In Durham Company Limited (t/a Max Recycle) v HMRC (2016) UKUT 417, the Upper Tribunal has rejected a judicial review challenge brought by a private recycling company with regards to the VAT exemption enjoyed by councils on commercial waste collections under Section 4591) of the Environmental Protection Act 1990.
In R (Tilley) v Vale of Glamorgan Council [2016] EWHC 2272 (QB), in the Administrative Court in Wales, Lewis J concluded that the Council’s Cabinet Decision to establish five community libraries was lawful. The Council did not act irrationally in its approach to the determination of whether there would be sufficient volunteers to enable a community library to operate. It had sufficient information to enable it to consider the viability of the revised Business Case for establishing a community library. There was nothing to indicate that its decision would result in a failure to provide a comprehensive and efficient library service under Section 7 of the Public Libraries and Museums Act 1964 (“the 1964 Act”). It complied with its PSED obligations under Section 149 of the Equality Act 2010 and had due regard to the matters set out in that Section. Section 28 of the Children Act 2004 (“the 2004 Act”), the Welsh equivalent to Section 11 of the 2004 Act in England, was not intended to incorporate Article 3 of the UN Convention but, even if it did, the decision in the present case would either not involve any breach of Article 3 or would not call for the grant of any remedy in the present case.
As to the assessment of the viability of the revised Business Case, Lewis J found, at paragraph 36, that the Cabinet did approach the decision on whether to establish a community library on the basis that the viability of the revised Business Case was a material consideration which they wished to take into account when reaching its decision. The Court therefore needed to identify the relevant principles, and their application to the facts of the case, to determine whether the Council could, and did, consider the question of the viability of the revised Business Case. The Report to Cabinet (supplemented, if appropriate by further information provided at the Cabinet Meeting) would need to provide adequate information to enable the Cabinet Members to reach a conclusion on the issue of viability. Furthermore, if there were significant concerns on the part of the Officers as to viability, those particular concerns would need to be drawn to the attention of the Members of the Cabinet. That approach appears from, amongst other decisions, that of Richards J as he then was in R (Georgiou) v Enfield London Borough Council [2004] LGR 497. A similar approach was adopted in the different, but analogous, context of how much information a Minister needed to be provided with in order to reach a decision in R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154.
At paragraph 38, Lewis J said that it may be permissible to infer that Councillors will have read a document where they have been given a copy of the document or if they have been expressly referred to it and advised that they need to have regard to it. It may not be possible, however, to infer that they have read an ancillary document if they are not advised to do so. Thus, it could not be inferred that Councillors would have read an Equality Impact Assessment for the purposes of discharging their PSED duty under Section 149 of the Equality Act 2010 when its contents were summarised in an Appendix but they were not provided with a copy and not, expressly or impliedly, told to consider the contents of the document itself.
Lewis J recognised, at paragraph 43, that, ideally, more information could have been provided. The Report itself (or an Appendix to it) could have dealt in more detail with the criteria used to assess the Business Cases, the assessment made on each of the relevant issues and the reasons why the Officers were satisfied that the revised Business Cases did address the relevant criteria. Ultimately, however, the question was whether the information actually submitted enabled the Cabinet to reach an informed conclusion on whether to establish the proposed community libraries and whether any information about significant concerns had been omitted from the Report in a way that rendered the Report misleading. On the facts of this case, the information provided was sufficient to enable the Cabinet to conclude that the revised Business Cases were viable and to agree to establish the community libraries and to delegate authority to enter into legally binding agreements on the running of the library (with the matter returning to the Cabinet if such agreements could not be reached). No information was withheld from the Cabinet. This ground of challenge, therefore, failed.
As Lewis J observed, at paragraph 47, the scope of the duty under Section 7 of the 1964 Act has been considered by the Courts on a number of occasions. It was sufficient to refer to the decision of Collins J in R (Draper) v Lincolnshire County Council [2014] EWHC 2388 (Admin), [2015] PTSR 769. Collins J recognised that a comprehensive and efficient service did not mean that every resident had to live close to a library but rather that it meant providing a service that is accessible to all using reasonable means including digital technologies.
At paragraph 57, Lewis J found that the Council did carry out an assessment of the needs for library services within its area. There was no basis for the contention that the Council’s assessment was superficial or conducted at too high a level. In particular, the Council was entitled to assess needs and service provision by reference to the needs of the population of its administrative area as a whole. It was not under a duty to consider whether the residents of each of the catchment areas where a community library was proposed would continue to receive a comprehensive and efficient library service. There was no basis for concluding that the service that it would provide would fail to meet the requirements of a comprehensive and efficient library service for its area.
