LEGITIMATE EXPECTATION

November 17th, 2014 by James Goudie KC in Decision making and Contracts

In Solar Century Holdings Ltd v Secretary of State for Energy and Climate Change [2014] EWHC 3677 (Admin) the submissions made for the Claimant included that (1) certain pre-legislative statements were admissible and in effect bound the Government, according to the principles laid down by Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 at paragraph 6, (2) certain statements made by the Government were “clear and unequivocal” representations which gave rise to a legitimate expectation, and (3) the expectation could not be trumped or thwarted by any of the policy considerations advanced by the Government.  Green J rejected all these submissions.  The case concerned renewable energy sources by way of large scale “solar farms”, governed by the Electricity Act 1989, as amended by the Energy Act 2013, and whether the Government was bound to maintain a particular scheme in place until 2017.  Clear and repeated representations had been made to that effect, but they had always been qualified.

As to (1) above, Green J said, at paragraph 48: “If … the language of the enactment is clear and unequivocal and inconsistent with the pre-legislative material, then a court cannot assume that Parliament necessarily intended to translate into statutory form the will of the Executive”.  At paragraph 52, Green J stated the principles as follows:-

“i)         When construing an enactment, including the exercise of power under an enactment, it is relevant to identify the intention or purpose of the measure, i.e. the mischief to which it is     directed.

ii)         In all cases (save with regard to consolidating enactments) the purpose or mischief may be identified by the posing of questions …  such as: If the legislation has changed, what has changed? If there is a problem which had to be resolved, what was the problem? If there was a blemish in the legislation, what was that blemish? If there was an improvement which was sought to be achieved, what was that improvement?

iii)         To identify the purpose or mischief and to answer these questions it is permissible to examine Explanatory Notes, White and Green Papers, Ministerial statements … and Law Commission Reports, all of which may be admissible forms of evidence.

iv)         However, not all such admissible sources are of equal weight. Those sources (such as Explanatory Notes) whose “shape” was closely connected to the “shape of the proposed legislation” may be more informative as guides (Westminster City Council) than other sources which are more remote from the final language selected by Parliament.

v)          In addition, a court may draw inferences from the statutory words actually used in the scheme of the legislation as a whole and from any case law on the underlying subject matter and a court might ask whether it may be inferred that Parliament intended to act consistently with the standard set out in case law … .

vi)         Material that is admissible will reflect the views of their authors. And the views of authors, including the Government of the day, do not necessarily reflect the will of Parliament (Westminster City Council). If there is an inconsistency between the statutory language and the pre-legislative, admissible, material it cannot, without more, therefore be assumed that the statutory purpose must reflect the purpose set out in pre-existing admissible material.

vii)        However, if there is a collision between a literal interpretation of an enactment and the contextual material with the consequence that the literal interpretation “is manifestly contrary to the intention which one may readily impute to Parliament, when having regard to the historical context and the mischief…“, then the enactment should be construed in the light of the purpose as evident from the historical context and mischief…”.

As to (2) above, Green J said, at paragraph 72-76:-

“72.      When what is objected to is the abrogation of a policy or a change of policy the starting point is that once a policy is promulgated and said to be settled there needs to be a rational ground for terminating it … But there is no presumption that policy cannot change; on the contrary it plainly can do so and frequently does. So the issue become whether there can be identified a representation of sufficient certitude that the policy will not be changed regardless of surrounding circumstances. As to this a representation that a policy will continue until a specified date is not the same as a promise that it will never be changed even if circumstances change. If it were otherwise then an intention to pursue a policy for a fixed period would become set in stone and permanently unyielding to changes in relevant circumstances however compelling they might be.

73.       And even if a sufficiently certain promise or representation has been made that a policy will continue in force and not be changed until a fixed date there is always a balance still to be struck between the retention of that policy and the strength of the (ex hypothesi) rational grounds which have arisen and which now are said by the Government to necessitate a frustration of that prior representation or promise. The test laid down by the Courts is whether the change of policy and the concomitant thwarting of the prior expectation amount to an abuse of power….”

