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.

R (Friends of Finsbury Park) v Haringey LBC [2016] EWHC 1454 (Admin) was an unsuccessful application for judicial review to quash a decision of Haringey Council to hire Finsbury Park, which the Council owns, for a licensed music festival. Supperstone J observed (para 7) that the Park has played host to large scale events, including commercial concerts, attended by tens of thousands of people, for many years.

Supperstone J referred (paras 9-13) to the Council’s Events Policy, (paras 14-21) to the festival promoter’s Premises Licence, (paras 22-35) to the Council’s review following complaints about the event the previous year and consultation about the 2016 event.

There were four grounds of challenge. The most fundamental was to the Council’s vires. The statutory provisions upon which the Council relied included Section 145 (provision of entertainments) of the Local Government Act 1972. Supperstone J concluded (para 45) that Section 145, of itself and standing alone, provided the Council with the necessary power to permit the festival to take place in the Park.  The power included (para 47) closing the Park to members of the public, save for those who pay for admission, and closing the Park to the extent and for the time necessary to set up and take down the event infrastructure, and to hold the event safely for the benefit of those members of the public who wish to buy tickets to attend it.  Further (para 49) Section 145 does not state that its exercise is subject to any other enactment, or that it is to be read or qualified by any such enactment.  Section 44 of the Public Health Amendment Act 1890 is an additional power that the authority may rely upon should it so choose.

Supperstone J, applying well-settled principles, also dismissed a consultation challenge, on the basis of some of the information being allegedly “positively misleading” and the shortness (14 days) of the consultation period. The consultation was (para 60) adequate for its purpose. Moreover, Supperstone J added:

“61.      If, contrary to my view, there should have been more, or a longer period of, consultation, I consider, in the light of the consultation that there was this year and in previous years in relation to essentially the same event, it is highly likely that the outcome for the Claimant would not have been substantially different (Senior Courts Act 1981 s.31(2A)).”

Other challenges that were dismissed included that the Council had failed to deal with the application as a “key decision” and that the Council was in breach of other process requirements. The fact that the income the Council would earn would help the Council meet its Parks Budget did not mean that the decision was a key decision.  The decision was correctly designated as not being a key decision.  Nor was there any failure to record the decision or to make documents available.  Again, Supperstone J added:

“76.      I consider it highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred (s.31(2A) Senior Courts Act 1981). There was nothing in the decision or the report that would, in my view, have led to any further representations by the Claimant that would have made any substantial difference to the outcome.”

The felling by a local highway authority of trees in the highway, including its pavements and verges, is not “development” under the Town and Country Planning Act 1990. It does not require planning permission, or an environmental impact assessment, or consultation.  On the contrary, when such a tree is a source of danger or obstruction or needs to be moved in order to facilitate highway repairs, the authority is under a statutory obligation to remove the tree pursuant to its Highways Act 1980 duty to repair and maintain the highway.  So held in R (Dillner) v Sheffield City Council (2016) EWHC 945 (Admin).

In Case C-147/15, Provincia di Bari v Edilizia Mastrodonato srl, Advocate General Kokott, in her Opinion delivered on 21 April 2016, observed that the Italian Region of Apulia continually confronts the ECJ with environmental questions.  By way of example only: how, in the light of the Habitats Directive, are certain decisions of a City Council to be judged? Does that Directive prohibit the installation of wind turbines in bird protection areas?  Was there any illegal waste disposal site in that Region or not?  She further observed that perhaps these cases have contributed to an increased awareness of the competent authorities, so that they were keeping a critical eye upon plans for backfilling a former quarry with waste.

In any event, the authorities were in dispute with the operator of such a project as to which the strict provisions of the Landfill Directive are applicable or just the general law on waste. At the basis of the dispute is the fact that the Mining Waste Directive refers to the Landfill Directive for the backfilling of excavation voids with waste. The Court must now ascertain whether this reference is to the legal ground or the legal consequences, that is whether the conditions for application of the Landfill Directive must be met or whether its legal consequences are applicable to backfilling without further examination. This question is influenced by differences in the language versions in which the reference to the Landfill Directive is formulated. Moreover, the Court must in particular address whether and under which conditions the backfilling of a quarry with waste is a waste recovery operation or a waste disposal operation.

In order to clarify whether the backfilling of the quarry falls under the Landfill Directive, the Advocate General identified three questions: (1) whether the Landfill Directive is always applicable to the backfilling of a quarry with waste; (2) whether the Landfill Directive is applicable only to operations consisting of waste disposal or also to recovery; and (3) whether the backfilling of a quarry with waste is to be seen as disposal or recovery.

