Legitimate Aim and Proportionality

February 1st, 2018 by James Goudie QC in Decision making and Contracts

On 29 January 2018 the Employment Appeal Tribunal (Sir Alan Wilkie) handed down Judgment in discrimination cases relating to the transitional provisions put in place by for example the London Fire and Emergency Planning Authority, under the Public Service Pensions Act 2013, as part of major changes to public sector pensions following the Hutton Report.

The EAT ruled that, in favouring those closer to retirement age, a legitimate social policy aim was being pursued that was capable of justifying direct discrimination. The EAT further ruled that an ET must make up its own mind as to whether the transitional provisions in support of that legitimate aim are proportionate having regard to their discretionary effect.  That is not a matter for a “margin of discretion”.

 

Ethics

January 30th, 2018 by James Goudie QC in Standards

The Committee on Standards in Public Life has on 29 January 2018 initiated a review of and consultation upon local government ethical standards, for responses by 18 May 2018. The consultation questions are:

    1. Are the existing structures, processes and practices in place working to ensure high standards of conduct by local councillors? If not, please say why.
    2. What, if any, are the most significant gaps in the current ethical standards regime for local government?
    3. Are local authority adopted codes of conduct for councillors clear and easily understood? Do the codes cover an appropriate range of behaviours? What examples of good practice, including induction processes, exist?
    4. A local authority has a statutory duty to ensure that its adopted code of conduct for councillors is consistent with the Seven Principles of Public Life and that it includes appropriate provision (as decided by the local authority) for registering and declaring councillors’ interests. Are these requirements appropriate as they stand? If not, please say why.
    5. Are allegations of councillor misconduct investigated and decided fairly and with due process?
      i.          What processes do local authorities have in place for investigating and deciding upon allegations? Do these processes meet requirements for due    process? Should any additional safeguards be put in place to ensure due process?
      ii.         Is the current requirement that the views of an Independent Person must be sought and taken into account before deciding on an allegation sufficient to ensure the objectivity and fairness of the decision process? Should this requirement be strengthened? If so, how?
      iii.         Monitoring Officers are often involved in the process of investigating and deciding upon code breaches. Could Monitoring Officers be subject to conflicts of interest or undue pressure when doing so? How could Monitoring Officers be protected from this risk?
    6. Are existing sanctions for councillor misconduct sufficient?
      i.         Should local authorities be given the ability to use additional sanctions? If so, what should these be?
      ii.          What sanctions do local authorities use when councillors are found to have breached the code of conduct? Are these sanctions sufficient to deter breaches and, where relevant, to enforce compliance?
    7. Are existing arrangements to declare councillors’ interests and manage conflicts of interest satisfactory? If not please say why.
      i.          A local councillor is under a legal duty to register any pecuniary interests (or those of their spouse or partner), and cannot participate in discussion or votes that engage a disclosable pecuniary interest, nor take any further steps in relation to that matter, although local authorities can grant dispensations under certain circumstances. Are these statutory duties appropriate as they stand?
      ii.         What arrangements do local authorities have in place to declare councillors’ interests, and manage conflicts of interest that go beyond the statutory requirements? Are these satisfactory? If not, please say why. 
    8. What arrangements are in place for whistleblowing, by the public, councillors, and officials? Are these satisfactory?
      i.          What steps could local authorities take to improve local government ethical standards?
      ii.         What steps could central government take to improve local government ethical standards?
    9. What is the nature, scale, and extent of intimidation towards local councillors?
      i.          What measures could be put in place to prevent and address this intimidation?