“76.      …recognising that policy can change there is still a duty on the decision maker to weigh up the competing interests. There is no unfettered right to change policy (even for good reason) without putting those good reasons into the melting pot with the other countervailing reasons favouring retention of the policy and forming a rounded assessment of where the balance lies: …”

As to (3) above, Green J said, at paragraph 90:-

“… I consider that even if there were a legitimate expectation which arose it was amply offset by the powerful public interest considerations on the other side of the equation and the frustration of that expectation is not, nor comes close to being, an abuse of power.”

 

Commons Registration

November 17th, 2014 by James Goudie KC in Environment, Highways and Leisure

 

County Councils in England, District Councils in England for an area without a County Council, London Borough Councils and County or County Borough Councils in Wales are “commons registration authorities”.  The commons registration authority in relation to any land is the authority in whose area the land is situated.  Where any land falls within the area of two or more commons registration authorities, the authorities may by agreement provide for one of them to be the commons registration authority in relation to the whole of the land.

The Commons Registration Act 1965 (“the 1965 Act”) created a legal record of common land, town and village greens and rights over the land by requiring that all were registered by a cut-off point, failing which they lost that status. The compilation of the original registers resulted in many mistakes and anomalies, eg land was recorded as common land despite having never been part of the common. Many of these mistakes were not noticed until after the registers became conclusive on 31 July 1970 but there were insufficient powers to correct them. The 1965 Act also failed to require that registers be kept updated when events took place that affected the information in the registers. Consequently the registers currently maintained under the 1965 Act are not an accurate record of common land, town or village greens or the rights over them.

Part 1 of the Commons Act 2006 (“the 2006 Act”) 2006 Act provided for applications to amend the information in the registers to reflect contemporary events, anomalies and mistakes, and unregistered events.  It also provided that changes to the information in the registers are only considered lawful when recorded in the register.

The 2006 Act received Royal Assent on 19 July 2006.  Part 1 of the Act provides for the maintenance of, and amendment of the information in, the registers of common land and of town and village greens which were established under the 1965 Act. Section 1 provides that commons registration authorities shall continue to keep registers of common land and of town and village greens (ie those originally prepared under the 1965 Act). Sections 2 to 5 provide for the purpose of the registers, the definition of commons registration authorities and the land to which Part 1 applies, which is most of England and Wales.  Sections 6 to 17 specify the types of applications to amend the registers to reflect contemporary events which affect the information contained in the registers.  Section 18 provides for the conclusiveness of the registers, eg land (i.e. common land) is deemed to be subject to rights of common upon the registration of the right. Section 19 allows for the correction of the registers in prescribed circumstances, eg where the commons registration authority made a mistake when it made an entry in the register.   Section 20 requires that the registers must be made available for inspection by any person. Section 21 provides for official copies of the registers. Section 22 gives effect to Schedule 2.  This allows for the registration of common land and town and village greens that were not registered, and for the removal of land that was wrongly registered as common land or town or village green, under the 1965 Act. Section 23 gives effect to Schedule 3.  This provides for a transitional period during which historic events which were not recorded in the registers can now be recorded.

Section 24(1) of the 2006 Act provides the Secretary of State (“the SoS”) with powers to make Regulations that provide for the making and determination of applications to amend the registers under Part 1.  Subsection (2) lists the matters that the Regulations may in particular provide for, which includes: the form of an application, the information to be supplied with one, notice requirements, the making of objections and the persons who must be consulted, the holding of inquiries, the evidence to be taken into account. Subsection (2A) provides the SoS with powers to make Regulations for the fees payable for applications, including where the person who determines the application is different from the person to whom it was made. Subsection (3) provides that the Regulations can specify the persons entitled to make certain types of application. Subsection (6) provides the SoS with powers to make Regulations concerning the making and determination of proposals made by commons registration authorities (ie applications the authority makes to itself), and subsection (7) lists the matters that such Regulations may in particular include. Subsection (8) provides that the appropriate national authority (in England, the SoS) may make regulations to appoint persons to discharge functions of a commons registration authority in relation to applications or proposals.

The Commons Registration (England) Regulations 2008 (“the 2008 Regulations”) implemented Part 1 in the seven “pioneer” local authority areas in October 2008. Those authorities comprise: Blackburn with Darwen Borough Council, Cornwall Council, Devon County Council, County of Herefordshire District Council, Hertfordshire County Council, Kent County Council and Lancashire County Council.

