Officer Reports

October 13th, 2015 by James Goudie KC in Decision making and Contracts

In R (Nicholson) v Allerdale BC [2015] EWHC 2510 (Admin) Holgate J emphasized relevant principles upon which the High Court will approach a challenge to a decision taken by a local planning authority involving criticism of the officer’s report:-

(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the officer’s report, particularly where a recommendation is accepted;

(ii) The officer’s report must be read as a whole and fairly, without being subjected to the kind of examination which may be applied to the interpretation of a statute or a contract;

(iii) Whereas the issue of whether a consideration is relevant is a matter of law, the weight to be given to a material consideration is a matter of planning judgment, which is a matter for the planning committee, not the court;

(iv) An application for judicial review based on criticisms of the planning officer’s report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken;

(v) In construing reports, it has to be borne in mind that they are addressed to a knowledgeable readership, including council members who, by virtue of that membership, may be expected to have a substantial local and background knowledge;

(vi) The purpose of an officer’s report is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large, but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer’s report setting out in great detail background material, for example, in respect of local topography development plan policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer’s expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail;

(vii) Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose would be defeated.

There was also an irrationality challenge.  Holgate J reiterated that an application for judicial review is not an opportunity for a review of the planning merits of the Council’s decision. Although an allegation that such a decision was perverse, or irrational, lies within the scope of proceedings under CPR Part 54, the Court must be astute to ensure that such challenges are not used as a cloak for a rerun of the arguments on the planning merits.  In any case where an expert tribunal is the fact finding body, as in the case of a planning committee, the threshold for Wednesbury unreasonableness is a difficult obstacle for a Claimant to surmount, which is greatly increased in most planning cases by the need for the decision-maker to determine not simply questions of fact, but a series of planning judgments. Since a significant element of judgment is involved, there will usually be scope for a fairly broad range of possible views, none of which could be categorised as unreasonable. Moreover, the decision may also be based upon a site inspection, which may be of critical importance. Against this background, a Claimant alleging that a decision-maker has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task.  On the other hand, irrationality challenges are not confined to the relatively rare example of a “decision which simply defies comprehension”, but also include a decision which proceeds from flawed logic.

On policies, Holgate J reiterated that the correct interpretation of planning policy is a question of law to be determined by the Courts.  But, notwithstanding its legal status and effects, a development plan is not analogous to a statute or a contract and therefore its policies must not be construed as if they were statutory or contractual provisions. That is because development plans often contain broad statements of policy, and policies of that nature may be difficult to reconcile if construed strictly. In addition, the language used to express planning policy may depend upon the exercise of judgment by the decision-maker when applied to a given set of facts. The exercise of judgment by a planning authority when applying a policy is legally distinct from the construction of that policy. Such matters of judgment fall within the jurisdiction of the planning authority and may only be challenged in the courts if irrational or perverse.   When determining the extent to which a proposal conforms with a local plan, the correct focus is on the plan’s detailed policies. The supporting text consists of descriptive and explanatory material and/or reasoned justification in respect of the policies. That text is relevant to the interpretation of the policy with which it is concerned, but it does not itself constitute policy or form part of policy. Because the supporting text does not have the force of policy it cannot trump or override the policy to which it relates. So, for example, a criterion which is to be found in supporting text but not in a policy of the plan, could not affect the decision as to whether a proposal accords with the development plan.

 

Rateable Value

October 6th, 2015 by James Goudie KC in Council Tax and Rates

In Barber (Valuation Officer) v Cerep (2015) UKUT 521 (LC) it was held that in determining the rateable value of an hereditament it was necessary to consider three questions: (1) whether the hereditament is in such repair as makes it reasonably fit for occupation by a reasonably-minded tenant, having regard to the age, character and locality of the hereditament; (2) if not, whether the works required to put the hereditament into such a condition are works of “repair”; and (3) if not, whether those repairs can be carried out economically.

 

Consequences of Ultra Vires

October 6th, 2015 by James Goudie KC in Local Authority Powers

In Central Tenders Board v White [2015] UKPC 39 the Privy Council said (at paragraph 26):-

“Ultra vires is not, of course, the only ground on which a court may quash an administrative decision, but it would be wrong for a court to do so in such a way as to nullify a contract made between a public body pursuant to a legal power and a person acting in good faith, except possibly on terms which adequately protect that person’s interest.”

