Local Government Finance Bill

January 16th, 2017 by James Goudie KC in Council Tax and Rates

This Bill, introduced in the House of Commons on 13 January 2017 (Bill 122), and which applies in England only, follows the Government’s announcement, in October 2015, that, by the end of the present Parliament, local government would retain 100% of locally raised taxes. The changed system is also designed to strengthen incentives for local authorities to grow their business rate income.

The Bill is made up of four parts:-

Part 1: Local Government Finance Settlement

Local retention of non-domestic rates – provides a framework to allow local government to retain 100% of non-domestic rates.

Local government finance settlement – replaces the yearly local government finance settlement with a multi-year settlement.

Council tax referendum principles – replaces the yearly council tax referendum principles with multi-year principles Read more »

 

Affordable Housing

January 3rd, 2017 by James Goudie KC in Planning and Environmental

When a local planning policy obliges a developer to provide an element of affordable housing on sites in excess of stated thresholds, an issue may arise as to whether to aggregate two (or more) sites or whether two (or more) sites should be treated as forming part of a larger whole. Absent a definition of sites, the determination of such an issue relates to the application rather than the interpretation of policy, is a matter of planning judgment, and is challengeable only if irrelevant factors are taken into account or if an obviously relevant consideration is not taken into account or if the judgment is otherwise irrational: New Dawn Homes Ltd v SoS for CLG and Tewkesbury Borough Council [2016] EWHC 3314 (Admin), considering the Brandlord case.

 

DoLS

December 23rd, 2016 by James Goudie KC in Social Care

The issue in SoS for Justice v Staffordshire County Council and SRK (2016) EWCA Civ 1317 was whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”), it is necessary for a welfare order to be made by the Court of Protection (“the CoP”) pursuant to the Mental Capacity Act 2005 (“the MCA”) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (“Article 5(1)”). The appeal was by the Secretary of State for Justice (“the SoS”) from a welfare order made on 24 May 2016 pursuant to the MCA ss. 4 and 16 by Charles J as the Vice President of the CoP (“the May 2016 order”). By the May 2016 order the Judge (1) declared that (a) the second respondent, SRK, lacked capacity to conduct the proceedings and to make decisions relating to where he should live and what care and treatment he needed, and (b) the restrictions in place pursuant to his care plan constituted a deprivation of SRK’s liberty for the purposes of the MCA; and (2) (among other things) ordered that it was in SRK’s best interests to reside at Greenglade, his home (“the property”), and to receive care and support pursuant to care plans dated 1 July and 5 July 2015; and, to the extent that those arrangements and the restrictions in place pursuant to the care plans were a deprivation of SRK’s liberty, such deprivation of his liberty was thereby authorised as being in his best interests.  The SoS’s stance was that the alleged deprivation of liberty (arising out of the private care arrangements in SRK’s particular circumstances) was not imputable to the State and therefore it was not a deprivation of liberty for the purposes of the MCA. It was common ground that (1) SRK lacked capacity to make decisions on the regime of care, treatment and support that he should receive; (2) SRK’s care regime was in his best interests (within the MCA ss.1(5)) and the least restrictive available option to best promote his best interests (as required by the MCA s.1(6)); (3) the property was SRK’s private residential property; (4) the accommodation and package of care were arranged without any involvement by the Council; (5) the package of care was managed by a private specialist brain injury case manager; (6) the care was funded using compensation money; (7) the carers were provided to SRK privately; and (8) the arrangements confined SRK to the property for a not negligible length of time, and he was there subject to continuous supervision and control and was not free to leave. Read more »

 

Reasons

December 23rd, 2016 by James Goudie KC in Decision making and Contracts

R (Shasha) v Westminster City Council (2016) EWHC 3283 (Admin) concerned a grant of planning permission under delegated powers.  An issue was as to the giving of reasons. It was submitted that there was an obligation to provide reasons by virtue of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 (“the 2014 Regulations”).

Part 3 of the 2014 Regulations (which contains Regulation 7) was made under Section 40(3) of the Local Audit and Accountability Act 2014. For the purposes of that Part a “relevant local government body” includes bodies which are local planning authorities.  Regulation 7(1) provides that a decision-making officer must produce a written record of any decision which falls within paragraph (2).  A “decision-making officer” is “an officer of a relevant local government body who makes a decision which falls within Regulation 7(2)”. As soon as reasonably practicable after the required record is made it must be made available to the public, together with any background papers, in accordance with the provisions of Regulation 8.  Read more »

 

