R (Legard) v Kensington and Chelsea RLBC (2018) EWHC 32 (Admin) concerns the Council’s decision to permit a Neighbourhood Plan, for the designation of land as a Local Green Space, pursuant to paragraph 77 of the NPPF, to proceed to a Referendum. The various grounds of complaint included allegations of apparent bias, breaches of the requirements of fairness, and ultra vires. Read more »
Fracking
January 15th, 2018 by James Goudie KC in Planning and EnvironmentalDid the DoS for CLJ err in law in granting planning permission for exploration works to test the feasibility of extracting shale gas by the process of hydraulic fracturing – commonly known as “fracking” – at two sites in Lancashire? That was the basic question in Frackman v SoS for CLJ (2018) EWCA Civ 9.
The Court of Appeal said that the case did not raise any novel or controversial point of law. Nor had there been any error of law. A reference to the CJEU was refused. The SoS had not misconstrued or misapplied Policy. Nor were his decisions vitiated by procedural unfairness. Also dismissed, distinguishing Application by Friends of the Earth for Judicial Review (2017) NICA 41, were complaints that he had failed to heed relevant EU principles, that he had failed to act in accordance with environmental impact principles, and that he had failed to apply “the precautionary principle”. Read more »
Insolvency Proceedings
January 11th, 2018 by James Goudie KC in Judicial Control, Liability and LitigationIn China Town Development Co Ltd v Liverpool City Council (2017) EWHC 3347 (Ch) the High Court granted an injunction preventing the City Council from presenting a winding-up petition. There was a genuine argument that a premium for two leases was not due on completion of the first lease. Barling J concluded that insolvency proceedings were not the appropriate vehicle for resolving a genuine dispute on substantial grounds as to the interpretation of the agreement or whether it should be rectified. The principles were restated as to interpretation and rectification of contracts.
Unmanned Car Park
January 2nd, 2018 by James Goudie KC in Environment, Highways and LeisureIn Cook v Swansea City Council (2017) EWCA Civ 2142 the Court of Appeal upheld a finding that the Council had not breached its duty under the Occupiers’ Liability Act 1957 to take reasonable care to ensure that visitors would be reasonably safe when using in icy conditions an unmanned car park, owned and operated by the Council, and had not been negligent. The Car Park in question is one of 46 car parks operated by the Council. Situated in a suburb of Swansea, it is a small 24 hour pay and display car park (with spaces for 40 cars) which is open to the elements. Like the vast majority of the Council’s car parks, the Car Park is unmanned (the exceptions are three multi-storey car parks and three park and ride car parks). In bad weather the manned car parks will be gritted. The unmanned car parks do not get gritted. The Council operates a reactive system of gritting in its unmanned car parks, whereby it does not pre-emptively grit them but does so only when it receives a report from a member of the public about a dangerous area. Read more »
Whether Duty of Care
January 2nd, 2018 by admin in Judicial Control, Liability and LitigationThe Court of Appeal in CN v Poole Borough Council (2017) EWCA Civ 2185 held that there was no tortious duty of care on the part of the local authority in making a housing placement to protect children from harassment and abuse by neighbours. Irwin LJ concluded:-
“93. It is common ground that Parliament did not create a right of private law action for breach of the duties, or negligence in the exercise of the powers, under the Children Act relevant to this case. … the matter must be approached in terms of the existence or absence of a common law duty of care, not in terms of immunity from a duty of care which would implicitly otherwise exist. … policy considerations … bear on whether a duty of care exists, not on immunity. Read more »
Contract Awards
January 2nd, 2018 by James Goudie KC in Decision making and ContractsIn MLS (Overseas) Ltd v SoS for Defence (2017) EWHC 3389 (TCC) O’Farrell J restated the principles as follows:-
(1) Any procurement must be conducted in accordance with the obligations of (i) transparency. (ii) equality of treatment, (iii) procedural fairness, (iv) good administration, and (v) fairness: paragraphs 55 and 58;
(2) Any decision is required to be (i) rational and (ii) free from manifest error: paragraph 58; Read more »
Consultation
December 21st, 2017 by James Goudie KC in Decision making and ContractsIn R (Hutchison 3G UK Ltd) v Telefonica UK Ltd (2017) EWHC 3376 (Admin) Green J said:-
“238. In my judgment the Sedley criteria are not hard and fast rules that can be mechanistically applied so as to lead to a rigid and certain result. They are lodestars guiding the overall assessment that must be made of the facts to see whether addressees of a consultation had, in a real and practical sense, been accorded a fair opportunity to express their views and opinions. The Sedley criteria, by their nature, are not capable of serving as definitive rules; they amount to four broad tests to be applied to the facts of each case. They concern: (i) the point in time at which the consultation must occur; (ii) the sufficiency of the reasons enabling the addressee to understand how to respond; (iii) the sufficiency of the time granted to enable proper responses; and (iv), the taking into account of the facts and matters submitted by consultees. The ultimate litmus test is simply fairness; so how the application of the criteria play out in a particular case will depend upon all of the surrounding circumstances.
- And importantly the criteria do not do away with the requirement of materiality which indicates that for a breach of the criteria to be dispositive that breach must make an actual difference to fairness. If the consultation is fair notwithstanding non-observance with one or more of the criteria, then it will be non-material and the consultation will remain fair.”
Overview and Scrutiny
December 15th, 2017 by James Goudie KC in Decision making and ContractsThe House of Commons Overview and Scrutiny Committee has issued a Report on the “Effectiveness of local authority overview and scrutiny committees”, which proposes revisions to Government Guidance on such committees and makes recommendations.
Community Transport
December 15th, 2017 by James Goudie KC in Environment, Highways and LeisureThe House of Commons Transport Committee has issued a Report on Community Transport.
Recitals and interpretation of contracts
December 12th, 2017 by James Goudie KC in Decision making and ContractsIn Attorney General v River Dorée Holdings Ltd, concerned with a Lease, the Privy Council stated as follows, (2017) UKPC 39.
A recital may in appropriate circumstances serve as background or an introduction informing or assisting the interpretation of a substantive provision in the contract. But the two must at least be capable of being read consistently. No ambiguity can be created from a mere recital which cannot consistently be read together with the substantive and operative parts of the contract concerned. (Paragraph 48).
It is not for any Court to remake the contract of the parties under the guise of interpretation. (Paragraph 51).
Negotiations are not admissible for the purpose of interpretation. (Ibid).
It is significant if there is no claim for rectification, as there might be if there is good evidence available that an interpretation contended for had in fact been the prior agreement of the parties during negotiations and that such agreement had been in existence down to the execution of the contract. (Paragraph 55).