 

Local Authority Powers

September 18th, 2015 by James Goudie KC in Local Authority Powers

Part 8 (Clause 26 and Schedule 4) of the Enterprise Bill, introduced in the House of Lords on 17 September 2015, contains elaborate provisions giving the Treasury power to impose restrictions on public sector exit payments, as broadly defined. They will be capped.

 

Customer facing roles

September 18th, 2015 by James Goudie KC in Land, Goods and Services

Part 7 (Clauses 38-45 inclusive) of the Immigration Bill, introduced in the House of Commons on 17 September 2015, imposes fluent English language requirements for public sector workers, and makes provision for statutory guidance in Codes of Practice which are to be consulted upon and complaints procedures. The Bill will require authorities to comply with a statutory duty. Fluent English is defined as a command of spoken English that enables workers, employed when or after the duty comes into effect, to perform their role effectively. Someone working for authorities exercising functions in Wales in a customer facing role will have to speak fluent English or Welsh.

 

Non-domestic rating

September 18th, 2015 by James Goudie KC in Council Tax and Rates

Part 6 of the Enterprise Bill, introduced in the House of Lords on 17 September 2015, relates to non-domestic rating. Clauses 22 and 23 make amendments to the Local Government Finance Act 1988.

 

Appropriation

September 15th, 2015 by James Goudie KC in Land, Goods and Services

There is no doctrine of implied or inferred appropriation. So held Dove J in R (Goodman) v SoS for DEFRA (2015) EWHC 2576 (Admin). Section 122(1) of the Local Government Act 1972 contains no prescribed formula for the procedure to be adopted when a council appropriates land from one purpose to another. It does however need the council to determine that it no longer requires the land for the purpose for which it was holding it up to the point of that appropriation. Appropriation cannot be inferred from conduct alone. As regards the suggestion to the contrary, the Judge said, at paragraph 26:-

“The difficulty with that suggestion is the need for the authority, when exercising the power under Section 122 of the 1972 Act, to be satisfied that the land “is no longer required” for the purpose for which it is held. That requires some conscious deliberative process so as to ensure that the statutory powers under which the land is held is clear and appropriation from one use to another cannot, in my view, be simply inferred from how the council manages or treats the land.”

 

Business Rates

August 20th, 2015 by James Goudie KC in Council Tax and Rates

Any hereditament whose owner is a company which is subject to a Winding Up Order under the Insolvency Act 1986 or which is being wound up voluntarily under that Act is exempt from business rates. PAG Management Services was incorporated to manage and coordinate an artificial scheme whose sole reason for existence was to exploit this exemption. The scheme was struck down by Norris J in SOS for BIS v PAG Management Services Ltd (2015) EWHC 2404 (Ch), not because it was contrary to the public interest ( ratepayers can organise their affairs so as to avoid paying rates), but because it was a misuse of the insolvency legislation and commercially improper to use a company in liquidation as an asset shelter.

 

Local Search Results

July 30th, 2015 by James Goudie KC in Environment, Highways and Leisure

In Chesterton Commercial (Oxon) Ltd v Oxfordshire County Council (2015) EWHC 2020 (Ch) the Council was found liable to the claimant developer which had relied on its local search results stating that parking spaces which formed part of the property it was buying were not maintainable at public expense. There was at the time an ongoing investigation into whether this was in fact the case and further consideration was required. There was a real risk that the records might be inaccurate and that the parking spaces might be public highway. The response to inquiries said nothing at all about the investigation. The entire title was stated to be private land.

Under the Highways Act 1980 Section 36, each County Council must make, and keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense. That list is to be kept deposited at the County Council office and is to be available for free inspection at all reasonable hours. In England the County Councils must supply to the council of each district in the county an up to date list of the streets within the area of the district that are highways maintainable at the public expense, and that list must be kept deposited at the office of the district council and kept available for inspection by the public free of charge at all reasonable hours.

The Judge found that, having regard to its statutory duty, the County Council did not make correct and updated information available to the claimant when its solicitors conducted searches. However, the County Council contended that the statutory duties imposed by Section 36 of the Highways Act 1980 gave rise to no private cause of action, and that it owed no independent duty of care to the claimant. It denied any or any actionable negligence. It argued that the only information which it was required to give by Section 36 about highways maintainable at public expense was to identify highways known to be maintainable at public expense. It was not strictly liable for the accuracy of the information and owed no duty at all to identify roads or streets under investigation on its Section 36 lists or maps.

