applies where recreational use of land as of right has ceased before an application is made.  This change will come into force on a date to be appointed by Order. Second, there is the introduction of Landowner Statements, which bring to an end recreational use as of right on the land to which the Statement relates, through new Sections 15A and 15B of the Commons Act 2006 (as inserted by Section 15 of the 2013 Act). Section 15A makes provision for the deposit of Landowner Statements as well as accompanying maps.  Section 15B provides for certain information relating to such deposits to be recorded on a publicly available register.  These provisions will come into force on a date to be appointed by Order, and will be supported by Regulations.

DEFRA has issued Interim Guidance to Commons Registration Authorities on Section 15C of the Commons Act 2006, the exclusion of the right to apply under Section 15(1) to register new greens.

 

Highways

May 1st, 2013 by James Goudie KC in Environment, Highways and Leisure

What is the status of a non-statutory Code of Practice?  This question has been considered by the Court of Appeal, in the context of the duty to maintain a highway pursuant to Section 41 of the Highways Act 1980 (“HA 1980”), in Devon County Council v TR [2013] EWCA Civ 418, in which Judgment was given on 30 April 2013.  The highway authority successfully appealed against a decision that it had been liable for a road traffic accident and that the driver had not been negligent at all.

TR was the driver of a Land Rover on a country road. Whilst he was in the act of overtaking a slower-moving vehicle, his Land Rover left the road to the nearside and his passengers were very seriously injured in the ensuing crash into trees alongside the road. They sued him. He made a third-party claim against the Council.  He alleged that the defective state of the offside of the road was what had caused him to lose control.

The road in question was part of what is mostly a winding and hilly country road. After a winding and steep section of road, and a right hand bend, the road ahead opened up into a straight section which gave ample visibility to overtake. The road was a single carriageway in each direction. At some points it had no line markings at all, but on the section where the accident occurred there was a long dash centre white line and solid white lines down each edge. On both sides there were soft grass verges. On TR’s nearside there was a ditch with trees beyond it, approximately level with the road surface. On his offside, there was a noticeable and quite steep short bank down into a ditch, and a hedge beyond it.

There was damage to the offside (east) edge of the tarmac, both outside and (in places) over and inside the continuous white edge line. This is common enough where the outer edge of the tarmac meets a soft grass verge. It is caused by heavy vehicles running along or over the tarmac’s edge with their tyres. It is known to highways engineers and maintenance people as “overriding” damage.

The area of overriding damage was 51 metres long. At its widest the damaged area extended just under 6 inches inside the edge of the continuous white edge line and, in places, obscured or obliterated that line. The deepest part of the damaged area was something more than 3 inches deep. TR must have put his offside tyres into the damaged area, at a point before the place at which it intruded most into the carriageway, and at a point where the continuous white edge line was either missing or difficult to see.

Hughes LJ, as he then was, observed that, as is well known, the duty of the highway authority evolved from the common law duty of the local inhabitants to maintain a highway. That duty was an absolute one but was enforceable only by what today would be called a public law action. The inhabitants were not liable for any private loss caused by the state of the road, unless there was misfeasance, as distinct from nonfeasance or simple failure to maintain. That origin is the explanation for the manner in which the law has been expressed since the Highways Acts 1959 and 1961, and in which it now appears in HA 1980. The duty to maintain contained in Section 41 (which includes repair) is now broken by mere nonfeasance. It remains an absolute duty, and it may be invoked not only in relation to civil claims against the authority arising out of an accident but also by action to enforce the maintenance of the road. It is a duty to put and keep the highway in such a state that it does not entail danger to those who use it in the manner ordinarily to be expected. However, so far as civil claims arising out of accidents arising from non-maintenance are concerned, the liability of the authority is limited by Section 58 to the case where it has not taken such care as was in all the circumstances reasonably required to render the highway not dangerous to traffic. The onus of proving that all reasonable care was taken lies on the authority.

The issues which called for decision were therefore whether there was a breach of Section 41, either whether the road was in a condition which exposed to danger those using it in the ordinary way; if so, whether the accident was caused by that breach; if so, whether the Council made out the statutory defence under Section 58, ie of taking all reasonable care; and, if not, whether there was any contributory negligence on the part of TR.

The road was dangerous, at least in places.  However, in order to succeed in a claim made on the basis of a breach of Section 41 it is not enough to show that the highway was dangerous somewhere other than where the accident happened; it must be shown that it was dangerous where the accident occurred, and that the accident occurred as a result of the danger.

In this case the point of entry into the rut was dangerous.  A causative breach of Section 41 was made out.

The principal issue on the statutory defence under Section 58 was whether Devon inspected the road sufficiently often.  Devon’s settled practice for this road and a great many others of the same kind in the County was to inspect at six monthly intervals. The trial judge found that this was not enough to discharge the onus laid upon Devon by Section 58 to show that it had taken such care as was in all the circumstances reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic.  This is where the Code of Practice fitted in.

There was and is a non-statutory Code of Practice: “Well maintained highways”.  One of a great many areas of practice which is traversed by the Code is frequency of inspection.  In addition, Devon had its own manual for road inspection and the treatment of defects.  The judge concluded that Devon had failed to make out the statutory defence because it had not justified its departure from the recommended inspection interval referred to in the Code. She held that six monthly inspection was insufficient, both generally and specifically in relation to this particular road. Her finding was not simply that six monthly inspection was insufficient, but that only monthly inspection, as per the Code, would discharge the duty to take reasonable care.

The Court of Appeal said that, in adopting this approach, the Judge fell into error.  Hughes LJ, with whom Lloyd LJ and Sir Stanley Burnton agreed, said, from paragraph 20:

“Despite the recognition in the opening words that the code was non-mandatory, this approach amounted to treating it as a mandatory standard which had to be adhered to unless there was a positive reason to depart from it. Whilst the code is clearly evidence of general good practice, its status must not be overstated. It has no statutory basis …”

“The code does not set out mandatory rules. It is evidence of good practice. Authorities must exercise their own judgment.”

“When it comes to the specific issue of inspection intervals, other considerations will clearly include traffic use, experience, the frequency of adverse incidents and the like.”

“It cannot amount to a rule that it will of itself be a want of reasonable care to adopt a different inspection interval unless some particular process of reasoning is passed through, and set out somewhere in writing; if it did, that also would be to make the code a mandatory instrument.”