Assets of Community Value

December 22nd, 2016 by James Goudie KC in Land, Goods and Services

R (Patel) v SoS for CLG (2016) EWHC 3354 (Admin) was a challenge to an Inspector’s decision allowing an appeal from a refusal by Wandsworth LBC as LPA of an application for a change of use from retail to residential. One of the grounds of challenge was that the fact that the premises were registered as an Asset of Community Value (“ACV”) under Sections 87 and 88 of the Localism Act 2011 was a “material consideration” that the Inspector had ignored.  Ouseley J ruled that the Inspector had been wrong not to take this into account.  This did not, however, have the consequence that the ground of challenge succeeded.  It was perfectly clear that if the Inspector had considered it to be of relevance it would have made no difference to her decision.  Ouseley J said, at paragraph 58:

“The ACV status of this corner shop reflects the local value put on its services as a shop. That was perfectly evident from the representations made to her, and the Council’s case. Local value was at the heart of the question of the impact of its loss on the provision of services. The status in fact added nothing or nothing much to the arguments. It is another guise in which the same points would be made, except if an issue had arisen as to whether, absent the change of use, the shop would in fact continue in shop use, where the possibility of community purchase could be relevant.”

Ouseley J also dismissed a PSED challenge. Referring to Section 149 of the Equality Act 2010 and the principles summarised by the Court of Appeal in Bracking (2013) EWCA Civ 1345, he said:

“62.    The Defendants submitted, correctly, that what was required was an examination of whether the decision-maker has in substance had due regard to the statutory needs, which depends on the decision and its reasoning …”

“65.    There is no duty to give particular weight to the needs of the elderly or disabled, and no duty to achieve the outcome which advantages them the most or disadvantages them the least. The decision-maker needs to be properly informed about the issues … The question is whether the Inspector applied her mind to the issue in the manner required by Bracking, even though she did not specifically refer to the s149 duty.”

“68.    She is not obliged by s149 to find some countervailing public benefit to set against the greater disadvantage of the longer journey or the loss of those services before she could reach a lawful decision on … approval. The question she has to decide under the Order is still the same. Otherwise, s149 would alter the decision which had to be made.”

 

 

 

Sanction

December 22nd, 2016 by James Goudie KC in Standards

It is proportionate to a significant breach of the Code of Conduct to require the member in breach to undertake training in the meaning and application of the Code: Taylor v Honiton Town Council and East Devon District Council (2016) EWHC 3307 (Admin). Edis J also held that the duties of investigation of and decision upon allegations against members of the Town Council fell upon the District Council pursuant to the Localism Act 2011 and arrangements thereunder, including independent persons.

 

 

Fracking

December 21st, 2016 by James Goudie KC in Planning and Environmental

 In R (Friends of the Earth) v North Yorkshire County Council (2016) EWHC 3303 (Admin) Lang J dismissed a judicial review challenge to the Council’s decision as Minerals Planning Authority to grant planning permission for fracking. There were two grounds of challenge, the principal one of which related to environmental impact.  Lang J reiterated (para 21) that it is for the authority to assess (i) what information should be in the Environmental Statement (“the ES”) and (ii) whether the information contained therein is adequate, and that the authority’s assessment can be challenged only on public law grounds. The Council had consulted (para 47) and had considered objections and taken them into account when making its decision (para 51). The Officers’ Report fairly set out the legislative and policy framework within which the decision had to be made (para 53), namely (i) European legislation on environmental protection; (ii) National legislation and policy on meeting climate change objectives by cutting greenhouse gases and moving away from fossil fuels (including gas) towards clean renewable energy supplies; (iii) National policy in favour of shale gas; (iv) National planning policy on meeting the challenges of climate change and support for a transition to a low carbon future. The Committee’s Resolution clearly evidenced the Committee’s consideration of the ES and its conclusion that the ES was adequate.

Applying the tests set out in the authorities, Lang J concluded at para 57 that she found it impossible to conclude that the Officers failed to guide the Members sufficiently, or misled them, on a matter essential to their decision. The Committee Members had specialist knowledge, as members of a Mineral Planning Authority which has multiple gas wells in its region. The ES and the Officers’ Report provided them with a detailed account of the proposed scheme. They received detailed objections to the proposal from objectors, which included the increase in greenhouse gas emissions arising from the production of gas at the Site. The real thrust of the objections was that energy requirements ought to be met by other, less environmentally damaging means than gas production and a gas-fuelled electricity generating station. This was essentially a judgment for the Committee to make. They were extensively briefed by Officers on the climate change issues, as well as the Government’s policy in favour of shale gas.

 

Consultation

December 21st, 2016 by James Goudie KC in Decision making and Contracts

The legislation on Combined Authorities (the Local Democracy, Economic Development and Construction Act 2009, as significantly amended by the Cities and Local Government Devolution Act 2016, requires that (1) there be “public” consultation and (2) that consultation be “in connection with the proposals” in a scheme, the consultation being a combined operation by the Combined Authority and the Secretary of State.

