Local Government (Deomocracy) (Wales) Bill

November 28th, 2012 by James Goudie KC in Local Authority Powers

This Bill, introduced by the Welsh Government in the Welsh Assembly on 26 November 2012, is intended to reform the organisation and functions of the Local Government Boundary Commission for Wales.  The Bill also contains provisions which would amend the Local Government (Wales) Measure 2011 in relation to the responsibilities of the Independent Remuneration Panel for Wales and the structure of local authority audit committees.  The Bill includes provisions concerning the public’s access to information concerning town and community councils.  The Bill amends Part III of the Local Government Act 2000 to facilitate the creation by local authorities of joint standards committees.  The Bill contains a provision concerning the role of the Chairman or Mayor of principal councils.

Part 2 of the Bill relates to the Local Democracy and Boundary Commission for Wales, as it will be called, implementing proposals in the Mathias Report.  Part 3 describes the types of review of local government areas and arrangements that may be conducted and details the procedure which is to be followed in conducting a review. It also deals with the manner in which any recommendations made as a result of the review are to be implemented. Part 4 relates to reviews by the Commission of qualifying public bodies.

Part 5 of the Bill makes other changes to local government.  Section 51 amends the Local Government Act 1972 so as to allow principal councils to appoint a “presiding member”. A “presiding member” would be able to carry out any of the functions of a council chairman so decided by the council. In particular this provision will enable councils who wish to separate the ceremonial and civic functions associated with the council chairman or mayor from those of presiding over meetings of the council.  No member of the council’s executive may be the presiding member. The term of appointment is a matter for the principal council subject to the limitation that it cannot extend past the next council election.  A council may also appoint a deputy presiding member who, again, must not be a member of the executive.

Section 52 prevents a local authority from promoting a local Bill which concerns a local government area or the political structure of a local authority.

Section 53 requires a community council to publish certain information electronically including details of the council’s membership and business and make provision for members of the public to contact the council or its clerk electronically. The requirement to make information available is subject to normal rules on confidentiality.  A community council must have regard to any guidance issued by the Welsh Ministers in relation to this matter.

Section 54 requires community councils to publish public notices electronically also. Section 55 requires a community council to publish agendas and public reports for forthcoming meetings electronically.

Section 56 amends the Local Government (Wales) Measure 2011 so as to broaden the scope of a democratic services committee so that, if requested by the authority, they can review anything connected with the support and advice made available to elected members and their terms and conditions.

Section 57 amends the Local Government (Wales) Measure 2011 so as to provide that an audit committee of a local authority is one to which the rules of political balance (which are set out in section 15 of the Local Government and Housing Act 1989) apply.

Section 58 enables the Independent Remuneration Panel for Wales, when considering entitlement to a particular payment, to set a limit on the number of councillors who may receive it. This enhances the Panel’s existing power to set a limit on the proportion of councillors who may receive a particular payment.

Section 59 provides that the Welsh Ministers may add to the public bodies whose remuneration should be considered by the Panel. Any such additional body must be one which Welsh Ministers have responsibility for and which includes members of local authorities in its membership. This power is to be carried out by order of Welsh Ministers.

Section 60 changes the date by which the Panel must produce their annual report from 31st December to the 28th February. This has the effect of reducing the time between publication of a report and its implementation the following April. The provisions will also enable the Panel to decide when its reports shall come into force and to backdate its decisions for up to three months.  Section 61 provides that consultation times on draft supplementary reports, currently set at 8 weeks, would be varied to between four and eight weeks.

Section 62 provides that the Panel may require local authorities to publish details of any income received by their members from specified public bodies.

Section 63 amends section 53 of the Local Government Act 2000 so that one or more relevant authorities (ie a county or county borough council, national park authority or a fire and rescue authority in Wales) may establish a joint standards committee. An authority considering establishing a joint committee must have regard to any guidance issued by the Welsh Ministers.  Section 63 also amends section 54 of the 2000 Act to provide that a standards committee must, in exercising any of its functions, have regard to any relevant guidance issued by the Welsh Ministers.

