March 11th, 2024 by James Goudie KC in Local Authority Powers

Swindon Borough Council v Abrook ( 2024 ) EWCA Civ 221 concerns anti-social behaviour for the purposes of Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, in the context of begging. The Court of Appeal holds ( paras 108-111 inclusive ) that ( 1 ) a  distinction between “ aggressive “ and “ passive “ begging is not helpful : it should not be substituted for the statutory test; ( 2 ) the fact that the impugned conduct falls within the statutory definition is not enough : the Court must also be satisfied that it is just and convenient to make an Order; ( 3 ) a power of arrest should not be attached toman Order as a matter of course; and (4 ) applicants must observe the restrictions on without notice applications and interim injunctions.



December 18th, 2023 by James Goudie KC in Local Authority Powers

In TOSSICI-BOLT v BOURNEMOUTH, CHRISTCHURCH AND POOLE COUNCIL (2023) EWHC 3229 (Admin) the Claimant challenged the validity of a Public Space Protection Order (PSPO) made by the Council in October 2022 (the Order). The Council was prompted to make the Order by activities in the vicinity of a clinic in Ophir Road, Bournemouth, which provides abortion services (the Clinic). The Order designates the area around the Clinic as a “safe zone” within which it is prohibited to engage in protest related to abortion services and other specified activities. The main issues were whether the Order is unlawful because it goes beyond the scope of the Council’s statutory powers to make PSPOs or because it involves unjustified interference with individual rights and freedoms, including the freedoms of conscience and religion, expression and assembly guaranteed by Articles 9, 10 and 11 of the ECHR and is hence a breach of the Council’s duties under s6 of the Human Rights Act 1998 (HRA).

The purpose of the PSPO is to prevent antisocial behaviour in public places. This is achieved by imposing legally enforceable controls on the behaviour of individuals. Power to make a PSPO is conferred on local authorities by s59 of the Antisocial Behaviour, Crime and Policing Act 2014 (the 2014 Act). A PSPO can last for up to three years and there is power to extend during that period (ss60-61 of the 2014 Act).

A person who fails without reasonable excuse to comply with a PSPO is liable on summary conviction to a fine of up to £1,000 (s67).

Section 59(1) provides that a local authority may make a PSPO if two threshold conditions are met. The first of these is specified by a s59(2): “that (a) activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or (b) it is likely that activities will be carried on in a public place within that area and that they will have such an effect.” The second threshold condition is specified by s59(3). It is that “the effect, or likely effect, of the activities (a) is, or is likely to be, of a persistent or continuing nature, (b) is or is likely to be, such as to make the activities unreasonable, and (c) justifies the restrictions imposed by the notice.”

Section 59(4) defines a PSPO as “an order that identifies the public place referred to in subsection (2) (‘the restricted area’) and (a) prohibits specified things being done in the restricted area, (b) requires specified things to be done by persons carrying on specified activities in that area, or (c) does both of those things.” Section 59(5) limits the prohibitions or requirements that may be imposed to “ones that are reasonable to impose in order (a) to prevent the detrimental effect referred to in subsection (2) from continuing, occurring or recurring, or (b) to reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.”

Section 72(1) provides that in deciding whether to make a PSPO the authority (must have particular regard to the rights of freedom of expression and freedom of assembly” set out in Articles 10 and 11 of the ECHR. Section 72(3) requires the authority to carry out “the necessary consultation” before making a PSPO. This means consulting with “the chief officer of police, and the local policing body, for the police area that includes the restricted area” and with appropriate community representatives and those who own or occupy land within the restricted area: s72(4). Section 72 allows the Secretary of State to issue guidance to local authorities about the exercise of their functions under Chapter 2. The guidance current at the relevant times identified the purpose of a PSPO as “to stop individuals or groups committing antisocial behaviour in a public place”.