As to the PSED, the principles were usefully summarised by Wilkie J in R (Williams) v Surrey County Council [2012] Eq.L.R. 656; and the decision of the Court of Appeal in R (Bailey) v Brent LBC [2012] LGR 530 offered helpful guidance on how to determine whether a public body has complied with the PSED. From paragraph 64, Lewis J concluded that it was clear in the circumstances that the Cabinet did have regard to its duty under Section 149 of the 2010 Act. The Members were provided with full and detailed information on the potential impacts on groups with protected characteristics both of establishing each of the five proposed community libraries to replace existing Council-run libraries and of closure of a particular library. They were told that they had to analyse the relevant material with the specific statutory considerations in mind. On any fair and reasonable reading of the material, it was clear that the Cabinet did discharge its duty under Section 149 of the 2010 Act. In any event, Cabinet did consider in the Report and in the Appendices, including the Equality Impact Assessment, potential adverse effects and potential mitigating measures if a community library were established but were to fail in the future resulting in its closure. Again, on any fair reading of the material, the Council did conscientiously have due regard to the matters in Section 149 of the 2010 Act. They were aware of the potential adverse impacts on protected groups that closure of a library could have and considered mitigating measures. The reality was that the Report was a full, detailed and thorough report. It summarised the duty under Section 149, explained how Members should set about discharging their duty, and provided the information necessary to enable the Members to do so. The Appendices, including the needs assessment, the Equality Impact Assessment and the summary of the potential impact and mitigating measures, were detailed, clear and comprehensible. These documents were provided to Members and they were asked to confirm that they had the opportunity to read them. There was no basis for inferring that there was any failure to have due regard to the matters set out in Section 149 of the 2010 Act when Cabinet took the decision to establish community libraries.
Finally, as to Section 28 of the 2004 Act, that Section was not intended to incorporate, or give effect to, Article 3 of the UN Convention, in the law of England and Wales, principally for the following reasons. The language used in Section 28 of the 2004 Act is different from the language used in Article 3 of the UN Convention and reflects a different concept. The obligation under Section 28 of the 2004 Act is an obligation to make arrangements to ensure that the relevant body’s functions are discharged having regard to the need to safeguard and promote the welfare of children. By contrast, Article 3 of the UN Conventions uses different language and is concerned with a different concept, namely ensuring that the best interests of the child is a primary consideration in the decision-making of relevant bodies. The language used in Section 28 is not apt to be read as providing that the best interests of the child are to be a primary consideration in the exercise of any local authority function. It is true that the two obligations may well often, perhaps frequently, overlap. The arrangements made to promote or safeguard welfare may well lead in particular cases to decisions which result in the best interests of the child being taken into account as a primary consideration. The two obligations are, however, conceptually and linguistically separate. The language of Section 28 of the 2004 Act does not lead to the conclusion that Parliament intended that Section to be the vehicle by which the public authorities to which the Section applied were to be required to ensure that the best interests of the child were to be a primary consideration when exercising any of their functions.
In short, Section 28 of the 2004 Act does not incorporate the requirements of Article 3 of the UN Convention but, even if it did, the decision taken in this case either did not involve any breach or, if there was any breach, the decision reached in this case would have been the same and no remedy would have been granted. The Claimant’s real case is that the decision is in substance a decision which will result in the closure of the library and such a decision would involve a breach of Article 3 of the UN Convention. As that is not, in fact, an accurate description of the decision in question (which is a decision to establish a community library, not close a library), and as Section 28 of the 2004 Act was not intended to incorporate Article 3 of the UN Convention, it was not necessary to consider what the position would be if at some stage the Council did decide to close a library.
