CPOs

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

The Court’s power, under Section 24(2) of the Acquisition of Land Act 1981, to quash a Compulsory Purchase Order relates to the whole of the Order, not only its confirmation by the Secretary of State: Grafton Group v SoS for Transport (2016) EWCA Civ 561.

 

 

Community Donations

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

It is wrong for a LPA to treat as a material consideration in determining an application for planning permission an offer by the applicant to make an annual community donation which could be used for anything which benefitted the local community. The donation does not serve a planning purpose.  It is off-site and is not related to land use.  The application considered in Wright v Forest of Dean District Council [2016] EWHC 1349 (Admin) was for permission for a wind turbine.  The donation would derive from the profits made out of the operation of the turbine.  Nonetheless the offer had no real connection with the development and was not fairly and reasonably related to it.  It did not regulate how the development might operate.  It did not address any impact on infrastructure.  It did not make the development more attractive.  The potential applications of the donation were too wide-ranging and too open-ended.  The donation being for community benefit did not necessarily mean that it was a material planning consideration.

 

Local authorities, procurement and not profit organisations

June 2nd, 2016 by Peter Oldham QC in Decision making and Contracts, Judicial Control, Liability and Litigation, Land, Goods and Services

Local authorities often procure contracts from non-profit organisations (NPOs). Assume an NPO brings a claim under the Public Contracts Regulations 2015 claiming that something went wrong in a procurement, such that there is an automatic suspension preventing the contract being entered into. Say the authority then applies to Court to set the suspension aside.  How does the American Cyanamid test apply where the claimant is an NPO?  In A v B TCC 27 May 2016, the Technology & Construction Court returned to this question.

Readers will recall that on an application to lift the suspension under the PCR, Cyanamid means that the Court will consider whether there is a serious issue to be tried; whether damages are an insufficient remedy; and whether the balance of convenience lies with maintaining the suspension. The modern trend is to see the adequacy of damages as one of the factors relevant to the balance of convenience, rather than as a separate stage.

In Bristol Missing Link Ltd v Bristol City Council [2015] PRST 1470, the claimant was an NPO providing domestic violence and abuse support services to the local authority. Its tender made no allowance for any profit, so that damages would be nominal at most. The suspension was not lifted. Coulson J said at [55]:-

 “In my view, a non-profit-making organisation, which has bid for a contract making no allowance for profit at all, and a minimal amount for overheads, is entitled to say that, in such circumstances, damages would not be an adequate remedy.”

In A v B, the claimant was an NHS trust, and so also an NPO.  The defendant was a procuring CCG. On the CCG’s application to set aside the suspension, Stuart-Smith J distinguished Bristol. He said that the mere fact that the Trust was an NPO did not mean that damages would be an inadequate remedy.  Moreover in Bristol, the claimant’s business stood to be wiped out if it lost the tender.  Here by contrast, the Trust stood to lose only 10% of its work.  After considering other factors relevant to the balance of convenience, the judge set the suspension aside.

So the first point to take away is that merely because the claimant is an NPO will not mean that it gets over the hurdle of showing that damages would be an insufficient remedy. As ever, it is a question of fact.

And as to that, the Courts have recently made it clear that, on an application to discharge the suspension, simple assertions, by either party, about where the balance of convenience lies will not be enough to make their case. Solid evidence is normally needed e.g. OpenView Ltd v Merton LBC [2015] BLR 735; Counted4 CIC v Sunderland CC 164 Con LR 230. And that’s the second point to take away.

Peter Oldham QC

 

 

Business Rates

May 19th, 2016 by James Goudie KC in Council Tax and Rates

The measures in the Queen’s Speech 2016 include in England a local Growth and Jobs Bill, to allow councils to retain 100% of the business rates they collect, and to allow the elected mayors of combined authorities to levy business rate supplements in order to fund infrastructure projects.

 

Social Workers

May 19th, 2016 by James Goudie KC in Social Care

The measures in the Queen’s Speech 2016 include a Children and Social Work Bill, to create in England a new system of regulating social workers, by setting up a specialist regulator for the profession, and to create in England a new “Care Leavers Covenant”, underpinned by statutory duties, setting out the entitlements for care leavers.

 

 

Whether loan state aid

May 16th, 2016 by James Goudie KC in Capital Finance and Companies

There will be no State Aid by a public authority if a rational private investor might have entered into the transaction on the same terms, having regard to the foreseeability of obtaining a return and leaving aside all social and policy considerations. Where the authority acts in a way that corresponds to normal market conditions, the transaction cannot be regarded as State Aid.  This is the market economy investor principle.

The principle has been considered by the Court of Appeal in R (Sky Blue Sports & Leisure Ltd) v Coventry City Council (2016) EWCA Civ 453.  The Court of Appeal held that a loan of £14.4 million by the City Council was not State Aid.

The loan was to a company that was at the time the City Council’s half-owned subsidiary, which operates the Richoh Arena, which contains the Stadium where Coventry City Football Club and now also Wasps Rugby Club play. A commercial interest rate in accordance with EU Commission guidelines was charged, the loan was in other respects on commercial terms, and there was a realistic prospect of the City Council’s shareholding in the company acquiring significant value. There was no selective advantage for the company.  A private investor in the position of the Council would not have focussed exclusively on the loan to value ratio.

