Council tax liability order

March 17th, 2016 by James Goudie KC in Council Tax and Rates

In Williams v East Northamptonshire District Council [2016] EWHC 470 (Admin) the Court held that the authority’s application, under the Council Tax (Administration and Enforcement) Regulations 1992, S.I.1992/613, for a council tax liability order was not invalidated by its additional inclusion of a claim for an amount of costs. The application contained what it needed to. There was no prohibition against including additional information that was not required at that stage. The application clearly differentiated between the two.  The costs would be claimable in the event that a liability order was made.  There was nothing misleading, no abuse of process, and no usurping of the authority of the Magistrates’ Court with respect to costs.  Indeed the amount of costs that would be claimed, and could in due course be contested, was precisely the sort of information which ought to be made available.

 

Planning conditions

March 17th, 2016 by admin in Planning and Environmental

In Dunnett Investments Ltd v SoS for CLG and East Dorset District Council [2016] EWHC 534 (Admin) Patterson J, at para 37, distilled the law on construing planning conditions in the following way:-

  1. Planning conditions need to be construed in the context of the planning permission as a whole;
  2. Planning conditions should be construed in a common sense way so that the court should give a condition a sensible meaning if at all possible;
  3. Consistent with that approach a condition should not be construed narrowly or strictly;
  4. There is no reason to exclude an implied condition but, in considering the principle of implication, it has to be remembered that a planning permission (and its conditions) is “a public document which may be relied upon by parties unrelated to those originally involved”;
  5. The fact that breach of a planning condition may be used to support criminal proceedings means that “a relatively cautious approach” should be taken;
  6. A planning condition is to be construed objectively and not by what parties may or may not have intended at the time but by what a reasonable reader construing the condition in the context of the planning permission as a whole would understand;
  7. A condition should be clearly and expressly imposed;
  8. A planning condition is to be construed in conjunction with the reason for its imposition so that its purpose and meaning can be properly understood;
  9. The process of interpreting a planning condition, as for a planning permission, does not differ materially from that appropriate to other legal documents.

 

Charges for water and sewage services

March 8th, 2016 by James Goudie KC in Local Authority Powers

Newey J described the point in Jones v Southwark LBC [2016] EWHC 457 (Ch) as being one of “considerable importance”.  This was both because Southwark itself had numerous tenants who could be affected, and because it could have implications for other landlords.

The point arose in this way. For decades, Southwark had collected from many of its tenants, including the claimant, charges for water and sewerage services.  These services were supplied to the properties by Thames Water.

The questions raised by the case were, first, whether the Water Resale Order 2006 (“the 2006 Order”) applied to these arrangements, and, second, if it did, whether Southwark had charged its tenants more than was permissible under the 2006 Order. The answers turned, in part, on whether Southwark had been acting as an agent or had been buying and re-selling the services.

The Judge concluded that the relationship between Thames Water and Southwark was not one of principal and agent, but involved Southwark buying water and sewerage services from Thames Water and re-selling them to its tenants; as a result ,the 2006 Order did apply and served to limit what tenants could be charged; and the amounts that Southwark charged Miss Jones exceeded the “maximum charge” allowed under the 2006 Order.

 

Implied contractual term as to planning consent

March 4th, 2016 by James Goudie KC in Decision making and Contracts

Walter Lilly & Co Ltd v Clin [2016] EWHC 357 (TCC) concerned a contract for the demolition, refurbishment and reconstruction of a property to form a single residence. Whilst the works were underway, the local planning authority, the Royal Borough of Kensington and Chelsea, wrote to the parties stating that the extent of the demolition was such that conservation area consent was required.  Edwards-Stuart J held that a term should be implied into the contract that the owner would provide the authority with the information its planning officers required in order to process the application for consent, but not a term that consent should be obtained. This was not within the owner’s control.

The Judge said:-

“54.    The reasonable man in the position of the parties would, in my view, have in mind that, in general, a person who wishes to develop his land will know either that he is likely to need planning permission or, in the case of a residential development, that he must satisfy himself that the development proposed is exempt from the requirement for planning permission. The same applies to conservation area consent where the property is in a conservation area.