Section 66 sets out a procedure by which the validity of a PSPO may be challenged. A challenge may be brought by “an interested person”, defined to mean “an individual who lives in the restricted area or who regularly works in or visits that area”. The challenge is to be made by an application to the High Court which must be brought within six weeks of the Order being made. The only ….that may be relied on are that “(a) the local authority did not have power to make the order … or to include particular prohibitions or requirements imposed by the order …; (b) that a requirement under this Chapter was not complied with in relation to the Order …” If satisfied that these conditions are met or that the interests of the applicant have been substantially prejudiced by a failure to comply with a requirement of the relevant Chapter the Court may quash the Order or any of its prohibitions or requirements.

Applications under s66 have been considered in two cases: Summers v Richmond upon Thames London Borough Council [2018] EWHC 782 (Admin), [2018] 1 WLR 4729 and Dulgheriu v Ealing London Borough Council [2019] EWCA Civ 1490, [2020] 1 WLR 609.

From these decisions the Divisional Court drew the following propositions of relevance to the present case:
(1) The term “in the locality” in s59(2)(a) of the 2014 Act is capable in law of embracing not only local residents but also those who regularly visit or work in the locality and occasional visitors such as women attending a clinic and their family members and supporters; a local authority has a wide discretion to decide who falls within that term on the facts of the case;
(2) A local authority also has a wide discretion to determine what activities are troublesome and are having or likely to have a “detrimental effect” on the “quality of life” of those whom it considers to be “within the locality”;
(3) Whether prohibitions or requirements are “reasonable” to deal with the detrimental effect of the relevant activities is a matter of judgment for the local authority, taking into account the particular needs of and circumstances pertaining to the local area;
(4) In a challenge under s66 the Court exercises a supervisory jurisdiction in accordance with ordinary judicial review principles;
(5) But where the case requires consideration of fundamental human rights the Court has to identify the rights at stage and form its own judgment on the extent of any interference with those rights and whether such interference is justified rather than merely considering whether the local authority reached its decision by a proper process.

The Court observes that it is inherently likely that some PSPOs will interfere with the exercise of the rights guaranteed by Articles 10 and 11 of the ECHR. It is therefore understandable that s72(1) of the 2014 Act highlights and requires a local authority tohave “particular regard” to the right guaranteed by those Articles. The statutory language is similar to that of s12(4) of the HRA which requires a Court to have “particular regard” to the importance of the right protected by Article 10 when it is considering whether to grant any relief that may affect the exercise of that right. There are four uncontroversial points to be made:
(1) Firstly, it is not every PSPO that will affect the freedom of expression or assembly;
(2) Secondly, the rights granted by Articles 10 and 11 are both qualified rights; measures that interfere with freedom of expression or assembly can be justified where that is necessary in a democratic society in pursuit of one of the legitimate aims specified in the Article, and proportionate to that aim;
(3) Thirdly, a requirement to have “particular regard” to a specified Convention right is not a duty to have regard “only” to those rights: it does not relieve a public authority of the duty imposed by s6 of the HRA to avoid acting incompatibly with other human rights that are relevant in the circumstances of the case;
(4) Finally, a requirement to have “particular regard” to a qualified ECHR right does not give it any presumptive priority over another qualified right; such rights as such are of equal value; any conflict between them falls to be resolved by focussing intensely on the comparative importance of the specific rights in play and the necessity and proportionality of any interference with them.

At paragraph 79/80, the Court recalled that, where a statute identifies something that has to be done by the holder of a named office, it can be inferred that the act must be performed personally buy the office-holder. However that need not be so. Context is important.

The Court concluded that Parliament did not, when enacting s72(4)(a) of the 2014 Act, intend thereby to compel local authorities to secure a personal response from the Chief Constable as a precondition to making a valid PSPO. The Chief Constable was not the person charged with decision whether to “create new crimes”, if that is an appropriate description. That responsibility lay with the Council. The Chief Constable was no more than a consultee. The legislative aim of imposing this duty of consultation is tolerably clear: to enable the Council to factor into its decision-making an expert professional policing assessment of the implications of the measures which it was proposing. As Parliament can be taken to know, a Chief Constable bears overall responsibility for the conduct of policing in his or her area but it is most unlikely to possess the relevant local knowledge. Delegation to an appropriate person was legally permissible. This being essentially a matter of neighbourhood policy it was not improper for the response to come from the Chief Inspector in charge of that aspect of Dorset’s policing function.