 

Judicial Review For Judicial Review For Error Of Fact

November 26th, 2012 by James Goudie KC in Judicial Control, Liability and Litigation

Richmond-upon-Thames LBC v Kubicek [2012] EWCA 3292 (QB) is not a judicial review case, but it is of significance in relation to a judicial review or similar challenge based on a material error of fact giving rise to unfairness.  The Richmond case was itself a statutory appeal.  It raised an issue as to when, if ever, it is permissible for a County Court, hearing an appeal under s204 of the Housing Act 1985, on “any point of law” arising from a review decision made by a local housing authority in a homelessness case, to receive evidence on, and decide a question of fact relevant to, the review decision.  It is well established that an appeal “on any point of law” is in substance the same as a judicial review.  One of the issues on the appeal was whether new evidence which Mrs Kubicek sought to adduce was relevant to any issue on the s204 appeal.

It was common ground that under the statutory scheme of Part VII of the 1985 Act questions of fact are generally for the local housing authority making the review decision to determine.  For that reason, the usual process on any appeal pursuant to s204 is for the matter to be determined on the basis of submissions as to the rationality and propriety of the review decision in the light of the material before the reviewing officer at the time of the decision. Evidence which was not before the reviewing officer is not usually relevant.  The authorities, however, indicate that there are two purposes for which fresh evidence may be relevant on a s204 appeal. One such purpose is to show how the review decision was reached, including what material was before the reviewing officer and what procedure was followed. These matters may be relevant where, for example, it is alleged that there has been a failure to comply with the requirements of natural justice. An allegation that the decision-making process was tainted by misconduct on the part of someone involved in it would fall into this category. Where such an allegation is made, it is for the court to find the relevant facts, and evidence will be relevant and admissible to prove the misconduct or other alleged procedural impropriety.

A second purpose for which it is now clear that evidence may be relevant is to demonstrate that the decision subject to appeal was based on a material error of fact giving rise to unfairness. In the leading case of E and R v Home Secretary [2004] QB 1044, the Court of Appeal reviewed the authorities bearing on the question of whether, and if so when, a decision reached on an incorrect basis of fact can be challenged on an appeal limited to points of law. Carnwath LJ, as he then was (who gave the judgment of the Court) concluded at [66]:

“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are … First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”

In the Richmond case Leggatt J made four observations about this important statement of principle. The first is that in the way that this ground of review has been analysed by the Court of Appeal the purpose for which evidence is potentially relevant can be seen as an extension of the first purpose – that is, to show how the review decision was reached. In connection with this ground, evidence may be relevant to show not only what material was before the reviewing officer but also that evidence was available which was not placed before the reviewing officer and how that came about.

Second, although the Court of Appeal explained this ground of review as based on a principle of fairness, it is clear that the question whether there has been unfairness is not to be determined independently of the four requirements identified by the Court of Appeal; rather, the unfairness arises from the combination of factors which exist when those requirements are all met: see the analysis at [63].

Third, although the Court of Appeal suggested that the principle may be limited to “those statutory contexts where the parties share an interest in co-operating to achieve the correct result”, it is difficult to think of any context in which it would not be said that a public authority exercising a statutory function has an interest in ensuring that its decision is made on an accurate factual basis. Certainly decisions about housing assistance must fall within the scope of the principle as much as the decisions about asylum and planning control to which Carnwath LJ referred at [64].

Fourth, the second of the four requirements stated by Carnwath LJ is clearly of critical importance, but may possibly need some fine tuning. If, in order to decide that there has been a material mistake of fact, the court was entitled or required to resolve a factual dispute itself, then the court would be substituting its own finding of fact for that of the public body to which Parliament has given that task. Accordingly, to require that the fact has been “established” in the sense of being not merely objectively verifiable but uncontentious seems to be essential if a workable distinction between errors of law and errors of fact is to be maintained. It is less obviously essential that, where the fact about which a mistake is said to have been made is the availability of evidence on a particular matter, the evidence and not just the fact of its availability must be uncontentious. A court would not necessarily be usurping the function of the fact-finding body if it were to require the body to reconsider a decision made without knowledge of credible, even if not uncontentious, evidence which, if the decision-maker had been aware of it, might have led to a different result. A requirement that the evidence must have been uncontentious might also be thought to defeat the point of the Court of Appeal’s indication that the availability of evidence on a particular matter may itself be a relevant fact; for if evidence of a particular fact is uncontentious then so presumably is the fact itself.

