Damages under PCR

April 11th, 2017 by James Goudie KC in Decision making and Contracts

It is not a failure to mitigate damages not to take advantage of the opportunity to stop the award of a contract in breach of procurement law. However, damages are recoverable only if the breach is “sufficiently serious”. These were the main holdings of the Supreme Court in NDA v ATK [2017] UKSC 34.

ATK brought a public procurement claim against NDA in connection with ATK’s unsuccessful bid for a contract. NDA failed wrongly to award the contract to the consortium to which ATK belonged, in breach of its obligations under the Public Procurement Regulations 2006 (“the 2006 Regulations”), which give effect in the UK to the Public Procurement Directive No 2004/18/EC (“the PP Directive”). Read more »

 

No ECHR retrospectivity

April 11th, 2017 by James Goudie KC in Human Rights and Public Sector Equality Duty

Those who have incurred financial obligations in reliance on a statute have a legitimate expectation that the statute would not be retrospectively repealed or otherwise invalidated to their detriment. Their right to recover costs constituted a right under Article 1/1 of the ECHR.  A newspaper publisher’s freedom of expression under Article 10 is also a fundamental principle.  However, in the circumstances of Times Newspapers v Flood [2017] UKSC 33 the Supreme Court held that the Art 1/1 rights prevailed.

 

Threshold for engaging ECHR Article 8

April 11th, 2017 by James Goudie KC in Human Rights and Public Sector Equality Duty

In SXH v CPS [2017] UKSC 30 the Supreme Court held that, although ECHR Article 8 is broad, it is not so broad as to encompass everything done by a public authority which has the consequence of affecting someone’s private life in a more than minimal way. Neither the Strasbourg authorities nor domestic case law supports the contention that the institution of criminal proceedings, for a matter which is properly the subject of the criminal law and for which there is sufficient evidence, may be open to challenge on Article 8 grounds. It would be illogical; for if the matter is properly the subject of the criminal law, it is a matter for the processes of the criminal law. The criminalisation of conduct may amount to an interference with Article 8 rights. However, if it does not amount to an unjustifiable interference, then neither does the decision to prosecute for that conduct.

It was argued that Article 8 applied to the decision to prosecute for two reasons: it “targeted” conduct which was itself protected by Article 8, and its consequences were to interfere with the enjoyment of the appellant’s private life. It was submitted that the range of Article 8 is broad, that the threshold for it to apply is low, and that it is almost inevitable that the decisions of the CPS, as a public body, will impact on the private life of the defendant and so engage Article 8.  It was argued that anything done by a public body which has the consequence of affecting someone’s private life in a more than minimal way involves interference with respect for it within the meaning of Article 8.

The Supreme Court said that, broad as Article 8 undoubtedly is, the consequentialist argument advanced was far too broad. Lord Toulson took an example far removed from the present case. If a highway authority closes a road for roadworks, or introduces a partial closure, there may be a more than minimal effect on how long it takes residents to get to work, but that cannot be enough to make Article 8 applicable. “Such matters are part of the ordinary incidents of daily life in a community and involve no lack of respect for personal autonomy of the kind which Article 8 is designed to protect”.

 

Judicial review time limit and disclosure

April 10th, 2017 by James Goudie KC in Judicial Control, Liability and Litigation

Principles relating to delay in judicial review proceedings have been restated as follows by Lewis J in R (Sustainable Development Capital LLP) v SoS for Business, Energy and Industrial Strategy (2017) EWHC 771 (Admin).  The case concerned the proposed sale of a publicly-owned asset. The claimant sought to challenge the defendant’s award of preferred bidder status and a period of exclusivity to another party.

The first issue was whether the claim was brought within the time prescribed by CPR 54.5.  Lewis J said (paragraphs 31, 32 and 35):-

(1) A claim for judicial review must be brought promptly;

(2) It must be brought in any event not later than 3 months after the date when the grounds of challenge for first making the claim arose;

(3) The test is one of promptness; Read more »

 

Service Charges: No Double Recovery

April 5th, 2017 by James Goudie KC in Housing

In Sheffield City Council v Oliver (2007) EWCA Civ 225 the local authority was unsuccessful in its appeal from an Upper Tribunal (Lands Chamber) decision concerning the funding of major refurbishment works to several blocks of flats of which it is the freeholder.  Most of the flats were let as social housing.  Some, including the respondent’s, were let on long leases. A service charge provision required the respondent to pay a reasonable part of the costs incurred by the local authority in repairing and improving the structure and exterior of her block. The cost of the refurbishment project was more than £11 million.  The local authority had received government funding of almost £3 million from a community energy programme.  However, only part of the estate, which included the block in which the respondent’s flat was situated, fell within the qualifying area. The local authority claimed some £4,400 of community funding for work done specifically to her property. However it decided to recoup the costs of the works from her through the service charge without deducting the sum received in funding.  It considered that the funding should be treated as a contribution to the project as a whole and allocated equally among all long leaseholders, not just among those who were strictly eligible.  The Upper Tribunal held that the service charge provision in the respondent’s lease did not permit that course; that each leaseholder had only to contribute to the cost of works on his own block, not to the estate as a whole, and that the respondent should be credited with the amount of funding attributable to her property. It concluded that the cost of the government-funded work had not been “incurred” by the local authority within the meaning of the lease.  The issue was whether, on a proper construction of the lease, the local authority had to give credit for the third-party funding. Read more »

 

Planning Conditions

April 4th, 2017 by James Goudie KC in Planning and Environmental

In Dunnett Investments Ltd v SoS for CLG and East Dorset Council (2017) EWCA Civ 192 a site had planning permission for new industrial and office premises, but subject to strict conditions, and was used as a business centre. The Claimant sought to develop the site for dwelling houses.