“At the very least, the evidence of the practice of other authorities pointed towards a respectably held view, amongst professionals charged with highways maintenance, that six monthly inspections of local distributor roads were a reasonable response to the duty to maintain. On the well understood Bolam principle that evidence went towards showing that Devon had exercised reasonable care in its general policy for such roads.”

“There appears to have been no evidence of the exact age of Devon’s practice, but if, as appears, it had been applied to local distributor roads generally for a significant period without problems in the form of avoidable accidents or otherwise, that was in itself some evidence that reasonable care was taken.”

“For these reasons, the judge’s finding that Devon’s adoption of an inspection frequency of six months for local distributor roads generally was a want of reasonable care cannot stand. It was founded on an erroneous approach to the code.”

“However, the judge also held that this particular road called for greater frequency of inspection. Although that finding was in part predicated upon her flawed findings about the policy for local distributor roads generally, the evidence before her was by no means confined to the general. It extended to the detailed inspection reports for this road, over a period of the three and a half years before this accident. … Despite the flawed approach to the policy of Devon in relation to local distributor roads generally, it is clear that there was sufficient evidence to justify the judge’s conclusion that this particular road needed inspection at shorter intervals than six monthly, and I see no warrant for interfering with it. I would accordingly uphold her finding that the statutory defence had not been made out, whilst rejecting her wider basis that Devon’s policy in relation to local distributor roads generally betrayed a lack of reasonable care because it amounted to a departure, without sufficient reason explained, from the non-statutory recommendations contained in ‘Well maintained highways’.”

Finally, the Court of Appeal concluded that TR was 50% contributorily negligent.

 

Highways

July 23rd, 2012 by James Goudie KC in Environment, Highways and Leisure

WHAT IS A HIGHWAY?

In Kotegaonker v SoS for Environment etc and Bury MBC [2012] EWHC 1976 (Admin) Hickinbottom J held that a footpath linking two privately-owned sites, one containing a health centre and the other containing shops, could not be a public highway, either at common law or under the Highways Act 1980 s.31, because members of the public had no legal right of entry at either end of the path.  They entered the health centre and the shops under licence from the respective landowners, not because they had an unrestricted right to do so.  There was no statutory definition of the word “highway”.  Common law did not have any authority directly on the issue.  As a matter of principle, the concept of a highway that was unconnected to any other highway was incongruous, because such a way did not have all the requisite essential characteristics of a highway.  Passing along a route as licensee did not constitute passing along it “freely and at … will”, since passage was at the will of the landowner, who could withdraw the licence at any time.  The fact that the owners of the health centre and the shops at either end of the path had never imposed any restrictions was irrelevant to the terms of s.31, which required that the right of way had to be enjoyed by the public “as of right”.

PSED

Yet another first instance decision on the PSED: R (Hunt) v North Somerset Council [2012] EWHC 1928 (Admin).  Applying the approach of the Court of Appeal in the Brent Libraries case, [2012] LGR 530, Wyn Williams J dismissed a judicial review challenge to North Somerset Council’s decision to approve, during its budget-setting process, a proposal to reduce financial provision for youth services and to review the ways in which such provision was made in its area.  The Judge held that the Council had complied in substance with its duties under s.149 of the Equality Act 2010 and s.507B of the Education Act 1996.

 

Village Greens, Public Procurement & Freedom of Information

March 28th, 2012 by James Goudie KC in Best Value, Environment, Highways and Leisure

Village Green

In Newhaven Port and Properties Ltd v East Sussex County Council [2012] EWHC 647 (Admin) the claimant company and port authority applied for judicial review of the Council’s decision to register a tidal beach as a “town or village green” under s15 of the Commons Act 2006.  The beach formed part of the operational land of the port.  Ouseley J held that a tidal beach can be so registered, provided, however, that the nature, quality and duration of the recreational user satisfies the statutory test.

However, this beach could not be so registered, because that would conflict with its statutory function as operational port land.

Public Procurement

The Procurement Lawyers Association has issued a Working Group Paper on Framework Agreements, available on its website.

Freedom of Information

In Bailey v ICo and Nottingham County Council, EA/2011/0271, Decision on 27 March 2012, on the absolute exemption for personal data in FoIA s40, the FTT upheld non-disclosure about internal audit investigations and potential disciplinary proceedings involving employees in the Council’s Building Cleaning Service, on the basis that disclosure would be unfair and would breach the first data protection principle.  The FTT reiterated (para 18) what had been said in Waugh v ICo and Doncaster College, EA/2008/0038, that (para 40) there is a recognized high expectation that the internal disciplinary matters of an individual (even a senior member of staff) will be private and that the majority of the information will not be available to the public.

See also on Bolton v ICo and East Riding Yorkshire Council, EA/2011/0216, FTT Decision on 26 March 2011, on s40 and the remuneration and appointment of a Chief Executive, forthcoming blog by Anya Proops on www.panopticonblog.com.

 

Council Tax, Environment, Procurement/Land Sale

March 26th, 2012 by James Goudie KC in Best Value, Council Tax and Rates, Environment, Highways and Leisure

Council Tax

Note the Local Authorities (Alteration of Requisite Calculations) (Wales) Regulations 2012, SI 2012/521 (W.82).

Environment

Note the Controlled Waste (England and Wales) Regulations 2012, SI 2012/811; and the Environmental Protection Act 1990 (Commencement No. 19) Order 2012, SI 2012/898 (C.28), repealing on 1 April 2012 s1 of the Refuse Disposal (Amenity) Act 1978 (provision by local authorities for disposal of refuse).

Procurement/Land Sale

In R (Midlands Co-Operative Society Ltd) v Birmingham City Council [2012] EWHC 620 (Admin) Hickinbottom J held (1) that a land disposal by the Council to Tesco did not engage the public procurement regime, because there was no commitment by Tesco, legally enforceable by the Council, to perform relevant works, either in a Section 106 agreement or at all; and (2) that the Council had achieved the best consideration outcome required by LGA 1972 s123.

 

Highways & Village Greens

March 8th, 2012 by James Goudie KC in Environment, Highways and Leisure

Dedication of Highway

The dedication to the public by a local highway authority of highways was inferred by the Privy Council in J & O Operations Ltd v Kingston & St Andrew Corporation [2012] UKPC 7, relying (para 13) on Espley v Wilkes (1872) LR 7 Ex 298 and (para 14) Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620.