 

 

 

Council Tax

November 23rd, 2012 by James Goudie KC in Council Tax and Rates

Two new Statutory Instruments, the Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012, SI 2012/2885, and the Council Tax Reduction Schemes (Default Scheme) (England) Regulations 2012, SI 2012/2886, make provision for the new, localised, council tax support schemes in England, which come into effect on 1 April 2013.  They replace council tax benefit.  All billing authorities in England are required to have their own scheme.  The Default Scheme Regulations make provision for a default scheme that will apply to those billing authorities that have not made their own scheme by 31 January 2013.  Otherwise all schemes made by authorities, approved by Full Council, must include those matters that are prescribed in the Prescribed Requirements Regulations, as well as those matters which are required to be included in local schemes by paragraph 2 of Schedule 1A to the Local Government Finance Act 1992, as inserted by the Local Government Finance Act 2012, section 10 and Schedule 4.

 

Housing and Fiduciary Duties

November 15th, 2012 by Christopher Knight in Housing

The Court of Appeal has today handed down an important judgment on the ability of local authorities to avoid bargains by relying on their own unlawful acts. The context of Charles Terence Estates Ltd v Cornwall Council [2012] EWCA Civ 1439 is one of housing; the Council had entered into agreements with CTE whereby CTE purchased properties and leased thm to the Council to provide accomodation for people to whom the Council owed homelessness duties. The Council argued, successfully at first instance in front of Cranston J ([2011] EWHC 2542 (QB) ; [2011] LGR 813), that in entering into the agreements – which calculated rents based upon set rates – the Council had failed to comply with its fiduciary duty to the council tax payer because it had not considered the market rents in the locality, with the result that the leases were ultra vires and void. The Court of Appeal has overturned that conclusion.

There are two points of particular importance in the context of housing law, and a more important point about virus and public authorities generally. As to housing law, the Court of Appeal held first (in arguably the only point which formed the ratio) that the section 17 of the Housing Act 1985 power to acquire land could not be read as restricting the power to acquire land at a reasonable price. Maurice Kay LJ held that to do so would invite judicialisation of the limits of legal capacity so that only upon determination of a reasonable price could capacity be ascertained, which was a surprising outcome for a local authority to argue for: at [21]. In any event, the total abscence of expert evidence before the Court as to what the market or reasonable rent was meant that it was not possible to undertake any sort of meaningful comparison and so the case failed on an evidential basis too: at [19]-[20], [22], [24]-[25] per Maurice Kay LJ and [41] per Etherton LJ.

The second housing law point is a firm rejection by their Lordships of the argument that the leases were void because the Council had been obliged by section 74 of the Local Government and Housing Act 1989 to set up a Housing Revenue Account before it could exercise the section 17 power, and that it had been failed to do so. The Court held that the Account was a matter of book-keeping, and need only be established when money was actually recieved: at [26] per Maurice Kay LJ and [43] per Etherton LJ.

Of wider significance was their Lordships’ discussion of the circumstances in which a public authority can successfull invoke its own public law error as a defence to a private law claim, and in particular, the comments on the well-known decision of Credit Suisse v Allerdale BC  [1997] QB 306, CA. There has long been a tension between the approaches of the judgements of Neill LJ and Hobhouse LJ, the former taking a broad interpretation which permitted any public law illegality to be relied upon as a defence, and the latter narrowed the application to cases involving a ‘want of capacity’ (as there was on the facts). The Court of Appeal in CTE unanimously preferred the approach of Hobhouse LJ. Maurice Kay LJ disputed that the Ansminic aggregation of all errors of law had any impact in this area, stressing the undesirablitity of a historic breach of fiduciary duty defeating an otherwise good claim by a party who had acted in good faith: at [37]. Any breaches of the Council had not gone to legal capacity. Etherton LJ drew the same distinction between ‘narrow’ ultra vires acts (in the sense of legal incapacity) and ‘wider’ ultra vires (in the sense of breach of powers or duties), preferring the approach of Hobhouse LJ because he could see no reason why the position should be any different where the transaction whose validity is questioned is that of a public body or that of a commercial party under the lack of capacity jurisprudence most famously set out in Rolled Steel Products (Holdings) Ltd v British Steel Corp [1986] Ch 246: at [48]-[52]. Moore-Bick LJ agreed with both judgments: at [39]. As a result, even if the Council’s decision to enter into the leases was ultra virus for any reason, it was a matter of ultra vires not going to capacity, and as such the leases could not be a nullity.

