PRUDENTIAL FRAMEWORK

February 5th, 2018 by James Goudie KC in Capital Finance and Companies

Statutory Guidance (3rd Edition) on Local Government Investments, under Section 15(1)(a) of the Local Government Act 2003, and effective for financial years commencing on or after 1 April 2018, has been published on 2 February 2018.  Also on 2 February 2018, Statutory Guidance (4th Edition) on Minimum Revenue Provision has been issued, under Section 21(1A) of the 2003 Act.  Both were preceded by consultation on proposed changes and are accompanied by a summary of consultation responses and the Government’s responses to those responses.  This document states:-

“Following consideration of the consultation responses the Government, in summary, intends to:

  • make some technical changes to the Investments Guidance and the MRP Guidance reflecting respondents’ feedback;
  • amend proposals related to the Useful Economic Lives of assets;
  • implement the Investments Guidance for 2018-19, but allow flexibility on when the additional disclosure first needs to be presented to full Council or its equivalent; and
  • defer implementation of MRP Guidance to 2019-20. This is in recognition of the fact that it is very late in the 2018-19 budget setting cycle.”

 

ECHR ART 5

February 5th, 2018 by James Goudie KC in Social Care

Re A-F (Children) (2018) EWHC 138 (Family) is a number of test cases listed before the President of the Family Division, Sir James Munby. They raise various substantive and procedural questions in relation to the interface between care proceedings brought in the Family Court pursuant to Part IV of the Children Act 1989 and the requirements of Article 5 of the Convention, specifically, the circumstances in which Article 5 is engaged in relation to a child in the care of the local authority and, where Article 5 is engaged, what procedures are required to ensure that there is no breach of the requirements of Articles 5(2)-(4).

The President dealt with the general principles from paragraphs 8 to 40 inclusive of his Judgment, the question of whether it is possible to identify a “minimum age” at paragraphs 41-44 inclusive, and process and procedure at paragraphs 46-53 inclusive, the interface with care proceedings at paragraph 54, and continuing review at paragraphs 55/56. Read more »

 

Legitimate Aim and Proportionality

February 1st, 2018 by James Goudie KC in Decision making and Contracts

On 29 January 2018 the Employment Appeal Tribunal (Sir Alan Wilkie) handed down Judgment in discrimination cases relating to the transitional provisions put in place by for example the London Fire and Emergency Planning Authority, under the Public Service Pensions Act 2013, as part of major changes to public sector pensions following the Hutton Report.

The EAT ruled that, in favouring those closer to retirement age, a legitimate social policy aim was being pursued that was capable of justifying direct discrimination. The EAT further ruled that an ET must make up its own mind as to whether the transitional provisions in support of that legitimate aim are proportionate having regard to their discretionary effect.  That is not a matter for a “margin of discretion”.

 

Ethics

January 30th, 2018 by James Goudie KC in Standards

The Committee on Standards in Public Life has on 29 January 2018 initiated a review of and consultation upon local government ethical standards, for responses by 18 May 2018. The consultation questions are: Read more »

 

Environmental Information

January 29th, 2018 by James Goudie KC in Planning and Environmental

Regulation 12(5)(a) of the Environmental Information Regulations 2004 is a qualified exception from disclosure requirements on the ground of adverse effect upon public safety. In Natural England v Information Commissioner, EA/2017/0160, with respect to culling of badgers, the FTT, on 24 January 2018, stated:-

“66.    Natural England’s case as to the law was largely accepted by the other parties.  We also accept that: the term “public safety” in the EIRs should be read as importing the concept of “public security” referred to in the Aarhus Convention and the Directive.  We accept that, in principle, harm or an increased risk of harm to one person or their property could engage the exception and that there is no additional requirement for there to be widespread disorder and chaos.  We find, however, that the placement of “public safety” in a composite exception in the EIRs which also includes international relations, defence and national security must also be accorded some significance. Read more »

 

Housing need

January 23rd, 2018 by James Goudie KC in Housing

In Jelson Ltd v SoS for CLG and Hinckley & Bosworth BC (2018) EWCA Civ 24 the Court of Appeal has restated (1) that national policy and guidance does not dictate exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need, against which to test the relevant supply, (2) that responsibility for the assessment of housing need lies with the decision-maker, and that (3) the scope for a reasonable and lawful planning judgment is broad.

 

Rateable value

January 23rd, 2018 by James Goudie KC in Council Tax and Rates

Ascertainment of the rateable value of a non-domestic hereditament requires that each individual hereditament should be individually assessed and the application of a hypothesis. If the property is in rateable occupation at all, the rateable value is taken to be an amount equal to “the rent at which it is estimated the hereditament might reasonably be let from year to year” on the three assumptions set out in paragraph 2 of Schedule 6 to the Local Government Finance Act 1988.  Read more »

 

Legitimate Expectation

January 15th, 2018 by James Goudie KC in Decision making and Contracts

In Richborough Estates Ltd v SoS for CLG (2018) EWHC 33 (Admin) the Claimants challenged the Defendant’s decision to issue a Written Ministerial Statement (“WMS”) in relation to national planning policy concerned with housing and neighbourhood planning, together with a subsequent associated change to the National Planning Practice Guidance (“the PPG”). Read more »

 

BIAS

January 15th, 2018 by James Goudie KC in Decision making and Contracts

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 Environmental

Did 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 »

 

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