Village Green

In Adamson v Kirklees MBC [2012] EWCA Civ 262 the Court of Appeal held, allowing an appeal from Vos J, that although land should not have been registered as a village green (because, agreeing with Vos J, it had not been used by the inhabitants of a single locality), it would not be just to rectify the public register after a delay of over 12 years in seeking rectification. Sullivan LJ said (para 37):

“While Parliament did not prescribe a time limit for making applications under section 14, it must have envisaged that persons adversely affected by an erroneous amendment of the register would take reasonably prompt action ton secure rectification, and would not sleep on their rights. All other things being equal, the longer the delay in seeking rectification the less likely it is that it will be just to order rectification”; and (para 39)

“While it must be desirable, in principle, that errors in a public register should be rectified, the delay of over 12 years in seeking rectification of the register in this case was, by the standards of any reasonable legal process, so excessive as to make it not just to rectify the register.”

Patten LJ, on the other hand, could see no injustice (para 44) in a deprivation of rights to which one was never entitled, absent (para 43) some “significant or material prejudice attributable to the delay” which makes it just to refuse to restore to the owner of the land its full legal rights. Patten LJ thought (para 45) that there was a public dimension which militated strongly in favour of ordering rectification of the register. Carnwath LJ, however, agreed (para 66) with Sullivan LJ’s reasoning and conclusions. Carnwath LJ (at para 67) said that, on the basis that ECHR Art 1/1 was engaged:

“The administrative process of amendment of the register does not meet the requirements for independent determination under article 6. The rectification procedure fills the gap. I agree that for that reason a precise analogy with judicial review time-limits is not appropriate.”

He continued (at para 68):

“However, article 6 does not require the right to be kept open indefinitely. I agree with Sullivan LJ that the public nature of the register requires the balance to include considerations of public administration, … Although that is provided for expressly in the judicial review legislation, I see no reason why the concept of “justice” under the 1965 Act should not be wide enough to include similar considerations. Justice in this context need not turn on proof of individual prejudice, but is wide enough to cover general prejudice to the public (including planning authorities) who are entitled to rely on the register to order their affairs, public and private. … It is probably not appropriate for the court to lay down a specific time-limit, where Parliament has declined to do so. But for my part, I would be regarding a delay beyond the normal limitation period of six years as requiring very clear justification. On the facts of this case, I agree with Sullivan LJ that on any view the delay was too long.”

 

Local Government Bulletin No. 45 Quarter ending November 2011

February 29th, 2012 by James Goudie KC in Best Value, Council Tax and Rates, Elections and Bylaws, Environment, Highways and Leisure, Housing, Judicial Control, Liability and Litigation, Local Authority Powers

 

Bulletin No. 45

LOCAL GOVERNMENT LAW 

Bulletin Editor

James Goudie QC

(Chapter 23, Housing,

Christopher Knight)

11 KBW

Temple

London 

This Bulletin covers material available 29 February 2012.

Chapters updated in this Bulletin

Chapter 1: Local Authorities – Relationships and Responsibilities

Chapter 4: Non-Judicial Control of Local Government

Chapter 5: Judicial Control of Local Authorities

Chapter 5A: Local Authorities and the Human Rights Act 1998

Chapter 7: Local Elections

Chapter 8: Local Authority Employment Law

Chapter 10A: The New Ethical Framework

Chapter 11: EC Public Procurement Rules

Chapter 13: Acquisition, Appropriation and Disposal of Land

Chapter 14A: Local Government and Information

Chapter 18: Sources of Funds – Council Tax

Chapter 19: Sources of Funds – Non-Domestic Rating

Chapter 20: Capital Finance

Chapter 23: Housing

Chapter 24: Local Authority Education Law

Chapter 25: Social Services

Chapter 26: Environmental Law

Chapter 27: Highways

***

Chapter 1: Local Authorities – Relationships and Responsibilities

Note the Local Authorities (Referendums) (Petitions) (England) Regulations 2011, SI 2011/2914, on changing to a different form of governance; and the Local Authorities (Conduct of Referendums) (England) Regulations 2012, SI 2012/323.

Chapter 4: Non-Judicial Control of Local Government

On the Local Government Ombudsman, see Dalley v Information Commissioner, EA/2011/0180, FTT Decision on 15 February 2012, which concerned EIR Regulation 12(5)(d), on breach of confidence, and a refusal by the Ombudsman of an information request. The confidentiality was provided by S32(2) of the Local Government Act 1974 in relation to Ombudsman investigations and conducting them efficiently. The question was whether the public interest in maintaining that confidentiality outweighed the public interest in awareness of investigations on environmental issues conducted by the Ombudsman. The subject matter was drainage issues and the alleged failure of the Local Planning Authority to address them in a satisfactory manner. The FTT concluded that the balance of public interests was against disclosure. The FTT emphasized (para 11) that there is a public interest in enabling the Ombudsman to receive information in confidence, so as not to affect adversely his ability to investigate complaints and thus to maintain the accountability and transparency of local government.

Chapter 5: Judicial Control of Local Authorities

Charles Terence Estates Ltd v Cornwall Council on fiduciary duty is reported at [2011] LGR 813.

On when consultation is necessary, and whom to consult, see R (Milton Keynes Council) v SoS CLG [2011] EWCA Civ 1575. On legitimate expectation of consultation, see R (Vieira) v Camden LBC [2012] EWHC 287 (Admin), at paras 58-68 inclusive and 115.

On the Public Sector Equality Duty, see R (Tiller) v East Sussex County Council [2011] EWCA Civ 1577, distinguishing (paras 36-39), R (Harris) v Haringey LBC [2011] PTSR 931 (CA), stating (paras 39-40) that a “relevant light” on the approach the Court should adopt was shed by the decision of the SC in R (McDonald) v Kensington & Chelsea RLBC [2011] PTSR 1266, at paras 23 and 24, and applying the Brown principles; and R (“D” and “S”) v Manchester City Council [2012] EWHC 17 (Admin), stating, at para 61, that it is lawful first to formulate budget proposals and then, at the time of developing policies, to consider the specific impact of proposed policies that might be implemented within the budgetary framework.

Further on the Public Sector Equality Duty, see R (Hurley) v SoS for BIS [2012] EWHC 201 (Admin), in which Elias J said:

“77. … I do not accept … that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then … it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

78. The concept of “due regard” requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”

R (W) v Birmingham City Council on the PSED has been reported at [2012] LGR 1.