While the housing law findings of the Court may be some interest in future cases, the very clear alignment of the Court of Appeal with the judgment of Hobhouse LJ is of considerable wider significance for public authorities across all areas of public law.

 

Town and Village Greens

October 25th, 2012 by James Goudie KC in Land, Goods and Services

In Barkas v North Yorkshire County Council [2012] EWCA Civ 1373 CA held that a playing field, which had been acquired by a local authority under s80(1) of the Housing Act 1936 (now s12 of HA 1985), and thereafter maintained as a recreation ground, had been appropriated for the purpose of public recreation, and that, since the authority had an express statutory power to maintain the field for recreation purposes, local inhabitants using the field had been doing so, not “as of right” but rather “by right”. Therefore the field could not be registered as a town or village green. S10 of the Open Spaces Act 1906, considered by HL in R (Beresford) v Sunderland City Council [2004] 1 AC 889, is not the only example of land which is provided by a local authority as open space which the public use for recreational purposes “by right”.

 

Public Sector Equality Duty (“PSED”)

October 24th, 2012 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (RB) V Devon County Council, Judgment 19 October 2012, it was held that a change of provider of an Integrated Children’s Service (“ICS”) engaged the PSED at various stages of the procurement process, including the decision to retain the ICS under a single provider and the award of preferred bidder status, but not the possibility of future (post contract) changes in the provision of the ICS, until the detail of such changes was sufficiently well established. However, anything other than declaratory relief was refused, on account of urgency, the fact that the PSED had been addressed at the intention to award contract stage, lack of detriment to the claimant family, and quashing being detrimental to the children of Devon generally.

 

Performance Indicators (WALES)

October 24th, 2012 by James Goudie KC in Best Value

The Local Government (Performance Indicators) (Wales) Order 2012, SI 2012/2539 (W.278) specifies performance indicators for the purpose of s8 in Part 1 of the Local Government Wales Measure 2009, by reference to which Welsh county and county boroughs’ performances will fall to be measured from 1 April 2013. Such “improvement authorities” must make arrangements to exercise their functions so that any applicable performance standard is met. The Order identifies by reference to Schedules which indicators will be used to measure the performance of which functions: Social Services, Housing, Education, Waste Management, Transport and Culture and Sport.

 

Consent For Disposal Of Land

October 22nd, 2012 by James Goudie KC in Local Authority Powers

Clause 6 of the Growth and Infrastructure Bill removes an anomaly whereby currently general consents for the disposal of land by local authorities can be given under LGA 1972 for less than best consideration but cannot be given under TCPA 1990 where land is held for planning. Clause 6 amends s233 of TCPA 1990 (disposal by local authorities of land held for planning purposes) by providing for the SoS to grant general consent for disposals as well as specific consent upon receipt of an application from a local authority. Subsection (2) enables the SoS to give consent generally for the disposal of land at less than the best consideration reasonably obtainable. Such consent may be granted by reference to any particular disposal or disposals, or in relation to a particular class of disposals; local authorities generally, or local authorities of a particular class, or to any particular local authority or authorities, and either unconditionally or subject to conditions (either generally or in relation to any particular disposal or disposals or class of disposals). Subsection (3) applies the protection for purchasers in respect of certain land transactions contained in s128(2) of LGA 1972 to all purchasers of land disposed of by local authorities under s233 of TCPA 1990. At present, s128(2) applies to some purchases under s233 but not to all purchases under s233. Such transactions will not be void where a local authority has failed to obtain the relevant consent and a prospective purchaser will not have to enquire whether the disposing local authority has obtained the necessary consent.

