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.

In R (Tilley) v Vale of Glamorgan Council [2016] EWHC 2272 (QB), in the Administrative Court in Wales, Lewis J concluded that the Council’s Cabinet Decision to establish five community libraries was lawful. The Council did not act irrationally in its approach to the determination of whether there would be sufficient volunteers to enable a community library to operate.  It had sufficient information to enable it to consider the viability of the revised Business Case for establishing a community library.  There was nothing to indicate that its decision would result in a failure to provide a comprehensive and efficient library service under Section 7 of the Public Libraries and Museums Act 1964 (“the 1964 Act”).  It complied with its PSED obligations under Section 149 of the Equality Act 2010 and had due regard to the matters set out in that Section.  Section 28 of the Children Act 2004 (“the 2004 Act”), the Welsh equivalent to Section 11 of the 2004 Act in England, was not intended to incorporate Article 3 of the UN Convention but, even if it did, the decision in the present case would either not involve any breach of Article 3 or would not call for the grant of any remedy in the present case.

As to the assessment of the viability of the revised Business Case, Lewis J found, at paragraph 36, that the Cabinet did approach the decision on whether to establish a community library on the basis that the viability of the revised Business Case was a material consideration which they wished to take into account when reaching its decision. The Court therefore needed to identify the relevant principles, and their application to the facts of the case, to determine whether the Council could, and did, consider the question of the viability of the revised Business Case. The Report to Cabinet (supplemented, if appropriate by further information provided at the Cabinet Meeting) would need to provide adequate information to enable the Cabinet Members to reach a conclusion on the issue of viability.   Furthermore, if there were significant concerns on the part of the Officers as to viability, those particular concerns would need to be drawn to the attention of the Members of the Cabinet.  That approach appears from, amongst other decisions, that of Richards J as he then was in R (Georgiou) v Enfield London Borough Council [2004] LGR 497. A similar approach was adopted in the different, but analogous, context of how much information a Minister needed to be provided with in order to reach a decision in R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154.

At paragraph 38, Lewis J said that it may be permissible to infer that Councillors will have read a document where they have been given a copy of the document or if they have been expressly referred to it and advised that they need to have regard to it. It may not be possible, however, to infer that they have read an ancillary document if they are not advised to do so. Thus, it could not be inferred that Councillors would have read an Equality Impact Assessment for the purposes of discharging their PSED duty under Section 149 of the Equality Act 2010 when its contents were summarised in an Appendix but they were not provided with a copy and not, expressly or impliedly, told to consider the contents of the document itself.

Lewis J recognised, at paragraph 43, that, ideally, more information could have been provided. The Report itself (or an Appendix to it) could have dealt in more detail with the criteria used to assess the Business Cases, the assessment made on each of the relevant issues and the reasons why the Officers were satisfied that the revised Business Cases did address the relevant criteria. Ultimately, however, the question was whether the information actually submitted enabled the Cabinet to reach an informed conclusion on whether to establish the proposed community libraries and whether any information about significant concerns had been omitted from the Report in a way that rendered the Report misleading. On the facts of this case, the information provided was sufficient to enable the Cabinet to conclude that the revised Business Cases were viable and to agree to establish the community libraries and to delegate authority to enter into legally binding agreements on the running of the library (with the matter returning to the Cabinet if such agreements could not be reached). No information was withheld from the Cabinet. This ground of challenge, therefore, failed.

As Lewis J observed, at paragraph 47, the scope of the duty under Section 7 of the 1964 Act has been considered by the Courts on a number of occasions. It was sufficient to refer to the decision of Collins J in R (Draper) v Lincolnshire County Council [2014] EWHC 2388 (Admin), [2015] PTSR 769.   Collins J recognised that a comprehensive and efficient service did not mean that every resident had to live close to a library but rather that it meant providing a service that is accessible to all using reasonable means including digital technologies.

At paragraph 57, Lewis J found that the Council did carry out an assessment of the needs for library services within its area. There was no basis for the contention that the Council’s assessment was superficial or conducted at too high a level. In particular, the Council was entitled to assess needs and service provision by reference to the needs of the population of its administrative area as a whole. It was not under a duty to consider whether the residents of each of the catchment areas where a community library was proposed would continue to receive a comprehensive and efficient library service. There was no basis for concluding that the service that it would provide would fail to meet the requirements of a comprehensive and efficient library service for its area.