On s111(1) of LGA 1972, see R (National Secular Society and Bone) v Bideford Town Council, concerned with public prayers at the start of full meetings of a Parish Council. Ouseley J (para 13) identified what he regarded as the “narrow scope” of the issue before him: solely about whether prayers can be said as part of the formal business transacted by the Council at a meeting to which all Councillors are summonsed. Ouseley J (para 19) observed that Sch12 to LGA 1972, which governs Parish Council meetings, is “silent about prayers”, and (para 22) that there is “no specific statutory power to say prayers”. Ouseley J rejected the submission that no statutory authority was required.

Ouseley J went on to reject the submission that such authority was provided by s111(1) of LGA 1972. He said:-

“23. S111 requires the prior identification of the function to which the acts in issue are incidental. The purpose of the meetings is to transact the business of the Council, which business is made up of the various express and implied functions, duties and powers, which it possesses. The question therefore is whether saying prayers “is calculated to facilitate, or is conducive or incidental to the discharge of any of their functions.” Although there is scope for a wide interpretation to be given to those words, the courts have set their face against an interpretation which would cover the incidental to the incidental, see for example R v Richmond LBC ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48. The language also requires an objective standard or test: it is not a question of whether the Council reasonably considers that a particular act would facilitate or be conducive to or incidental to the discharge of its functions. “Calculated” does not mean “thought likely by the Councillors”, but requires an objective judgment of what is likely to facilitate the discharge of functions.

24. That said, I would accept that the reasoned view of elected Councillors in that respect would often be very persuasive. I do not doubt that the Councillors who voted for the continued saying of public prayers believe, or are prepared to accept, that the practice facilitates or is conducive or incidental to the transaction of business, and do so for reasons of belief and support for tradition … I have, however, come to the conclusion that s111 does not permit the public saying of prayers as part of he formal meeting of the Council, as an incident of the transaction of its business.”

“27. I do not see that it can be calculated to facilitate, or be conducive to or incidental to formal public Council deliberations as a whole, for the majority to include as part of their formal deliberations a ceremony from which some absent themselves or feel themselves to be excluded, perhaps under protest or in resentment. …”

Ouseley J also (para 76) went on to reject the Council’s submission that the requirements of a pluralist state meant that preventing prayers in a Council meeting breached ECHR Art 9, distinguishing Lautsi v Italy [2011] ECHR 2412.

Ouseley J’s conclusion (para 80) was as follows:-

“The saying of prayers as part of the formal meeting of a Council is not lawful under s111 of the Local Government Act 1972, and there is no statutory power permitting the practice to continue. If it were lawful, the manner in which the practice is carried out in the circumstances of Bideford does not infringe either Mr Bone’s human rights nor does it unlawfully discriminate indirectly against him on the grounds of his lack of religious belief.”

This decision was before Part 1 of the Localism Act 2011 was brought into force (the general power of competence).

Chapter 5A: Local Authorities and the Human Rights Act 1998

In City of London v Samede [2012] EWCA Civ 160 CA held that the occupiers of a camp next to St Paul’s Cathedral had ECHR Arts 10 & 11 rights in relation to the maintenance of the camp, but that did not mean that the camp should be allowed to continue. Determining the limits to the right of lawful assembly and protest on the highway is fact-sensitive. Relevant factors include the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupied the land, and the extent of the actual interference the protest caused to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public. It was appropriate to take into account the fact that protesters were expressing views on important issues and strongly believed in the views they were expressing. However, the level of public disruption caused by the protest justified removal of the camp, which was, and had been for three months, trespassing in St Paul’s Churchyard, substantially interfering with the public right of way and the rights of those who wished to worship in the Cathedral, in breach of planning control, and causing strain on public health facilities, and some damage to local businesses.

Chapter 7: Local Elections

On 24 February 2012 the Electoral Commission published Guidance on preventing and detecting electoral malpractice.

Chapter 8: Local Authority Employment Law

The Supreme Court decision in R (G) v Governors of X School on legal representation at disciplinary hearings is reported at [2011] LGR 849. Note the CLG February 2012 Guidance under Section 40 of the Localism Act 2011 on “Openness and Accountability in Local Pay”.

Chapter 10A: The New Ethical Framework

In Councillor Carole Gerada v Standards Committee of Scarborough Borough Council, Case No LGS/2011/0567, Decision on 3 February 2012, the FTT stated (para 7) “…absent from the papers submitted to the Tribunal is any copyof the Appellant’s Declaration of Office and agreement to abide by the relevant Code of Conduct. That is a key document because the Code of Conduct can only apply to a person who is acting in their official capacity as a Councillor; and (para 16) “The Tribunal recognises that an allegation of misappropriation of public funds could be seen as defamatory of those about whom it is made. The Tribunal does not, however consider that the making of such an allegation, of itself indicates a lack of respect toward those individuals. The Tribunal is of the view that the Code of Conduct does not have, and should not have the effect of preventing a Councillor from raising such concerns. Her comments are made on a matter of public interest. To interpret the Code of Conduct in a way which has the effect of precluding her from expressing such views is not necessary for the protection of the Councillors who believe themselves to be libelled – their protection is provided by the Law of Defamation. … The Tribunal interprets and applies the Code of Conduct in a way to give effect to the enshrined right to freedom of expression …”

In Councillor Ian Smith v Knowsley MBC, Case No LGS/2011/0562, Decision on 7 February 2012, the FTT reiterated that (para 6) the test for deciding whether or not there has been a breach of the Code, and any subjective considerations would, at best, serve only to mitigate the action taken as a result of the breach; Art 10 of the ECHR, the right to freedom of expression, provides, what is not an absolute right, but rather a right that has to weigh against the rights of the public as a whole to enjoy transparent and open government at both a local and national level, the lawful check that the Code of Conduct provides on Art 10; the restraints imposed by a Code of Conduct designed to uphold proper standards in public life are in principle likely to be within Art 10, but it is important that the restraints should not extend beyond what is necessary to maintain those standards; and the balancing exercise must take account of the principle of proportionality and the threshold for interference should be set at a standard which takes account of the demands of that pluralism, tolerance and broad mindedness without which there is no democratic society; the approach in each case will be fact sensitive and must be carried out in a pragmatic and sensible way rather than on a conceptual basis; and, as regards sanction, the threshold for disqualification is a high one.

Chapter 11: EC Public Procurement Rules

On the distinction between selection criteria (including tenderers’ technical and professional capacity to perform the contract) and award criteria, see Judgment of the General Court on 8 December 2011 in Evropaiki Dynamiki v ,Proigmena, T-39/08, at paras 18-24. In particular, a criterion based on the tenderers’ experience concerns the tenderers’ ability to perform a contract and does not constitute an award criterion. This must be checked at the selection stage and cannot be taken into account again for the purpose of comparing the tenders.