The Commons Registration (England) Regulations 2014, SI 2014/3038 (“the 2014 Regulations”) provide for the maintenance of the registers of common land and town and village greens, including the procedure for applications to amend them under Part 1 of the 2006 Act. The registers can be amended to add new information or amend or remove existing information. Amendments can be made to reflect contemporary changes (Sections 6 to 15 of the 2006 Act), mistakes and anomalies (Section 19 and Schedule 2 to the 2006 Act) and historic unregistered events (Schedule 3 to the 2006 Act).

The 2014 Regulations apply in full to the areas of Cumbria and North Yorkshire (“the 2014 registration authorities”) and the pioneer areas (“the original registration authorities”, which were previously subject to the Commons Registration (England) Regulations 2008, which the 2014 Regulations now replace). Cumbria and North Yorkshire are required to review their registers to identify anomalies and to process fifteen types of applications. The 2014 Regulations partially apply elsewhere in England to allow five types of applications to correct mistakes in the registers. The five types of applications are those under: Section 19(2)(a) (correction of mistakes made by an authority when it made an entry in the register), and paragraphs 6, 7, 8 and 9 of Schedule 2, which allow for the removal of certain types of land that were wrongly registered as common land or town or village green.

The 2014 Regulations require applications to be submitted to commons registration authorities.  They have the power to charge fees, set by themselves in relation to most types of applications (certain types are specified as liable to no fee, due to a public interest). Applications must be referred to the Planning Inspectorate for determination where the authority has an interest in the outcome of an application. Applications to correct a mistake, or add land to, or remove land from, the registers must also be referred provided objections have been received from persons with a legal interest in the land.

 

Off Street Parking

November 12th, 2014 by James Goudie KC in Environment, Highways and Leisure

In Isle of Wight Council and Others v HMRC [2014] UKUT 446 (TCC) the Upper Tribunal held that the First-tier Tribunal had been entitled to find that local authorities were not entitled to recover VAT included in supplies of off-street carparking pursuant to the Road Traffic Regulation Act 1984, Sections 32, 35 and 122.  Non- taxation would lead to the risk of significant distortions of competition in the off-street car parking market and the provision of outsourcing.  Local authorities were not entitled to be treated as a non-taxable person.

Proudman J accepted (para 54) that “the RTRA as a whole is not a revenue-raising measure”; that, although the cases of Cran, Djanogly and Attfield relate to on-street parking, they were applicable in that respect to off-street parking; that it is legitimate for a local authority to structure its car parking prices so as to discourage parking in some places and encourage it in others; that it is likewise legitimate to use surplus revenue generated from some car parks to make up a  shortfall in revenue from car parks which, whether for policy reasons or otherwise, are run at a loss, or where parking is free of charge; and that there is no requirement that income and expenditure be balanced on a car park by car park basis.

Proudman J said that it must follow, if the RTRA is not a fiscal measure, that “overall, and perhaps taking one year with another”, the cost to the local authority of meeting its statutory obligation of providing sufficient off-street parking and the revenue generated from the activity must be “broadly equal”.  The “deliberate making” of a profit would take the activity into the realm of “trading”.

 

Highways

November 4th, 2014 by James Goudie KC in Environment, Highways and Leisure

The normal course with highway developments is that estate roads when constructed become public highways maintainable at the public expense.  This result is usually achieved by the mechanism of an agreement made between the developer and the local highway authority under s38 Highways Act 1980.  Such an agreement has two aspects: first, the roads are dedicated and adopted as public highways; and, second, they become highways maintainable at the public expense.

In R (Redrow Homes Ltd) v Knowsley Metropolitan Borough Council [2014] EWCA Civ 1433 both Redrow and the Council as the highway authority wished in principle that this should occur.  A part of the roads will be street lighting. The Council said that it would not enter into an agreement under s38 unless it contained a provision that Redrow pays at the date of the agreement £39,000, which is a commuted sum representing the estimated capital sum to cover the cost of future maintenance of the street lights. The Council said that such a provision in a s38 agreement is lawful by reason of the word “maintenance” in s38(6) and that maintenance refers to and includes future maintenance of the road following its adoption. Redrow said that no such provision may lawfully be included in a s38 agreement.

The case related only to street lighting and a relatively small sum. However, the issue of statutory interpretation is of wide importance.

