November 23rd, 2018 by James Goudie QC in Environment, Highways and Leisure

In R (Sefton MBC) v Highways England (2018) EWHC 3059 (Admin) Kerr J dismissed an application for judicial review by Sefton Council and held that Highways England, when considering options for a new link road, to improve access to the Port of Liverpool, were not acting unlawfully by declining to include in their consultation on their preferred option of an access road through a country park the alternative option of a tunnel. There was no procedural unfairness in dismissing the tunnel option, and excluding it from the consultation, on grounds of expense.

There was no legitimate expectation to the contrary. Highways England was entitled to limit the parameters of its consultation in the way that it did; and the consultation was, in the Court’s determination, fairly conducted. What fairness requires is fact sensitive. Consultees remained free to advocate so-called “dismissed” options and bring them back to centre stage.

Fairness does not require time and public money to be spent on a proposal costing substantially more than the allocated budget for the project would bear. Indeed the arguments that the tunnel should not be regarded as unaffordable, that alternative claims on public funds should be given a lower priority, and that the budget should be revised upwards, are political arguments, for government, not a matter for the Courts. There were appropriate processes available to consider environmental issues, including the processes with respect to a Development Consent Order.


Village Green

May 16th, 2018 by James Goudie QC in Environment, Highways and Leisure

In Cotham School v Bristol City Council (2018) EWHC 1022 (Admin) the Council   is the owner of the freehold interest in Stoke Lodge Playing Fields. It is also the Commons Registration Authority empowered to register land as a town or village green pursuant to Section 15 Commons Act 2006.  In 2011 application was made to register the land as a town or village green. The applicant was acting on behalf of an unincorporated association known as “Save Stoke Lodge Parkland”. Objections to the application were received. In the face of conflicting views about whether the land should be registered the registration authority decided that it would appoint an Inspector to make a recommendation about whether the land should be registered. In May 2013 the Inspector issued a Report in which he recommended that the land should be registered as a green. However, that recommendation was not implemented. In the years immediately following the publication of the Report there were a number of cases proceeding through the Courts which were relevant to the issues raised in this case. Ultimately a decision was taken that before a decision was made as to whether the land should be registered the Inspector should conduct a non-statutory Public Inquiry at which oral evidence would be given. In June and July 2016 the Inspector conducted such an Inquiry. In October 2016 the Inspector produced a comprehensive written Report. In it, he recommended that the land should not be registered as a green. He expressed the view that one aspect of the statutory test for registration had not been satisfied.  The Inspector’s Report was considered at the Public Rights of Way and Greens Committee of the Council in December 2016.  In the event the Committee resolved (on the Chair’s casting vote) to reject the Inspector’s recommendation and to grant the application for registration. Read more »


Waste Operation

May 3rd, 2018 by James Goudie QC in Environment, Highways and Leisure

Stone v Environment Agency (2018) EWHC 994 (Admin) concerned an offence under the Environmental Permitting Regulations of knowingly permitting the operation of a regulated facility without being authorised by an environmental permit. The regulated facility was a “waste operation” for the storage of waste. There were two questions: whether there was a continuing waste operation; and whether the accused had to have taken a positive act during the relevant period, or simply to have known that a waste operation was taking place.  Nicol J held that there was a continuing waste operation; and that “knowingly permitting” did not require proof of a positive act. Read more »


Village Greens

April 18th, 2018 by James Goudie QC in Environment, Highways and Leisure

Did the concept of “statutory incompatibility” defeat an application for the registration of land as a town or village green under Section 15 of the Commons Act 2006? That question arose in each of two appeals, R (Lancashire County Council) v SoS for the Environment and R (NHS Property Services) and Surrey County Council v Jones, (2018) EWCA Civ 721. No, ruled the Court of Appeal, unless there was an inherent inconsistency between the statutory purpose for which the land was held and the use for public recreation.  The use of land for educational or healthcare purposes was not incompatible with its use as a village green.


Whether Information Held

March 2nd, 2018 by James Goudie QC in Environment, Highways and Leisure

In Holder v ICO, EA/2017/0168, the FTT on 27 February 2018 upheld a decision by Northamptonshire County Council that it did not hold information beyond what it had disclosed as highway authority and a statutory consultee with respect to the traffic impacts of a proposed development the subject matter of a planning application to South Northamptonshire District Council.   Judge Hughes observed, at paragraph 19:-

“The right of the individual citizen under FOIA and EIR is to receive the recorded information held which matches the request for information.  It is not a right to an explanation of or a justification of the record-keeping practices or complaints-handling processes of the public body.”.


