The successful appeal to the Supreme Court in Southwark LBC v Transport for London, in which Judgment was given on 5 December 2018, concerned the effect of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (“the Transfer Order”) and the GLA Roads Designation Order 2000 (SI 2000/1117) (“the Designation Order”). By combined operation of those Orders, responsibility for Greater London Authority (“GLA”) roads was transferred from individual London borough councils, including the Respondents (“the Councils”) as local highway authorities, to the Appellant (“TfL”). The provision at the heart of the appeal was Article 2(1)(a) of the Transfer Order, which provides for the transfer of “the highway, in so far as it is vested in the former highway authority”. Read more »

The Environmental Protection (Miscellaneous Amendments) (England and Wales) Regulations 2018, S.I. 2018/1227 (“the 2018 Regulations”), make amendments to the Environmental Protection Act 1990 (“the EPA”) and the Environmental Permitting (England and Wales) Regulations 2016, S.I. 2016/1154 (“the EP Regulations”).

The 2018 Regulations amendments relate to matters including new conditions for environmental permits authorising certain waste operations, and provisions relating to flood risk activities and radioactive substance activities. Read more »

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.

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 »

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 »

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.

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.”.

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 »

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

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.