The Court of Appeal found in favour of the Council.  Lord Dyson MR, with whom Gloster and King LJJ agreed, said:-

“ … The starting point is that s38(6) is expressed in wide and unqualified terms. On its face, it permits an agreement between a developer and a highway authority containing “such provisions as to the dedication as a highway of any road or way…, the bearing of the expenses of the construction, maintenance or improvement of any highway, road…to which the agreement relates and other relevant matters as the authority making the agreement think fit”. It could hardly be wider in its scope. In particular, there is nothing in the language of the subsection which draws a distinction between what is permitted in respect of the period before and what is permitted in respect of the period after the road or way becomes a highway maintainable at the public expense….”

“19.       … First, as a matter of ordinary language the phrase “maintainable at the public expense” connotes that the highway authority will be liable as a matter of public law to maintain the highway. But it does not indicate how the authority is required to discharge that liability. The authority may carry out the maintenance itself or make an agreement for a developer to carry out the work. It may choose to pay for the maintenance of the highway out of public funds or obtain funds for doing so from the developer or a combination of the two. Whichever course is adopted, the highway authority remains liable and the highway continues to be maintainable at the public expense. Thus, for example, if a developer agrees to maintain a dedicated highway and defaults on his obligation, the highway authority remains liable. That is because the highway is maintainable at the public expense. …

20.        Secondly, quite apart from the natural meaning of s38(6), … it is clear from other provisions of the 1980 Act that Parliament did not intend by the use of the phrase “maintainable at the public expense” in the subsection to exclude the possibility of an act of privately maintaining or of privately contributing to the cost of maintaining a highway maintainable at the public expense. It can be seen from provisions such as ss 44 and 278 that an act of private maintenance or an act of the provision of expenses is not inconsistent with the concept of a highway being maintainable at the public expense.

21.        S44 provides that a person who is liable “under a special enactment or by reason of tenure, enclosure or prescription to maintain a highway” may enter into an agreement with the highway authority “for the maintenance by him of any highway maintainable at the public expense by the highway authority”. Such a person may also enter into a s38(1) agreement. Parliament clearly envisaged in such circumstances that the highway remains maintainable at the public expense notwithstanding continuing maintenance obligations on the part of the counterparty to the agreement. S278 provides that a highway authority may enter into an agreement with any person for the execution by the authority of any works which the authority is or may be authorised to execute on terms that that person pays for the whole or part of the cost of the works. S278(3) provides that the agreement may also “provide for the making to the highway authority of payments in respect of the maintenance of the works to which the agreement relates”. There can be no doubt that an agreement made pursuant to s278 can provide for a payment in respect of maintenance of a highway, including a highway maintainable at the public expense.

22.        Thirdly, … s38(1) when read together with s53 shows that Parliament cannot have intended to preclude the possibility of an agreement for maintenance by a developer after the dedication of a highway. …”

 

Consultation

October 30th, 2014 by James Goudie KC in Decision making and Contracts

The Supreme Court has on 29 October 2014 decided R (Moseley, in substitution of Stirling deceased) v Haringey LBC [2014] UKSC 56 on appeal from [2013] EWCA Civ 116.  The subject matter is the authority’s Council Tax Reduction Scheme (“CTRS”) and the Consultation Document (“the CD”) in relation to the draft CTRS.  The CD explained the reduction in Central Government funding and stated that this means that the introduction of a local CTRS in Haringey will “directly affect the assistance provided” to everyone below pensionable age who had been receiving Council Tax Benefit.  The CD also contained a Questionnaire asking how the reduction in relief should be distributed among claimants.  Following the consultation exercise the authority decided to adopt a CTRS under which the level of council tax relief was reduced for 2013-2014 by 19.8% from 2012-2013 level for all claimants other than pensioners and the disabled.

The Supreme Court unanimously allowed the claimant’s appeal.  They declared that the consultation exercise was unlawful.  However, they declined to order the authority to undertake a fresh consultation exercise. This would have been disproportionate in the circumstances.

The Supreme Court (paragraphs 25, 35 and 44) gave its endorsement to the four Gunning/Coughlan criteria of a fair consultation.

At paragraph 26 Lord Wilson added that two further general points emerge from the authorities: (1) the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting; and (2) the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.

