Decision Making

February 27th, 2014 by James Goudie KC in Decision making and Contracts

As Cranston J observed at the outset of his Judgment in Bishops Stortford Civic Federation v East Hertfordshire District Council [2014] EWHC 348 (Admin) the case was a judicial review that raised some “important issues” about the “lawful operation of local government and the role of the Courts”.  The main issue arose out of the intervention by Councillor Tindale at a (Planning) Committee Meeting.

Cranston J set out the following principles:-

  1. Unless there is an express provision in the Council’s Constitution or other documents preventing attendance, any Councillor can, with the Committee’s permission, in principle attend and address it: para 30;
  2. There are, however, limits, as where the Councillor has a disqualifying interest, but participation in the development of policies and proposals should not normally exclude from decision making Meetings: para 31;
  3. Councillor Tindale’s motives were irrelevant in law: para 33;
  4. As regards whether Councillor Tindale’s address had “polluted the well”, a detailed analysis of what Members said is neither necessary nor appropriate: “the cut and thrust of political debate is not conducive to refined textual analysis”: para 37;
  5. In the case of a collective decision, one has to consider the “general tenor of the discussion” rather than the individual views of Committee Members, “let alone the precise terminology used”: para 39;
  6. “The taking of statements when councillors are asked to explain their voting is especially to be deplored”: Prudence is the sensible judicial approach in this context”: para 41.

 

Public Sector Equality Duty

February 12th, 2014 by James Goudie KC in Decision making and Contracts

PSED claims continue to be pursued.  In R (Rotherham MBC and others) v SoS for BIS (2014) EWHC 232 (Admin) the claim succeeded (paras 84-93 inc): (i) there is no duty to carry out a formal EqIA; (ii) the duty is at most to consider undertaking an EqIA, along with other means of gathering information, and to consider whether it is appropriate to have an EqIA; (iii) the requirement is to have “due regard” to the statutory requirements in s149(1) of the Equality Act 2010; (iv) that is regard that is “appropriate in all the circumstances”; and (v) if an authority’s decision is a high level budget decision a PSED may be carried out “further down the line”; BUT (vi) the decisions in this case were “in no sense preliminary or provisional”; and (vii) an after the event assessment “cannot save the decision making”.  This was an instance of a PSED challenge succeeding where other challenges (to the Regional allocation of EU Structural Funds) failed.  In R (Unison) v Lord Chancellor [2014] EWHC 218 (Admin) all the challenges (to ET and EAT fees) failed, including (paras 57-69) PSED and (paras 70-90 inc) indirect discrimination, failed, notwithstanding that it is a “continuing duty”; “the … importance of the duty”, and the facts that the duty is “an essential preliminary to public decision-making”, is not a matter of ticking boxes, and “must be undertaken conscientiously and with rigour”, and that the authority “must collect, collate and consider all relevant information as to the likely impact of the proposals”.  However, “the weight to be given to countervailing factors is a matter for the assessment of the public authority and not for the Court, unless that assessment can be challenged on conventional public law grounds as being outwith the range of reasonable conclusions”; and “it is for the public authority to decide what is relevant and irrelevant, subject only to challenge on conventional grounds”; and an authority “cannot be expected to speculate, investigate or explore matters ad infinitum” or “to make assessments with a degree of forensic analysis which a QC might deploy in Court”.  The Divisional Court approved the summary of the principles applicable to the s149 duty by Wilkie J in R (Williams) v Surrey County Council [2012] EqLR 656 at para 16.  It could not be maintained that the Lord Chancellor did not consider the differential impact on groups with various protected characteristics merely because he dismissed those concerns.  Any defects in his conclusions which triggered a public law remedy should be dealt with in the substantive grounds of challenge, and not by way of criticism of the lengthy and detailed review undertaken in the assessment before the conclusions were reached.