As to the PSED, the principles were usefully summarised by Wilkie J in R (Williams) v Surrey County Council [2012] Eq.L.R. 656; and the decision of the Court of Appeal in R (Bailey) v Brent LBC [2012] LGR 530 offered helpful guidance on how to determine whether a public body has complied with the PSED. From paragraph 64, Lewis J concluded that it was clear in the circumstances that the Cabinet did have regard to its duty under Section 149 of the 2010 Act. The Members were provided with full and detailed information on the potential impacts on groups with protected characteristics both of establishing each of the five proposed community libraries to replace existing Council-run libraries and of closure of a particular library. They were told that they had to analyse the relevant material with the specific statutory considerations in mind. On any fair and reasonable reading of the material, it was clear that the Cabinet did discharge its duty under Section 149 of the 2010 Act. In any event, Cabinet did consider in the Report and in the Appendices, including the Equality Impact Assessment, potential adverse effects and potential mitigating measures if a community library were established but were to fail in the future resulting in its closure. Again, on any fair reading of the material, the Council did conscientiously have due regard to the matters in Section 149 of the 2010 Act. They were aware of the potential adverse impacts on protected groups that closure of a library could have and considered mitigating measures. The reality was that the Report was a full, detailed and thorough report. It summarised the duty under Section 149, explained how Members should set about discharging their duty, and provided the information necessary to enable the Members to do so. The Appendices, including the needs assessment, the Equality Impact Assessment and the summary of the potential impact and mitigating measures, were detailed, clear and comprehensible. These documents were provided to Members and they were asked to confirm that they had the opportunity to read them. There was no basis for inferring that there was any failure to have due regard to the matters set out in Section 149 of the 2010 Act when Cabinet took the decision to establish community libraries.

Finally, as to Section 28 of the 2004 Act, that Section was not intended to incorporate, or give effect to, Article 3 of the UN Convention, in the law of England and Wales, principally for the following reasons. The language used in Section 28 of the 2004 Act is different from the language used in Article 3 of the UN Convention and reflects a different concept. The obligation under Section 28 of the 2004 Act is an obligation to make arrangements to ensure that the relevant body’s functions are discharged having regard to the need to safeguard and promote the welfare of children. By contrast, Article 3 of the UN Conventions uses different language and is concerned with a different concept, namely ensuring that the best interests of the child is a primary consideration in the decision-making of relevant bodies. The language used in Section 28 is not apt to be read as providing that the best interests of the child are to be a primary consideration in the exercise of any local authority function. It is true that the two obligations may well often, perhaps frequently, overlap. The arrangements made to promote or safeguard welfare may well lead in particular cases to decisions which result in the best interests of the child being taken into account as a primary consideration. The two obligations are, however, conceptually and linguistically separate. The language of Section 28 of the 2004 Act does not lead to the conclusion that Parliament intended that Section to be the vehicle by which the public authorities to which the Section applied were to be required to ensure that the best interests of the child were to be a primary consideration when exercising any of their functions.

In short, Section 28 of the 2004 Act does not incorporate the requirements of Article 3 of the UN Convention but, even if it did, the decision taken in this case either did not involve any breach or, if there was any breach, the decision reached in this case would have been the same and no remedy would have been granted. The Claimant’s real case is that the decision is in substance a decision which will result in the closure of the library and such a decision would involve a breach of Article 3 of the UN Convention. As that is not, in fact, an accurate description of the decision in question (which is a decision to establish a community library, not close a library), and as Section 28 of the 2004 Act was not intended to incorporate Article 3 of the UN Convention, it was not necessary to consider what the position would be if at some stage the Council did decide to close a library.

In Hastings Borough Council v Manolete Partners Plc [2016] UKSC 50 the Council exercised its emergency powers under Section 78 of the Building Act 1984 to restrict public access to Hastings Pier.  The Pier was in a dangerous condition.  It had serious structural defects.  The Council also obtained a Court Order under Section 77 prohibiting public access to the Pier until remedial works had been carried out.  Section 106 required compensation to be paid for loss of business resulting from emergency action, but only where the owner or occupier of the premises has not been “in default”.  The Supreme Court has upheld the decisions of the lower Courts that the owner was not “in default”.

The Respondent, Manolete Partners PLC (“Manolete”) brought the claim for compensation as an assignee of the business Stylus Sports Ltd (“Stylus”). Stylus had leased two units from the freeholder of the pier, Ravenclaw Investments Incorporated (“Ravenclaw”), and had operated a bingo hall and amusement arcade. Two years before the closure of the pier Stylus had commissioned a structural engineering survey of the pier. This advised that urgent and future work, within a year, was required to the structure of the pier to prevent an unacceptable risk to the public. Ravenclaw, which was responsible as landlord for repair and renewal of the pier structure, did not take action to remedy the defects identified. Nor did the Council.  The pier remained open to the public. In April 2006 a section of tension cord fell from the pier. This led the Council to attempt, unsuccessfully, to compel Ravenclaw to take action, and to commission its own structural integrity report, which in June 2006 recommended immediate restrictions on access to the pier. The Council has exercised its emergency powers and in September 2006 obtained the Court Order.

