In R (Muir) v Wandsworth LBC (2017) EWHC 1947 (Admin) Lang J held that the Council lacked the power to grant a 15 year lease of a building on Wandsworth Common for use as a nursery for pre-school children. Under Section 10 of the Open Spaces Act 1906 and a Greater London Open Spaces Order the Council held not only the Common itself but also buildings on the Common on a statutory trust. The beneficiaries of the trust are the inhabitants of Wandsworth. The Council was obliged to maintain access for all local residents for the primary purpose of public recreation.

In Southwark LBC v Transport for London (2017) EWCA Civ 1220 the Court of Appeal applied the common law meaning of “highway” as only the road surface and “the top two spits” of subsoil necessary to use as a highway, and not the entire vertical interest in the land on which the highway runs.

In R (St John’s College, Cambridge) v Cambridgeshire County Council (2017) EWHC 1753 (Admin) the College sought permission to apply for judicial review of two decisions of the Council in its capacity as commons registration authority for the area under the Commons Act 2006.  The decisions challenged related to an application on behalf of a Residents Association to register land belonging to the College as a town or village green under Section 15 of the 2006 Act. The case raised, apparently for the first time, the question whether the correction of defective applications to ensure that they are duly made under the 2006 Act is limited to one occasion only. Read more »

In R (Hemming) v Westminster City Council (2017) UKSC 50, Supreme Court Judgment on 19 July 2017, is a sequel to the Supreme Court’s previous judgment dated 29 April [2015] UKSC 25; [2015] AC 1600. It is written with the benefit of the Court of Justice’s answer dated 16 November 2016 ((Case C-316/15) [2017] PTSR 325) to the question which that judgment referred to the Court of Justice. The appeal concerns fees which were charged to the respondents on applying to Westminster City Council for sex shop licences for the three years ended 31 January 2011, 2012 and 2013 and which included the Council’s costs of enforcing the licensing scheme against unlicensed third parties running sex shops (“enforcement costs”). The respondents’ applications all in the event succeeded. Read more »

The Local Government Association has published Guidance for Councils on Public Spaces Protection Orders under the Anti-social Behaviour, Crime and Policing Act 2014.

On 27 April 2017 the Bus Services Act 2017 received the Royal Assent.

On 27 April 2017 the Parking Places (Variation of Charges) Act 2017, extending to England and Wales, received the Royal Assent. It makes provision in relation to the procedure to be followed by local authorities when varying, from 2 months after this date, the charges to be paid in connection with the use of certain parking places.  Section 1 relates to the procedure for varying charges at off-street parking places.  It amends Section 35C of the Road Traffic Regulation Act 1984. Section 2 of the 2017 Act relates to the procedure for varying charges at designated parking places.  It amends Section 46A of the 1984 Act.  Regulations under Section 35C and 46A of the 1984 Act may now make “different provision for different purposes”.

In Cavanagh v Witley Parish Council, Queen’s Bench Judgment on 14 February 2017, the Parish Council was found liable in negligence when a large mature lime tree on its land, with severe and extensive decay in the root system extending into the base of the trunk, fell across a road and onto a bus, causing the driver severe injury.  It was a busy public road. The tree, which leant towards the road, and was over 20 metres high, was in a high risk position alongside the road, albeit, on cursory observation, in a healthy condition.  It required regular inspection by a competent arboriculturalist.  The Council’s three-yearly inspection policy with regard to its tree stock was “inadequate”.  Inspection should have been more frequent.  The Council had been advised to do the survey every two years.  The local Borough Council had at the relevant time been operating a one-year inspection in respect of trees in high-risk areas, including apparently healthy trees. Read more »

In Case C-129/16, Turkevei v Orszagos, the ECJ is once again asked to clarify the consequences of the polluter-pays principle. This time, the question is whether the owner of a leased-out plot of land may be penalised because waste was illegally incinerated there and that owner did not identify who was the actual user of the land or prove that it, the owner, bears no responsibility for the breach. Although the national court raised this question in the context of the Environmental Liability Directive, that Directive is not applicable because it does not contain any provisions on penalties. Penalties for the illegal incineration of waste instead should rather be assigned to the Waste Directive.  It also is based on the polluter-pays principle and expressly requires effective penalties for breaches. Moreover, because penalties are involved, in addition to the polluter-pays principle, the proportionality principle, which limits the imposition of penalties, must also be considered, as must the presumption of innocence.

Advocate General Kokott, in an Opinion on 16 February 2017, advises as follows. Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage is not applicable to either the imposition of penalties for breaches of obligations under environmental law or to pollution of air quality which does not cause damage to protected species or natural habitats, water or land. Article 36(2) of Directive 2008/98/EC on waste, the polluter-pays principle in Article 191(2) TFEU, the principle in Article 49(3) of the Charter of Fundamental Rights that penalties must be proportionate, and the presumption of innocence in Article 48(1) of the Charter do not preclude the imposition of an appropriate penalty on the owner of a leased plot of land which is based on the statutorily determined presumption that the landowner and the actual user of the land share responsibility for the breach, on that land, of legal rules governing waste management, if it is in principle possible to rebut this presumption by means of reasonable evidence.  However, Member States cannot use Article 193 TFEU as the basis for imposing penalties for the breach of waste management obligations which are founded on unreasonable requirements or which are inappropriate.