The Judge observed that the question of whether a local authority may be liable to a member of the public in a private action for breach of statutory duty for an inaccurate search result which leads to loss is undecided. The Council argued that there is no such right. The Judge did not, however, find it necessary to decide whether there is a private right of action for breach of the Section 36 duty. This was because a local authority may be liable to a member of the public in tort. In Gooden v Northamptonshire CC [2001] EWCA Civ 1744 it was held that a local authority owed a duty of care in respect of an incorrect answer to enquiries that certain land was maintainable as a highway at public expense. Arden LJ, who gave the leading judgment, acknowledged that purchasers of property commonly relied upon searches in the form of Enquiries made of highway authorities in deciding whether or not to buy properties, and the law could be criticised if it ignored that reality. She also drew an important distinction between mere foreseeability that that information provided would be used in that way and providing information for that purpose. A highway authority cannot be taken to know for what purpose a particular enquiry is being made, but it would know that answers to enquiries are provided within a ‘well worn’ conveyancing framework. Arden LJ reserved the Court of Appeal’s position on whether a breach of the statutory duty to maintain an accurate list would be actionable by a person harmed by a failure to do so. However, she also pointed out that just because the statutory list of roads maintainable at public expense was wrong, it did not necessarily follow that the Council responsible for maintaining the list was negligent, and in that case it was no part of the pleaded case that the Council in the case had been negligent. Not so in the Oxfordshire case. The case in negligent misstatement was pleaded, and was the primary case at trial. The claimant also contended that the Council’s duty at common law was the same as its statutory duty – namely to cause a list to be made of the streets which are highways maintainable at the public expense, to keep that list corrected and up to date, and to supply each district council within its area an up to date list of the streets within that district which are highways maintainable at the public expense.

The Judge ruled that the Council owed the claimant a duty of care at common law with respect to its reply to enquiries for the purpose of the decision which the claimant made to acquire the property, and that the result of the search amounted to a statement by the Council that the car parking spaces were not part of the highway but were private space. She said:-

“34.      It was the Defendant’s proper role, as required by statute, to answer the inquiries made on the search accurately. It did not do so. The Defendant argued that it was sufficient that the result of the search showed accurately what was on the Highway Map. I do not accept that submission. It overlooks the fact that the statute requires the list of streets which are highway maintainable at public expense to be kept corrected up to date. Had the list been correct and up to date it would have been marked as showing that there was an investigation going on. I entirely accept that the Claimant did not make known to the Defendant that it was buying for development and re-sale, but that matters not where the Claimant is not arguing for prospective development losses to be paid by way of damages but relies on diminution of value from pre-existing use.

35.       I find, on the evidence, that if the reply had been accurate, the Claimant might not have proceeded at all, and would definitely not have proceeded at the same price.”

It was acknowledged by the Council’s witness in evidence that purchasers would rely on the results of searches in making decisions about property purchases. More specifically, in this case, it was clear that the Council knew that a purchaser of the land comprised in the title would inevitably want to know if the land comprised within the title was private land or public highway, or highway maintainable at public expense. The conditions for the creation of a duty of care in tort were therefore present, as were the conditions for liability for misstatement. Reliance has also been proven. It was entirely foreseeable by the Council that if the result of the search was wrong, a purchaser might go ahead at a price which was higher than if an accurate response had been given. This is because a purchaser would believe that the car parking spaces were private land as the title suggested and would not know that they were in fact highway. The difference between the price paid and the value without the car parking spaces was a foreseeable head of loss.

 

PFI Contract

July 23rd, 2015 by James Goudie KC in Best Value

In Portsmouth City Council v Ensign Highways Ltd [2015] EWHC 1969 (TCC) interpreted a PFI Contract between a local authority and a service provider and considered whether it is to be implied that the authority as a best value authority must act in good faith when dealing with breaches by the service provider. In the action the Council sought declarations in relation to the performance of certain of its obligations under a long term PFI Contract made with Ensign. The dispute was about the manner of awarding Service Points by PCC for breaches by Ensign of its obligations under the Contract, which concerns the long term rehabilitation, maintenance and operation of the Council’s highway network.

