The Conservation of Habitats and Species Regulations 2017, SI 2017/1012 (the “Habitats Regulations 2017”) consolidate and update the Conservation of Habitats and Species Regulations 2010 (the “Habitats Regulations 2010”). The Habitats Regulations 2017 consolidate all the various amendments made to the Habitats Regulations 2010 and also introduce a small number of minor amendments designed to take account of changes to other related legislation, such as amendments to Town and Country Planning legislation, rectify previous omissions, or improve the clarity of drafting. Read more »
Conservation of habitats and species
November 3rd, 2017 by James Goudie KC in Environment, Highways and Leisure
Judicial review
November 3rd, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Glencore Energy (UK) Ltd v HMRC (2017) EWCA Civ 1716 the Court considered the relationship between Judicial Review and an alternative statutory remedy. Sales LJ said (paragraphs 54-56 inclusive) that the principle that Judicial Review would be refused where a suitable alternative remedy was available was not disputed. However, the basis for the principle had to be considered. The principle did not apply as a result of any statutory provision to oust the jurisdiction of the High Court on Judicial Review. The principle was based on the fact that Judicial Review was ordinarily a remedy of last resort. However, where it was clear that a public authority was acting contrary to the rule of law, the High Court would be prepared to exercise its discretion without waiting for some other remedial process to take its course. In considering what qualified as a suitable alternative remedy, the Court should have regard to the provisions of Parliament. If Parliament had made it clear through legislation that a particular procedure or remedy was appropriate to deal with a standard case, the Court should be slow to conclude that the public interest required it to exercise its Judicial Review function along with, or instead of, that statutory procedure. Unlawfulness might arise which was not of that standard description, in which case the availability of such a statutory procedure would be less significant. Treating Judicial Review in ordinary circumstances as a remedy of last resort fulfilled a number of objectives. It ensured that the Courts gave priority to statutory procedures as laid down by Parliament, and avoided expensive duplication of the effort which might be required if two sets of procedures were followed in relation to the same underlying subject matter. It minimised the potential for Judicial Review to be used to disrupt the smooth operation of statutory procedures which might be adequate to meet the justice of the case, and promoted proportionate allocation of judicial resources for dispute resolution, saving the High Court from undue pressure of work.
Principles and policies
November 1st, 2017 by James Goudie KC in Decision making and ContractsLewis J in R (Lupepe) v SSHD (2017) EWHC 2690 (Admin) considers (paragraphs 48/49) the principle that it is unreasonable, in the public law sense, to disagree with a factual conclusion of an adjudicator who has heard the evidence unless the adjudicator’s conclusion is itself unlawful as a matter of public law (or unless fresh material has become available since the hearing). An illustration of the principle is the decision of the Court of Appeal in R v Warwickshire County Council ex p Powergen (1996) 97 LGR 617 where the Court of Appeal held that a highway authority could not depart from the decision of a planning inspector on a planning appeal that a particular development did not give rise to highway safety issues and it could not act on the basis that the proposed development would create highway dangers.
Lewis J also considered (paragraphs 61-66 inclusive) the position with respect to unpublished policies and (paragraphs 67-69 inclusive) procedural fairness (opportunity to make representations). The law governing the application of unpublished policies was considered by the Supreme Court in R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245. The Supreme Court concluded that what must be published “is that which a person who is affected by a policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made”. Where there is a policy in existence, and its provisions are material to the exercise of a discretion in a particular case, those provisions must be made public.
Corporate veil
November 1st, 2017 by James Goudie KC in Capital Finance and CompaniesIn Persad v Anirudh Singh [2017] UKPC 32 Lord Neuberger reaffirmed, at paragraph 17, that piercing the veil of incorporation is justified only “in very rare circumstances”. It can be justified only where a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control, as made clear by the Supreme Court in VTB Capital v Nutritek [2013] 2 AC 337 and Prest v Petrodel [2013] 2 AC 415. Lord Neuberger further reaffirmed, at paragraph 20, that the fact that a company is a “one man company” is irrelevant: Salomon v Salomon [1897] AC 22. It is a fallacy to suppose that the Court can pierce the corporate veil where the purpose of interposing a company into a transaction is to enable the owner or controller of the company to avoid liability. Lord Neuberger said, at paragraph 21, that use of terms such as “front” or “alias” can too easily be invoked to justify a wrong decision. The company has a distinct legal personality. As Lord Neuberger observed, at paragraph 22, cases such as Gilford Motor Co v Horne [1933] Ch 95 and Jones v Lipman [1962] 1 WLR 832 were distinguishable.
Not only did the person who set up the company in those cases have an existing relevant legal obligation which he was trying to avoid by entering into a transaction involving the company, but also the involvement of the company was unilaterally effected by the person concerned, without the knowledge, let alone the consent, of the other party.
Remedy for breach
November 1st, 2017 by James Goudie KC in Decision making and ContractsIn Case E-16/16, Fosen-Linjen AS v AtB AS, the EFTA Court has said, in a Judgment on 31 October 2017, that damages are available as a remedy for breach of the procurement rules where there is a sufficient causal link between the breach and the damage irrespective of the gravity of the breach. A simple breach of procurement law is in itself says the Court sufficient to trigger the liability of the contracting authority to compensate for damage incurred: paragraph 82. This contrasts with the Supreme Court Judgement in Energy Solutions v NDA (2017) UKSC 34.
Award of contracts
November 1st, 2017 by James Goudie KC in Decision making and ContractsR (Hersi & Co) v Lord Chancellor (2017) EWHC 2667 (TCC) is concerned with the defendant’s conduct of a public procurement exercise for the award of contracts to provide publicly-funded legal services relating to immigration and asylum and mental health work.
As part of the tender, there were 7 particular questions, grouped under the heading ‘Selection Criteria’, which all applicants were required to answer. The claimant answered the first three, but then left blank the answers to Questions 4, 5, 6 and 7. In consequence, the defendant awarded the claimant no points for its answers to those questions and the claimant’s tender failed to gain the required points to justify the award of a contract. The claimant now argues, either that the defendant should have sought clarification of their non-answers, and/or that the answers to the questions were plain from other parts of the claimant’s tender and should have been scored accordingly. In addition, the claimant has a wider case in which it seeks to compare the defendant’s treatment of numerous other applicants on other aspects of their tenders, so as to allege inequality of treatment. Read more »
Planning obligations
October 27th, 2017 by James Goudie KC in Planning and EnvironmentalAberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited (2017) UKSC 66 raised an important question of planning law. A planning authority foresees and plans for significant growth in its area. Major investment in transport infrastructure is required to accommodate the aggregate of the planned development. The planning authority seeks to achieve this investment by adopting a policy in its development plan which in substance requires developers to enter into planning obligations with it to make financial contributions to the pooled fund to be spent on the infrastructure, including interventions at places where a particular development has only a trivial impact. Is such a policy within the existing powers of the planning authority under current planning legislation? Read more »
Homelessness
October 20th, 2017 by James Goudie KC in HousingIn Hotak v Southwark LBC (2016) AC 811 the Supreme Court ruled that “vulnerable” for priority need purposes connotes “significantly” more vulnerable than ordinarily vulnerable as a result of being rendered homeless. But what is meant by “significantly” in this context? The Court of Appeal has attempted to answer that question in joint appeals Panayiotou v Walsham Forest LBC and Smith v Haringey LBC, (2017) EWCA Civ 1624. It means “at risk of more harm in a significant way”. That is an evaluative judgment in relation to any given set of facts: paragraph 64. Read more »