In R (Greenwich Community Law Centre) v Greenwich LBC [2011] EWHC 3463 (Admin), the Administrative Court (Cranston J) dismissed a challenge by a leading law centre to the decision by Greenwich Council to withdraw its funding of around £200,000 per year. The Council’s decision followed a tender process for funding for legal services, which resulted in awards to four of five previously funded organisations but not to Greenwich CLC. The grounds of challenge included that the Council had adopted an irrational timetable for the tender process, had failed to carry out a risk assessment before withdrawing funding, had breached the statutory equality duty in s. 149 of the Equality Act 2010 and had unlawfully rejected two of the law centre’s funding bids for being a day out of time. The High Court made a number of findings which are of wider importance: first, the requirement in the National Compact to give three months notice of the withdrawal of funding did not apply where an existing funding award expired and the organisation had been warned that it might not be renewed; second, where a tender process for the award of third sector funding had been designed with the statutory equality duties in mind, and was intended to result in the award of funding to the organisations submitting the tenders best suited to the Council’s requirements, there was no obligation to conduct a further equalities assessment before making funding awards; and, third, principles of public procurement law did not require the Council to admit a late tender where late submission had been partly the fault of the Council (an incorrect date had been stated at one point in the tender documents) but overall it should have been clear to the law centre what the correct date was.

In JBW Ltd v Ministry of Justice (2012) EWCA Civ 8 CA upheld an order for summary judgment in a claim about a tender procedure for bailiff services. The issues were, first, the scope and application of the exclusion from the PCR of services concession contracts, and, second, the availability of a claim for breach of an implied contract created by an ITT and a response to it. As regards the services contract being a concession contract, MoJ relied on recent ECJ decisions in Wasser (C-206/08) and Stadler (C-274/09) to argue that it was sufficient to satisfy the definition of services concession that payment to the contractor came from third parties rather than the contracting authority, and that some risk was transferred from the contracting authority to the contractor, even if that risk was small having regard to the nature of the services to be provided. CA held that the contracts at issue lacked many of the typical features of a concession contract in that, for example, the third parties making payment were compulsory recipients of services rather than customers to whom the contractor was truly exploiting the relevant services; the contractor had no opportunity to exploit the services by developing the market/customer base; and MoJ retained close control over the way in which the services were provided. However, CA went on to hold that the contracts were services concessions excluded from the scope of the PCR on the basis that there was some transfer of risk from MoJ, there was no direct payment by MoJ, a service was provided to third parties, and it did not matter that they were unwilling recipients of the services. As regards implied contract, CA held that it would have been open to the parties expressly to contract to abide by obligations identical to those set out in the PCR and there was no reason why an implied contract ought not to cover the same ground; that there could be implied a private law contract to consider tenders submitted as required by the invitation to tender, and also to consider them in good faith; but that there could not be implied a contract containing the fuller set of obligations, mirroring the PCR for three reasons. First, those obligations were not necessary to give efficacy to the contract. Second, there could have been no common intention to imply these obligations as MoJ had always proceeded on the basis that the PCR did not apply, because the contracts were services concessions. Third, a power reserved by the MoJ (in standard terms) to alter the terms of the tender process as set out in the ITT was inconsistent with an implied contractual obligation to act with transparency. Whilst the ruling was concerned with contracts which fell outside the PCR, much of what the Court said is, at least arguably, applicable to tender processes concerning contracts which fall within the scope of the PCR.

 Chapter 13: Acquisition, Appropriation and Disposal of Land

R (Salford Estates Ltd) v Salford City Council, on LGA 1972 s123, is reported at [2011] LGR 982.

Chapter 14A: Local Government and Information

On whether public authorities are entitled as of right to rely on any exception/exemption under either FoIA 2000 or EIR 2004, see the decision, about EIR 2004, of the Court of Appeal in Birkett v DEFRA [2011] EWCA Civ 1606. Mr  Birkett argued that it was necessary to interpret Council Directive 2003/4/EC, on public access to environmental information, which implements the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, and in turn EIR 2004, as preventing a public authority from relying on a new or different exemption after the internal review stage; otherwise the complainant would not have an effective remedy because they would not know the reasons for the public authority’s refusal of their request for information. The Court of Appeal rejected Mr Birkett’s argument. As a result of this decision, the general rule is that public authorities can rely on any exception/ exemption at any time under EIR 2004 or FoIA.

FTT Decisions include Herbert v ICO and West Dorset DC, EA/2011/0157, on FoIA s14 and vexatious requests; King v ICO and Crawley BC, EA/2010/0126, on FoIA s44 and prohibition from disclosure; Newcastle Upon Tyne Hospital NHS Foundation Trust v ICO, EA/2011/0236, on FoIA s21 and accessibility of information; Cross v ICO and Havant BC, EA/2011/025, on the EIRs; Martyres v ICO and NHS Cambridgeshire, EA/2010/020, on s41 FoIA and confidentiality and on FoIA s21; Waites v ICO and NHS Wakefield District PCT, EA/2011/0166, on s36(2)(b) FoIA on free and frank provision of advice and exchange of views for purposes of deliberation; and Greenwood v ICO and Bolton MBC, EA/2011/0131 & 0137, on s40 FoIA and data protection, in which a request was made for disclosure of information revealing the declarations of interest which had been made by officials employed by Bolton MBC. The request was not limited either by reference to the nature of the interests in question or the seniority of the individual officers, although as it happened the relevant register of interests only recorded declarations from principal officers and above. The withheld information by its very nature comprised information about what individual officers got up to when they were not at work and, as such, was inherently private information. However, it was private information which plainly had a bearing on the discharge of the officers’ duties, hence its inclusion on the register of interests. The FTT concluded that: the names, departments, sections and job titles of all officers who had made entries on the register should be disclosed and that, in addition, in relation to chief officers, information revealing other professional commitments (e.g. consultancies) should be disclosed but that the remainder of the information should be withheld. In reaching these conclusions, the rejected arguments advanced by the Council that disclosure of any of the data would have a “chilling effect” on the system of declarations. In its view, officers would still be inclined to make declarations, the disclosure notwithstanding, particularly because of the “auditor effect”, namely “disclosure would enable members of the public to scrutinize the information and challenge any inaccuracies or omissions” which was “likely to add frankness in declaration” (para. 30). However, it accepted that withholding the bulk of the requested information was justified. This was particularly in view of the facts that disclosure of some of the information would be likely to cause substantial distress and would be extremely intrusive into the lives of officers and, further, disclosure would interfere with the private lives of third parties involved in the interest in question (paras. 33-43).

