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.

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 »