Unmanned Car Park

January 2nd, 2018 by James Goudie QC in Environment, Highways and Leisure

In Cook v Swansea City Council (2017) EWCA Civ 2142 the Court of Appeal upheld a finding that the Council had not breached its duty under the Occupiers’ Liability Act 1957 to take reasonable care to ensure that visitors would be reasonably safe when using in icy conditions an unmanned car park, owned and operated by the Council, and had not been negligent.  The Car Park in question is one of 46 car parks operated by the Council. Situated in a suburb of Swansea, it is a small 24 hour pay and display car park (with spaces for 40 cars) which is open to the elements. Like the vast majority of the Council’s car parks, the Car Park is unmanned (the exceptions are three multi-storey car parks and three park and ride car parks).  In bad weather the manned car parks will be gritted. The unmanned car parks do not get gritted. The Council operates a reactive system of gritting in its unmanned car parks, whereby it does not pre-emptively grit them but does so only when it receives a report from a member of the public about a dangerous area. Read more »


Community Transport

December 15th, 2017 by James Goudie QC in Environment, Highways and Leisure

The House of Commons Transport Committee has issued a Report on Community Transport.


Hiring a council park

November 20th, 2017 by James Goudie QC in Environment, Highways and Leisure

In R (Friends of Finsbury Park) v Haringey LBC (2017) EWCA Civ 1831 the Court of Appeal has dismissed an appeal from Supperstone J dismissing a claim for judicial review of a decision by Haringey Council to hire part of Finsbury Park for a licensed music Festival, pursuant to Section 145 of the Local Government Act 1972.

The Council held Finsbury Park under Section 10 of the Open Spaces Act 1906 or a statutory trust for use by the public for recreation. The public were its beneficial owners.  They had a statutory right to use it for recreational purposes.  The local authority owner must generally allow the public the free and unrestricted use of it.  It cannot exclude the general public from it.  All that, however, is subject to contrary legislative provisions.

The Court of Appeal, agreeing with Supperstone J’s reasons, held that Section 145 of the 1972 Act provided the Council with power to enclose part of Finsbury Park for the purposes of events such as the Festival. They were not limited to considering the application for hire only under other statutory provisions. They were able to do so notwithstanding the trust under the 1906 Act, provided that they used the 1972 Act power lawfully and not to frustrate the legislative purpose.


Minicab licensing

November 13th, 2017 by James Goudie QC in Environment, Highways and Leisure

In R Milton Keynes Council v Skyline Taxis and Private Hire Limited (2017) EWHC 2794 (Admin) considered an appeal with respect to offences under the Local Government (Miscellaneous Provisions) Act 1976 of operating a vehicle as a private hire vehicle for which a licence was not in force and the driver of which was not licensed.  The Divisional Court set out the legal background as follows.

There are two types of car available for hire to transport passengers, namely hackney carriages (or “taxis”) and private hire vehicles (or “minicabs”), to which different rules apply. The appeal concerned only the latter. Moreover, it concerned only the provisions which apply to out-of-London private hire vehicle operations. Different provisions apply to minicabs in London. Read more »



November 6th, 2017 by James Goudie QC in Environment, Highways and Leisure

The Environmental Offences (Fixed Penalties) (England) Regulations 2017, SI 2017/1050, (“the 2017 Regulations”), supplement provisions in Acts for fixed penalties payable in respect of offences relating to the environment. They replace the Environmental Offences (Fixed Penalties) (Miscellaneous Provisions) Regulations 2007 (“the EOR 2007”) (except for Regulation 2(2)(b) and 3(2)(b) of the EOR 2007). The 2017 Regulations prescribe the ranges within which the amounts of certain fixed penalties that are capable of being specified by a local authority are required to fall (Regulations 2 to 5). The ranges for littering, free distribution of printed matter on designated land and graffiti and fly-posting (see Regulations 4 and 5) are different to those under the EOR 2007. For the period beginning with 1 April 2018 and ending with 31 March 2019, the range is not less than £50 and not more than £150 (Regulation 4). From 1 April 2019, the range is not less than £65 and not more than £150 (Regulation 5).

Regulations 6 and 7 amend the Environmental Protection Act 1990 and the Anti-social Behaviour Act 2003 in relation to England to increase the amount of the penalties for littering, free distribution of printed matter on designated land and graffiti and fly-posting where a local authority does not specify an amount. The penalty for each is increased from £75 to £100.

The 2017 Regulations also state a minimum lesser amount which an authority may treat as payment of the full amount if paid before the end of a period specified by the authority in relation to certain fixed penalties (Regulations 8 to 11).