New Towns

December 5th, 2017 by James Goudie KC in Planning and Environmental

CLG is consulting on draft Local Authority Oversight Regulations under the New Towns Act 1981 which would enable in England the creation, via a strong evidence basis and further Statutory Instruments, of locally led New Town Development Corporations, where local areas consider that they will be an effective vehicle for new garden towns and cities. The consultation period is only 4 weeks, from 4 December 2017 until 2 January 2018.

 

State Aid

December 4th, 2017 by James Goudie KC in Capital Finance and Companies

The Ricoh Arena saga continues. In JR1 Coventry City Football Club’s owners, SISU, failed up to the Supreme Court in their State Aid challenge to Coventry City Council’s £14.4m loan to the company, ACL, which the Council half owned that operates the Arena. The Market Economy Investor Principle was satisfied.

SISU have now brought JR2, which is to be heard on 2/3 May 2018. This seeks to challenge as State Aid the Council’s subsequent deal with Wasps Rugby Club.  On 28 November 2017 the Court of Appeal gave interlocutory rulings, allowing SISU to amend its claim, provided that the case on State Aid was confined to the lease extension granted by the Council to ACL, and allowing the introduction of expert evidence.

 

Legitimate Expectation

December 4th, 2017 by James Goudie KC in Decision making and Contracts

In Save Britain’s Heritage v SoS for CLG and Westminster City Council (2017) EWHC 3059 (Admin) Lang J held that there was no duty on the SoS to give reasons for a decision not to call in the controversial planning application for the Paddington Cube development.  There had been a practice that could well have given rise to a procedural legitimate expectation that reasons would be given for non-intervention. However, that practice had ceased.  There was no longer an established practice to that effect. On the contrary, the established practice had become that reasons would not be given. The earlier practice and statements sought to be relied upon had been superseded.  They could no longer found a legitimate expectation that reasons would be given.  No misleading representation had been made at the relevant time.  Anyone active in planning matters should have been aware of the well-publicised change. If any expectation remained, it had ceased to be a legitimate one. There was no legal requirement to issue a formal statement of the change.  Practice and policy are subject to change.

 

Neighbourhood Development Plans (Ndps)

December 1st, 2017 by James Goudie KC in Planning and Environmental

R (Oyston Estates Ltd) v Fylde Borough Council and St Anne’s-on-the-Sea Town Council (2017) EWHC 3086 (Admin) is concerned with time limits for a judicial review of a NDP. The concept of an NDP was introduced into the law by provisions in The Localism Act 2011, inserting the relevant provisions into the Planning and Compulsory Purchase Act 2004 (the 2004 Act) and the Town and Country Planning Act 1990 (the 1990 Act). The making of the NDP was initiated by the Town Council in April 2013 under Section 38A(1) of the 2004 Act. Read more »

 

ECHR Articles 8 and 14

November 29th, 2017 by James Goudie KC in Human Rights and Public Sector Equality Duty

In Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916 an issue arose whether a provision in the Fatal Accidents Act (“the FAA”) was compatible with Article 14 of the ECHR (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life), and therefore whether the bereavement damages regime under the FAA falls within the ambit of Article 8, so as to engage Article 14.  In order to bring herself within Article 14, Ms Smith did not have to show that the State had infringed her rights under Article 8.  She did need to show that her complaint fell within the “ambit” of Article 8.

Read more »

 

Working Time

November 29th, 2017 by James Goudie KC in Judicial Control, Liability and Litigation

On 29 November 2017 the European Court of Justice (“the ECJ”) has given Judgment in Case C-214/16, King v The Sash Window Workshop Ltd, in which Mr King sought an allowance in lieu of annual leave not taken, or taken but not paid, for the years 1999 to 2012, the entire period of his engagement by the Defendant. The Defendant rejected the claim on the basis that Mr King was self-employed.  By the time the case reached the ECJ it was common ground that Mr King was nonetheless a “worker” for the purposes of the Working Time Directive. Read more »

 

Shortfall in supply

November 27th, 2017 by James Goudie KC in Housing

Paragraph 49 of the National Planning Policy Framework states that housing applications should be considered in the context of the (paragraph 14) presumption in favour of sustainable development and that policies for housing supply should not be regarded as up to date if the Local Planning Authority is unable to demonstrate a five-year supply.

In Hallam Land Management Ltd v SoS for CLG and Eastleigh Borough Council (2017) EWHC 2865 (Admin) Supperstone J ruled (paragraphs 22/23) that where there is a shortfall the SoS is not required in every case to determine the precise extent of the shortfall.  The key question is whether the housing land supply is above or below five years. Read more »

 

Infrastructure projects

November 24th, 2017 by James Goudie KC in Capital Finance and Companies

The Treasury has on 22 November 2017 confirmed that it will lend local authorities in England up to £1 billion at a new discounted interest rate of gilts + 60 basis points, accessible for three years, with a maximum term of 50 years, to support infrastructure projects that are “high value for money”. Details of the bidding process are to be published in December 2017.

 

Agency

November 22nd, 2017 by James Goudie KC in Housing

In Haringey LBC v Ahmed (2017) EWCA Civ 1861, where the Council claimed possession of a property, the Court of Appeal held, in allowing the Council’s appeal against the dismissal of its claim, that a Judge had been wrong to find that a husband who had taken sole responsibility for securing accommodation for his family had acted as agent for his wife when entering into a secure tenancy in their joint names. The Judge’s finding that the wife had not been involved in, or informed about, the tenancy meant that the usual characteristics of an agency were absent, in the absence of agency, the husband had been the sole tenant.  Therefore, when he left the property, the wife could not defend possession proceedings on the basis that she was a joint tenant. Read more »

 

Hiring a council park

November 20th, 2017 by James Goudie KC in Environment, Highways and Leisure

In R (Friends of Finsbury Park) v Haringey LBC (2017) EWCA Civ 1831 the Court of Appeal has dismissed an appeal from Supperstone J dismissing a claim for judicial review of a decision by Haringey Council to hire part of Finsbury Park for a licensed music Festival, pursuant to Section 145 of the Local Government Act 1972.

The Council held Finsbury Park under Section 10 of the Open Spaces Act 1906 or a statutory trust for use by the public for recreation. The public were its beneficial owners.  They had a statutory right to use it for recreational purposes.  The local authority owner must generally allow the public the free and unrestricted use of it.  It cannot exclude the general public from it.  All that, however, is subject to contrary legislative provisions.

The Court of Appeal, agreeing with Supperstone J’s reasons, held that Section 145 of the 1972 Act provided the Council with power to enclose part of Finsbury Park for the purposes of events such as the Festival. They were not limited to considering the application for hire only under other statutory provisions. They were able to do so notwithstanding the trust under the 1906 Act, provided that they used the 1972 Act power lawfully and not to frustrate the legislative purpose.