In 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 »
Direct Action: Natural Justice
October 12th, 2017 by James Goudie KC in Planning and EnvironmentalA local planning authority has power to take direct action. This is pursuant to Section 178 of the Town and Country Planning Act 1990 (“the TCPA”). That empowers the LPA to enter land and take the steps required by an enforcement notice once the period for compliance with the notice has expired. Read more »
Direct Effect of EU Directives
October 11th, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Farrell v Minister for the Environment, Ireland, Case C-413/15, ECJ Judgment on 10 October 2017, the Court has reaffirmed Foster v British Gas and other cases that where a person is able to rely on a Directive against emanations of the State he or she may do so regardless of the capacity in which the public authority is acting, whether as public authority or e.g. employer, and that “unconditional and sufficiently precise” provisions of a Directive, whether or not transposed into domestic law, can be relied on against emanations of the State (such as local authorities).
State Aid
October 11th, 2017 by James Goudie KC in Capital Finance and CompaniesThere is an obligation on public authorities to recover unlawful State Aid. The nature of this obligation has been considered by Advocate General Sharpston in an Opinion delivered on 10 October 2017 in Case C-363/16, European Commission v Hellenic Republic. Read more »
Procurement
October 6th, 2017 by James Goudie KC in Decision making and ContractsThe Judgment of Coulson J in Cemex v Network Rail [2017] EWHC 2392 (TCC) is of interest on a number of aspects of procurement challenges. On applications for an extension of time to serve the Particulars of Claim the Judge said:- Read more »
Secure Tenancy
October 6th, 2017 by James Goudie KC in HousingThe Court of Appeal has held in Harris v Hounslow LBC (2017) EWCA Civ 1476 that a secure tenant was not entitled to a statutory review of the local housing authority’s decision to apply for an anti-social behaviour possession order, because he had applied outside the 7 day period laid down by Section 85ZA(2) of the Housing Act 1985. Nor can the 7 day period be extended or waived. The purpose of this mandatory ground for possession (the most serious cases of anti-social behaviour) is swifter relief for victims, witnesses and the community. In the public interest speedy relief is of the essence. Lewison LJ added (para 27) that “the general application of public law principles must not be allowed to undermine the legislative scheme of this mandatory ground of possession”.
State Aid
September 29th, 2017 by James Goudie KC in Capital Finance and CompaniesFor a measure to be classified as aid within the meaning of Article 107(1) TFEU, all the conditions set out in that provision must be fulfilled. First, there must be an intervention by the State or through State resources. Secondly, the intervention must be likely to affect trade between Member States. Thirdly, it must confer an advantage on the recipient by favouring certain undertakings or the production of certain goods. Fourthly, it must distort or threaten to distort competition. The application of Article 107(1) TFEU may entail a verification as to whether an entity should have been regarded as an undertaking, within the meaning of EU competition law. Read more »
Consumer Protection
September 19th, 2017 by James Goudie KC in Land, Goods and ServicesIn Camden LBC v Foxtons Ltd [2017] UKUT 349 (AAC) the Council successfully appealed to the Upper Tribunal (Judge Levenson) against Foxtons, Estate Agents, using the term “administration fees” in their letting agencies work. This was (paragraph 25) a breach of Section 84(3)(c) of the Consumer Credit Act 2015. The wording did not provide a description of each fee that was sufficient to enable a person who is liable to pay to understand the service or cost that is covered by the fee or the purpose for which it is imposed.