In R (Derbyshire County Council) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority (2016) EWHC 3355  (Admin), Ouseley J said, as regards the consultation being “public” (emphasis added):-

“38.    What the Act requires in my judgment is consultation, not with public authorities or bodies, but with the general public. The consultation must be with those who are judged to be affected to a degree which may make their views of significance to the Secretary of State’s decision. This is not a judgment with a sharp edge but involves degrees of impact on a variety of topics.

  1. The question is whether the consultation was “public” in view of the geographical limit placed in reality on the areas targeted for information and response, …
  2. To the extent that the Combined Authority limited the area targeted because that was the area which would constitute the new Combined Authority, and it therefore thought that it should not target residents beyond its area as a matter of law, it was wrong to do so. There is no such geographic limit. The words “public consultation” are very wide, and deliberately so. There is no purpose behind so artificial a limit in this Act.  There is no reason why a Combined Authority should not wish to find out the views of those outside the area who might be affected, now or in the future, or why the Secretary of State should not want to find out those views. …”

“43.    I also do not think that s113 requires a consultation exercise to be undertaken throughout the whole of a county council area simply because the whole county is to become a constituent member, or one of its district council is to become one, contrary to Mr Goudie’s submissions.  No such requirement is stipulated for, and again I judge that such a specific and large requirement, if intended, would have been made express by Parliament when amending the legislation to enable this sort of change to occur.”

“45.    As I have said, the words “public consultation” express a broad requirement.  This needs a judgment from the Secretary of State as to what areas or people require to be consulted for the purposes of s113, in relation to the effect of a particular scheme. The Combined Authority consultation, if it is to satisfy the Secretary of State that he need not undertake any further public consultation, needs to be based on a judgment as to the areas or people to be consulted, which is both lawful and sufficient to satisfy the Secretary of State that he need undertake no further public consultation.”

As regards consultation being “in connection with the proposals in the scheme”, Ouseley J found the Combined Authority’s consultation to have been flawed. The views of the public were not sought on the membership of the proposed expanded Sheffield City Region Combined Authority (“SCRCA”). The views of the public were not sought on whether Chesterfield Borough Council, in Derbyshire, should be a part of the Combined Authority.  Ouseley J said (emphasis added):-

“59.    … Fundamental to a consultation which would achieve the statutory purpose of s113 is that at least the major proposals in the scheme should be identified and be made the subject of consultation, with adequate, even if simplified, material provided to explain it so as to permit of sensible response. I do not think that a consultation is “in connection with the scheme”, merely because it asked questions which were connected to the proposals, if major issues were nonetheless omitted.

  1. Chesterfield BC’s new role in the SCRCA is one of the fundamental proposals or changes to be wrought by the scheme. Although various questions in the questionnaire touched on Chesterfield BC becoming a constituent member, no question actually asked whether respondents supported that or not. Respondents via the questionnaire could attach additional evidence, and so express the view that that should not happen, but their mind was not directed to that issue.”

“69.    For a consultation to be lawful, if questions are asked, they must be ones which can be properly understood by the general body of consultees and can therefore generate answers, which the consulting body can properly understand in its decision-making process. …”

“72.    … As the questionnaire was the major vehicle for public response, it ought to cover the major proposals of public controversy in the scheme. Put another way, the public were not in substance consulted about a major proposal of the scheme.”

“74.    The Secretary of State does not know the views of the public on whether Chesterfield BC should be part of the SCRCA in the same way he does of the public views given in response to the questionnaire on other topics. In my judgment something has gone seriously wrong with the consultation process in this respect because the major vehicle for public response arbitrarily omitted one of the major controversial proposals in the scheme.”

Ouseley J also considered the fairness of the consultation.  He distinguished the Supreme Court decision in R (Moseley) v Haringey LBC (2014) UKSC 56, [2014] 1 WLR 3947 (“Moseley”).  With regard to there being no reference in the consultation to the proposed North Midlands Combined Authority, Ouseley J said:-

“88.    … there was no need for the North Midlands proposal to be referred to as an alternative.  I see nothing in Moseley which, on either of the two approaches it contains, goes beyond requiring the consulting body to explain alternatives or possible alternatives which it itself has discarded. There is no suggestion of any obligation on the consulting body to put forward ways in which a different objective could be achieved by another body. The North Midlands proposal is not one which the Combined Authority could bring about.  It is not an alternative to the proposed scheme for the Combined Authority.  It is not an alternative way of achieving the same objective for the Combined Authority; it is not even a different objective for it. It would provide for participation in a different regional body for those proposed for inclusion in the Combined Authority. It is not incumbent, whether under the heading of fairness, or for specific compliance with s113, for the possibility of Chesterfield BC joining that other authority to be raised for consideration as an alternative in this consultation, or even mentioned as a basis for rejecting the proposed scheme. That possible option is one upon which an opponent can encourage opposition, but that does not make it an alternative of the sort envisaged by Moseley, which the proponent of a scheme should identify and refer to in the consultation about another proposal.”