 

 

Environmental Information

January 29th, 2018 by James Goudie QC in Planning and Environmental

Regulation 12(5)(a) of the Environmental Information Regulations 2004 is a qualified exception from disclosure requirements on the ground of adverse effect upon public safety. In Natural England v Information Commissioner, EA/2017/0160, with respect to culling of badgers, the FTT, on 24 January 2018, stated:-

“66.    Natural England’s case as to the law was largely accepted by the other parties.  We also accept that: the term “public safety” in the EIRs should be read as importing the concept of “public security” referred to in the Aarhus Convention and the Directive.  We accept that, in principle, harm or an increased risk of harm to one person or their property could engage the exception and that there is no additional requirement for there to be widespread disorder and chaos.  We find, however, that the placement of “public safety” in a composite exception in the EIRs which also includes international relations, defence and national security must also be accorded some significance. Read more »

 

Rateable value

January 23rd, 2018 by James Goudie QC in Council Tax and Rates

Ascertainment of the rateable value of a non-domestic hereditament requires that each individual hereditament should be individually assessed and the application of a hypothesis. If the property is in rateable occupation at all, the rateable value is taken to be an amount equal to “the rent at which it is estimated the hereditament might reasonably be let from year to year” on the three assumptions set out in paragraph 2 of Schedule 6 to the Local Government Finance Act 1988.  Read more »

 

Housing need

January 23rd, 2018 by James Goudie QC in Housing

In Jelson Ltd v SoS for CLG and Hinckley & Bosworth BC (2018) EWCA Civ 24 the Court of Appeal has restated (1) that national policy and guidance does not dictate exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need, against which to test the relevant supply, (2) that responsibility for the assessment of housing need lies with the decision-maker, and that (3) the scope for a reasonable and lawful planning judgment is broad.

 

Fracking

January 15th, 2018 by James Goudie QC in Planning and Environmental

Did the DoS for CLJ err in law in granting planning permission for exploration works to test the feasibility of extracting shale gas by the process of hydraulic fracturing – commonly known as “fracking” – at two sites in Lancashire? That was the basic question in Frackman v SoS for CLJ (2018) EWCA Civ 9.

The Court of Appeal said that the case did not raise any novel or controversial point of law. Nor had there been any error of law.  A reference to the CJEU was refused.  The SoS had not misconstrued or misapplied Policy.  Nor were his decisions vitiated by procedural unfairness.  Also dismissed, distinguishing Application by Friends of the Earth for Judicial Review (2017) NICA 41, were complaints that he had failed to heed relevant EU principles, that he had failed to act in accordance with environmental impact principles, and that he had failed to apply “the precautionary principle”. Read more »

 

BIAS

January 15th, 2018 by James Goudie QC in Decision making and Contracts

R (Legard) v Kensington and Chelsea RLBC (2018) EWHC 32 (Admin) concerns the Council’s decision to permit a Neighbourhood Plan, for the designation of land as a Local Green Space, pursuant to paragraph 77 of the NPPF, to proceed to a Referendum.   The various grounds of complaint included allegations of apparent bias, breaches of the requirements of fairness, and ultra vires.

At paragraph 133, Dove J, having reviewed the authorities, distilled the principles that were particularly relevant to the considerations in the case before him:-

“…        The starting point must be a careful examination of all the facts before the court, and not simply those which would have been known to the claimant or a hypothetical onlooker. The test to be applied is whether a fair-minded and informed observer, having considered those facts, would conclude that there was a real possibility of bias on behalf of the decision-maker. The fair-minded observer should be neither unduly suspicious nor complacent. The fair-minded observer would need to be satisfied that the complaints made could be objectively justified as giving rise to a real possibility of bias. In addition, the fair-minded observer will take account of the overall context of the evidence in reaching a conclusion on the available facts. Part of that context will include, in relation to cases involving local government, that members of local authority are democratically accountable and will have political allegiances and policy positions. Thus, it has to be acknowledged that councillors may have a predisposition in relation to a particular decision, but that will not amount to predetermination provided they approach the decision with a mind which is willing to grasp all of the merits to be considered, and which is not closed to making a decision amounting to a departure from their predisposition. In a similar way, as part of the context of a case involving a government minister, the fair-minded observer will be taken to appreciate that ministers often have difficult and finely balanced decisions to take, and that it does not follow from a decision in favour of, for instance, a vocal body of local residents, that the minister was biased in their favour. Once an allegation of apparent bias has been made out, it is not obviated by the fact the apparent bias has had no operative effect upon the decision under challenge.”