She answered the first question that backfilling with waste other than extractive waste is subject to the Landfill Directive when the conditions of application of that Directive are met.

She responded to the second question, as to the scope of application of the Landfill Directive, as follows. The distinction between the disposal and the recovery of waste is of central importance in the EU law on waste. In the hierarchy of waste, disposal is in last place, being the worst option, whereas recovery is in the second to last place. Recovery is therefore in principle to be preferred over disposal. Recovery serves as a sensible use of waste, as the waste replaces other materials which would otherwise have been used to fulfil a particular function.  Recovery of waste through the deposit of waste onto or into land does not fall under the Landfill Directive.

She concluded that the Landfill Directive is not applicable to recovery of waste, but only to the disposal of waste through its deposit onto or in the ground. However, only after suitable waste is completely recovered through some procedure, and thus has acquired the same properties and characteristics as a raw material used for backfilling, could it fall outside the application of the law on waste.

Thirdly, in order to establish whether the specific provisions of the Landfill Directive or just the general stipulations of the Waste Directive apply to backfilling quarries with waste, it must be clarified whether, or under which conditions, this use is to be seen as waste disposal or waste recovery.  She said that this question is to be answered on the basis of the currently applicable Waste Directive, as so far no waste has been deposited in the quarry. All waste coming into question must as a result be treated in accordance with the currently applicable provisions. The fact that the authorisation procedure for backfilling the quarry was initiated when the consolidated former Waste Directive was still in force cannot alter that conclusion. The definition of “disposal” in Article 3(19) of the Waste Directive encompasses any operation which is not recovery, even where the operation has as a secondary consequence the reclamation of substances or energy. Article 3(15) of the Waste Directive defines “recovery” on the other hand as any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. This definition largely corresponds to the case-law of the Court on the old Waste Directive. 

Recovery has two conditions, namely that first the waste must serve a useful purpose and secondly must replace materials which would otherwise have been used to fulfil a particular function.  The first condition is essential, as only a useful employment of waste can even be recognised as a recovery of waste. The use of waste for backfilling quarries seems in principle to be useful. However, the definition of disposal already shows that the reclamation of substances or energy does not preclude a disposal, and that a useful employment of waste in itself is not sufficient. More crucial to a recovery operation is that the waste replaces materials which would otherwise have been used to fulfil a particular function. The UK rightly points out this characteristic. Because of high costs, this Member State doubts that quarries would typically continue to be backfilled when no waste is available for it. The fact that backfilling may possibly be a condition of the authorisation for the quarry alters nothing, as authorisation as a general rule reflects the plans of the operator and can also normally be changed if it should emerge that backfilling would cause disproportionate costs.

At first glance this view is surprising, as the ECJ has already in principle recognised backfilling as a recovery operation. However, those cases concerned the backfilling of galleries which, without long term backfilling, were in danger of collapsing, which could result in damage on the surface.  Comparable risks for disused quarries are clearly much more limited. Where such risks exist, complete backfilling is probably not necessary to counter them. It does not appear necessary in every case to backfill a quarry in order to be able to use that land for other purposes.

Accordingly says the Advocate General the UK is correct in its view that the competent national authorities must carefully assess whether other materials are in fact being replaced through backfilling a quarry with waste. An important indicator in this regard is whether the operator of the quarry has to pay for the waste used or whether he is paid for its use. In the latter case there are strong grounds for the assumption that the quarry would not be backfilled without the waste and it is therefore a case of waste disposal. 

The third part of the question is to be answered in the sense that backfilling a quarry with waste other than extractive waste constitutes a waste recovery operation if the competent authorities determine that the waste serves a useful purpose by actually replacing other materials, which in particular requires the suitability of the waste as a replacement for those materials.

The Broads Authority (“the Authority”) has rebranded “the Broads” as the “Broads National Park”, in order to attract tourists. The Broads are not, however, a National Park under the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”).  Was the rebranding lawful?  Yes, held Holgate J in Harris v Broads Authority (2016) EWHC 799 (Admin).  He held that the adoption of a brand name for marketing purposes did not breach the 1949 Act.

Sections 144 and 265A of the Local Government Act 1972 (“the 1972 Act”) authorised the Authority to encourage persons, whether by advertisement or otherwise, to visit the Broads for recreation. It could therefore do anything incidental to the discharge of that function: Section 111(1) of the 1972 Act.  That included promoting the Broads in the UK or overseas.  That included adopting a brand name.  That was a separate matter from legal status. The 1949 Act had no legal monopoly over the use of the term “National Park” and did not prohibit its use outside the legislative scheme under the 1949 Act.

