The issue in the unsuccessful appeal by way of case stated in Akerman v Richmond LBC (2017) EWHC 84 (Admin) was as to the validity of bylaws made by the Council under Section 235 of the Local Government Act 1972 making it a criminal offence to moor a boat against specified land for longer than a maximum period specified. The appellant contended that the bylaw is unlawful at common law because it was made for an improper purpose and was irrational. It was submitted on his behalf that the material generated by the consultation process showed that the basis for making the bylaw was anti-social behaviour but the bylaw did not address such behaviour and was such an excessive response to the evidence of that behaviour that it was ultra vires at common law. It was also submitted that making the bylaw was a disproportionate infringement of his rights under Article 8 of the ECHR.
The questions the district judge stated for the Divisional Court were:- Read more »
Bylaw Validity
January 31st, 2017 by James Goudie KC in Elections and Bylaws
Election Petition
January 30th, 2017 by James Goudie KC in Elections and BylawsThe Court hearing an Election Petition should not hypothesize as to how people might vote. A psychological approach is not appropriate. The foregoing was reaffirmed in Richards v Devenish (2017) EWHC 37 (QB).
Judicial Control, Liability and Litigation
January 27th, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Croydon LBC v Lopes (2017) EWHC 33 (QB) Lewis J held that the principles to be applied in deciding whether costs should be awarded in judicial review cases where the parties had agreed on the proper disposition of the underlying proceedings established in M v Croydon LBC [2012] 1 WLR 2607 were applicable to appeals against decisions on entitlement to housing under the Housing Act 1996, Section 204. A local authority was entitled to its costs of an appeal withdrawn by a claimant where, had the appeal proceeded, it would have been the successful party. The precise approach depends upon the particular facts and circumstances of the case. Where a party has obtained the entire relief sought on the statutory appeal, so that that party can be said to be wholly successful, then, in general, that party should recover his or her costs unless there is some good reason to depart from that position. Where a party has succeeded in part, then a number of factors may be relevant as explained in paragraph 62 of the decision in R (M) v Croydon London Borough Council. In such circumstances, it may be appropriate to make no order for costs, or, if it is reasonably clear who would have succeeded if the appeal had gone to a hearing, that may indicate that that party should be awarded his or her costs. Where a settlement is reached which does not in fact reflect the claimant’s claims, it may be possible in some cases to consider the underlying claims and determine who would have been the successful parties and award costs accordingly. In other cases, that may not be possible and it may be that the appropriate order is no order for costs. It may also be that the appropriate order may be no order for costs where the judge cannot sensibly and fairly make an order in favour of either party without a disproportionate expenditure of judicial time: see per Lord Neuberger M.R., as he then was, at paragraphs 60 to 65 and per Stanley Burnton LJ at paragraph 77 in R (M) v Croydon London Borough Council.
Non-payment of Council Tax
January 23rd, 2017 by James Goudie KC in Council Tax and RatesIn R (Woolcock) v Bridgend MC (2017) EWHC 34 (Admin) Lewis J quashed a suspended committal order, pursuant to Regulation 47 of the Council Tax (Administration and Enforcement) Regulations 1992, because no proper means assessment had been carried out and the suspension period was manifestly excessive. Lewis J said:-
“27. The general principles governing the making of an order under regulation 47 of the Regulations are relatively well established in the case law. For present purposes, the material principles are these. First, the power to commit is intended to be used to extract payment of the debt not to punish the debtor. Secondly, it is clear from the terms of the regulation that the magistrates’ court must conduct a means inquiry in the presence of the debtor and must consider whether the failure to pay is the result of wilful default or culpable neglect. Thirdly, an order may be made if, but only if, the debtor is guilty of culpable neglect or wilful default. The means inquiry will need to consider the period or periods in respect of which liability is due in order to determine, amongst other things, whether non-payment is the result of culpable neglect. Further, the means inquiry will need to consider the present position of the debtor to enable the magistrates’ court to determine whether the debtor is in a position to pay the debt and the magistrates’ court will need to consider what enforcement options are available to it to secure payment of the debt: …
- In the present case, in my judgment, there has not been a proper and adequate inquiry into the Claimant’s means. First, such an inquiry will need to consider income and expenditure to determine what the reasonable disposal income of the debtor was in relation to the periods in question. …
- Secondly, in my judgment, the magistrates did not carry out an adequate assessment of means for the purpose of determining whether to commit for non-payment, or to remit part or all of the debt. … They needed to determine whether or not the Claimant could make such payments or whether part or all of the debt should be remitted …
- Thirdly, the period of suspension for payment of the debt should not be an unreasonable or disproportionate period. If the period for repayment is unduly long, a suspended committal may be unlawful. Thus, the courts have indicated that periods of suspension in excess of 3 years are likely to be excessively long and so unlawful: …”
“38. … The magistrates’ court failed to carry out a proper and adequate means inquiry as required by regulation 47 of the Regulations and were not in a position to determine if non-payment was the result of culpable neglect nor whether the orders were appropriate mechanisms for enforcing the debt. Further, the period of suspension was manifestly excessive and disproportionate. …”
Traffic Regulation Orders and the Equality Act
January 19th, 2017 by James Goudie KC in Environment, Highways and LeisureIn Hamnett v Essex County Council (2017) EWCA 6, the Appellant, who is disabled, and the group which she chairs, were concerned at the impact upon them of Experimental Traffic Regulation Orders (“ETROs”), and in particular the removal of disabled parking. She made an application for statutory review of the ETROs under the Road Traffic Regulation Act 1984 (“RTRA 1984”). Her case alleged not only breach of the PSED but also breach of Section 29 of the Equality Act 2010 (“the 2010 Act”). It failed for lack of jurisdiction. Gross LJ, with whom Tomlinson and King LJJ agreed, said:- Read more »
Human Rights Damages
January 19th, 2017 by James Goudie KC in Human Rights and Public Sector Equality DutyIn GD v Wakefield Council and West Yorkshire Police (2016) EWHC 3312 (Fam) Cobb J awarded damages for the significant harm caused by local and police authorities that had breached the ECHR Articles 6 and 8 rights of a mother and her two children in the conduct of investigations and public law proceedings under Part IV of the Children Act 1989.