  1. In principle, planning permission needs to be obtained in advance: it can be obtained retrospectively, but this is obviously risky. But even when applied for well in advance, everyone knows that planning permission cannot be taken for granted. For example, the prospects of planning permission being given may depend to a large extent on the attitude of owners of neighbouring properties. Similar considerations may apply to conservation area consent.
  2. In this case it seems to me to be obvious that the parties must have intended that someone should have the responsibility for applying for planning permission. This is not a case where, because nothing is said expressly in the contract, the parties could have intended that nothing should happen about planning permission: planning permission had to be obtained in order for the development to go ahead. In addition, it seems to me that it would be equally obvious to an informed bystander that the party best placed to obtain planning permission is the employer, not least because he is the party who knows well in advance what he wants to do. The contractor does not find that out until he is invited to tender, by which time it may be too late for planning permission or conservation area consent to be obtained in time. Any reasonable person would know that a failure to make a timely application for the necessary permission or consent might well result in delay (unless of course the contractor has indicated that is prepared to take the risk of carrying out the work without that permission or consent).
  3. It appears to be common ground that the primary responsibility for applying for planning permission rests with the employer. The essential point at issue between the parties is whether a term should be implied to the effect that the employer will ensure that planning permission is obtained, or whether there should be a more limited obligation – for example, to exercise reasonable diligence to obtain the necessary planning permission.”

The Judge said, at paragraph 67, that he could see no justification for imposing on either party sole responsibility for the consequences of capricious conduct by the local authority. For the contract to work it was not necessary that either party alone should bear that risk. The contract can work just as well if that risk is left to lie where it falls. It is a situation where, since the contract has not provided how the risk should be borne, no provision should be made.

The Judge concluded that the correct formulation of the implied term was not one for which either side contended.

 

Community infrastructure levy

March 4th, 2016 by James Goudie KC in Capital Finance and Companies

In R (Orbital Shopping Park Swindon Ltd) v Swindon BC [2016] EWHC 448 (Admin) Patterson J summarised, so far as relevant to the case before her, the statutory scheme with respect to the Community Infrastructure Levy (“the CIL”), charged by a local authority under Section 206(1) of the Planning Act 2008 (“PA 2008”) and the CIL Regulations 2010, as amended, in respect of development in the authority’s area, as follows:-

  1. A local authority’s power to charge CIL in respect of development within its area arises when development is commenced in reliance on a planning permission involving chargeable development: Section 208 of PA 2008;
  2. The ability to charge CIL is a discretionary one on the part of a charging authority: Section 206 of PA 2008;
  3. The CIL Regulations can provide for works of a specified kind not to be treated as development;
  4. That is what Regulation 6 of the CIL Regulations is concerned with;
  5. Regulation 6(1) sets out expressly which works are not to be treated as development for the purposes of Section 208 of PA 2008;
  6. That includes work in respect of an existing building for which planning permission is required only because of Section 55(2) of the Town and Country Planning Act 1990 (“TCPA 1990”);
  7. Section 55(2)(a) of TCPA 1990 sets out uses of land or operations which are not to be taken to involve development;
  8. Section 55(2)(a)(i) states that works which affect only the interior of the building do not involve development;
  9. Section 55(2A) empowers the SoS, by Development Order, to specify or describe circumstances in which Section 55(2) does not apply to operations set out in Section 55(2)(a);
  10. The SoS has made the Town and Country Planning (Development Management Procedure) (England) Order 2015;
  11. CIL can be imposed only when both the liability and the amount of the liability are clearly defined.

The Council had acted unlawfully by interpreting two separate planning permissions as one. The Claimants had taken advantage of a legislative scheme which permitted it to submit two separate planning applications for each act of operational development that it wished to pursue. There was no manipulation of the system for any ulterior and/illegal motive in splitting the operational works.