On the other hand, in relation to allegations of unfairness, it is necessary for a claimant to establish not only that unfairness has occurred, but also that it has caused prejudice (paragraph 136).

Dove J further said:-

“142.     In seeking to form a view in relation to the question of whether or not the claimant has established that the defendant was apparently biased towards the second interested party, in my view it is necessary to have regard to the following features which would be part of the context known to the well informed and fair minded observer. Firstly, so far as the defendant’s officers are concerned, they are public officials who have a responsibility to seek to take account of legitimately expressed interests raised with them by the members of the public who they are employed to serve. It is part and parcel of their role to have a listening ear to representations that are made to them. Of course, from time to time there will be a necessity to turn representations away: they may be representations which are illegal or vexatious. There also may be the need from time to time, akin to the observations of the Court of Appeal in Broadview Energy Developments in respect of the conduct of the Secretary of State, to politely observe that there is no purpose in making further repetitious representations. Nonetheless, in the context of modern public administration there will be an expectation that Local Government officers will engage with representations which are made to them by all members of the public, since failing to do so may give rise to justifiable complaint.

  1. Secondly, in relation to members of the local authority, as is evident from authorities such as Lewis and Island Farm Development Limited, councillors are politicians and policy makers. As democratically elected representatives they are expected to receive and consider representations and lobbying from those interested in the issues they are determining. As Rix LJ observed in paragraph 96 of Lewis “[e]vidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of pre determination or what counts as bias”. As he went on to conclude, something more is required, in the sense of the local member having abandoned the obligation at the point of decision-making to address planning issues fairly and on their merits even though the member may have previously expressed a predisposition in relation to that decision.
  2. Thirdly, the well informed and fair minded observer would have an appreciation of the obligation of the defendant under paragraph 3(1) of Schedule 4B of the 1990 Act to “give such advice or assistance to [the second interested party] as, in all the circumstances, they consider appropriate for the purpose of, or in connection with, facilitating the making of proposals for [neighbourhood plans]”. Thus, the narrative of events, and in particular the defendant’s involvement in that narrative, would be understood by the well informed and fair minded observer as taking place against the backdrop of the requirement of the defendant to provide advice and assistance to the second interested party in order to facilitate the making of the Neighbourhood Plan. The duty is expressed in relatively broad terms, and in my view was undoubtedly included within the statutory provisions to reflect the fact that, firstly, the local planning authority would be well equipped with experienced professional officers to provide a range of expertise to support a qualifying body in the making of its Neighbourhood Plan and, secondly, to reflect the fact that many qualifying bodies would by stark contrast not have the resources or expertise available to them to produce a Neighbourhood Plan unassisted. That is not to say that there is anything in paragraph 3(1) which requires the local planning authority to support the proposals of a Neighbourhood Plan come what may, or whatever may be their views of the merits of the Neighbourhood Plan. It is obvious that the local planning authority has important tasks within the statutory framework in terms of appraising the merits of the Neighbourhood Plan against the specific tests which are set out in the legislation. The duty to provide “advice or assistance” does not require uncritical and unthinking support. What it does require, however, is undoubtedly relatively close engagement with the qualifying body to facilitate the making of the Neighbourhood Plan.
  3. I shall deal with the detail of the specific points of the claimant’s case individually below. Having carefully scrutinised the whole of the factual context set out above, together with those particular features highlighted by the claimant, I have reached the conclusion that there was neither apparent bias nor unfairness in the defendant’s involvement in the making of the Neighbourhood Plan, and in particular the proposal for the LGS designation of the site. …”

“175.     I have reached the conclusion, having considered the totality of the narrative of events in this case and all of the correspondence and documentation relevant to what occurred, that there is no substance in the contention of the claimant that the defendant was apparently biased toward the second interested party taking the overall context into account …”

