Hiring a Council Park

June 23rd, 2016 by James Goudie KC in Environment, Highways and Leisure

R (Friends of Finsbury Park) v Haringey LBC [2016] EWHC 1454 (Admin) was an unsuccessful application for judicial review to quash a decision of Haringey Council to hire Finsbury Park, which the Council owns, for a licensed music festival. Supperstone J observed (para 7) that the Park has played host to large scale events, including commercial concerts, attended by tens of thousands of people, for many years.

Supperstone J referred (paras 9-13) to the Council’s Events Policy, (paras 14-21) to the festival promoter’s Premises Licence, (paras 22-35) to the Council’s review following complaints about the event the previous year and consultation about the 2016 event.

There were four grounds of challenge. The most fundamental was to the Council’s vires. The statutory provisions upon which the Council relied included Section 145 (provision of entertainments) of the Local Government Act 1972. Supperstone J concluded (para 45) that Section 145, of itself and standing alone, provided the Council with the necessary power to permit the festival to take place in the Park.  The power included (para 47) closing the Park to members of the public, save for those who pay for admission, and closing the Park to the extent and for the time necessary to set up and take down the event infrastructure, and to hold the event safely for the benefit of those members of the public who wish to buy tickets to attend it.  Further (para 49) Section 145 does not state that its exercise is subject to any other enactment, or that it is to be read or qualified by any such enactment.  Section 44 of the Public Health Amendment Act 1890 is an additional power that the authority may rely upon should it so choose.

Supperstone J, applying well-settled principles, also dismissed a consultation challenge, on the basis of some of the information being allegedly “positively misleading” and the shortness (14 days) of the consultation period. The consultation was (para 60) adequate for its purpose. Moreover, Supperstone J added:

“61.      If, contrary to my view, there should have been more, or a longer period of, consultation, I consider, in the light of the consultation that there was this year and in previous years in relation to essentially the same event, it is highly likely that the outcome for the Claimant would not have been substantially different (Senior Courts Act 1981 s.31(2A)).”

Other challenges that were dismissed included that the Council had failed to deal with the application as a “key decision” and that the Council was in breach of other process requirements. The fact that the income the Council would earn would help the Council meet its Parks Budget did not mean that the decision was a key decision.  The decision was correctly designated as not being a key decision.  Nor was there any failure to record the decision or to make documents available.  Again, Supperstone J added:

“76.      I consider it highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred (s.31(2A) Senior Courts Act 1981). There was nothing in the decision or the report that would, in my view, have led to any further representations by the Claimant that would have made any substantial difference to the outcome.”

 

Asylum Seeking Children Age Assessments

June 22nd, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

Whether an unaccompanied individual is a child for immigration purposes has to be determined by the Court as an issue of objective fact. It is not a matter of what an Immigration Officer reasonably believes: AA v SSHD and Wolverhampton City Council [2016] EWHC 1453 (Admin).

 

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.

 

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