Chapter 18: Sources of Funds – Council Tax

Note the Local Government (Structural Changes) (Finance) (Amendment) Regulations 2012, SI 2012/20; and the Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) Regulations 2012, SI 2012/ 444.

Chapter 19: Sources of Funds – Non-Domestic Rating

Note the Non-Domestic Rating (Collection and Enforcement) (Amendment) (England) Regulations 2012, SI 2012/24; the Non-Domestic Rating (Electronic Communications) (England) Order 2012, SI 2012/25; and the Non-Domestic Rating (Small Business Rate Relief) Order 2012, SI 2012/148. Note the Local Government Finance Bill, which proposes amending existing legislation to change how non-domestic rates are distributed to local authorities by inserting a new schedule (7B) in the 1988 Local Government Finance Act, which sets out the parameters of how that new system will work, including: how total business rates should be split between central and local government; a duty on billing authorities to either pay a “tariff” to, or receive a “top up”from, Central Government; and for billing authorities to make payments to upper tier authorities: this will balance funding across local authorities in order to ensure they all start on a stable footing and enable upper tier authorities to be included within the new system; that the “levy” on disproportionate growth and “safety net” payments will be handled via a separate single account, and that decisions about how these will be set will be taken in regulations; allowing for authorities to retain in full the rates growth in designated Tax Increment Financing (TIF2) and Enterprise Zone areas; and that local authorities can choose to form “pools” and can then be treated as a single authority under the scheme; and which also requires authorities to establish a council tax reduction scheme by 31 January 2013.

Chapter 20: Capital Finance

Note the Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2012, SI 2012/265, whose main effects are to bring securitisation within the capital finance framework, to relax the rules on bond investments, and to clarify the definition of capital expenditure; and the CLG Commentary on the changes, which slightly amends guidance with respect to Minimum Revenue Provision in the context of Housing Revenue Account reforms.

Chapter 23: Housing

Housing Allocation

An allocation scheme which required a gypsy applying for a caravan site pitch to provide documentary evidence of an address for correspondence within the area was not irrational because it required connections to the local area. A gypsy or traveller could use a “care of” address: R (McDonagh) v Hackney London Borough Council (QBD, unreported, judgment of Kenneth Parker J of 15 February 2012).

The DCLG published a consultation document entitled “Allocation of Accommodation – Guidance for Local Housing Authorities in England” in January 2012 in preparation for the coming into force of sections 145-147 of the Localism Act 2011. The consultation period ends on 30 March 2012.

Housing Benefit

Housing benefit is usually only paid to cover communal fuel or cleaning costs where the individual is in sheltered accommodation. In Oxford City Council v Basey [2012] EWCA Civ 115 the Council had refused to pay the claimant housing benefit to cover these costs primarily because it interpreted sheltered accommodation as requiring a dedicated warden, which the claimant’s accommodation did not have. The Court of Appeal, agreeing with the Upper Tribunal, held that sheltered accommodation is a more flexible concept and may take many forms.

A landlord providing supported housing was not, on the facts, a “person affected” within the meaning of regulation 3 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 where it sought to bring appeals against housing benefit decisions in respect of its tenants.

Housing benefit is for the benefit of occupiers, not landlords, who could be authorised to act as agent where appropriate: Wirral Metropolitan Borough Council v Salisbury Independent Living Ltd [2012] EWCA Civ 84.

The Social Security (Electronic Communications) (No.2) Order 2011 amends the Housing Benefit Regulations to allow the use of the direct.gov.uk website to notify the DWP of the death of a family member of a benefit recipient, from 23 January 2012.The Income-Related Benefits (Subsidy to Authorities) Amendment Order 2011 makes provision for the payment of subsidies to authorities administering housing benefit, reimbursing for both the benefit paid and towards administration costs. New rent limits are also specified, from 1 February 2012.

Gypsies

In Rooney v Secretary of State for Communities and Local Government [2011] EWCA Civ 1556 the Court of Appeal confirmed that an application for planning permission under the Town and Country Planning Act 1990 by gypsies on a caravan site engages a fundamentally different statutory scheme to that of the Housing Act 1996. As a result of the full merits review conducted by the planning inspector, which included proportionality, the court was not also required to investigate proportionality and the judgments of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 WLR 1441 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2

WLR 287 did not apply.

Human Rights

The European Court of Human Rights found a breach of the positive obligation on the part of the State to secure respect for the Article 8 rights of an individual where the State had failed to take any enforcement action in respect of a court judgment entitling the individual to recover a flat from which she had been wrongly evicted for non-repayment of a loan: Kontsevych v Ukraine (Application No. 9089/04) (judgment of 16 February 2012). The applicant was awarded damages of €8,000.

The making of a possession order in favour of the Moscow Housing Department over a property which was the applicant’s home, purchased in good faith, without consideration of the proportionality of the order was a breach of Article 8: Gladysheva v Russia (Application No. 7097/10) (judgment of 6 December 2011). The domestic court was ordered to restore the applicant’s title.

In a case evidencing considerable grumpiness, the applicant in Maempel v Malta (Application No. 24202/10) (judgment of 22 November 2011) complained that his Article 8 rights had been infringed by fireworks displays which were carried out by private individuals in fields close to his home for about two weeks per year. The European Court of Human Rights accepted that it was irrelevant that the infringing action was being done by private individuals, and accepted that fireworks displays could be described as noise pollution, but found no breach of Article 8 on the basis that there was no lasting damage (which was minor in any event) and the applicant had bought the house knowing of such activities.

Right to Buy

The DCLG published a consultation document entitled “Reinvigorating the Right to Buy and One for One Replacement” in December 2011 proposing an increase on the right to buy caps. The consultation period ended on 2 February 2012.

In Francis v London Borough of Southwark [2011] EWCA Civ 1418 the Court of Appeal confirmed that an alleged denial of an entitlement to exercise the right to buy could only be challenged by bringing proceedings in the County Court and not by an action for damages for breach of statutory duty.