The planning permission was subject to a condition that the site could be used for “no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained”. The issue was as to the lawfulness of this condition. In particular the question arose whether it was sufficiently clear. The Judge and the Court of Appeal held that it was sufficiently clear and was lawful.

The Court of Appeal held that the condition clearly excluded the operation of the General Permitted Development Order, as amended (“the GPDO”). It stated (paragraph 37) that the starting point for consideration of the correct approach to the interpretation of planning conditions was that, as long as appropriate caution was exercised, there was no bar to implying words into conditions, in a planning context as much as any other.  In interpreting a planning condition which was said to exclude the operation of the GPDO, the following themes could be discerned from the authorities: (a) a planning condition could exclude the application of the GPDO; (b) exclusion might be express or implied, however, a grant for a particular use could not in itself amount to an exclusion; (c) to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion.

 

HMOs

April 4th, 2017 by James Goudie KC in Housing

In Nottingham City Council v Parr (2017) EWCA Civ 188 the Court of Appeal held that it was not unlawful to impose a licence condition restricting the occupation of a house in multiple occupation to full-time students. Although the licensing regime concerned the physical characteristics of the relevant property, the personal characteristics and activities of potential occupiers will often be relevant and require investigation in contexts connected both with HMOs and with housing standards generally.

 

Standing Orders

March 28th, 2017 by James Goudie KC in Decision making and Contracts

The Local Authorities (Standing Orders) (Wales) (Amendment) Regulations 2017, S.I. 2017/460 (W.98) amend the Local Authorities (Standing Orders) (Wales) Regulations 2006 (S.I. 2006/1275) (W. 121) to make provision about membership and the quorum for meetings of relevant authorities. “Relevant authorities” for the purpose of new Regulation 4A (1) of the 2006 Regulations, inserted by Regulation 3(3) include, in addition to county and county borough councils, joint planning boards and National Park authorities.

The Amendment Regulations apply to committees and sub-committees of relevant authorities by which a relevant function is discharged. A “relevant function” is a function exercisable in relation to an application under the Town and Country Planning Act 1990.

Regulation 2(3) of the 2017 Regulations inserts new Regulation 4A and new Schedule 2A in the 2006 Regulations, to require a relevant authority to include in their Standing Orders a requirement that the quorum for their meetings must include at least half of the committee’s members.

Standing orders must also restrict the appointment of substitute members to committees.

 

Secure Tenancy

March 28th, 2017 by James Goudie KC in Housing

In Turley v Wandsworth LBC [2017] EWCA Civ 189 the Court of Appeal held that a condition in the Housing Act 1985 s.87(b) which required, up until 1 April 2012, that the long-term partner of a secure tenant had to have resided with the secure tenant throughout the 12-month period prior to the secure tenant’s death in order to succeed them, was not manifestly without reasonable foundation.  Even if the situations of common law spouses and married or civil partnership spouses were analogous for the purpose of ECHR art. 14, the difference in treatment between them was justified and proportionate.

As regards justification, local authority secure tenancies are a valuable and limited resource. Although it has long been policy to grant a limited right of succession to family members for whom the property had also been their home, regard has also to be had to the interests of those on the waiting list and of local authorities in making best use of housing stock. It had therefore been policy to require a degree of permanence in the relevant relationship. That requirement was inherently satisfied in the case of spouses who had entered into a legal marriage or civil partnership. However, there was no such formal commitment in the case of a common law spouse or other family member of the kind defined in s.113. As part of that balance of interests, it was legitimate to seek to limit rights of succession to family members whose relationship was of a permanent character. It was also legitimate, subject to the issue of proportionality, to treat that requirement as sufficiently satisfied in the case of legal spouses, but not by other relationships which did not involve the same formal commitment. Read more »

 

Introductory Tenancy

March 23rd, 2017 by James Goudie KC in Housing

The purpose of introductory tenancies is to provide what the Housing Act 1996 refers to as a trial period in which the landlord may determine the tenancy without having to establish the grounds for possession required in the case of a secure tenancy. This gives a social landlord an opportunity to form a view about the suitability of the tenant against a background of historic anti-social behaviour without becoming subject to the restrictions imposed in respect of a secure tenancy. The trial period is normally one year but can be extended for a further six months: see ss.125 and 125A.

Although the statutory grounds for possession do not have to be satisfied, the tenant is given a measure of protection by s.128 of the Act which provides that:

“(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section. Read more »

 

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