Nor did the branding have a misleading or confusing effect. A lawful name choice had been made.  The Authority had not sought to treat itself as a National Parks Authority.  Nor had it sought to treat the Broads as a National Park in the statutory sense; or to misrepresent the scope of its statutory functions.  There was no abuse of power.

In the context of branding or marketing, the term “National Park” uses ordinary language, and not a statutory concept, to evoke the nationally important qualities of the Broads and stimulate public enjoyment of, and potentially visits to, the Broads. The use of capital letters simply reflected that the Broads is a proper name. It did not alter the legal analysis.

Appointing an independent legal expert to conduct a non-statutory enquiry and make findings is an appropriate mechanism in determining town and village green applications. So reaffirmed Stewart J in Somerford Parish Council v Cheshire East Borough Council [2016] EWHC 619 (Admin), at paragraph 31(iv).  An allegation of lack of independence, or apparent bias, based on the suggestion that the situation looked like the registration authority paying a lawyer to give favourable advice was misplaced: paragraph 35.  The appointee was a barrister in independent practice.  However, parties must be given the opportunity to make further representations on additional material filed late: paragraph 44.  Moreover, in any case where there is a serious dispute on factual issues, a public inquiry will almost invariably need to be held, and determination of the application on the papers will not be appropriate: paragraph 74.

In the test case of Robert Lindley Ltd v East Riding of Yorkshire Council (2016) UKUT 6 (LC) a farming company claimed compensation from the Council under Sections 14 and 14A of the Land Drainage Act 1991 after part of its carrot crop was destroyed when floodwater was pumped out of a nearby village.  The Council was lead local flood authority and a risk management authority.  Nonetheless, it submitted that it was not liable, because (1) flood risk management work had to be of a permanent nature and the pumping operation had been temporary and (2) the crop was damaged when the pumping was carried out by the Environment Agency (“the EA”) and the Fire Service.  Both submissions failed.  As to the first, flood risk management work is not limited to permanent work: Paragraph 93.  As to the second, the relevant risk management authorities falling within the Flood and Water Management Act 2010 were the Council (as the lead local flood authority) and the EA.  The Fire Service did not fall within the definition.  As the lead local flood authority, the Council had failed to carry out its duty under the 2010 Act to investigate who were the relevant risk management authorities and whether they were exercising flood risk management functions.  If it had carried out that duty, there might have been less confusion as to what powers were being exercised.  On proper analysis, the EA had been co-operating with and assisting the local authority.  It had provided the pumps in response to the local authority’s request. The local authority had paid for all the pump fuel, including for the period when the EA was on site in the village.  Very little supervision of the pumps had been required other than to ensure they had sufficient fuel.  On those facts, the pumps had been on loan to the local authority from the time they were delivered. The local authority had exercised its powers to carry out the work and was liable for the damage caused.

A local authority is not entitled to recover VAT on charges for off-street car parking.  The authority is as a matter of principle not a “non-taxable person” for VAT purposes when it charges members of the public for off-street car parking.  Otherwise, there would be “significant distortions of competition”.  So the Court of Appeal has held in the test case of Isle of Wight Council v HMRC [2015] EWCA Civ 1303.

Off-street car parking (“OSCP”) is provided and charged for pursuant to the Road Traffic Regulation Act 1984 (“the RTRA”), specifically Sections 32, 55 and 122. Any surplus of income over expenditure in respect of OSCP falls into the local General Fund (under Section 91 of the Local Government Finance Act 1988), a single undifferentiated fund from which most local authority activities are financed.  Unlike on-street car-parking receipts, there is no ring-fencing of OSCP which restricts the application of any surplus.

The Court of Appeal concluded that:-

1. In a hypothetical world, in which VAT had never been imposed on OSCPP charges, those charges would have been lower: paragraphs 64-68;
2. Local authorities are permitted to set OSCP charges with a view to at least covering the cost of operating loss-making of free of charge car parks: paragraph 69;
3. When local authorities fix OSCP charges so as to give effect to the various traffic management, planning, economic and environmental policies properly to be taken into account in the provision of OSCP, it is entirely lawful and correct of them to have regard to the overall constraints of meeting the cost of providing OSCP: paragraph 70;
4. The absence of any liability of local authorities to pay VAT on OSCP charges would permit the authorities to meet the cost of providing OSCP while charging less to those using that facility: paragraph 72; and
5. If one supplier in the market for OSCP is able to have lower prices over time because of its special tax status that is likely significantly to distort competition: paragraph 76.