 

 

Council Tax

February 12th, 2014 by James Goudie KC in Council Tax and Rates

In Corkish (Listing Officer) v Wright [2014] EWHC 237 (Admin), a statutory appeal from a Valuation Tribunal, the issue for the Tribunal had been whether an annex was part of a building which was constructed or adapted for use as separate living accommodation, so as to be amenable to a separate charge for council tax.  Popplewell J derived the following principles from the authorities:

(1) The question is whether the effect of the construction or adaptation is such as to make the relevant building or part of a building reasonably suitable for use as separate living accommodation. What matters is its fitness for that purpose by reference to contemporary standards of what is reasonable, not merely whether it might conceivably be used for such purpose however remote the possibility.

(2) The question is to be answered by reference to the physical characteristics of the building. This is sometimes referred to as a “bricks and mortar test”, but the epithet does not accurately capture the wide range of physical characteristics which may be of relevance including services and fixtures.

(3) This is an objective test. The test is not concerned with when, how or why those characteristics were achieved. The purpose of the construction or adaptation is irrelevant. The test is addressed to the result of the building work, not the circumstances in which it was carried out. Intention is irrelevant.

(4) Whether the test is met is a matter of fact and degree for the Tribunal.

(5) Actual use may in some cases be of some relevance. However actual use is not the test, and even in cases where it may be of some relevance it will not usually be a factor of significant weight. At most it may reinforce a decision reached by reference to the physical characteristics of the building.

(6) If what is being considered is part of a building, the physical characteristics to be considered include those of the remainder of the building as well as the part being considered. Access is one aspect of such characteristics. Separate public access may be a pointer to the part being separate living accommodation; whereas if access is through the remainder of the building this may tell against the part being separate living accommodation. In the latter case different weight may be attached where access is through the living areas of the remainder of the building from the weight to be attached where it is through a hallway. But access is not a factor which can be determinative without considering the other physical aspects of the building. The weight to be attached to it is a matter for the Tribunal.

 

Renewal Of Sex Entertainment Venue Licence

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

In R (Thompson) v Oxford City Council (2014) EWCA Civ 94 the Court of Appeal was concerned with a decision whether or not to grant or renew a lap dancing club’s licence under the Local Government (Miscellaneous Provisions) Act 1982, as amended (“the 1982 Act”), a licence which has a maximum term of 12 months.  Lloyd Jones LJ observed (para 25) that the statutory scheme “gives a wide discretion to licensing authorities, in particular in forming value judgments as to whether the grant or renewal of a licence would be appropriate having regard to the character of the locality”.

It was held (para 34) that while it was open to the Sub-Committee to depart from the decision of its predecessor, “it was under a duty to take account of the earlier decision, to grasp the nettle of any disagreement with the earlier decision and to state its reasons for coming to a different conclusion”.  Lloyd Jones LJ summarised the position thus:

(1) On an application to renew an SEV licence it is not necessary for an objector to demonstrate that something has changed since the decision granting the licence. Were the position otherwise, the efficacy of annual reconsideration would be much reduced.

(2) However, the decision maker has to have due regard to the fact that a licence was previously granted.

(3) If there is no relevant change of circumstances, the decision maker has to give his reasons for departing from the earlier decision.

The authority was permitted to have regard to an imminent development, even if there was no certainty that it would be completed and operational within the licence period (para 49).  However, it was not open to the authority to rely on a development plan which contemplated development five years into the future (para 50).

 

Council Tax

February 10th, 2014 by James Goudie KC in Council Tax and Rates

The Local Authorities (Standing Orders) (England) (Amendment) Regulations 2014, SI 2014/165, made by the Secretary of State pursuant to Sections 8 and 20 of the Local Government and Housing Act 1989, and amending the Local Authorities (Standing Orders) (England) Regulations 2001, SI 2001/3384, were laid before Parliament on 31 January 2014 and will come into force on 25 February 2014.  The Amendment Regulations are “localism” in reverse, imposing “best practice”.  They require that the votes at key budget decision meetings by local authorities are recorded, something of course which it is already open to local authorities to do.  There is a diktat that in the Minutes of such meetings there must be a record of how each member present voted on the budget ie voted on the council tax or the issuing of the precept in the case of precepting authorities.  Moreover, the Explanatory Notes state (para 8.3) that CLG’s “expectation” is “that all councils will follow this practice at their budget meetings even where these are held in advance of the practice becoming mandatory”.

