In McLEAN v ABERDEEN CITY COUNCIL (2025) CSIH 13 the Court of Session holds that the local authority’s resolution facilitating the collection of relevant information about the development of St Fittick’s Park, a public park owned by the authority, and designated in the local development plan as potentially suitable for development, was not a policy decision approving development of the park. Absent a specific development proposal and details of a proposed development, an EQUALITY IMPACT ASSESSMENT was NOT required.
ECHR ARTICLE 5
May 29th, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyECHR Article 5 confers the right to liberty. This applies save in specified cases and in accordance with a procedure prescribed by law. One of these cases, at Article 5 (1)(d), is the detention of a minor for the of purpose of EDUCATIONAL SUPERVISION. In A LOCAL AUTHORITY V LB (2025) EWHC 1264 (Fam) the Court considers what evidence is required in order for Article 5(1)(d) to be engaged and deprivation of the minor’s liberty to be justified. The Court also considered SECURE ACCOMMODATION under Section 25 of Children Act 1989, the High Court’s inherent jurisdiction to make DEPRIVATION OF LIBERTY SAFEGUARDS ORDERS, and the relationship between them.
INTERPRETATION OF LEGISLATION
May 28th, 2025 by James Goudie KC in Judicial Control, Liability and LitigationIn DARWALL v DARTMOOR NATIONAL PARK AUTHORITY (2025) UKSC 20 the appeal to the Supreme Court, on whether there was a public right to camp, turned on a short print of statutory construction (regarding the meaning of Section 10(1) of the Dartmoor Commons Act 1985). The Supreme Court stated, at paragraph 15: “Normal principles of statutory interpretation are engaged. The courts in conducting statutory interpretation are seeking to ascertain the meaning of the words used in the light of their context and the purpose of the statutory provision.” From para 17 to para 38 the Court considered the ordinary meaning of Section 10(1) and its legislative context in the 1985 Act and earlier.
The Supreme Court then addressed other aids to interpretation of Section 10, (1) Hansard material (paras 39-43), (2) the principle of legality where there is no ambiguity (paras 44-47), (3) Committee Reports (paras 48-51), and (4) Devon County Council byelaws (paras 52-53).
On the nature of the relief sought and the procedure used, the Supreme Court observed that it was a “striking feature” of the proceedings that the public was not represented. Consideration should have been given to the joinder of the Attorney General.
RESTRICTIVE COVENANTS
May 20th, 2025 by James Goudie KC in Land, Goods and ServicesGREAT JACKSON ST ESTATES LIMITED v THE COUNCIL OF THE CITY OF MANCHESTER (2025) EWCA Civ 652 concerns whether restrictive covenants in a lease provide the lessor, which is also the planning authority, with practical benefits of substantial value or advantage, for the purposes of Section 84(1)(aa) and Section 84(1)(a) of the Law of Property Act 1925, in enabling the lessor to prevent a proposed development from going ahead in an uncontrolled manner. The lessor’s concern is that the proposed development might not be completed in a timely fashion or completed at all. The covenants were found to afford the Council practical benefits of substantial value to it. The Council has a legitimate strategy in continuing to influence the use of land on the fringe of the City Centre and to secure its orderly and appropriate development. That interest in the promotion and protection of the site in issue could be furthered through leasehold covenants, in addition to through the statutory planning process.
Asplin LJ, having set out, at para 47, a “helpful framework” to assist with navigating the “detailed and interlocking requirements” of Section 84(1)(aa) and (1A) said: “They are not prescriptive in any way, however, and should not be approached as if they were a rigid checklist which must be adhered to in every case.”
RATES MITIGATION SCHEME
May 19th, 2025 by James Goudie KC in Council Tax and RatesIn CITY OF LONDON CORPORATION v 48th STREET HOLDING LTD ( 2025 ) EWHC 1130 ( KB ) it is held that an “ intermittent occupation “ rates mitigation scheme, designed to secure for the owner of a EMPTY PROPERTY a series of EXEMPTIONS from the liability to pay non-domestic rates, was effective for that purpose. The scheme satisfied the LAING criteria for rateable occupation and did not fall foul of the RAMSAY principle.
AARHUS CONVENTION
May 15th, 2025 by James Goudie KC in Planning and EnvironmentalIn HM TREASURY v GLOBAL FEEDBACK LTD ( 2025 ) EWCA Civ 624 at paras 72-143 inclusive the Court of Appeal holds that a claim falls within the Convention only when there is a contravention of a legal provision which concerns, or has to do with, the environment, its protection or regulation. It does not extend to any decision in breach of any national law which has an effect or impact on the environment.
BIAS
May 13th, 2025 by James Goudie KC in Decision making and ContractsThe test for apparent bias is very well known. The question is whether the (i) “ fair-minded “ and (ii) informed observer, having considered the facts, would conclude that there was a “ real possibility “ that the tribunal was biased. The judicial bias case of GOSALAKKAL v UNIVERSITY HOSPITALS OF LEICESTER NHS TRUST (2025) EAT 64 ( Lord Fairley P ) is a reminder (paras 65/66) that the “fair-minded observer” test necessitates a “ close focus on the facts and the context” and is an illustration ( paras 76-80 inc) of the importance of identifying the proper context when determining whether the facts are capable of forming the basis for an inference of bias.
ECHR
May 13th, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyThe level of a worker’s pay does not engage ECHR Article 8 and is not within its ambit : DJALO v SoS for JUSTICE (2025) EAT 67, para 259. Nor can A1P1 be relied upon : para 260. Moreover, being a claimant in a certain type of claim is not a “ status “ for Article 14 purposes.
DISCLOSURE
May 13th, 2025 by James Goudie KC in Judicial Control, Liability and LitigationSee the decision of Jefford J in NEW LOTTERY CO v GAMBLING COMMISSION (2025) EWHC 1058 (TCC) on loss of LEGAL PROFESSIONAL PRIVILEGE arising from INADVERTENT DISCLOSURE of documents during disclosure in litigation and the doctrine of “ honest mistake “, which would prevent LPP being lost, in the context of a heavy disclosure and review exercise.
SUBSIDIES
May 8th, 2025 by James Goudie KC in Capital Finance and CompaniesIn AUBREY WEISS v GREATER MANCHESTER COMBINED AUTHORITY ( 2025 ) CAT 27 the Competition Appeal Tribunal has given its first Judgment on the balance to be struck in judicial review kind challenges under Section 70(1) of the Subsidy Control Act 2022 between on the one hand the protection of commercially confidential information and on the other hand procedural fairness and open justice. The CAT held that the balance in all the circumstances of this case required that the Appellant’s principal decision-maker be admitted to a confidentiality ring in order to review GMCA’s confidential decision-making documents in relation to loans made by the GMCA, both GMCA documents and documents, including pricing information, of the Appellant’s development competitor and recipients of the loans.
The CAT from para 18 considered the relevant law in relation to the subsidy control regime; and from para 21 the relevant law on managing particularly sensitive confidential information during litigation and confidentiality rings. The information to which access was sought was ( para 43 ) highly important for assessing the merits of the case and in deciding what points to take or not take. The CAT at para 57 identified what was comprised in the balancing exercise. It imposed protections to mitigate against risks : paras 58-61 inc.