 

Towns and Village Greens

October 22nd, 2012 by James Goudie KC in Land, Goods and Services

Clause 12 of the Growth and Infrastructure Bill amends the Commons Act 2006 (“CA 2006”) so as to allow landowners to deposit a map and statement to protect their land from registration as a town or village green, whilst allowing access to it. ·Clause 13 excludes the right to apply to register land as a town or village green under s15(1) of CA 2006 where any specified event related to the past, present or future development of land occurs. Such events are known as ‘trigger events’ and these are specified in the table set out in Sch 1A to CA 2006, which is inserted by this clause. An example of such an event is the point when an application for planning permission is first published. Sch 1A also specifies terminating events which correspond to each trigger event and cause the exclusion of the right to apply under s15(1) to lift. Clause 14 amends an existing power to allow regulations to prescribe more flexible fees in relation to applications under Part 1 of CA 2006, including applications to register land as a town or village green.

The Explanatory Notes to the Bill state in relation to these Clauses:

“154. The rationale for reform is that currently applications for registering land as a town or village green under section 15(1) of the Commons Act 2006 are considered in isolation from the planning process. This in some cases leads to development which has planning permission being delayed or prevented. One of the recommendations of the Penfold review of non-planning consents was to review the operation of the regime for registering town or village greens in order to reduce the impact of current arrangements on developments which have planning permission. Implementation of this recommendation is achieved through clause 13, which aims to stop the registration system for town or village greens being used to stop or delay planned development. The reforms will protect local communities’ ability to promote development in their areas through local and neighbourhood plan-making. The proposals also aim to reduce the financial burden on authorities in determining applications and the costs to landowners whose land is affected by applications.”

The Explanatory Notes further state (para 156) that “it is highly debatable whether the right to use land registered as a town or village green for lawful sports and pastimes is a civil right since it is a form of local public right rather than a property right”, but in any event that “since the proposed measures do not determine the existence of any recreational rights, it is considered that Article 6 is not engaged; (para 160) that “it is considered that a right to use land registered as a town or village green for lawful sports and pastimes is not a possession for the purposes of Article 1 Protocol 1 (“A1P1”) and therefore this Article is not engaged; and (para 161) that, if the right to use a town or village green for lawful sports and pastimes were a possession, the Government considers that A1P1 would be “unlikely to be engaged”, since the right to apply for land to be registered as a town or village green “is not an existing possession”, but is “merely the right to apply for a future possession”, and that it is also considered that, in removing the right to apply for town or village green registration in certain circumstances, there is no interference with any claim since the legislation will affect future rather than existing applications

 

Remedies in Judicial Review

October 17th, 2012 by James Goudie KC in Judicial Control, Liability and Litigation

In Walton v The Scottish Ministers [2012] UKSC 44, concerned with the construction of an Aberdeen bypass, Lord Carnwath observed, at para 103, that the issue of discretion may in practice be “closely linked” with that of standing, and may be “important in maintaining the overall balance of public interest” in appropriate cases. Lord Carnwath said:

” … I see discretion to some extent as a necessary counterbalance to the widening of rules of standing. The courts may properly accept as “aggrieved”, or as having a “sufficient interest” those who, though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment. However, if it does so, it is important that those interests should be seen not in isolation, but rather in the context of the many other interests, public and private, which are in play in relation to a major scheme …”

At paragraph 112 Lord Carnwath said:

“The applicant will be refused a remedy, where he complains only of a procedural failure (whether under statutory rules or common law principles), if that failure has caused him personally no substantial prejudice. Where, however, a substantive defect is established, going either to the scope of the statutory powers under which the project was promoted, or to its legality or rationality … the court’s discretion to refuse a remedy will be much more limited. These general principles must of course be read in the context of the statutory framework applicable in a particular case.”

 

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