Residential Leasehold Management Duty

June 4th, 2019 by James Goudie QC in Land, Goods and Services

In Newham London Borough Council v Samson Estates Ltd (2019) UKUT 110 (AAC) the Council appealed successfully against a FTT decision that an estate agent was not in breach of its above duties.  The issue arose under Section 84 of the Enterprise and Regulatory Reform Act 2013 and the Redress Scheme for Letting Agency Work and Property Management Work etc Order 2014.  The Order requires a person engaged in property management to be a member of an approved redress scheme for dealing with complaints in respect of that work. The Council is an enforcement authority. The UT held that the person so engaged had to be a member of a redress scheme for all categories of property management work in which they were engaged: paragraph  19 (Judge Levenson).


Abandonment of Procurement

June 4th, 2019 by James Goudie QC in Decision making and Contracts

One of the issues in Amey Highways Ltd v West Sussex Council (2019) EWHC 1291 (TCC) was whether or not the Council had lawfully abandoned a procurement.  Stuart-Smith J stated relevant general principles as follows:

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Suspension of Contract

May 22nd, 2019 by James Goudie QC in Decision making and Contracts

Kenson Contractors v Haringey LBC (2019) EWHC 1230 (Admin) was an application made by the Claimant contractor, for an interim injunction against the Council to suspend its decision to award or execute a road-improvement contract to the Interested Party, Marlborough Highways Limited (“MHL”). Kenson came second in the procurement exercise for that contract and MHL came first. Because of the value of the contract (some £630,000 plus VAT) this procurement exercise was well below the threshold for the operation of the otherwise relevant parts of the Public Contracts Regulations 2015.  The underlying claim was brought by way of judicial review (“JR”) of the Council’s decision to award the contract to MHL rather than Kenson.

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Development Plan and TVG

May 20th, 2019 by James Goudie QC in Land, Goods and Services

The issue in Wiltshire Council v Cooper Estates Strategic Land Ltd (2019) EWCA Civ 840 was what it takes in a development plan document to identify land for potential development. If land is so identified, the right to apply for registration of a town or village green (a “TVG”) is suspended.

The reference to the “development plan” now includes development plan documents, and neighbourhood plans: Planning and Compulsory Purchase Act 2004 Section 38 (3). A neighbourhood plan must be in general conformity with the strategic policies contained in the development plan for the area: Town and Country Planning Act 1990 Schedule 4B paragraph 8 (2) (e). But it need not slavishly adopt every detail. Once made, a neighbourhood plan becomes part of the statutory development plan. The importance of development plan documents is stressed in the National Planning Policy Framework. Read more »


Justification of Article 14 Discrimination

May 16th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In the revised benefit cap case, R (DA) v SoS for Work and Pensions (2019) UKSC 21, the Supreme Court said, with respect to the United Nations Convention on the Rights of the Child (“the UNCRC”), that:-

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Rateable Occupation

May 16th, 2019 by James Goudie QC in Council Tax and Rates

The true test is whether the occupation is “of value”, contrasted with an hereditament that is sterile in any and everybody’s hands.  In Telereal Trillium v Hewitt (VO) (2019) UKSC 23 the Supreme Court endorses the distinction drawn in previous Land Tribunal cases between a property which is unoccupied merely because of a surplus between supply and demand in the market, and a property which has “reached the end of its economic life”. The Valuation Office Agency’s guidance on whether a property is obsolete lists several relevant considerations, including whether the property was occupied at the antecedent valuation date, and whether there are other similar properties in the locality that are occupied. This highlights the issues of fact which may become relevant in drawing the distinction in particular cases. Read more »


Disposal of Allotment Land

May 13th, 2019 by James Goudie QC in Land, Goods and Services

The main issue in R (Adamson) v Kirklees MBC (2019) EWHC 1129 (Admin) was whether the Council was obliged to obtain the consent of the Minister before deciding to dispose of certain land in its area currently in use as allotments by the claimant and others. That depended on whether the Council had “appropriated” that land for use as allotments, within Section 8 of the Allotments Act 1925, as amended. If it had, it could not dispose of the land without the consent of the Minister. The Council had not applied for such consent.

The Council wanted to use the land as part of the site of a new primary school it has decided to build. Mr Adamson is in favour of the new primary school but says it should not include the allotment land, unless the Minister agrees to that. He wishes to put the case to the Minister that the primary school site should be differently arranged so as to spare the allotment land. He and his fellow allotment holders were not satisfied with alternative allotment land offered to them by the Council.

Kerr J held that:-

  1. There is no required formal procedure for appropriation: paragraph 113;
  2. Whether appropriation occurred was a fact sensitive evaluation: paragraph 114;
  3. A considered and conscious decision had been taken, recorded in committee minutes, that the land should be zoned for use as allotments: paragraph 115;
  4. The appropriation issue must be determined in favour of Mr Adamson: paragraph 126; and
  5. The claim succeeded: paragraph 153.


ECHR Article 14

May 7th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (TP) v SoS for DWP (2019) EWHC 1116 (Admin) Swift J said:-

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Contra Proferentem in Leases

May 3rd, 2019 by James Goudie QC in Land, Goods and Services

In Earl of Plymouth v Rees (2019) EWHC 1008 (Ch) the Court set out the interpretation principles applicable to a clause in a lease that reserved rights to the landlord, as follows:-

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Extension of Time

May 2nd, 2019 by James Goudie QC in Planning and Environmental

Whether Kerr J was wrong when he exercised his discretion to extend time for a challenge to be brought by a claim for judicial review against a planning permission granted more than five and a half years before the claim was issued was the question at the heart of the appeal in R (Thornton Hall Hotel Ltd) v Wirral MBC (2019) EWCA Civ 737.  The appeal raised two main issues: first, in view of the delay of more than five and a half years, whether the Judge erred in extending time for the claim to be brought, under CPR r.3.1(2)(a); and second, having regard to the substance of the claim, whether he was wrong not to exercise his discretion to refuse relief under Section 31(6) of the Senior Courts Act 1981.  The appeal was dismissed on both issues.

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