The Council alleged that Stylus had breached the Occupiers Liability Act 1957 and the Health and Safety at Work Act 1974. The Council sought to rely on these alleged breaches to establish a “default”, thereby precluding Manolete from making a compensation claim under the 1984 Act. This defence was rejected by the Technology and Construction Court and the Court of Appeal, on the basis that the reference to “default” was limited default in respect of obligations imposed by the 1984 Act itself.

Upholding the rejection of the defence, Lord Carnwath, with whom the other Supreme court Justices agreed, said that Section 106 of the 1984 Act gives a right to compensation to a person who has sustained damage by reason of the exercise of the authority’s powers under the Act “in relation to a matter as to which he has not himself been in default”. This requires firstly, identification of the “matter” in relation to which authority has exercised its powers, and secondly, consideration of whether that is a matter “as to which” the claimant has been in default.

The relevant power is the power to take emergency action. The claim for compensation is limited to the period from the date of the Council’s emergency closure of the pier until the Court Order. The “matter” which led the Council to take such emergency action was identified in the letter sent by the Council to the tenants at the time, which was the state of the pier combined with fear of possible collapse from crowd-loading during the events planned for that month, in particular the risk of overloading in an emergency evacuation. The trigger was not the general state of the pier or the specific repairs identified in the report commissioned by Stylus. Whatever Stylus’ position towards its clients and employees, it was not “in default” as to the matter which led to the Council’s exercise of its Section 78 powers. On this basis, Manolete was entitled to succeed in its claim for compensation.

Although not strictly necessary to determine the appeal, Lord Carnwath addressed the issue of whether “default” in Section 106 is limited to default under the 1984 Act itself, as this may impact on future cases. Lord Carnwath found that the legislative history and the authorities under the predecessor statutes support the conclusion that the default is not limited to the particular provisions of each statute, but extends to other forms of legal default.

The Court of Appeal’s conclusion that the Council had no defence in principle to the claim for compensation was correct, not because , as they so held, there was no default under the 1984 Act, but because it was not Stylus’ default which led to the Council’s emergency action. Lord Carnwath emphasised that this does not limit the issues which can be taken into account by the arbitrator in assessing the level of  compensation payable. The arbitrator may take account of Stylus’ statutory and common law responsibilities to its clients and employees, the structural condition of the pier and the implications it would have had for the continuation of business quite apart from the effects of the emergency action.

The importance of giving reasons for a decision to register land as a village or town green under Section 15 of the Commons Act 2006 has been emphasized by Gilbart J in R (NHS Property Services Ltd) v Surrey County Council (2016) EWHC 1715 (Admin), in which NHS Property Services Ltd (“NHS”) sought judicial review of a decision by the County Council to register a parcel of woodland (“the land”) as a village green.  The case is also of importance in relation to the question whether there is a statutory incompatibility with registration.

At all relevant times, the land had formed part of the land held by one of the various NHS bodies. The land was held for defined statutory health-related purposes. However, it had not to date been used for such purposes.  The local authority granted an application to register the land as a town or village green, having concluded that the criteria in the Act were met.  Those criteria were that “a significant number of the inhabitants of any locality, or neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.  The claimant had objected to the application, arguing, among other things, that there was an incompatibility between the statutory purposes for which the land was held and registration as a green.

Gilbart J held that:

1. The giving of reasons was required to achieve compliance with ECHR Art 6, which was engaged as registration involved a determination of civil rights and obligations. Common law also required the giving of reasons. A landowner was at risk of losing his freedom to do as he wished with his land and needed to know whether the decision to register was made on lawful grounds and whether there were grounds for challenging it.
2. The starting point was that the reasons given had to be intelligible and deal adequately with the substance of the arguments advanced. The local authority would need to set out whether the applicant for registration had shown that the criteria had been met and why the criteria had been met or not. In a case where an objection had been made on a ground known to law, the local authority should state whether that objection was well founded and why it was or was not well founded. The losing party should be left knowing why he had lost and the legal justification for rejecting his submissions.
3. The claimant’s objection to registration on the basis of statutory incompatibility was well founded. It was not necessary that the land in question was incompatible with registration. Here it was. The erection of buildings or facilities to provide treatment, or the erection of buildings for the administration of those facilities, or the creation of car parking, would plainly conflict with recreational use.