PSED
January 18th, 2017 by James Goudie KC in Human Rights and Public Sector Equality DutyIn Hackney LBC v Haque (2017) EWCA Civ 4 the Council as local housing authority succeeded in an appeal against a decision that it had failed to comply with the Public Sector Equality Duty when determining whether accommodation which it provided pursuant to its duties under Part VII of the Housing Act 1996 (“HA 1996”) to a disabled homeless man was suitable. The duty in question was the full housing duty under Section 193. These duties had been considered by the Supreme Court in Hotak v Southwark LBC (2016) AC 811. In the Hotak case, the PSED impacted upon the housing authority’s determination of the question whether the applicant had a priority need ie whether the authority owed him the full housing duty at all. In the Haque case the PSED impacted upon the question, raised by an applicant to whom the full duty is owed, whether the accommodation already provided was “suitable” within the meaning of HA Sections 206 and 210. The PSED is of course engaged in the course of any decision-making about the suitability of accommodation made available for occupation under HA Section 193(2), when the applicant is in priority need for accommodation because he is vulnerable as a result of disability. This is because that person has a disability within the meaning of Section 6 of the Equality Act 2010 (“EA”), and because disability is a relevant protected characteristic which attracts the PSED, under EA Section 149. Read more »
Green Belt
January 17th, 2017 by James Goudie KC in Planning and EnvironmentalIn R (Boot) v Elmbridge BC [2017] EWHC 12 (Admin) Amanda Boot sought to quash the Council’s decision to grant planning permission for a new football and athletics facility in Walton-on-Thames in Surrey (“the Site”). The Site is a 14 hectare former landfill site requiring remediation. It is located within the metropolitan Green Belt, adjacent to the river Thames. The purpose of the planning application was to construct the “Waterside Drive Sports Hub”. This is intended to provide a shared ground for Walton Casuals FC, Walton and Hersham FC and Walton Athletics Club. The proposed development would utilise land that is currently occupied by one football pitch for Walton Casuals FC, an area of informal open space and scrub land. All existing structures on the Site would be demolished.
Two grounds of challenge were advanced: that the Council’s Planning Committee had erred in its interpretation of paragraph 89 of the NPPF; and that the Council had failed to have regard to a material consideration. Supperstone J rejected the latter challenge. However, he upheld the former. Paragraph 89 provides that a LPA should regard the construction of new buildings as inappropriate in the Green Belt save for the provision of appropriate facilities for outdoor sport and outdoor recreation, “as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it”.
The Claimant contended that the question of law raised by her first ground of challenge was whether a new sports facility could be appropriate development even if it caused harm to the openness and purposes of the Green Belt. This was suggested because the Council found that the new stadium would cause harm to the openness and purposes of the Green Belt, but (despite this) found it was appropriate development and complied with paragraph 89 of the NPPF. The Claimant submitted that the Council’s interpretation of the policy was wrong. Her Counsel contended that if a new sports facility caused harm to the openness of the Green Belt (even limited harm) it was not appropriate development. He submitted that if a proposal has an adverse impact on openness, the inevitable conclusion is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have “any latitude” to find otherwise, based on the extent of the impact. In the present case the Council concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paragraphs 87 and 88 of the NPPF there were very special circumstances that would justify it. Supperstone J accepted these submissions. In his judgment the Council erred in its interpretation of paragraph 89 of the NPPF.
Local Connection
January 16th, 2017 by James Goudie KC in HousingIn R (Kensington RLBC) v Ealing LBC [2017] EWHC 24 (Admin) the Judge described the case as a local connection referral case raising an important point of principle with respect to determining upon which housing authority the housing duty falls where there has been a cessation of housing duty by one authority and a new application made to another housing authority.
The Interested Party is disabled and has four children who are dependent upon her. She had been living in Ealing since 2008. From 31 August 2012 she lived in private accommodation at 42 Curzon Road, Ealing, W5 1NF (“Curzon Road”). In March 2015, she applied to Ealing for housing assistance pursuant to the provisions of the Housing Act 1996 (“HA 1996”), Part VII. Her landlord at Curzon Road had commenced possession proceedings against her and Ealing accepted a main housing duty towards her, pursuant to the provisions of Section 193 of the HA 1996. Read more »