 

 

 

Housing

December 21st, 2016 by James Goudie KC in Housing

In R (Plant) v Lambeth LBC (2016) EWHC 3324 (Admin), Holgate J said, with respect to Section 21(1) of the Housing Act 1985 (general powers of management):-

“61.    I accept the submission of Mr Goudie QC that this provision confers a very broad discretion upon a local housing authority to manage its houses, without providing any lexicon of the matters which it is to treat as relevant.

  1. Thus, although, it is for the Court to determine whether a consideration is legally capable of being relevant, the general principle is that it is for the decision-maker, in this case LLBC, to decide (a) whether to take a relevant consideration into account and, if it does so decide, (b) how far to go in obtaining information relating to that matter. Such decisions may only be challenged on the grounds that it was irrational for the authority not to take a legally relevant consideration into account or, having done so, not to obtain particular information …

 

  1. The test is whether, in the circumstances of the case, no reasonable authority would have failed to take into account the specific consideration relied upon by the Claimant, or to obtain further information. Lord Scarman held in Findlay that this test is satisfied where, in the circumstances, a matter is so “obviously material” to a particular decision that a failure to take it into account would not be in accordance with the intention of the legislation, ‘notwithstanding the silence of the statute’ …”

Holgate J then referred, at paragraph 64, to Lord Brightman’s observations in Pulhofer, and continued:-

“65.    It is also important to keep in mind the point that Parliament has entrusted the general function of managing the housing stock within the Borough to a democratically elected body, which can be expected to well understand the potentially competing interests of the residents of one estate in comparison to others.”

With respect to Article 1 of the First Protocol to the ECHR, and the loss of a secure tenancy and the Right to Buy, Holgate J said:-

“183 … I agree with the submission of Mr Goudie QC that it is an intrinsic feature of a secure tenancy that it is granted subject to statutory termination on a number of grounds (and not merely redevelopment) which, by definition, will cause the secure tenant to lose the potentiality of choosing to rely upon a right to buy his home at some point in the future. Indeed if that should happen, the suitable accommodation which must be available to him may, or may not, carry with it a statutory right to buy.

  1. It follows that the “possession” which is held by a secure tenant does not include an absolute right to exercise a right to buy, irrespective of whether he continues to have a secure tenancy of that dwelling. Instead, the potential exercise of that statutory right to buy is conditional upon the tenant continuing to hold the secure tenancy of his property. That tenancy may be brought to an end by the operation of the 1985 Act, which includes the redevelopment ground. This limitation which is placed upon the continued existence, and exercise, of the right to buy is imposed upon the tenancy with its bundle of rights and obligations (the “possession”) by the legislation which created the legal notions of a secure tenancy and a right to buy. This analysis applies irrespective of whichever of the statutory grounds in Schedule 2 is relied upon in order to bring the tenancy to an end. The limitation placed by the 1985 Act upon the exercise of the right to buy, namely that the secure tenancy continues to subsist, is important because the argument raised … relates to persons who have not yet exercised the right to buy but may do so in the future. …”

“186.  … Here the secure tenants have not yet exercised the statutory provisions which enable them to own their properties. Those statutory provisions, which insist upon the continuing subsistence of the secure tenancy if they are to be relied upon, subjected the tenant’s rights from the outset of the secure tenancy to restrictions or qualifications which might subsequently be enforced against him. Accordingly, A1P1 is not engaged …”

 

 

 

TPOs

December 15th, 2016 by James Goudie KC in Planning and Environmental

“The legislative regime for tree preservation orders does not stand apart from the comprehensive statutory scheme for land use planning. It is an integral part of that statutory scheme, and an important one”: per Lindblom LJ at paragraph 38 in Barney-Smith v Tonbridge and Malling Borough Council (2016) EWCA Civ 1264.

There are two means by which a LPA can achieve formal protection for trees and control over work to trees which have been given such protection: (1) the imposition of conditions on the grant of planning permission; and (2) the making of TPOs. “They can be used in combination with each other, or separately.” That is left to the LPA’s discretion.  An authority’s power to make a TPO, and the consequent statutory protections for the tree(s) included in the TPO, “complement” its functions in making decisions on proposals for development, including its power to impose conditions on grants of planning permission.  See also per Elias LJ at paragraph 60.

 

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