Enforcement Notices

February 26th, 2018 by James Goudie KC in Planning and Environmental

Hargrave House Ltd v Highbury Corner Magistrates Court and Islington Council (2018) EWHC 279 (Admin) was an application for judicial review concerning the construction of the word “repair” in an enforcement order (EN) issued by a planning authority against a developer who was in breach of planning regulations. Section 173 of the Town and Country Planning Act 1990 relates to the contents and effect of an EN.  Section 179 deals with offences where an EN is not complied with.

Cheema-Grubb J said:-

“23.    … Words have meanings in their context.  The meaning of even a familiar word will vary according to when it is used. In the context of a notice requiring the claimant to remedy a breach of planning regulations what repairs are necessary will depend on the extent of the breach. …”

“27.    … I have no hesitation in concluding that the meaning of the word “repair” in the EN is sufficiently clear for the purposes of a criminal enactment …

  1. 28. There is no definition of repairs within the TCPA scheme. This must be because the draughtsman and Parliament considered it unnecessary for further definition to be provided. Repair is an ordinary English word. Its meaning is context specific. In the context of an EN issued because of a breach of planning procedure common sense indicates that the only repair that will satisfy the notice will be one that makes good the activity that has led to the breach….”

“30.    In context, the terms of the EN were crystal clear. … finding that ‘Repair’ encompassed rebuilding two walls, if necessary. There was no lack of specificity …”

 

Interpretation of Contract

February 26th, 2018 by James Goudie KC in Decision making and Contracts

Amey Birmingham Highways v Birmingham City Council (2018) EWCA Civ 264 concerned a local authority’s PFI highway maintenance contract. The contract was intended to run for 25 years.  It was a “relational contract”.  At paragraph 93, Jackson LJ, with whom Moylan LJ and Sir Stephen Tomlinson agreed, observed that: “Any relational contract of this character is likely to be of massive length, containing many infelicities and oddities.  Both parties should adopt a reasonable approach in accordance with what is obviously the long-term purpose of the contract.  They should not be latching onto the infelicities and oddities, in order to disrupt the project and maximise their own gain”.

 

Employment Contract

February 26th, 2018 by James Goudie KC in Decision making and Contracts

Case C-518/15, Ville de Nivelles v Matzak, in which the ECJ gave Judgment on 21 February 2018, concerned the employment contract between the Town of Nivelles in Belgium and Mr Matzak, a volunteer firefighter for the Town.  The issue related to stand-by times and remuneration.  During periods of stand-by duty, every member of the volunteer fire service serving in the Nivelles fire station must remain at all times within a distance of the fire station such that the period necessary to reach it when traffic is running normally does not exceed a maximum of 8 minutes, and be particularly vigilant so as to remain within range of various technical means used to call staff and to leave immediately, by the most appropriate means, when staff on stand-by duty are called.

This involved the concepts of “working time” and “rest periods” in the Working Time Directive. Read more »

 

Funding for respite service

February 23rd, 2018 by James Goudie KC in Social Care

In R (Juttla) v Hertfordshire Valleys Clinical Commissioning Group (2018) EWHC 267 (Admin) Mostyn J set aside the resolution made by the Defendant on 16 November 2017 to remove funding of £600,000 annually from Nascot Lawn in Watford (a respite service for children with complex medical needs) with effect from 16 May 2018. The consequence is that the Defendant must now comply with its legal duty formally to consult Hertfordshire County Council (HCC) about its proposal to withdraw that funding.

The Defendant maintained that it was not funding a “health service” within the terms of Sections 3 and 3A of the National Health Service Act 2006. The Judge ruled however that the services provided at Nascot Lawn are health services.  That being so, Regulation 23 of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 (SI 2013 No. 218), falls within Part 4 of the Statutory Instrument which is entitled “Health Scrutiny by Local Authorities”. That Part establishes a scheme whereby local authorities will be fully and formally consulted on any major health service changes in their area, will have the opportunity to scrutinise them, and in the absence of agreement will have the opportunity of seeking redress from the Secretary of State. Read more »

 

Air Quality

February 22nd, 2018 by James Goudie KC in Planning and Environmental

 In R (Client Earth) No. 3 v SoS for the Environment (2018) EWHC 315 (Admin) Garnham J held (paragraphs 80 and 104) that the DEFRA 2017 Air Quality Plan, in its application to 45 local authority areas, does not contain measures sufficient to ensure substantive compliance with Directive 2008/50/EC and the implementing 2010 English Regulations.