Housing Revenue Account

The DCLG published, on 1 February 2012, its final determinations on the subsidies that local authorities will receive or pay as they exit the Housing Revenue Account system on 28 March 2012, as well as the new determinations for April 2012 onwards under the Localism Act 2011, and the introduction of a cap on the level of housing debt.

Legislation

Certain provisions of the Localism Act 2011 came into force on 15 January 2012. Local housing authorities are entitled to draft and consult on allocation schemes under sections 145-147, and are obliged to publish a tenancy strategy under sections 150-153. The Secretary of State may make regulations as to the applicable procedures regarding flexible tenancies (section 154) and on allocation schemes (sections 145-147). The Regulation Committee of the Homes and Communities Agency is established in preparation to take over the functions of the Tenant Services Authority (section 178).

Chapter 24: Local Authority Education Law

In R (Roberts) v Welsh Ministers and Cardiff City Council [2011] EWHC 3416 (Admin) it was held that a local authority is not precluded from adopting a policy which seeks to match school places with the likely demand from children within the catchment area of the school. The Judge held that the effect of s9 of EA 1996 and s86(1) of SSFA 1998 was that all local authorities have a duty to comply with parental preference unless compliance with the preference would prejudice the provision of efficient education or efficient use of resources within their administrative area. However, these did not preclude the adoption of a policy which sought to match school places with the likely demand from children within the catchment area of the school. Nor did the provisions make it unlawful for a local authority to have a policy which encourages children to attend the school in whose catchment area they reside. The Judge held that a local authority has an unqualified obligation to secure efficient primary education to meet the needs of the population of its area (under s13 of EA 1996) and it was open to them to conclude that an appropriate means of securing such efficient education for the whole of its area was to seek to achieve a reasonable match between the number of places at a particular school and the demands for such places from the catchment area of the school.

On barring decisions and legitimate expectations, see R (W) v Secretary of State for Education [2011] EWHC 3256, in which a teacher unsuccessfully challenged the SoS’s decision under s142 of EA 2002 to bar him from working with children on grounds including that it was an abuse of power because it was taken in breach of a substantive legitimate expectation. Singh J concluded that the Claimant did have a substantive legitimate expectation, based on a letter, that he would not have further action taken against him unless further misconduct came to the Department’s attention: the letter contained a representation to that effect which was clear, unambiguous and devoid of relevant qualification. However, the SoS had satisfied the burden of proving that there was an overriding reason in the public interest which entitled him to change his mind. The test was whether the SoS had a legitimate aim and had acted proportionately. The legitimate aim was the manifest and pressing public interest in protecting children, in particular from the risk of sexual abuse. As for proportionality, the Judge found that the decision in question was the SoS’s decision to reconsider the Claimant’s case (rather than the SoS’s subsequent decision to bar the Claimant from working with children). He concluded that the decision to reconsider was proportionate, given that the SoS had only reconsidered cases where it was thought that there might be a current risk to children; the SoS had sought to devise fair procedures which would be followed before a barring order was imposed, which included the right to make representations, the involvement of an expert panel chaired by an eminent and respected person from outside the department, the advice of the Lucy Faithfull Foundation which had expertise and experience in the field and the opportunity to have a face to face assessment; and there was a right of appeal to an independent judicial body against any subsequent decision to bar an individual from working with children. Singh J commented that in any event he would have dismissed the claim because the right to appeal to a tribunal against the barring decision was an adequate alternative remedy.

On the right to education conferred by Art 2 of Protocol 1 of the ECHR, and Art 14 read therewith, see R (Hurley) v SoS for BIS [2012] EWHC 201 (Admin).

In Macaulay v Newham LBC, 16 February 2012, the High Court refused the application for an injunction on behalf of teachers suspended from working at one of the Borough’s schools pending an investigation into allegations of falsification of attendance registers. The teachers argued that their suspension was a breach of the implied term of trust and confidence because there was insufficient evidence to support the allegations and no need for them to be suspended pending the investigation, which had already lasted 4 months. They sought interim relief pending trial compelling the authority to end their suspension and make reasonable endeavours to find alternative work for them. Lloyd Jones J refused the applications. In doing so, he recognised that what was sought by way of interim relief would effectively dispose of the proceedings and therefore that it was appropriate to consider the likelihood of the teachers obtaining relief at trial and not simply whether there was a ‘serious issue to be tried’ in accordance with standard American Cyanamid principles. He concluded that the suspensions on full pay were properly in accordance with the school’s disciplinary procedure, which provided for suspensions in cases of alleged gross misconduct. He further considered that the local authority had a sufficient basis for investigating the allegations, and that the authority was acting reasonably in withholding further evidence pending the completion of the investigation as to do otherwise might prejudice the outcome of the investigation. He accepted that the authority had acted reasonably in concluding that having the teachers at school during the investigation might prejudice the outcome of that investigation. He also accepted that although the investigation was taking some time, the period to date had been reasonable having regard to the nature of the investigation and the steps that had been taken. In the circumstances, he considered that there was not a serious issue to be tried, or a good arguable case and accordingly the teachers failed the first American Cyanamid hurdle. However, he observed that even if they did have a good arguable case, an injunction would have been refused because damages would not have been an adequate remedy for either party and, moreover, there had been a breakdown of trust and between the teachers and the school which meant that an injunction was inappropriate. 

Note the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012, SI 2012/8, the School Admissions (Appeal Arrangements) (England) Regulations 2012, SI 2012/9, and the School Admissions (Infant Class Sizes) (England) Regulations 2012, SI2012/10. The first of these covers selection, priority for “looked after” children, consultation on admission arrangements, publication of admission arrangements, variation of determined admission arrangements, reference of objections to the Adjudicator (in the case of both maintained schools and academies), and co-ordination of admission arrangements, and mainly apply in relation to arrangements under which pupils are admitted to schools in England for the academic year 2013-2014 and subsequent years. The second prescribe the manner in which an Appeal Panel is to be constituted and the payment of allowances to Appeal Panel members and travel and subsistence expenses. The third revoke and replace the Education (Infant Class Sizes) (England) Regulations 1998 and the Education (Infant Class Sizes) (England) (Amendment) Regulations 2006, adding new categories of excepted pupils and changing the circumstances in which pupils cease to be excepted. The limit imposed is a maximum of 30 pupils in an infant class at any time while an ordinary teaching session is conducted by a single school teacher (or, where the session is conducted by more than one school teacher, a maximum of 30 pupils for every teacher). This limit applies in relation to the 2013-2014 school year and subsequent years for any maintained school which contains an infant class. Excepted pupils are children for whom suitable education cannot be provided in an infant class at that school without relevant measures (as defined) having to be taken and who are within one of nine specified categories.