The critical passages are at paragraphs 27/28 and 39-41:-

“27.       Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options. …

28.        But, even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options. …”

“39.       … Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme. …

40.        That is not to say that a duty to consult invariably requires the provision of information about options which have been rejected.  The matter may be made clear, one way or the other, by the terms of the relevant statutory provisions, … To the extent that the issue is left open by the relevant statutory provisions, the question will generally be whether, in the particular context, the provision of such information is necessary in order for the consultees to express meaningful views on the proposal. …

41.        Nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection.  The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy.  Never-theless, enough must be said about realistic alternatives, and the reasons for the local authority’s preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought.”

Applying the law to the facts, the Supreme Court held that fairness demanded that the Consultation Document should briefly refer to alternative methods of absorbing the shortfall in government funding and to the reasons why the authority had concluded that they were unacceptable.  The consultation was premised on the assumption that the shortfall would be met by a reduction in council tax relief.  No other option was presented.  Neither was it reasonably obvious to those consulted what other options there may have been and the reasons why such options had been discarded.  Indeed, only an infinitesimal number of responses to the consultation alluded to other ways of meeting the shortfall.  Therefore, the consultation exercise was unfair and unlawful.  (However, it was not unlawful that the authority had failed to consult on the possible adoption of a Transitional Grant Scheme announced by Central Government only 5 weeks before the completion of the Consultation.

The purpose of this particular statutory duty was to ensure public participation in the local authority’s decision-making process.  Meaningful participation in these circumstances required that those consulted be provided with an outline of the realistic alternatives.  In the absence of specific statutory provision, reference to alternative options will be required where this is necessary in order for the consultees to express meaningful views on the proposals.

In summary, the Consultation Document presented the proposed reduction in council tax support as if it were the inevitable consequence of the Government’s funding cuts, and thereby disguised the choice made by the authority itself. It misleadingly implied that there were no possible alternatives to that choice.  In reality, therefore, there was no consultation on the fundamental basis of the CTRS.

 

Housing

October 28th, 2014 by Christopher Knight in Housing

Homelessness

Where a local authority accepts that it owes a duty to a homeless person to find them temporary accommodation under section 193 of the Housing Act 1996, section 208 applies: “So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district”. In Nzolameso v City of Westminster [2014] EWCA Civ 1383 the Court of Appeal that section 208 meant that the authority was entitled to have regard to all factors that had a bearing on its ability to provide accommodation to that person, including the demands made upon it and the pressures on its resources, whether of a financial or administrative nature. Parliament had recognised in section 208 that the temporary accommodation may have to be outside the authority’s district. So long as the housing officer describes the circumstances in general terms which led her to conclude that those demands and pressures meant that accommodation could not be provided within the district, based upon the needs of the individual applicant, that would be sufficient.

The classic test in R v Camden LBC ex p Pereira (1999) 31 HLR 317 that a person is vulnerable – and therefore in priority need of housing – if he is less able to fend for himself than an ordinary homeless person so that injury or detriment will result is currently under challenge in the Supreme Court in the appeal from Johnson v Solihull MBC [2013] EWCA Civ 752. But it continues to apply, and in Ajilore v Hackney LBC [2014] EWCA Civ 1273 the Court of Appeal accepted that a reviewing officer was entitled to conclude that although the applicant was at risk of relapse into drugs use and of suicide, this did not make him vulnerable in the sense that the risk of self-harm and relapse was not anything different from what would be found in ordinary homeless people. The misinterpretation of statistics which the officer had committed did not vitiate the decision.

Possession and Article 8

The courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.

The European Court of Human Rights has again applied the Article 8 right to a home in the context of proceedings between private parties. In Lemo v Croatia (App. No. 3925/10) the applicants moved into flats as employees of a publicly owned hotel, which was later privatised. The domestic courts had evicted the applicants without consideration of whether that was a proportionate interference with their Article 8 rights. The Court held that allocation of socially-owned flats in the former Yugoslavia happened at a time when the flats were under State control, and Article 8’s required procedural safeguards and the consideration of proportionality applied.

Although there was the contrary suggestion by Sir Alan Ward in Malik v Fassenfelt [2013] EWCA Civ 798, the present position in English law is that Article 8 does not apply to possession claims brought by private landlords, and the Strasbourg case law is not sufficiently clear and constant to require otherwise: McDonald v McDonald [2014] EWCA Civ 1049.