 

Succession to secure tenancy

February 21st, 2018 by James Goudie KC in Housing

In Haringey LBC v Simawi (2018) EWHC 290 (QB) the Council refused to allow the Defendant to succeed to a secure tenancy on the basis of the “no second succession rule”.  The Defendant contended that this rule, contained in Sections 87-88 of the Housing Act 1985 (“HA 1985”), is incompatible with Articles 8 and 14 of the ECHR. In summary, it was contended that the relevant sections of  HA 1985 treat differently a tenant whose partner dies and a tenant whose marriage/civil partnership with his/her partner had broken-down. In the former case, the tenant is treated as a successor under Sections 87-88 of HA 1985. In the latter case, if the tenancy was assigned under a property assignment order made in matrimonial proceedings, then the person remaining in residence would become a tenant de novo. In consequence, the Defendant contended that a child who would otherwise satisfy the succession requirements of HA 1985 is treated less favourably if his/her parent was a sole tenant because of death than as a result of relationship breakdown. Read more »

 

Planning Impacts

February 19th, 2018 by James Goudie KC in Planning and Environmental

Limiting carbon emissions in an effort to arrest global warming and climate change is a major policy objective of the government. EU law and national law, in the form of the Climate Change Act 2008, impose challenging national targets to reduce carbon emissions and seek to encourage a shift to utilising renewable sources of energy. That policy objective is also carried into Section 10 of the NPPF, headed “Meeting the challenge of climate change, flooding and coastal change”.

On 18 June 2015 a written ministerial statement (“the Statement”) was made by the SoS for CLG. It set out new considerations touching applications for planning permission for wind turbines.  The Statement included that in specified circumstances LPAs can find for a proposal, if following consultation, they are satisfied it has “addressed” the planning impacts identified by affected local communities and therefore has their backing.  The Statement is a “material consideration” for the purposes of Section 38(6) of the Planning and Compulsory Purchase Act 2004.  It is capable of outweighing policy in the development plan for the area. Read more »

 

Adequacy of damages

February 16th, 2018 by James Goudie KC in Decision making and Contracts

In the public procurement case of Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform 2018/20, the Irish Court of Appeal declined to lift an automatic suspension, holding that (1) the claimant could obtain only Francovich damages, (2) damages were therefore not an adequate remedy for the claimant, and (3) the fact that damages are not an adequate remedy may well be decisive in terms of evaluation of where the greatest risk of possible injustice and the balance of convenience lies.

 

ECHR Article 1/1

February 15th, 2018 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Mott) v Environment Agency (2018) UKSC 10 the Supreme Court ruled that in the case of “control” short of “expropriation” consideration must be given to whether the effects are “excessive and disproportionate” (para 32), drawing a “fair balance” between public and private interests (para 33), and that compensation is potentially relevant (paras 33-35). Nonetheless (para 37), (1) the national authorities have a “wide margin of discretion” in the imposition of necessary environmental controls, (2) A1/P1 of the ECHR gives “no general expectation of compensation for environmental effects”, and (3) where an authority has given proper consideration to the issue of “fair balance”, the Courts should give weight to their assessment.

 

Automatic Suspension

February 12th, 2018 by James Goudie KC in Decision making and Contracts

Lancashire Care NHS Foundation Trust v Lancashire County Council (2018) EWHC 200 (TCC) concerns yet another application to lift an automatic suspension on the award of a contract imposed by virtue of the claimants issuing a claim form, within the necessary time period, challenging the results of a procurement exercise for that contract in which they were unsuccessful. Fraser J refused to lift the automatic suspension.

The procurement the subject matter of these proceedings concerns Public Health and Nursing Services to be provided to children and young persons from birth up to the age of 19, including services that concern children and adolescent mental health, across the county of Lancashire. It therefore involves a sizeable population and includes some of the most vulnerable members of society. The procurement exercise and the contract are both subject to the Public Contract Regulations 2015 (“the Regulations”). Read more »

 

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