The policy of legislation such as Section 123 of the Local Government Act 1972 is to ensure, so far as reasonably possible, that public assets are not sold by public authorities at an undervalue, save, if at all, with the consent, general or specific of the Secretary of State. In R (Faraday Developments Ltd) v West Berkshire Council [2016] EWHC 2166 (Admin) Holgate J distilled, at paragraph 131, the following principles from the case law as to the circumstances in which a judicial review Court may or may not intervene in relation to the application of Section 123:-
(1) The Court is not entitled to substitute its own view on the facts and merits for that of the local authority, the Court may interfere only if there was no material upon which the authority’s decision could have been reached, or if in reaching that decision, the authority disregarded matters it ought to have taken into consideration, or if it took into account matters which were irrelevant, or if its decision was irrational;
(2) The Court is likely to find a breach of Section 123(2) only if the local authority (a) has failed to take proper advice, or (b) failed to follow proper advice for reasons which cannot be justified, or (c) although following advice, it followed advice which was so plainly erroneous that in accepting it the authority must have known, or at least ought to have known, that it was acting unreasonably;
(3) Section 123(2) does not mandate the authority to have regard to any particular factors;
(4) There is no need for the authority’s decision-making process to refer to Section 123(2) explicitly, provided that the Court is able to see that the duty has in substance been performed;
(5) The obligation under Section 123 is not to conduct a particular process, but to achieve a particular outcome, (albeit process may have an important, or even determinative, evidential role in deciding whether the authority has complied with Section 123(2));
(6) “Consideration” in Section 123(2) is confined to those elements of a transaction which are of commercial or monetary value, and therefore the Court will quash a decision to sell property where the authority has taken into account an irrelevant factor, eg job creation, when assessing whether it is obtaining the best “consideration” reasonably obtainable;
(7) The deliverability or credibility of a bid, or the care with which it has been prepared, are commercial factors which are relevant to an assessment of whether the “consideration” offered is the best reasonably obtainable: the highest offer on the table need not represent the best “consideration”, because an authority may conclude that “a bird in the hand is worth two in the bush”;
(8) In order to discharge the duty under Section 123(2) there is no absolute requirement to market the land being disposed of, or to obtain an independent valuation.
The case also concerned whether the Development Agreement was a “public contract” to which the public procurement regime applied; from paragraph 171, addressed the principles concerning the “main object” of a contract and the concept of direct and indirect and enforceable legal obligations; and, from paragraph 196, whether the Development Agreement contained artificial measures or devices to avoid public procurement legislation.
In PS v GREENWICH COUNCIL (2016) EWHC 1967 (Admin) judicial review relief would have been refused both under Section 31(2A) of the Senior Courts Act 1981 and in the exercise of the Court’s discretion when, even if there had been errors in the local authority’s decision, the outcome for the claimant would have been no different.
In Richards v Worcestershire County Council (2016) EWHC (Ch) the County Council and an NHS Commissioning Group failed to strike out a CPR Part 7 restitution are claim by an individual who alleged that they had been unjustly enriched as a result of their failure to provide services following their after-care assessment under Section 117 of the Mental Health Act 1983 and who had paid privately for such services. The claim did not have to be by judicial review. Clunis v Camden and Jones v Powys were distinguished.
GPOC In R (GS) v Camden LBC (2016) EWHC 1762 (Admin) it was held that the authority was under a duty to exercise its general power of competence under Section 1 of the Localism Act 2011 so as to provide accommodation when there would otherwise be a breach of ECHR Article 3.
What is the standard of reasons to be applied to a local planning authority’s decision to grant planning permission? That was one of the questions in R (Hawksworth Securities) v Peterborough City Council (2016) EWHC 1870 (Admin). The Judge’s answer was that the position is not the same as it is with respect to a decision on a planning appeal. That is an adversarial procedure. A LPA however is not adjudicating in a dispute between planning applicant and objector.
A LPA is not required to give reasons for rejecting objectors’ representations. It need only summarise the main reasons for its decision. It can do so briefly.
It is not required to set out each step in its reasoning. It does not have to indicate what factual matters were accepted or rejected.
In Hastings Borough Council v Manolete Partners Plc [2016] UKSC 50 the Council exercised its emergency powers under Section 78 of the Building Act 1984 to restrict public access to Hastings Pier. The Pier was in a dangerous condition. It had serious structural defects. The Council also obtained a Court Order under Section 77 prohibiting public access to the Pier until remedial works had been carried out. Section 106 required compensation to be paid for loss of business resulting from emergency action, but only where the owner or occupier of the premises has not been “in default”. The Supreme Court has upheld the decisions of the lower Courts that the owner was not “in default”.
The Respondent, Manolete Partners PLC (“Manolete”) brought the claim for compensation as an assignee of the business Stylus Sports Ltd (“Stylus”). Stylus had leased two units from the freeholder of the pier, Ravenclaw Investments Incorporated (“Ravenclaw”), and had operated a bingo hall and amusement arcade. Two years before the closure of the pier Stylus had commissioned a structural engineering survey of the pier. This advised that urgent and future work, within a year, was required to the structure of the pier to prevent an unacceptable risk to the public. Ravenclaw, which was responsible as landlord for repair and renewal of the pier structure, did not take action to remedy the defects identified. Nor did the Council. The pier remained open to the public. In April 2006 a section of tension cord fell from the pier. This led the Council to attempt, unsuccessfully, to compel Ravenclaw to take action, and to commission its own structural integrity report, which in June 2006 recommended immediate restrictions on access to the pier. The Council has exercised its emergency powers and in September 2006 obtained the Court Order.