Article 8 was applied by analogy, even where the landlord was a housing association rather than the local authority (although the council had placed the claimant with the association), where section 15 of the Equality Act 2010 (discrimination arising from a disability) was raised as a defence to possession because both tests required consideration of proportionality: Akerman-Livingstone v Aster Communities Ltd [2014] EWCA Civ 1081. However, it was proportionate to make the possession order on the facts. The Supreme Court has granted permission to appeal.

Possession and Conspiracy

A highly unusual case occurred in AA v Southwark LBC [2014] EWHC 500 (QB) in which HHJ Thornton QC, sitting as a Deputy, delivered an extraordinarily long judgment finding that Southwark’s housing officers had actively conspired to evict a secure tenant by unlawful means, namely in reliance on a warrant of possession more than six years after the possession order without having obtained the permission of the court (as required under CPR Pt 83). An internal report setting out the council’s unlawful actions and making findings of gross misconduct was not disclosed until the second day of the trial. The claimant had been made homeless and had his possessions destroyed. The torts of unlawful means conspiracy and misfeasance in public office were made out, and had the parties not settled substantial damages would have been awarded.

Possession and Anti-Social Behaviour

A new “absolute ground for possession” was enacted in section 94 of the Anti-Social Behaviour, Crime and Policing Act 2014 to apply in cases where a secure tenant in anti-social behaviour under the new regime introduced by the 2014 Act. This was brought into force on 20 October 2014 by the Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No.7, Saving and Transitional Provisions) Order 2014 (SI 2014/2590).

Alongside this, the Absolute Ground for Possession for Anti-Social Behaviour (Review Procedure) (England) Regulations 2014 (SI 2014/2554) came into force on the same day, in accordance with the provisions in section 95-96 of the 2014 Act which prescribe that a notice seeking possession must be made to the tenant, and that a review may be requested within seven days of the notice. Where no oral hearing is sought under the Regulations five clear days must be given for written representations. Where an oral hearing is sought, the landlord must give five clear days’ notice of the hearing which is conducted by a more senior person than the original decision-maker.

 

Non Judicial Control – Local Auditors

October 27th, 2014 by James Goudie KC in Non Judicial Control, Social Care

The Local Audit and Accountability Act 2014 (“the Act”) provides that local public bodies will need to appoint their own Auditors.  Local public bodies must also appoint Auditor Panels, with a majority of Independent Members, to advise on the selection and appointment of an Auditor.  Local Audit (Auditor Panel Independence) Regulations 2014, SI 2014/2845, amongst other things amend the definition of an Independent Member as set out in the Act.  The substituted definition, in Regulation 2(2), is as follows:-

“(2) A member of a relevant authority’s auditor panel, other than a health service body’s auditor panel, is “independent” at any given time if the following conditions are met –

(a) the panel member has not been a member or officer of the authority within the period of 5 years ending with that time (the “last 5 years”),

(b) the panel member has not, within the last 5 years, been a member or officer of another relevant authority that is (at the given time) connected with the authority or with which (at the given time) the authority is connected,

(c) the panel member has not, within the last 5 years, been an officer or employee of an entity, other than a relevant authority, that is (at the given time) connected with the authority,

(d) the panel member is not a relative or close friend of—

(i) a member or officer of the authority,

(ii) a member or officer of another relevant authority that is connected with the authority or with which the authority is connected, or

(iii) an officer or employee of an entity, other than a relevant authority, that is connected with the authority,

(e) the panel member is not the authority’s elected mayor,

(f) neither the panel member, nor any body in which the panel member has a beneficial interest, has entered into a contract with the authority—

(i) under which goods or services are to be provided or works are to be executed, and

(ii) which has not been fully discharged,

(g) the panel member is not a current or prospective auditor of the authority, and

(h) the panel member has not, within the last 5 years, been—

(i) an employee of a person who is (at the given time) a current or prospective auditor of the authority,

(ii) a partner in a firm that is (at the given time) a current or prospective auditor of the authority, or

(iii) a director of a body corporate that is (at the given time) a current or prospective auditor of the authority.”