When making the Order the Council lawfully followed the democratic and consultative procedures prescribed by the 2014 Act. The decision-maker was entitled to conclude that the threshold conditions for making an order were satisfied. The detailed provisions of the Order are consistent with s59(5) of the 2014 Act and with the Council’s duty under s6 of the HRA. To that extent that the Order interferes with the human rights of the Claimant and those of non-parties on which she has relied in support of her claim the interference is justified by the legitimate aim of protecting the rights of women attending the Clinic, their associates and the staff. The claim and another like claim were dismissed.


Exercise of powers in accordance with public law and fiduciary duties

January 5th, 2023 by James Goudie KC in Local Authority Powers

Croydon LBC v Oasis Community Learning (2023) EWHC 2 ( Ch ) is a debt claim by the Council acting as “ administering authority “for the London Borough of Croydon Pension Fund, which is part of the Local Government Pension Scheme ( the LGPS ). The defendant is a “ scheme employer “ for the purposes of the LGPS. The Court observes, at para 27, that the interaction between the public law and fiduciary duties of an administering authority for the purposes of the LGPS is not clearly established by authority, and is a “ a matter of some uncertainty “. It states, at para 33, that the LGPS does not constitute a trust, but that an administering authority does owe fiduciary obligations, as a quasi-trustee, to at least members of the LGPS.


Strikes and Other Industrial Action

June 29th, 2022 by James Goudie KC in Local Authority Powers

The Secretary of State for Business has laid before Parliament two Statutory Instruments: the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, and the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022.

Read more »



August 9th, 2021 by James Goudie KC in Local Authority Powers

The General Power of Competence under the Localism Act 2011 enable a local authority to grant an indemnity to both officers and members. If the authority has adopted a Policy, as to the circumstances in which an indemnity would be granted, and the terms of such indemnity, then that Policy provides the framework for a decision as to whether a particular indemnity should be granted. In R (Anderson) v Liverpool City Council (2021) EWHC 2205 (Admin) Yip J considered the application of such a Policy in its application to the facts relating to an indemnity for legal costs incurred in relation to the defence of criminal allegations against a former Mayor.


Work of Equal Value

June 4th, 2021 by James Goudie KC in Local Authority Powers

Employees have the same employer. However, they carry out their work in different establishments. Moreover, they are not carrying out the same work. Can a claim for equal pay. By female employees  nonetheless be pursued against the common employer on the basis that the work if of equal value to the work of male colleagues at a different establishment of the same employer? Yes, says the ECJ in Case C-624/19, K v Tesco, Judgment on 3 June 2021. The male employers were an appropriate comparator. Retained EU law was clear and precise and had direct effect.


Bilingual Legislation

December 23rd, 2020 by James Goudie KC in Local Authority Powers

Welsh language legislation is considered in R ( Driver) v Rhondda Cynon Taff CBC (2020) ECCA Civ 1759, at paragraphs 11/12. The best approach to the interpretation where different language texts have different meanings, and where it is not possible to reach an interpretation consistent with the literal meaning of both language versions, is to discern the legislative intention by reference to the purposes or objects of the legislation as they appear from the texts, rather than by searching for a shared meaning. The Court should apply normal principles of statutory interpretation to its analysis of the meaning of both texts equally.



December 1st, 2020 by James Goudie KC in Local Authority Powers

SI 2020/1374 imposes a framework of 3 Tiers of restrictions, with different tiers applying in different areas. SI 2020/1375, in force for 6 months, amongst other matters introduces local authority enforcement powers by means of a Coronavirus Improvement Notice (Regulation 3), a Coronavirus Restriction Notice (Regulation 4) and a Coronavirus Immediate Restriction Notice (Regulation 5), which can be issued to any business whose premises or practices breach specified requirements of named Coronavirus Regulations, and which are subject to appeal (Regulation 9).