Tomlinson LJ observed that the analysis of risk involved in the application of the market economy investor principle requires public undertakings, like private undertakings, to exercise entrepreneurial skills which, by the very nature of the problem, implies a wide margin of judgment on the part of the investor: paragraphs 11, 16, and 23-29, especially 25.

 

Claimant’s duty of candour in JR proceedings strongly affirmed by CA …

May 6th, 2016 by Peter Oldham QC in Judicial Control, Liability and Litigation

… in R ota Khan v SSHD [2016] EWCA Civ 416, a decision of 4th April 2016.  Beatson LJ, setting aside permission to appeal (the other judges agreeing),  said

35 The duty to disclose all material facts known to a claimant in judicial proceedings including those which are or appear to be adverse to his case prior to applying for permission is well established …

36  Notwithstanding the provision by CPR 54.8 for a respondent to judicial review proceedings to file an acknowledgement of service and summary grounds, it remains the case that a claimant in judicial review proceedings must ensure that the judge dealing with such an application has the full picture in order to make the relevant decision …

Peter Oldham QC

 

Housing Supply

May 5th, 2016 by James Goudie KC in Planning and Environmental

Two important points are confirmed by Ouseley J in St Modwen Developments v SoS for CLG and East Riding of Yorkshire Council [2016] EWHC 968 (Admin).  First, there is no requirement for a site to have existing planning permission in order for the site to be available for housing supply for the purposes of NPPF para 47.  Second, the LPA had been entitled not to assess housing need only by reference to their own area.

 

Felling Trees

May 3rd, 2016 by James Goudie KC in Environment, Highways and Leisure

The felling by a local highway authority of trees in the highway, including its pavements and verges, is not “development” under the Town and Country Planning Act 1990. It does not require planning permission, or an environmental impact assessment, or consultation.  On the contrary, when such a tree is a source of danger or obstruction or needs to be moved in order to facilitate highway repairs, the authority is under a statutory obligation to remove the tree pursuant to its Highways Act 1980 duty to repair and maintain the highway.  So held in R (Dillner) v Sheffield City Council (2016) EWHC 945 (Admin).

 

Age assessment and litigation fairness

April 27th, 2016 by Peter Oldham QC in Judicial Control, Liability and Litigation, Social Care

The Court of Appeal handed down an interesting and wide- reaching judgment yesterday (26th April 2016) in LB Croydon v Y [2016] EWCA 398. It directly concerns age assessment cases, but the principles enunciated apply to all litigation, private and public.

Y was an asylum seeker who was assessed by LB Croydon for social services needs.  He was assessed as being over 18.  He brought a judicial review age assessment challenge.  The Upper Tribunal  gave directions listing the case for a 4 day hearing.   Five months later, Croydon applied to the UT for an order that the claim should be struck out or stayed unless Y consented to and co-operated fully with (1) a dental examination (including a dental X-ray), (2) a psychiatric examination and (3) an age assessment by two Croydon social workers.

In making this application, Croydon relied on the Court of Appeal’s decision in Starr v National Coal Board [1977] 1 WLR 63.  Starr was a personal injury claim.  Mr. Starr accepted that in preparing its defence, the NCB needed to be advised by a consultant neurologist who had had the opportunity of examining him. But he objected to examination by the particular doctor chosen by the NCB without explaining why.  He said that he was willing to be examined by any other consultant neurologist of similar qualification and experience.  The NCB applied for a stay of all further proceedings until Mr. Starr submitted to an examination by its chosen doctor.  The Court of Appeal upheld the stay that had been granted by the judge.

The UT judge refused Croydon’s application, saying that it was “most unfortunate” that Y’s representatives would not co-operate, but that it would be “too draconian” to stay or strike out the proceedings.  The judge said that Starr did not apply, first, because (unlike Mr. Starr) Y had not conceded that Croydon’s assessments were necessary; and second, because this was public rather than private law litigation.

Overturning the UT judge’s decision, Lord Dyson MR gave the only reasoned judgment, Macur and Lindblom LLJ agreeing.  On the first point, he said at [16] that it didn’t matter whether there was a concession or not: the question was whether the assessments were in fact “reasonably necessary for the proper conduct of Croydon’s defence”.   The UT judge himself had decided that they were.

On the second point, Lord Dyson said at [17] that “there is no basis in principle for confining the Starr principles to private law litigation… The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred [in Starr] applies in any litigation”.

This is important since it makes it clear that the Starr principle is of general application, whether in courts or tribunals. So – as an example only – the first-tier tribunal should apply similar principles in special educational needs cases where a young person’s needs are in question and the authority or school wants to assess them.

Lord Dyson finished by deciding that, though a UT judge had the normal discretion as to case management issues, there was no reason in the current case for the judge to have decided that the steps which Croydon wanted Y to take could not be properly accommodated in the proceedings. 

So the outcome was that the unless order sought by Croydon was made.

Peter Oldham QC