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.

The claim in TW Logistics Ltd v Essex County Council (2017) EWHC 185 (Ch)  involved the question whether an area of land forming part of the Port of Mistley in Essex (“the Land”) should remain registered as a town or village green (“TVG”) pursuant to the Commons Act 2006 (“the 2006 Act”), or whether the TVG register should be rectified by the de-registration in whole or in part of the Land by the exercise of the Court’s jurisdiction under Section 14 of the Commons Registration Act 1965 (“the 1965 Act”).  The Claimant, TW Logistics Limited (“TWL”) sought an order that the TVG register be rectified by the removal of the Land, and a declaration that the Land is not a TVG. The First Defendant, the Registration Authority (“Essex CC”), contended that the claim should be dismissed on the basis that the Land was correctly registered. There was no dispute about the approach which Barling J should take in dealing with the claim. It was common ground that the correct approach to a claim for rectification under Section 14 of the 1965 Act is to be found in a passage from the judgment of Lightman J in Betterment Properties (Weymouth) Ltd v Dorset County Council [2007] 2 All ER 1000, at paragraphs 14-16 inclusive, with which the Court of Appeal expressly agreed ([2009] 1 WLR 334). Read more »

In Crawley v Barnsley MBC (2017) EWCA Civ 36 the majority of the Court of Appeal upheld that a local authority’s system, whereby reports of potentially serious defects in minor roads reported by members of the public on a Friday afternoon or over the weekend would not be dealt with until the following Monday, was inadequate.  Although reduced staffing levels over a weekend was reasonable, there had to be some means of responding quickly to complaints from members of the public of serious and dangerous defects in the road. Read more »

In Hamnett v Essex County Council (2017) EWCA 6, the Appellant, who is disabled, and the group which she chairs, were concerned at the impact upon them of Experimental Traffic Regulation Orders (“ETROs”), and in particular the removal of disabled parking.  She made an application for statutory review of the ETROs under the Road Traffic Regulation Act 1984 (“RTRA 1984”).  Her case alleged not only breach of the PSED but also breach of Section 29 of the Equality Act 2010 (“the 2010 Act”).  It failed for lack of jurisdiction.  Gross LJ, with whom Tomlinson and King LJJ agreed, said:- Read more »

In Surrey County Council v Windsor and Maidenhead RBC (2016) EWHC 2901 (Admin) it was held that a local authority had not breached its obligation under Regulation 6 of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 to consult other local authorities when making a Traffic Regulation Order (“TRO”).  It was acceptable to conduct that consultation at the same time as giving notice of the proposed TRO under Regulation 7 of the 1996 Regulations.

In Case C-316/15, R (Hemming) v Westminster City Council the CJEU has ruled that licensing authorities are precluded by the Services Directive from requiring applicants for the grant or renewal  of a sex establishment licence to pay a fee that includes in part the cost of managing and enforcing the relevant authorisation scheme, even if that part is refundable if the application is refused.  The CJEU said:-

“29      In order to comply with Article 13(2) of the Services Directive, the charges referred to must, in the words of that provision, be reasonable and proportionate to the cost of the authorisation procedures and not exceed the cost of those procedures.

30     Since the amount of such charges may, in the light of those requirements, in no case exceed the cost of the authorisation procedure in question, it must be examined whether the costs relating to the management and enforcement of the authorisation scheme as a whole may be covered by the concept of the ‘cost of the procedures’.

31     While the Court has not yet had occasion to interpret that concept in the context of the Services Directive, it has clarified, in another context, that in calculating the amount of duties paid by way of fees or dues, the Member States are entitled to take account, not only of the material and salary costs which are directly related to the effecting of the transactions in respect of which they are incurred, but also of the proportion of the overheads of the competent authority which can be attributed to those transactions (judgment of 2 December 1997, Fantask and Others, C‑188/95, EU:C:1997:580, paragraph 30).

32      In addition, the Court has clarified – indeed, in relation to a provision of EU law expressly allowing the costs relating to the implementation, management and monitoring of a regime for issuing individual licences to be taken into account in calculating administrative costs – that the costs taken into account may not include the expenditure linked to the authority in question’s general supervisory activities (see, to that effect, judgment of 19 September 2006, i-21 Germany and Arcor, C‑392/04 and C‑422/04, EU:C:2006:586, paragraphs 34 and 35).

33      That consideration applies a fortiori as regards Article 13(2) of the Services Directive which, first, is directed only at the ‘cost of the procedures’ and, secondly, pursues the aim of facilitating access to service activities. That aim would not be served by a requirement to prefinance the costs of the management and enforcement of the authorisation scheme concerned, including, inter alia, the costs of detecting and prosecuting unauthorised activities.”

R (Moore) v SoS for CLG and Watford Borough Council (2016) EWHC 2736 (Admin) is an unsuccessful review challenge to a decision of the SoS to grant consent to the Council under Section 8 of the Allotments Act 1925 for the appropriation under Section 122 of the Local Government Act 1972 of allotment land for use as part of a redevelopment scheme.

The SoS could grant consent only if that was justified by exceptional circumstances. Lang J rejected the Claimant’s submission that the SoS could not rely on the cumulative weight of individual factors in support of a finding of “exceptional circumstance” unless each factor amounted to an exceptional circumstance taken on its own.  She also rejected the Claimant’s submission that the SoS had failed to apply the policy in his Guidance.  On ECHR A1P1 and proportionality, the Judge found that (1) there was a legitimate aim (the benefits of the scheme), (2) the grant of consent was rationally connected to that legitimate aim, (3) that legitimate aim could not have been achieved by a less intrusive measure, and (4) on a fair balance, the benefits of achieving the aim by the measure outweighed the disbenefits resulting from the restriction of the relevant protected right.  Lang J concluded:-

“In my judgment the Secretary of State was correct to hold that the interference with the A1P1 rights of the allotment holders was justified and proportionate because of the wider public benefits to be gained by incorporation of the Allotments into the Scheme.  Given the allocation of new allotments nearby, the assistance to re-locate, and financial compensation to the allotment holders, I consider that a fair balance has been struck.”

In Durham Company Limited (t/a Max Recycle) v HMRC (2016) UKUT 417, the Upper Tribunal has rejected a judicial review challenge brought by a private recycling company with regards to the VAT exemption enjoyed by councils on commercial waste collections under Section 4591) of the Environmental Protection Act 1990.