S 114 – (3) PWLB terms

November 26th, 2020 by Peter Oldham QC in Capital Finance and Companies, General, Judicial Control, Liability and Litigation, Local Authority Powers

Unlinked to any particular LA’s situation, the Government consulted earlier this year on revised Public Works Loan Board lending terms and guidance. The background was LAs’ involvement in the commercial property market as a means of increasing income, which had been the subject of much controversy over the years.  The extreme financial pressures now faced by LAs as a result of the pandemic brings this issue into particular focus. Yesterday (25th November 2020) the Treasury published its response to the consultation, and it can be found here.

As the consultation response explains:-

“In recent years a minority of local authorities have borrowed substantial sums from the PWLB to buy investment property with the primary aim of generating yield. The National Audit Office estimates that LAs bought £6.6bn of investment property between 2016-17 and 2018-19. The government is clear that this is not an appropriate use of PWLB loans.”

The response explains that from today, 26th November 2020, the PWLB (i.e. the Treasury) will apply a new approach to deciding whether to lend for a proposed project.  These include the following:-

“b) the PWLB will ask the finance director of the LA to confirm that there is no intention to buy investment assets primarily for yield at any point in the next three years. This assessment is based on the finance director’s professional interpretation of guidance issued alongside these lending terms.

c) It isn’t possible to reliably link particular loans to specific spending, so this restriction applies on a ‘whole plan’ basis – meaning that the PWLB will not lend to an LA that plans to buy investment assets primarily for yield anywhere in their capital plans, regardless of whether the transaction would notionally be financed from a source other than the PWLB.”

The response also announces that, now a workable system is in place to ensure that loans will “not be diverted into debt-for-yield activity”, PWLB lending rates from today for new Standard Rate and Certainty Rate loans will be reduced by 1%.

Peter Oldham QC


S 114 – (2) Croydon

November 26th, 2020 by Peter Oldham QC in Capital Finance and Companies, General, Judicial Control, Liability and Litigation, Local Authority Powers

On 11th November 2020, Croydon LBC’s s 151 officer wrote a report to the authority under s 114(3) of the LGFA 1988, which can be found here.  For the purposes of this series of posts, the interesting point is that the Council obtained clarification from CIPFA of the meaning of its guidance of June 2020, which I discussed in my earlier post today.

The s 151 officer’s report explains that in early September she issued a draft s 114 report to the Leader and others in the Council, and also sent it to the MHCLG, the LGA and the Council’s external auditors.  She explains that she did not issue a formal s 114 notice “as the conversations with MHCLG were ongoing”.  As we have seen, this was in accordance with the CIPFA guidance of June.

She reports that, on 6th November:-

“the Chief Executive of CIPFA clarified in a letter to Croydon Council that the modified guidance regarding the issue of S114 notices was as a direct result of costs incurred by the Covid19 pandemic. Croydon’s financial pressures are not all related to the pandemic.”

Stopping there, this clarifies the purpose of the CIPFA guidance of June 2020: that it was directed to pressures arising as a result of Covid. It was not meant to apply to situations where the financial crisis arose for other reasons, or other reasons as well.

The S 151 officer went on to explain that the financial pressures in Croydon also arose because of a misidentification of in-year savings as “new” savings; a greater risk of a group company, Brick by Brick, not making interest and dividend payments; a failure to identify medium term budget savings; and the continued incurring of non-essential costs. She also referred to the October report in the public interest under the Local Audit and Accountability Act 2014 from the Council’s auditors (s 24, Sched 7), which had detailed its deteriorating financial resilience.  She said:-

“I am not seeing the necessary level of pace, urgency or radical options to be presented to members to take decisions upon to give me confidence that the Council can make the level of savings required to deliver a balance budget in year, without external support in the form of a capitalisation direction.”

Peter Oldham QC