“177.     … in essence the claimant relies upon points raised in relation to apparent bias in the context of fairness. For the reasons set out above, in my view the specific features of the case relied upon by the claimant are no more supportive of contentions in relation to fairness than they are to apparent bias. …”

“183. Overall, therefore, I do not consider that the procedure throughout the making of the Neighbourhood Plan up to the decision of the defendant to send the Neighbourhood Plan to referendum involved any unfairness to the claimant’s interests. In particular, at the key points of the decision-making process, namely the examination of the Neighbourhood Plan and the key decision following the receipt of the Examiner’s report, the claimant was afforded, and took, a full opportunity to engage in the merits of the proposal to designate the site as LGS and make their representations that this proposal was misconceived in planning terms.”

“195.     For the reasons which have been set out above, I am satisfied that the claimant has not made out any of the Grounds that have been raised in relation to the decision of the defendant under challenge, namely to pass the Neighbourhood Plan forward to referendum. Having considered the claimant’s arguments I have not been persuaded that there was any illegality in the decision which the defendant reached. This claim must therefore be dismissed.”

 

Legitimate Expectation

January 15th, 2018 by James Goudie QC in Decision making and Contracts

In Richborough Estates Ltd v SoS for CLG (2018) EWHC 33 (Admin) the Claimants challenged the Defendant’s decision to issue a Written Ministerial Statement (“WMS”) in relation to national planning policy concerned with housing and neighbourhood planning, together with a subsequent associated change to the National Planning Practice Guidance (“the PPG”).

In the Localism Act 2011 a new tier of the Development Plan was created by the extensive amendment of the Town and Country Planning Act 1990. Once made, a Neighbourhood Development Plan (“NDP”) forms part of the Development Plan for the purposes of Section 38(6) of the Planning and Compulsory Purchase Act 2004, which provides that determinations shall be “in accordance with the plan unless material considerations indicate otherwise”. The neighbourhood area, for which the plan is made, will be far smaller than the administrative area of the relevant local planning authority (“LPA”), and therefore the plan will be more locally focussed. Two features should be noted. Firstly, it is now well settled that the NDP can allocate land for development including housing and contain a policy determining a volume of development (such as houses) to be developed during the plan period. Secondly, specific provision is made for NDPs within the National Planning Policy Framework (“the Framework”).

Dove J observed that since the introduction of NDPs it is clear from the evidence before the Court that there are differing opinions as to whether they are a constructive part of the planning system. It is also clear that in introducing them the SoS has been of the view that they enable local communities to have a stronger and more effective say in the future development of their areas. A significant number of communities have taken the opportunity to make a NDP for the area in which they live and work. By contrast the extensive evidence from members of the housebuilding industry and their planning advisors which is before the Court contends that NDPs are being used to frustrate development and are not an effective mechanism for planning to meet housing requirements. That is not a debate which the Court can resolve. It is, however, the backdrop to the disputed policy which is the subject of the case.

One of the grounds of challenge was a contention that on the basis of regular past practice, there was a legitimate expectation that the SoS would consult the house building industry in relation to:

“a. any change to National Planning Policy for housing, or alternatively,

  1. any major change for National Policy for housing or, alternatively,
  2. any major change to the policy pertaining to five year housing supply in national policy.”

It was common ground that there was no statutory basis for any requirement that consultation should occur in relation to national planning policy for housing of the kind that, for instance, underpinned the decision of the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947. As Lord Wilson JSC observed at paragraph 23 of his judgment a duty to consult can arise in a variety of ways including where it is generated by statute. In the present case it was contended by the Claimants that the duty to be consulted arises specifically as a consequence of the doctrine of legitimate expectation. This was a case in which the Claimants did not contend that the duty to consult arose on the freestanding basis of the requirements of fairness divorced from the operation of the doctrine of legitimate expectation. The Claimants’ argument was firmly pinned to a requirement for consultation based upon legitimate expectation derived from prior practice. The question of whether the requirements of fairness might be infringed by a change to national planning policy without public consultation does not arise for decision in the present case.