 

Town and Village Greens

February 6th, 2014 by James Goudie KC in Environment, Highways and Leisure

What is the effect of lapse of time on an application under Section 14 of the Commons Registration Act 1965 for rectification of a registration as a town or village green?  This was the issue before the Supreme Court in Adamson v Padico (267) Limited and Taylor v Betterment Properties (Weymouth) Limited, (2014) UKSC 7, on appeal from [2012] EWCA Civ 250 and 262, in which Judgment was given on 5 February 2014.  The Supreme Court observed as follows.

The starting point is the 1965 Act itself, which lays down no limitation period for Section 14 applications. Section 14 has no bias either for or against rectification. The principles of good administration require not only a conclusive register but also that the register is accurate and has been lawfully compiled. The focus is primarily on justice as between the applicant and the local inhabitants.  Where the applicant is the owner of the land, his rights have been severely curtailed when they should not have been and the inhabitants have acquired rights which they should not have. The lapse of time is not however immaterial. The best analogy is with the doctrine of laches which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice, if it is to bar the remedy.

Knowledge of the facts is unlikely to be a problem as landowners have an opportunity to object to the registration before it is made and subsequent purchasers are able to consult the register before deciding to buy. The fact that a purchaser bought the land with notice of the registration is unlikely to make much difference as he still suffers harm from the curtailment of his rights harm from the curtailment of his rights.   The crux of the matter is usually the question of detriment or prejudice, of which there are at least four relevant kinds: (i) detriment to the local inhabitants, although this may not be weighty given that this is a right they should never have had; (ii) detriment to other individuals who may have made decisions to purchase property near the land based on the register; (iii) detriment to public authorities and those they serve in, for example, the allocation of land for residential development; and (iv) detriment to the fair hearing of the case after the lapse of time. Even after a long delay there must be some material from which to infer that public or private decisions have been taken on the basis of the existing register which have operated to the respondent’s significant detriment.

 

Lease of Land

January 28th, 2014 by James Goudie KC in Land, Goods and Services

In refusing to offer a solicitor a new lease of her office premises a local authority had abused its powers.  So held the High Court in R (Trafford) v Blackpool BC [2014] EWHC 85 (Admin).  The stated reason for the refusal was that her firm had brought claims against the Council on behalf of clients seeking compensation for injuries alleged to have been caused by the negligence of the Council, predominantly in highways “tripping” type claims.

The Judge held that the Council had exercised its “wide discretion” under Section 123 of the Local Government Act 1912 for an improper purpose and was “fundamentally tainted by illegality” on that basis; and that the decision was both Wednesbury unreasonable and procedurally unfair.

The Council’s main defence was that its decision was not amenable to judicial review.  The issue was as to whether or not, and if so in what circumstances, a public body acting under statutory powers in deciding whether or to not to enter into, renew or terminate a contract will come under public law duties, and if so which ones.  Having reviewed the authorities, the Judge concluded that the decision was in principle amenable to judicial review.  He stated:-

“55.    Having considered these authorities my conclusions are as follows:

(1) In a case such as the present, involving a challenge to a decision of a public body in relation to a contract, it is necessary to consider:

(a) by reference to the contract in question, to the relevant statutory power, to the statutory framework (if relevant), and to all other relevant matters, whether or not, and if so to what extent, the defendant is exercising a public function in making the decision complained of;

(b) whether, and if so to what extent, the grounds of challenge involve genuine and substantial public law challenges to the decision complained of, or whether, and if so to what extent, they are in reality private law challenges to decisions made under and by reference to the terms of the relevant contract.

(2) In a case involving a challenge to a decision of a public body acting under a statutory power but in relation to a contract and in the absence of a substantial public function element, a claimant will nonetheless normally be entitled to raise genuine and substantial challenges based on fraud, corruption, bad faith, and improper motive (in the sense identified by De Smith of the knowing pursuit of an improper purpose).

(3) The extent to which a claimant will be entitled to raise genuine and substantial public law challenges beyond those limited classes will depend on a careful analysis of all of the relevant circumstances so as to see whether or not there is a relevant and sufficient nexus between the decision in relation to the contract which is challenged and the grounds complained of.”

