The claim in TW Logistics Ltd v Essex County Council (2017) EWHC 185 (Ch) involved the question whether an area of land forming part of the Port of Mistley in Essex (“the Land”) should remain registered as a town or village green (“TVG”) pursuant to the Commons Act 2006 (“the 2006 Act”), or whether the TVG register should be rectified by the de-registration in whole or in part of the Land by the exercise of the Court’s jurisdiction under Section 14 of the Commons Registration Act 1965 (“the 1965 Act”). The Claimant, TW Logistics Limited (“TWL”) sought an order that the TVG register be rectified by the removal of the Land, and a declaration that the Land is not a TVG. The First Defendant, the Registration Authority (“Essex CC”), contended that the claim should be dismissed on the basis that the Land was correctly registered. There was no dispute about the approach which Barling J should take in dealing with the claim. It was common ground that the correct approach to a claim for rectification under Section 14 of the 1965 Act is to be found in a passage from the judgment of Lightman J in Betterment Properties (Weymouth) Ltd v Dorset County Council [2007] 2 All ER 1000, at paragraphs 14-16 inclusive, with which the Court of Appeal expressly agreed ([2009] 1 WLR 334). Read more »
Open Space
February 15th, 2017 by James Goudie KC in Land, Goods and ServicesOne of the issues in Whitstable Society v Canterbury City Council [2017] EWHC 254 (Admin) was whether the notification and consultation proceedings required by Section 123(2A) in relation to open space land owned by a local authority ought to have been gone through in respect of the sale of land owned by the City Council. Dove J held not, notwithstanding that the land had been acquired for development as open space and had not been formally appropriated to any other use. He said, at paragraph 78:
“In my view the key issue in applying section 123(2A) is whether, at the time of the disposal of the land, it consisted or formed part of an open space. That is the specific language of the section. In my view that is not solely determined by use, if in fact the land has been laid out as a public garden (the breadth of which term does not arise for determination in this case). If the land were to be a public garden the section 123(2A) requirements could not be evaded simply by excluding the public. Thus the phrase “consisting or forming part of an open space” would also include land which might not actually at the point of disposal be being used by the public but which, by virtue of the manner in which it had been landscaped, would consist of or form part of an open space.” Read more »
Judicial Review
February 13th, 2017 by James Goudie KC in Judicial Control, Liability and LitigationSee R (Zahid) v Manchester University (2017) EWHC 188 (Admin), on judicial review as a remedy of last resort and alternative remedies, at paras 50-68, and on extensions of time for claim to be issued, at paras 73-94.
LGPS
February 10th, 2017 by James Goudie KC in Human Rights and Public Sector Equality DutyThe unanimous Supreme Court Judgment on 8 February 2017 (2017) UKSC 8 on the Northern Ireland application for judicial review by Denise Brewster, allowing her appeal from a majority Judgment of the Northern Ireland Court of Appeal (2013) NICA 54 concerned a requirement in the Northern Ireland Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the “2009 Regulations”) that unmarried co-habiting partners be nominated by their pension scheme member partner in order to be eligible for a survivor’s pension. There is no similar nomination requirement for married or civil partner survivors. The Northern Ireland High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with Article 14 of the European Convention on Human Rights (which prohibits discrimination) read together with Article 1 Protocol 1 (peaceful enjoyment of possessions) (“A1P1”). The Court of Appeal allowed the respondents’ appeal, finding that the nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied for her appeal to be re-opened. Read more »
Injunction enforcement
February 10th, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Wolverhampton, Dudley, Sandwell and Walsall MBCs v Green and Charlesworth (2017) EWHC 96 (QB) the Councils had obtained injunctions against persons unknown prohibiting car cruising in a specified area and the issue before the High Court was sentence for breach. Suspended sentences of imprisonment were imposed on two offenders who had breached the injunction. They had been part of a convoy of nine cars that had deliberately flouted the injunction and caused nuisance and disruption to local residents. An aggravating feature was the uploading of a video to social media inviting others to join them.
Costs
February 7th, 2017 by James Goudie KC in StandardsIn Taylor v Honiton Town Council [2017] EWHC 101 (Admin) the Court was required to determine costs following an application by Councillor Taylor for judicial review of a decision by the Council to impose sanctions upon him for a breach of its Code of Conduct. The Council offered to abandon the sanctions and pay his costs shortly after the issue of proceedings. The Court ordered that his costs incurred before the date of the offer should be paid to him by the Council, but that the Council’s costs incurred thereafter should be paid to the Council by him. He should have accepted the offer. He achieved nothing of value after rejecting it. He did no better in Court. His pursuit of the proceedings was not characterised by a genuine attempt to resolve a genuine grievance. Edis J said: Read more »
Environment, Highways and Leisure
February 3rd, 2017 by James Goudie KC in Environment, Highways and LeisureIn Crawley v Barnsley MBC (2017) EWCA Civ 36 the majority of the Court of Appeal upheld that a local authority’s system, whereby reports of potentially serious defects in minor roads reported by members of the public on a Friday afternoon or over the weekend would not be dealt with until the following Monday, was inadequate. Although reduced staffing levels over a weekend was reasonable, there had to be some means of responding quickly to complaints from members of the public of serious and dangerous defects in the road. Read more »
Time Limits
February 2nd, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Hillingdon LBC v SoS for Transport [2017] EWHC 121 (Admin) Cranston J has held that on a proper construction of Section 13(1) of the Planning Act 2008, a legal challenge relating to a National Policy Statement could be brought only in the six-week period after the statement was designated or published. The Court did not have jurisdiction to hear the claimants’ application for judicial review of a decision of the Secretary of State for Transport to select for inclusion in a draft National Policy Statement a proposal for a third runway at Heathrow Airport. Read more »
Assessment of Evidence
February 2nd, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Southwark Council v Various Lessees of the St Saviour’s Estate (2017) UKUT 10 (LC) the Council appealed against a decision of the First-tier Tribunal preventing it from recovering the whole amount it had expended on works to residential flats through the service charge payable by the occupants. The Council submitted that the FTT had not applied the correct test on disrepair, and erred in finding that there was little evidence of the condition of the communal fire doors and in allowing an arbitrary figure of 50% without giving the parties the opportunity to comment. The Upper Tribunal dismissed the appeal. The FTT had been unable to accept the Council’s evidence on the communal fire doors and was not satisfied with the lessees’ evidence. It had been entitled to take that view of the evidence, to accept the fire risk assessments, and to take a broad-brush approach to the appropriate allowable figure. The 50% figure was not arbitrary, but resulted from the FTT’s evaluation of the available evidence. Had the FTT used its own knowledge or expertise to challenge the Council’s methodology or figures during the course of the proceedings, it would have been appropriate to give the parties an opportunity to comment. However, after the close of the evidence, it had simply evaluated the evidence and reached a decision. It had been entitled to take a robust approach and to arrive at a figure based on the evidence together with its own knowledge and expertise. It would only be in exceptional cases that, during the course of its deliberations, a Tribunal would ventilate what it was proposing before reaching a final determination. Read more »
Combined Authority Mayoral Elections
February 2nd, 2017 by James Goudie KC in Decision making and ContractsThe Combined Authorities (Mayoral Elections) Order 2017, SI 2017/67, provides for the conduct of a Combined Authority Mayoral Election. The Order is modelled on the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007. An election is to be conducted in accordance with the Rules set out in Schedule 1 to the Order.