Illegal Election Practice

December 18th, 2018 by James Goudie KC in Elections and Bylaws

In the Matter of the Representation of the People Act 1983 (“the RPA”) and in the Matter of a Local Government Election in the Boulton Ward of the City of Derby, Banwait v Bettany (2018) EWHC 3263 (QB) was an Election Petition brought by Mr Banwait.

He was the unsuccessful Labour candidate in the local Election. Mr Banwait polled 1,128 votes in the Election, some 474 votes fewer than the successful candidate representing UKIP, Mr Bettany. He was the respondent to the Petition. By his Petition Mr Banwait challenged the Election and sought an order that Mr Bettany was not duly elected and that the Election was void, and would have to be re-run. Read more »

 

Liability for Non-Domestic Rates

December 18th, 2018 by James Goudie KC in Council Tax and Rates

Liability for non-domestic rates depends on a property being entered as a hereditament in the rating list. Section 46A of and Schedule 4A to the Local Government Finance Act 1988 (“the 1988 Act”) create a completion notice procedure, by which a new building that has not yet been occupied may be brought into the rating list. Where a completion notice has been validly served the building to which it relates is deemed to have been completed on the date specified in the notice. It is then shown in the rating list as a separate hereditament, valued as if it were complete, and its owner or occupier becomes liable to an assessment for non-domestic rates.

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Planning Conditions

December 17th, 2018 by James Goudie KC in Planning and Environmental

In Howell v Waveney District Council (2018) EWHC 3388 (Admin) Sir Ross Cranston said that a planning condition should be interpreted in the light of what a reasonable reader would understand it to mean in the light of the words “natural and ordinary” meaning and in the context of any other conditions and of the planning consent as a whole. Unlawful operations could not constitute the commencement of a development. The Court had to determine, first, whether a planning condition had been breached. The second stage was to consider whether it was a “condition precedent” in the sense that it required something to be done before development commenced. Development in contravention of a condition which was not a “condition precedent” did not render the development as a whole unlawful.

 

Housing Supply

December 17th, 2018 by James Goudie KC in Housing

In R (East Bergholt Parish Council) v Babergh District Council (2018) EWHC 3400 (Admin) the claimant Parish Council applied for judicial review of the defendant LPA’s decision to grant planning permission to build 229 new homes around its village. Sir Ross Cranston refused the application. He ruled that the LPA had been entitled to adopt a robust, risk-averse approach in calculating its five-year housing land supply. Housing sites would be considered “deliverable” if they were

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Human Rights

December 17th, 2018 by James Goudie KC in Human Rights and Public Sector Equality Duty

The Judgment on 10 December 2018 in the EAT of Elisabeth Laing J in OFGEM v Pytel is instructive on when it is possible to read and give effect to a statutory provision so as to make it compatible with ECHR rights. The balance to be struck between the rights of putative whistleblowers and the safeguarding of rights to restrict the circulation of business information obtained in the exercise of regulatory functions was for Parliament and the Secretary of State, not for the Courts.

 

Traffic Regulation Order

December 11th, 2018 by James Goudie KC in Environment, Highways and Leisure

Trail Riders Fellowship v Hampshire County Council (2018) EWHC 3390 (Admin) was a statutory challenge to the decision of the Council to make a local traffic regulation order made under Section 1 of the Road Traffic Regulation Act 1984 (“the 1984 Act”). The Order prohibits the use of three linked rural “green lanes” in Hampshire by motor vehicles and motor cycles. Together these lanes form a through-route joining tarmacked public vehicular highways at their three termini. They are unclassified roads.

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Consultation

December 11th, 2018 by James Goudie KC in Decision making and Contracts

In R (MP) v SoS for Health and Social Care (2018) EWHC 3392 (Admin) Lewis J said:-

64. … If a public body chooses to consult upon a particular proposal, then it must do fairly and in accordance with well-established principles. If a public body chooses to consult on one set of proposals, but not to consult on another, different set of proposals, then, unless it can be shown that there is a legal obligation to consult upon the second set of proposals, it is not obliged to do so because it is consulting on the first set of proposals. …

65. The fact that the defendant chose to consult upon a very large number of proposals … does not alter the position. The two issues upon which he chose not to consult … were discrete, self-contained issues. The fact that notice of the decision to make those two changes was contained in the document setting out the response to the consultation exercise does not mean that the proposals were part of, or were linked in some way to the proposals that were consulted upon. The defendant did not fail to carry out the consultation exercise properly. The key question, therefore, is whether there was an obligation to consult upon these two changes. Read more »

 

Homelessness

December 11th, 2018 by James Goudie KC in Housing

In Alibkhiet v Brent LBC and Adam v City of Westminster (2018) EWCA Civ 2742 Lewison LJ began his Judgment (with which Henderson and Asplin LJJ agreed) as follows:-

“You would need to be a hermit not to know that there is an acute shortage of housing, especially affordable housing, in London; and that local government finance is severely stretched. Under the homelessness legislation housing authorities in London have duties to procure housing for the homeless; and must, so far as it is reasonably practicable to do so, accommodate such persons within their own district. These joined appeals concern the lawfulness of the decisions and process by which two London boroughs, in purported exercise of their statutory duty, made offers to accommodate homeless persons outside their respective districts. …” Read more »

 

Meaning of “Highway”

December 7th, 2018 by James Goudie KC in Environment, Highways and Leisure

The successful appeal to the Supreme Court in Southwark LBC v Transport for London, in which Judgment was given on 5 December 2018, concerned the effect of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (“the Transfer Order”) and the GLA Roads Designation Order 2000 (SI 2000/1117) (“the Designation Order”). By combined operation of those Orders, responsibility for Greater London Authority (“GLA”) roads was transferred from individual London borough councils, including the Respondents (“the Councils”) as local highway authorities, to the Appellant (“TfL”). The provision at the heart of the appeal was Article 2(1)(a) of the Transfer Order, which provides for the transfer of “the highway, in so far as it is vested in the former highway authority”. Read more »

 

Structural and Boundary Changes

December 7th, 2018 by James Goudie KC in Local Authority Powers

The Local Government (Structural and Boundary Changes) (Amendment) Regulations 2018, S.I. 2018/1296, will come into force on 2 January 2019. The Local Government and Public Involvement in Health Act 2007 Part 1 provides for structural and boundary changes in relation to local government areas in England.  These Regulations, made under Section 14 of the 2007 Act, make incidental, consequential, transitional and supplementary provision of general application in relation to the exercise of certain functions for the purposes of, and in consequence of, Orders made by the Secretary of State under Sections 7 and 10 of the 2007 Act.  Part 1 of these Regulations amends Regulations previously made under Section 14 of the 2007 Act.  Part 2 of the Regulations makes provision to specify the dates on which the collection funds and general funds of councils established under a Section 10 Order must be established in accordance with the provisions of the Local Government Finance Act 1988, and modifies relevant provisions of the Local Government Finance Act 1992 to allow those councils, in setting their council tax, to take account of precepts which may be issued by charter trustees which may be established under a Section 10 Order.

 

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