 

HOUSING AND HOMELESSNESS

September 18th, 2014 by Christopher Knight in Housing

Review Process

Where a non-English speaker declines an offer of a flat, causing the local authority to conclude it has discharged its section 193 Housing Act 1996 duty, but seeks a review on the basis that she was confused by the process and had not properly understood, it was for the court to decide whether the assertion of confusion was sufficiently important, objectively speaking, to the fairness of the procedure to justify requiring the safeguard of a ‘minded to’ letter under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. That letter offered an opportunity to make representations, and the Regulations must be construed purposively in that light. It was artificial to distinguish between new matters and matters always known to the applicant. So long as the assertion of confusion was at all plausible, a regulation 8(2) letter must be sent (and if it was not, there must be full reasons as to why not): Mohamoud v Birmingham City Council [2014] EWCA Civ 227.

Where a review is carried out under the 1999 Regulations, nothing in the Regulations (which distinguished between the original decision and the review decision) or in sections 202-203 (which were framed in the present tense) of the Housing Act 1996 obliged the reviewing officer to come to more favourable decision. It was perfectly possible that a less favourable decision might be the outcome. As a result, a review of a decision which the applicant to be homeless but not in priority need could lawfully conclude that the applicant was not even homeless: Temur v Hackney London Borough Council [2014] EWCA Civ 877. There was no prohibition on taking into account events subsequent to the review application (Mohammed v Hammersmith & Fulham London Borough Council [2001] UKHL 57; [2002] 1 AC 547), and the fact that the applicant had acquired accommodation in the meantime was an appropriate consideration. The scarcity of social housing meant that as a matter of policy it would be extraordinary if homelessness duties continued to apply to a person who was no longer homeless.

The obligation on a reviewing officer to give full and proper reasons encompasses consideration of the Homelessness Code of Guidance for Local Authorities, the applicant’s explanation for her expenditure (where the decision was one of intentional homelessness because of failure to pay rent), the housing officer’s judgment about non-essential items of expenditure and whether other items of expenditure were excessive. The more detailed the justification produced by the applicant, the more detailed the reasons for rejecting that justification were required: Farah v Hillingdon London Borough Council [2014] EWCA Civ 359.

Priority Need

K was a married man with a 21 year old son, living in private rented accommodation, having been assessed by the local authority as at greater risk because of a medical condition. When given notice to quit his private accommodation, the authority declined to classify him as being in priority need because he could control his condition with medication and had a stable family support network to help him cope. A challenge to the reliance on a stable support network failed. The reviewing officer, who would have considerable practical experience, had not failed to evaluate the risk, and was not obliged to refer the point to the medical assessment service. K had access to treatment though his GP and hospital. Moreover, the public sector equality duty could not extend to requiring a housing authority to secure accommodation for a disabled person where their disability did not render them vulnerable: Kanu v Southwark London Borough Council [2014] EWCA Civ 1085.

Homelessness and Legal Aid

An appeal under section 204 of the Housing Act 1996 had to fall within the public law category of legal aid within the meaning of paragraph 19(1) of Part I of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which applies only to judicial review. A section 204(1) appeal was “an appeal on any point of law”, not a judicial review (in contrast to a matter under section 204A). Although there was substantial overlap between an appeal on a point of law and judicial review a body with jurisdiction over appeals on a point of law was not required to apply judicial review principles in every case. Section 204 appeals fell outside paragraph 19(1) and there was no entitlement to legal aid: Bhatia Best Ltd v Lord Chancellor [2014] EWHC 746 (QB).

 

The NPPF – what does it really mean?

September 12th, 2014 by Heather Emmerson in Planning and Environmental

The consolidation of planning policy into a single national framework has undoubtedly simplified the task of identifying the planning policies of relevance to a particular development proposal. However, the consequence of the Supreme Court’s decision in Tesco Stores v Dundee City Council [2012] UKSC 13 is that the correct interpretation of planning policy is ultimately a matter for the Courts. The case law has made clear that the approach in Tesco Stores applies equally to the NPPF (see R (on the application of Hunston Properties Limited) v Secretary of State for Communities and Local Government [2013] EWCA Civ 1610) and when considering a point of interpretation, the NPPF should be construed as a whole (see Bayliss v Secretary of State for Communities and Local Government [2013] EWHC 1612 at [18].)

In the last six months alone, there have been no less three challenges concerning the proper interpretation of the NPPF.