Note the Education (School Teachers’ Appraisal) (England) Regulations 2012, SI 2012/115, which apply to any teacher employed for one school term or more, but not to any teacher whilst the teacher is undergoing an induction period, or any teacher whilst that teacher is the subject of capability procedures, and which require governing bodies and local authorities to have and make available a written document setting out the appraisal process; establish the appraisal period; require head teachers, governing bodies and local authorities to set objectives for teachers and inform each teacher of the standards against which that teacher’s performance is to be assessed; require the annual appraisal of the performance of teachers, an assessment of the teacher’s professional development needs and, where relevant, a recommendation on the teacher’s pay; and require the appointment of external advisers in respect of head teachers. The combined effect of the Regulations and the Model Policy, both of which come into force on 1 September 2012, is to make a number of changes to the way in which teachers are appraised and are monitored prior to removal. Most of the prescription in the current regulations will disappear, including the three hour limit on classroom observation. After September 2012, governing bodies and local authorities will be free to make their own decisions about the amount of observation that is appropriate for their teachers. They will also be free to decide many other matters on which they currently have no flexibility. The Model Policy removes an informal capability process and the suggested length of the monitoring and review period following a first warning has been reduced in length from 20 weeks to between 4-10 weeks. The length of the review period must be reasonable in the circumstances of each case, and must provide sufficient time for improvement to take place.

Note the Special Educational Needs (Direct Payment) (Pilot Schemes) Order 2012, SI 2012/206, which came into force on 30 January 2012. S532A of EA 1996 allows local authorities to make a payment to a person with a SEN statement or learning difficulty assessment for the purpose of securing (a) special educational provision specified in a SEN statement, (b) provision identified in a learning difficulty assessment as required to meet education and training needs, and/or (c) transport or anything else that may be subject to arrangements in s508B(1) (school children), s508F(1) (adult learners) or s509AA(7)(b) (sixth formers). Local authorities are only permitted to make such a payment in accordance with a pilot scheme made under s532B. S532B enables the SoS to make pilot schemes by order. Under the above Order the pilot scheme is for a period of two years, and applies to the 36 local authorities listed in Schedule 2. This is a significant change to how SEN provision is provided. The pilot scheme applies to a range of local authorities and those authorities are required to follow the scheme for all people with SEN statements or learning difficulty assessments.

Note the School Admissions Code and School Admission Appeals Code (Appointed Day) Order 2012, SI 2012/216, providing that the School Admissions Code and the School Admissions Appeal Code came into force on 1 February 2012.

Note the School Finance (England) Regulations 2012, SI 2012/335, which define the local authority education budgets (the non-schools education budget, the schools budget, the central expenditure and the individual schools budget) and set out how local authorities are to allocate funding from the individual schools budget to maintained schools and private, voluntary and independent providers of free early years provision (relevant early years providers) through a locally determined formula. These apply for the financial year 2012-2013 and replace previous versions of the regulations. There are three significant changes from the regime applicable under the 2011 Regulations: (1) Where a pupil in respect of whom a pupil premium is payable is permanently excluded from one school and admitted to another school, provision is made for the budget shares of both schools to be adjusted by an amount which equates to the appropriate portion of that premium; (2) Provision is made to allow for the remission of boarding fees for pupils registered at Academies to be charged to the schools budget; and (3) There are changes to the calculation of the minimum funding guarantee and to the circumstances in which the guarantee may be varied or disapplied.

Note the Education (School Day and School Year) (Wales) (Amendment) Regulations 2012, SI 2012/248 (W.41); the Education (Wales) Measure 2009 (Commencement No 3 and Transitional Provisions) Order 2012, SI 2012/320 (W.51); and the Education (Wales) Measure 2009 (Pilot) Regulations 2012, SI 2012/321 (W.52).

Chapter 25: Social Services

R (JG) v Lancashire County Council, on raising a FACS eligibility threshold and revising a social care services charging policy, is reported at [2011] LGR 909. R (O) v Hammersmith & Fulham LBC, on the appropriate placement for a child with autistic spectrum disorder, is reported at [2011] LGR 931, R (Palmer) v HM Coroner for Worcestershire, on the extent of a local authority’s duty to safeguard the right to life of vulnerable individuals who are in receipt of care from them, is reported at [2011] LGR 952.

On the fee to be paid by a local authority for residential care, see R (Mavalon Care Ltd) v Pembrokeshire County Council [2011] EWHC 3371 (Admin).

Note the Carers Strategies (Wales) (Amendment) Regulations 2012, SI 2012/282 (W.46).

Note also that a Welsh Government Consultation seeks views by 30 May 2012 on whether the existing social services complaints processes should be amended to meet the needs of service users

Chapter 26: Environmental Law

Note the Contaminated Land (Wales) (Amendment) Regulations 2012, SI 2012/283 (W.47).

On 23 February 2012 DEFRA and the Welsh Government instituted a Consultation (for response by 12 April 2012) on proposed amendments to the Waste (England and Wales) Regulations 2011. The 2011 Regulations transpose the revised Waste Framework Directive 2008/98/EC. A Judicial Review has challenged the transposition of the requirements of the Directive on the separate collection of recycling. DEFRA and the Welsh Government recognise that as drafted the Regulations do not accurately reflect these requirements and that they should be amended. The Court has granted a six-month stay of the Judicial Review proceedings to do this, until June 2012. The proposed amendment does not represent any change in the existing policy position. Nor has there been any change in EU law. The Consultation is only on whether the drafting changes serve to better transpose the Directive. The subject matter is the separate collection of recycling.

The Judicial Review is challenging the inclusion of co-mingled collection as a form of separate collection as being contrary to the Directive’s aims and obligations to promote high quality recycling, and a failure correctly to transpose the Directive. It is alleged that setting out that co-mingled collection is a form of separate collection is contrary to the Directive’s aims and obligations to achieve separate collection of four waste streams by 2015, and that separate, not co-mingled collection is desirable for reasons including that it achieves a higher standard of recyclate material.

Chapter 27: Highways

In Cusack v Harrow LBC [2011] EWCA Civ 1514 CA held that the Council was entitled under s66 HA 1980 (rather than s80) to erect barriers, in order to protect pedestrians, to prevent a property owner from driving over the footway in order to gain access to his forecourt, subject to paying compensation.

 

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