 

 

Non-Domestic Rating

January 28th, 2014 by James Goudie KC in Council Tax and Rates

The Non-Domestic Rating (Designated Areas) Regulations 2014, SI 2014/98 form part of the scheme for local retention of non-domestic rates.  The purpose of the Regulations is to designate areas in relation to which a proportion of the non-domestic rating income (as calculated in accordance with the Regulations) is to be retained by the local authority all or part of whose area falls within the designated area.

 

Non-Domestic Rates

January 22nd, 2014 by James Goudie KC in Council Tax and Rates

The Non-Domestic Rating (Small Business Rate Relief) (England) (Amendment) Order 2014, SI 2014/43 (“the 2014 Order”), amends the Non-Domestic Rating (Small Business Rate Relief) (England) Order 2012 (“the 2012 Order”) to provide for a temporary extension to the increase in small business rates relief in England until 31 March 2015 and to extend the scope of the relief where small businesses expand.

The 2012 Order prescribes the conditions for eligibility for small business rate relief and the rates of relief in relation to eligible hereditaments.  A hereditament is only eligible where it is the sole hereditament occupied by the ratepayer, but additional hereditaments are disregarded where their rateable value is not more than £2,599 and the aggregate rateable value of all hereditaments occupied by the ratepayer does not exceed £25,499 if situated in Greater London or £17,999 if situated outside Greater London.  The 2014 Order substitutes new provisions for Articles 3(6) and 4(7) of the 2012 Order so that where a ratepayer starts to occupy an additional hereditament, the ratepayer does not lose the benefit of the relief for the first 12 months of occupation.

Where the eligibility criteria are satisfied a ratepayer’s daily liability for non-domestic rates in respect of that hereditament is determined under Section 43(4A) of the Local Government Finance Act 1988.  Section 43(4A) provides for the calculation in accordance with the formula (A x D) divided by (C x E) where: A is the rateable value of the hereditament; D is the small business non-domestic rating multiplier for the financial year; C is the number of days in the financial year; and E is such amount as is prescribed in relation to the hereditament by the Secretary of State by Order. Article 4 of the 2012 Order prescribes the amount of E for the financial years beginning on 1 April 2012 and 2013 and Article 3 of the 2012 Order prescribes the amount of E for subsequent financial years.

The 2014 Order amends the 2012 Order to apply Article 4 of the 2012 Order to the financial year beginning on 1 April 2014.  The effect of this amendment is to extend the temporary doubling of the level of small business rate relief for a further year.  Article 4 will also continue to apply in respect of days falling within the financial years which started on 1 April 2012 and 1 April 2013.

 

Council Tax

January 22nd, 2014 by James Goudie KC in Council Tax and Rates

The purpose of the Billing Authorities (Anticipation of Precepts) (Amendment) (England) Regulations 2014, SI 2014/35, is to enable billing authorities in England making council tax calculations in accordance with Section 31A of the Local Government Finance Act 1992 (“the 1992 Act”) to anticipate a precept from a local precepting authority.  The legislative context is that Sections 73 to 79 of the Localism Act 2011 (“the 2011 Act”) made amendments to the calculations which billing authorities, major precepting authorities, and local precepting authorities in England must make to determine their basic amounts of council tax for a financial year. The obligation to calculate a budget requirement for a year was replaced with an obligation to calculate a council tax requirement. Under the new provisions an authority’s council tax requirement for a financial year is the amount the authority requires from council tax alone in order to finance its budget for the year and this amount is used to calculate the authority’s basic amount of council tax. Section 74 of the 2011 Act inserted a new Section 31A into the 1992 Act requiring a billing authority to calculate its council tax requirement each financial year, and Section 32 of the 1992 Act was modified to apply to Wales only rather than to England and Wales. The Regulations make a minor amendment consequential on the changes made by the 2011 Act to update the definition of “calculations” in the Billing Authorities (Anticipation of Precepts) Regulations 1992 in relation to England to refer to the new Section 31A inserted by the 2011 Act.. This will enable billing authorities in England making their calculations in accordance with Section 31A of the 1992 Act to anticipate a precept from a local precepting authority under Section 41 of the 1992 Act if that precept has not been issued in time for their calculations.

 

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