Paragraph 88 and “any other harm” to the Green Belt

In Redhill Aerodrome Ltd v Secretary of State for CLG and Tandridge DC [2014] EWHC 2476 (Admin) the High Court considered the meaning of “any other harm” in paragraph 88 of the NPPF.  Paragraph 88 provides as follows:

“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations”

The Court held that “any other harm” in paragraph 88 meant only harm to the green belt. Patterson J held (at [56]) that “I have no difficulty in concluding that, in this case, it was not right to take the identified non Green Belt harms into account. The revised policy framework is considerably more directive to decision makers than the previous advice in the PPGs and PPSs. There has, in that regard, been a considerable policy shift. Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the NPPF as to warrant refusal, in my judgment, it would be wrong to include that consideration as “any other harm””.

Paragraph 89 and “building”

In Lloyd v Secretary of State for CLG and Dacorum BC [2014] EWCA Civ 839 the Court of Appeal considered paragraph 89 of the NPPF which provides, in so far as material, as follows:

“A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are … the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces”.

The Court of Appeal held that on the proper construction of the NPPF the term “building” did not include a mobile home. The replacement of a mobile home with a building on a green belt site therefore amounted to inappropriate development. In reaching this conclusion the Court had regard both to the ordinary meaning of the word “building” and the context within this word was used in relevant statutory context and the NPPF. 

Paragraph 90 and “mineral extraction”

In Europa Oil & Gas Ltd v Secretary of State for CLG and Surrey CC [2014] EWCA Civ 825, the Court of Appeal considered the meaning of “mineral extraction” within paragraph 90 of the NPPF. The Court held that a proposed development which involved exploratory drilling for hydrocarbons in the green belt was “mineral extraction” for the purposes of the National Planning Policy Framework para.90 and a local development plan policy. The Court made the point (at [15]) that “on the face of it, the NPPF is a stand-alone document which should be interpreted within its own terms and (at [32]) “the interpretation to be given to “mineral extraction” in paragraph 90 has to take account both of the specific context and of other indicators within the NPPF itself”. Having regard to the provisions of the NPPF, the Court of Appeal concluded that explanatory drilling would be included within the definition of mineral extraction.

Validity of Ministerial Statement

The Government has also made efforts to clarify parts of the NPPF. For example, in a ministerial statement dated 1 July 2013, the Government set out that the single issue of unmet demand for housing was unlikely to outweigh harm to the green belt and constitute the very special circumstances justifying inappropriate development in the green belt

Whilst it may be thought that such a statement provides a gloss on the NPPF, in the recent case of Copas v SoS for CLG and Windsor and Maidenhead[2014] EWHC 2634 (Admin), Supperstone J held that the ministerial statement did not amount to a variation or extension of pre-existing planning policy, but rather simply clarified the meaning of the NPPF. Therefore, an inspector had correctly treated the ministerial statement as a material consideration in her decision to refuse planning permission for affordable housing in the green belt.

 

Council Tax Reduction Scheme

August 5th, 2014 by James Goudie KC in Council Tax and Rates

Pursuant to the Local Government Finance Act 2012 Sandwell Council adopted a Council Tax Reduction Scheme.  For working age council taxpayers this was restricted to those who have lived in the Council’s area for over 2 years: the residence requirement.  In R (Winder) v Sandwell MBC (2014) EWHC 2617 (Admin) Hickinbottom J upheld a judicial review challenge to the residence requirement.  The principal ground on which he did so was that it was unlawful as being ultra vires.  The Judge ruled that the residence requirement went beyond the criteria, referenced on financial need, by which, pursuant to the legislation, classes for council tax reduction can be defined. He said, at para 53, that the class must be defined by reference to financial need, albeit by reference to criteria which the authority considers identify those who are, in general, in financial need.  There is considerable discretion in the authority as to the criteria adopted to identify financial need, but, said the Judge, criteria which do not identify those who are at least more likely to be in financial need fall outside the powers granted to an authority by Parliament. 

Alternatively, para 58, the residence requirement was, the Judge held, the use of the statutory power, to relieve those in financial need from the full burden of council tax, for an unauthorized purpose, which the Judge found to be, to discourage people from areas of higher housing cost from moving to Sandwell.

 

 

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