In THURROCK COUNCIL v ADAMS ( 2024 ) EWHC 2576 ( KB ) a precautionary injunction was continued against persons unknown to prevent apprehended future obstruction of the highway and trespass by climate change activists. The fact that they were exercising their ECHR rights of freedom of expression and freedom of peaceful assembly could not normally justify a trespass. However, where these rights were engaged, the Court had to consider the proportionality of the draft injunction sought.
WAIVER OF RIGHT TO TERMINATE CONTRACT
October 17th, 2024 by James Goudie KC in Decision making and ContractsIn URE ENERGY LTD v NOTTING HILL GENESIS (2024) EWHC 2537 ( Comm ) an energy company was held not to have waived its right to terminate an electricity supply contract even though it had continued to perform its contractual obligations for six months after a contractually specified termination event. Although the company’s controlling mind knew that the contract contained a termination clause , he did not appreciate, and could not be expected to have appreciated, that it gave the company a right to terminate in the circumstances which transpired. The Court applied the principles on waiver. Where a party became entitled to terminate a contract it had to elect whether to exercise that right or not . To make an election, it had to be aware of its right to terminate and the facts giving rise to that right. If, having the requisite knowledge, it acted in a manner that was consistent with only one of the two courses, it would be held to have elected accordingly.
ALTERNATIVE REMEDY
October 17th, 2024 by James Goudie KC in Judicial Control, Liability and LitigationThe appeal to the Supreme Court in McAlleenon (2024) UKSC 31 concerns the exercise of discretion by a Court where the public authority defendant argues that the claimant has an adequate alternative remedy such that judicial review should be refused. The Supreme Court holds that a private prosecution or civil claim in nuisance did not constitute suitable alternative remedies to judicial review. The Supreme Court says that judicial review is concerned with examining whether a public authority has acted lawfully. The Court has a supervisory role only. Its task is not typically to resolve disputes of fact but to determine the legal question of whether the public authority had proper grounds for acting as it did on the basis of the information available to it. As such, usually, judicial review claims can and should be be determined without the need for procedures which are directed to resolving disputed questions of fact, such as cross-examination of witnesses. Moreover, in human rights cases the Court’s role remains essentially one of review; and complaint to an Ombudsman does not constitute a suitable alternative remedy.
DOMESTIC ABUSE
October 16th, 2024 by James Goudie KC in HousingA Local Government and Social Care Ombudsman, on 14 October 2024, draws on its experience investigating housing complaints, since the Domestic Abuse Act 2021, came into force, where domestic abuse was a significant factor in the complaint. It seeks to improve local authority awareness, when providing housing and homelessness support, of their duties. It provides guidance on using the right definition of domestic abuse and priority need, providing interim accommodation as soon as the the low threshold of “ reason to believe “ is met, and identifying applications for social housing which trigger homelessness duties.
CHANGE OF USE
October 14th, 2024 by James Goudie KC in Planning and EnvironmentalIn JONES v ISLE OF ANGLESEY COUNTY COUNCIL (2024) EWHC 2582 (Admin) Mould J at para 32 restated the principles upon which the Court acts when faced with an allegation that a Planning Committee has ben misled by Officer advice. The Court will not read a Planning Officer’s Report with undue rigour, but with reasonable benevolence, bearing in mind that such Reports are written for Councillors with local knowledge. The question for the Court will always be whether, on a fair reading of the Report as a whole, the Officer had misled the Committee in a material way on a matter bearing on their decision, and the error had not been corrected.
Mould J found that there was no such error on this case. At paras 52 and 53 he stated that in considering whether the use of a building has changed from its former use to a new use, the decision-maker can and should take into account both the physical state of the building and its actual use or intended use or attempted use. Each of those matters is capable of being relevant to the question whether the use of the building has changed from its former use to a new use. The relative importance of any or all of those matters will depend on the circumstances of the given case.
INJUNCTIVE RELIEF
October 4th, 2024 by James Goudie KC in Human Rights and Public Sector Equality DutyIn AHMED v AKBAR ( 2024 ) EWHC 2433 ( KB ) injunctive relief , pursuant to Section 12(3) of the Human Rights Act 1998, was granted, in a claim for misuse of private and confidential information concerning the claimant’s financial affairs, where there was an unacceptable risk of further publication by the defendant. Article 8 of the ECHR was held on the balance of probabilities to outweigh Article 10.
AARHUS
September 30th, 2024 by James Goudie KC in Planning and EnvironmentalA Ministry of Justice Consultation seeks views by 9 December 2024 on options to bring UK policies into compliance with its obligations under the ACCESS TO JUSTICE provisions of the Aarhus Convention to make provision for (i) public access to ENVIRONMENTAL INFORMATION, (ii) participation in ENVIRUNMENTAL DECISION-MAKING, and (iii) access to justice in CHALLENGING ENVIRONMENTAL DECISIONS.
PROCUREMENT OF CONTRACTS
September 30th, 2024 by James Goudie KC in Decision making and ContractsThe Welsh Government has on 30 September 2024 provided GUIDANCE on the PROCUREMENT ACT 2023 on (i) assessment summaries (ii) conditions of participation, and (iii) terminations of contracts.
BROWNFIELD SITES
September 24th, 2024 by James Goudie KC in Planning and EnvironmentalOn 22 September 2024 the Ministry of Housing, Communities & Local Government has. Published a Policy Paper, “ Brownfield Passport : Making the Most of Urban Land “, inviting views on action that could be taken through the planning system to support the development of brownfield land in urban areas. It proposes options for a form of BROWNFIELD PASSPORT, which would be more specific about the development that should be regarded as acceptable. T he default answer to suitable proposals would be a straightforward : “ Yes “.
The proposals relate to the principle, the scale, and the form of development, and to the potential wider use of LOCAL DEVELOPMENT ORDERS. These would grant area-wide permissions.
A series of questions are posed.