Dove J observed, at paragraph 64, that the starting point for considering this ground must be the requirements necessary to establish whether or not a legitimate expectation arises. The nature of a legitimate expectation was set out by Lord Fraser of Tullybelton in the case of CCSU v Minister for Civil Service [1985] 1 AC 374 at page 401A-F.  The principles which govern the doctrine of legitimate expectation were further considered by the Court of Appeal in the case of Bhatt Murphy v Independent Assessor [2008] EWCA Civ 755. Following the decision in CCSU the Court of Appeal had given further consideration to the principles of legitimate expectation in other cases, and these authorities were referred to by Laws LJ in setting out the principles pertaining to legitimate expectation in his judgment in Bhatt Murphy, where he distilled the legal principles.

Dove J continued:-

“66.      As is evident from Laws LJ’s decision it is necessary for there to be “an unequivocal assurance” either expressly or implicitly from practice upon which the legitimate expectation is then grounded. …

  1. It is the claimants’ contention that on every occasion when there have been changes to national planning policy in relation to housing in the past there has been consultation with the house building industry before that policy has been confirmed. Thus, they contend that as a consequence of that practice there was a legitimate expectation that they would be consulted about the written ministerial statement before it was issued by the defendant. They draw attention to the fact that the defendant was warned of a risk of legal action if he failed to consult, and further rely upon the discussions evidenced in the recent disclosure suggesting that there would be consultation on this policy change through the White Paper.
  2. The starting point for evaluating the claimants’ submissions must be the observation that the legitimate expectation which they rely upon and seek to frame is narrow in its scope. Firstly, as pleaded, it is restricted to consultation with the house building industry. It is in my view important to observe that the house building industry are not the only parties with an interest in the content of national planning policy for housing. LPAs, amenity groups and the public at large will all have a potential interest or concern in relation to any change in national planning policy for housing. In some respects they may have a different perspective from the house building industry, but that is no reason to exclude them from an entitlement to be consulted in relation to a change to national planning policy for housing. This observation is by no means fatal to the claimants’ case. Perhaps more felicitously expressed the legitimate expectation for which they might contend would be for public consultation in relation to changes to national planning policy for housing which would include, amongst others interests, the house building industry. Alternatively, the legitimate expectation claimed might be formulated as a requirement for consultation with the public at large in relation to any change to national planning policy for housing.
  3. The second observation in respect of the narrowness of the pleaded legitimate expectation is that it is limited to changes (or major changes) to national planning policy for housing. It is necessary for the claimants to limit the legitimate expectation in this way if they are to succeed. The necessity for that limitation arises because there is factual evidence before the court that there have been several occasions where national planning policy has been changed by the issuing of a WMS without there having been any consultation, whether with the house building industry or the public at large, at all. Instances of this include a WMS in respect of national retail planning policy related to the demonstration of need which was made on 11th February 1999. In more recent times, on 15th September 2015, a WMS adjusting national planning policy in relation to the approach to be taken to applications for exploratory apparatus for hydraulic fracturing was issued without any prior public consultation. Thus, there is no basis for the claimants to contend for a legitimate expectation that changes to national planning policy would not occur without prior consultation. There is a history (including two further episodes which are particularly pertinent to the claimants’ claim) of national policy being changed in specific respects from time to time though the issuing of a WMS.
  4. This creates in my view further troubling consequences for the legitimate expectation for which the claimants contend. The question which the claimants’ contention begs is why would a legitimate expectation of the kind they claim apply to national policy pertaining to housing but not to national policy pertaining to retail development or exploration for minerals and energy. The claimants’ response was to point to the specific importance of housing development in terms of providing people with a home (including an affordable home for those who required one), together with the importance to the national economy of the house building industry. Whilst those points are undoubtedly correct, they do not in my view coherently distinguish housing development from other forms of developments of undoubted significance to the economy and national wellbeing, such as developments concerned with retail or mineral exploration. I can see little if any basis to distinguish housing from any other national planning policy so as to contend, against the backdrop that the claimants cannot sustain a legitimate expectation in respect of national policy as a whole, that there may be a legitimate expectation in relation to planning policy for housing.
  5. However, it is not necessary to decide the case on this basis, albeit that it throws up significant evidential fragilities in relation to the claimants’ pleaded legitimate expectation. The defendant’s response to this part of the case draws attention to occasions when the defendant has issued a WMS concerning national housing policy without any prior consultation. The defendant thus contends that there is no evidential basis for the legitimate expectation contended for by the claimants.”