The Council alleged that Stylus had breached the Occupiers Liability Act 1957 and the Health and Safety at Work Act 1974. The Council sought to rely on these alleged breaches to establish a “default”, thereby precluding Manolete from making a compensation claim under the 1984 Act. This defence was rejected by the Technology and Construction Court and the Court of Appeal, on the basis that the reference to “default” was limited default in respect of obligations imposed by the 1984 Act itself.
Upholding the rejection of the defence, Lord Carnwath, with whom the other Supreme court Justices agreed, said that Section 106 of the 1984 Act gives a right to compensation to a person who has sustained damage by reason of the exercise of the authority’s powers under the Act “in relation to a matter as to which he has not himself been in default”. This requires firstly, identification of the “matter” in relation to which authority has exercised its powers, and secondly, consideration of whether that is a matter “as to which” the claimant has been in default.
The relevant power is the power to take emergency action. The claim for compensation is limited to the period from the date of the Council’s emergency closure of the pier until the Court Order. The “matter” which led the Council to take such emergency action was identified in the letter sent by the Council to the tenants at the time, which was the state of the pier combined with fear of possible collapse from crowd-loading during the events planned for that month, in particular the risk of overloading in an emergency evacuation. The trigger was not the general state of the pier or the specific repairs identified in the report commissioned by Stylus. Whatever Stylus’ position towards its clients and employees, it was not “in default” as to the matter which led to the Council’s exercise of its Section 78 powers. On this basis, Manolete was entitled to succeed in its claim for compensation.
Although not strictly necessary to determine the appeal, Lord Carnwath addressed the issue of whether “default” in Section 106 is limited to default under the 1984 Act itself, as this may impact on future cases. Lord Carnwath found that the legislative history and the authorities under the predecessor statutes support the conclusion that the default is not limited to the particular provisions of each statute, but extends to other forms of legal default.
The Court of Appeal’s conclusion that the Council had no defence in principle to the claim for compensation was correct, not because , as they so held, there was no default under the 1984 Act, but because it was not Stylus’ default which led to the Council’s emergency action. Lord Carnwath emphasised that this does not limit the issues which can be taken into account by the arbitrator in assessing the level of compensation payable. The arbitrator may take account of Stylus’ statutory and common law responsibilities to its clients and employees, the structural condition of the pier and the implications it would have had for the continuation of business quite apart from the effects of the emergency action.
As is well known, Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, and Section 7(5) provides that proceedings in which a person claims that a public authority has acted in a way which is made unlawful by Section 6(1) must be brought before the end of (a) the period of one year “beginning with the date on which the act complained of took place” or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances. By Section 6(6) “act” includes a failure to act. In O’Connor v Bar Standards Board [2016] EWCA Civ 775 breach of Article 14 of the Convention in conjunction with Article 6 was alleged. The claim was held to be barred by Section 7(5). Lord Dyson MR observed:
“19. … As a matter of ordinary language, the wording of section 7(5)(a) contemplates that an “act” is a single event which occurred on a single date. No express provision is made for an act which extends over a period of time. There is no difficulty in applying this approach in the paradigm case of a single act which takes place at a clearly identifiable point of time. The act should not be confused with its consequences. If it takes place more than one year before proceedings are brought, the claim is barred by section 7(5)(a) even if its consequences do not appear until later. There are also cases where the complaint is a failure to act. It may be difficult to determine when a failure to act occurs. This problem does not, however, arise in the present case.
20. There are also cases … where the question is whether the acts complained of are to be regarded as a single continuing act or as a series of discrete acts with continuing consequences. … it is not always easy to decide how to classify the acts in such a case. It will depend on the particular circumstances and the nature of the particular complaint.”
A decision to resist an appeal, and the implementation of that decision could not sensibly be seen as a continuation of the original decision to prosecute.
Elias LJ said:
“37. …. On the appellant’s analysis, many acts which are plainly one-off would retrospectively be converted into continuing acts simply by virtue of being challenged. Take a case where a person claims a social welfare benefit, is refused, and challenges that decision by a process of internal appeal. The department can at all times revoke the decision and pay the benefit. The decision to refuse the benefit itself could not properly be described as a continuing act; it is manifestly a single act, albeit with potentially continuing adverse consequences. Yet on the appellant’s analysis it becomes a continuing act once it is challenged simply by virtue of the fact that the appeal is not conceded, with the consequence that time does not begin to run. I can envisage situations where the fact that there is an internal appeal may well be material to the question whether or not time should be extended, but it cannot in my view delay the commencement of the limitation period itself.”
Elias LJ indicated that the position might be different if what was alleged were continuing systemic discrimination.