 

Extensions of time

March 4th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

There is no special rule for public authorities when it comes to applications for an extension of time. The principles applicable derive from the decisions of the Court of Appeal in Mitchell v NGN (2013) EWCA Civ 1537 and Denton v White (2014) EWCA Civ 906.  A Judge must approach an application for relief from sanction in three stages, as follows:-

  1. The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a Judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the Judge decides that the breach is serious or significant, then the second and third stages assume greater importance.
  2. The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. If there is a good reason for the default, the Court will be likely to decide that relief should be granted. However, even if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.
  3. The third stage is to evaluate all the circumstances of the case, so as to enable the Court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with Rules, Practice Directions and Court Orders. The Court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it.


In SSHD v Razia Begum (2016) EWCA Civ 122 the Court of Appeal has reaffirmed, at paragraphs 14/15 and 23, that there is no special rule for public law cases.  However, the “importance of the issues to the public at large” can properly be taken into account at the third stage.

 

Model Code of Conduct (Wales)

March 3rd, 2016 by James Goudie KC in Standards

Section 50(2) of the Local Government Act 2000 requires a Model Code to be issued by Order as regards the conduct which is expected of members, and co-opted members, of “relevant authorities” (as defined) in Wales. These are County Councils, County Borough Councils, Community Councils, Fire and Rescue Authorities and National Park Authorities.  There was duly made the Local Authorities (Model Code of Conduct) (Wales) Order 2008, S.I. 2008/788 (W.82), (“the 2008 Order”).  The Schedule to the 2008 Order sets out such a Model Code of Conduct.

This is now amended by the Local Authorities (Model Code of Conduct) (Wales) (Amendment) Order 2016, S.I. 2016/84 (W.38), (“the 2016 Order”), coming into force on 1 April 2016. The 2016 Order recites that the Welsh Ministers (i) have carried out the requisite consultation and (ii) are satisfied that the amendments are consistent with the principles specified in the Conduct of Members (Principles) (Wales) Order 2001, S.I. 2001/2276.

Article 2 of the 2016 Order amends the following paragraphs of the Model Code set out in the Schedule to the 2008 Order:

paragraph 1(1), by inserting a definition of “register of members’ interests”;

paragraph 1(2), by inserting a definition of “proper officer” and providing clarification with regard to references to Standards Committees in relation to a Community Council;

paragraph 3(a), by omitting the reference to police Authorities;

paragraph 6(1)(c), by removing the requirement for members to report potential breaches of their Code of Conduct to the Public Services Ombudsman for Wales;

paragraphs 11(4), 15(2), 16(2) and 17, by transferring some functions from Monitoring Officers to the proper officers of Community Councils:

paragraph 12(2)(b)(iv), to reflect the new provisions contained in Part 8 of the Local Government (Wales) Measure 2011 in relation to allowances and payments;

paragraph 14, by inserting new sub-paragraphs (2A) and (2B) which permit members to submit written submissions to a meeting which is dealing with a matter in respect of which a member has a prejudicial interest: written submissions are permitted only in those circumstances in which a member would otherwise be permitted to make oral representations to a meeting in relation to a matter, and if the member’s authority adopts a procedure for the submission of written submissions, members must comply with that procedure;

paragraph 15 is restated. The restatement clarifies that any interest disclosed, whether that interest is disclosed in accordance with paragraphs 11 or 15 of the Model Code, should be registered in the authority’s register of members’ interests, by giving notification to the Monitoring Officer, or, in relation to a Community Council, to the proper officer of that authority.

Article 2 of the Order omits paragraph 10(2)(b) of the Model Code set out in the Schedule to the 2008 Order. This clarifies that a member of a relevant authority is not to be regarded as having a personal interest in a matter when making, or participating in, decisions on behalf of the authority simply for the reason that the business being considered at the meeting affects that member’s ward.