“75.      … on the facts, even confining the enquiry to national planning policy in relation to housing (and ignoring the difficulty of justifying why housing should be isolated from other forms of development in this respect), in my view the evidence does not establish that there has been an unequivocal assurance on the basis of practice that a WMS in relation to national planning policy for housing would not be issued without prior consultation. It is clear that on at least two occasions the defendant has issued WMS without consultation affecting national planning policy for housing. Thus I am unconvinced on the evidence that the claimants have established a legitimate expectation that they would be consulted on the WMS. …”

 

Insolvency Proceedings

January 11th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In China Town Development Co Ltd v Liverpool City Council (2017) EWHC 3347 (Ch) the High Court granted an injunction preventing the City Council from presenting a winding-up petition. There was a genuine argument that a premium for two leases was not due on completion of the first lease.  Barling J concluded that insolvency proceedings were not the appropriate vehicle for resolving a genuine dispute on substantial grounds as to the interpretation of the agreement or whether it should be rectified.  The principles were restated as to interpretation and rectification of contracts.

 

Contract Awards

January 2nd, 2018 by James Goudie QC in Decision making and Contracts

In MLS (Overseas) Ltd v SoS for Defence (2017) EWHC 3389 (TCC) O’Farrell J restated the principles as follows:-

(1)        Any procurement must be conducted in accordance with the obligations of (i) transparency. (ii) equality of treatment, (iii) procedural fairness, (iv) good administration, and (v) fairness: paragraphs 55 and 58;

(2)        Any decision is required to be (i) rational and (ii) free from manifest error: paragraph 58;

(3)        The principle of transparency is that the award criteria must be formulated in such a way as to allow all tenderers to interpret them in the same way: paragraph 59;

(4)        That requirement sets a legal standard: ibid;

(5)        The question is not whether it has been proved that all actual or potential tenderers had in fact interpreted the criteria in the same way;

(6)        The question is whether the Court considers that the criteria are “sufficiently clear” to permit of “uniform interpretation by all tenderers”: ibid;

(7)        The test is an objective one: paragraph 60;

(8)        It is based on –

(i)          an interpretation of the relevant documents,

(ii)        taking account of all the circumstances of the particular case: ibid;

(9)        Contracting authorities cannot ask “clarification” questions that involve “negotiation” –

(i)          with any tenderer on a confidential basis, or

(ii)        that unduly favour, or disadvantage, the tenderer to whom the clarification is addressed: paragraph 61;

(10)      However, that does not preclude the (i) correction, or (ii) amplification of details of a tender, where appropriate, “on an exceptional basis” particularly when it is clear that “such amendment does not in reality lead to the submission of a new tender”: ibid;

(11)      A contracting authority must comply with the decision-making procedure set out in the procurement documents: paragraph 62;

(12)      The Court will not substitute its own decision for that of the contracting authority: paragraph 63;

(13)      Provided that the obligations of transparency and equal treatment have been satisfied, the Court will interfere with the decision of a contracting authority only where there has been a “manifest error”, such as where –

(i)          there has been a failure to consider all relevant matters,

(ii)         there has been consideration of irrelevant matters, or

(iii)        the decision is “irrational”, in that “it is outside the range of reasonable conclusions open to it”: ibid.