The Contract incorporated a regime for awarding Service Points for breaches by Ensign of its obligations under the Contract. Schedule 17 to the Agreement contained a table which set out a large number of Default Events for which Service Points could be awarded and, against each Default Event, a “Maximum Event Value”. The Maximum Event Value for each Default Event originally consisted of a single figure between 1 and 10. It was common ground that, until about December 2013, the Council treated the figures for the Maximum Event Value as the upper limit of a range. Accordingly, where the Maximum Event Value was greater than 1, the number of Service Points awarded would depend on the Council’s view of the gravity of the breach.

The Council assessed and awarded Service Points on a monthly basis and, initially, the system was operated in a manner that seemed to be regarded as satisfactory by both parties. However, after a few years cuts in central government funding to local authorities began to take their toll. In 2012 The Council began to form the view that if the Contract continued to be operated in the same manner for the remainder of its term it would become unaffordable. The Council embarked on a strategy of awarding Ensign large amounts of Service Points in order to force it to accede to the Council’s commercial demands in a renegotiation of the Contract. This involved, amongst other things, awarding the maximum amount of Service Points for every default, refusing to communicate with Ensign in relation to breaches, finding breaches in areas which Ensign might find hard to remedy and storing up Service Points over several months so that Ensign could be “ambushed” with a large award of Service Points at one fell swoop.

Ensign notified the Council that it intended to refer the dispute about the award of Service Points to Expert Determination in accordance with the terms of the Contract. The Expert issued a detailed and careful Determination in which she concluded, in fairly trenchant terms, that the Council had acted in bad faith, without mutual co-operation and unfairly. However, she did not conclude that Ensign’s performance was always as it should have been: her conclusion was that in general it was delivering the required service but that the Contract did not really provide any means of achieving long-term improvements. In addition, it seems that there was a view within the Council that the performance standards required under the Contract were unnecessarily high, and that it was therefore an unnecessary luxury.

The Council of course was under the “best value” duty imposed upon it by Section 3 in Part I of the Local Government Act 1999. Clause 44 of the Contract is concerned with best value and best value reviews. The Council relied strongly on the decision of the Court of Appeal in Mid Essex Hospital Services NHS Trust v Compass Group [2013] BLR 265.

Edwards-Stuart J in the Portsmouth case observed that failure of highway maintenance can take many forms. He concluded on the Service Points issue as follows:-

“70. … It does not in my view make commercial sense to have a system which requires the authority to impose the same number of points irrespective of the gravity or duration of the breach. In the absence of any specific indications to the contrary, one would expect the parties to have agreed a system that provided or permitted some flexibility in relation to the number of points to be awarded for any particular breach. …

71. I agree that the word “maximum” is a word with a clear meaning – namely, the upper limit of a range. It is therefore an inappropriate word to include in the heading of a column containing numbers if those numbers were intended to be single values, rather than the upper limit of a range. On PCC’s approach, the word simply has to be ignored.

72. In my view, the use of the word “Maximum” in the heading to the column showing the number of points was not the result of a drafting error but was there for a purpose. That purpose was to permit the PCC Representative, within the range provided for in the schedule, to award an appropriate number of points having regard to the gravity of the breach.”

“76. I therefore conclude that the Service Point values set out in Schedule 17 are maximum values that can be awarded for a particular breach and are not fixed “tariffs” that are to be applied irrespective of the gravity of the breach in question.”

As to the extent of the duty of good faith, the Judge began by observing as follows:-

“81. … It is clear to me that, in the context of this Agreement, PCC could not discharge its Best Value Duty unless it was in a position to negotiate improvements to the Service that might operate to Ensign’s financial detriment in circumstances where Ensign was obliged to discuss such changes in good faith – in other words, by giving proper and careful consideration to PCC’s needs and statutory obligations and balancing those against its own commercial interests. That, it seems to me, is the reason why, at least for the purposes of clause 44, Ensign is required by clause 44.4.1 to deal fairly, in good faith and in mutual co-operation with PCC. Since a duty of good faith is not usually implied into commercial contracts under English law, save in certain particular types of contract, it is necessary to provide for an express duty in appropriate terms. That is what clause 44.4.1 does.”

The Judge, however, rejected Ensign’s submission that the clause 44.4.1 duty applied to the Contract as a whole.  Nonetheless, he concluded, at paragraph 112, that when awarding Service Points (under clause 24) the Council was subject to an implied term, as follows:-

“When assessing the number of Service Points to be awarded under clause 24.2.1(c) of the Agreement, PCC’s Representative is to act honestly and on proper grounds and not in a manner that is arbitrary, irrational or capricious.”

 

« Older Entries
Newer Entries »