 

Local Authority co-operation

March 3rd, 2016 by James Goudie KC in Decision making and Contracts

A Judge recently struck out a claim brought by two dogs. He did not see how a dog could give instructions for a claim to be brought on its behalf.  Nor did he see that it could be liable for any orders made against it.  Another limitation on litigating is that you cannot sue yourself.  If there is a dispute it must be resolved without recourse to litigation when the disputants do not have separate legal personalities.  A local authority has only one legal personality. So for example the client side of the authority cannot sue the contractor side or vice versa; and the department, say the social services department, cannot sue another department of the same authority, say the housing department.  This is a somewhat anomalous situation, because it means that in the case of a unitary authority the departments have to resolve any differences without going to Court, whereas in a two-tier area, with the functions split between the tiers, the potential is there for the authorities to litigate with each other.

Section 27 of the Children Act 1989 is headed “Co-operation between authorities”. It contains a power: where it appears to a local authority that any other authority could help in the exercise of their functions with respect to the provision of services for children in need, the first authority may request the help of that other authority.  The Section also contains a duty: an authority whose help is so requested shall comply with the request (if it is compatible with their duties and obligations and does not unduly prejudice the discharge of any of their functions).

The case of M&A v Islington LBC [2016] EWHC 332 (Admin) was an application on behalf of two severely autistic children for judicial review of a failure to rehouse them, in accordance with Section 17 of the Act, where the sole authority involved was a London Borough, a unitary authority, both social services and housing authority.  Therefore Section 27 could not apply directly in the way it would as between a county council as social services authority and a district council as housing authority.

However, Collins J ruled that the requirements of Section 27 did apply indirectly. This was because the Council was statutorily required to act under the general guidance of the Secretary of State, and such guidance required the same degree of co-operation between departments in a unitary authority.

 

Unpaid council tax, court costs and lawful expenditure

February 29th, 2016 by Peter Oldham QC in Council Tax and Rates, Judicial Control, Liability and Litigation

On Thursday 25th February, the Divisional Court gave judgment in the case of Rev Paul Nicolson v Grant Thornton.  This was Rev Nicolson’s appeal under the Audit Commission Act 1998 against the refusal of LB Haringey’s auditor to make a declaration of an unlawful item of account or issue a public interest report.

Rev Nicolson is an anti-poverty campaigner. He refused to pay council tax, and when he was taken to the magistrates’ court he lost and was ordered to pay costs of £125. The council’s right to claim costs was given by the Council Tax (Administration and Enforcement) Regulations 1992. Haringey had a standard costs claim of £125 in such cases.  In a prior judicial review claim,  R ota  Nicolson v Tottenham Magistrates [2015] PTSR 1045, it had been held that the magistrates’ order had been unlawful as, at the hearing of the summons, there had been insufficient information for the magistrates to say whether £125 was a reasonable estimation of the costs incurred.

However, when Rev Nicolson also, and separately, objected to the auditors, they decided that the local authority had had sufficient information on which to decide that £125 was a proper charge.  The sum included aggregated costs, both direct and indirect, divided by the number of council tax summonses which Haringey had to deal with per year.   Accordingly the auditors decided that the item of account was lawful.  Rev Nicolson appealed.  The Divisional Court dismissed the appeal.  It declined to say that the auditors’ decision was unlawful, since they had considered the relevant factors,  and had given cogent reasons explaining their view.

Peter Oldham QC

 

 

Local authority boycotts

February 22nd, 2016 by Peter Oldham QC in Best Value, Decision making and Contracts, Non Judicial Control

A House of Commons briefing paper of 19th February 2016, which can be found here, notes that the Government is introducing new rules and guidance to limit the extent to which local authorities in England and Wales can use boycotts in their procurement and pensions investment policies.

On procurement, the Government has published Procurement Policy Note 01/16 on 17th February 2016 here which says:-

“Public procurement should never be used as a tool to boycott tenders from suppliers based in other countries, except where formal legal sanctions, embargoes and restrictions have been put in place by the UK Government.”

On pensions, the briefing paper refers to the DCLG’s consultation on the draft Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016 (here), which closed on 19th February 2016, and to proposed guidance from SoS that environmental, social and corporate governance factors in investment decisions should reflect foreign policy.  The power to give guidance is in draft reg 7(1) and an authority’s investment strategy “must be in accordance” with it.

 

 

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