BIODIVERSITY

January 22nd, 2024 by James Goudie KC in Planning and Environmental

In relation to biodiversity gain in England, the Environment Act 2021 ( the 2021 Act ) inserted Section 90A of and Schedule 7A to TCPA 1990. Subject to exceptions, every planning permission is deemed to be granted subject to general condition. The biodiversity gain requirement is that the biodiversity value attributable to the development exceeds the pre-development diversity value by at least the  statutorily specified percentage. Biodiversity value means value calculated in accordance with a metric.

Three sets of Regulations have been made under the 2021 Act as part of a package in relation to biodiversity gain. Exemption Regulations, S.I. 2024/47, prescribe categories of planning permission to which the requirement that would otherwise be imposed as a general condition do not apply. There are small development, de minimis and householder exemptions. There is also exemption for development “ forming part of, or ancillary to “ the high speed railway network, development undertaken “ solely or mainly “ for the “ purpose “ of fulfilling the condition which applies to another development, and self-build and custom build.

Irreplaceable Habitat Regulations, S.I. 2024/48, also in force from 12 February 2024, define “ irreplaceable habitat “ for the purpose of securing that a biodiversity gain objective is met, and disapply the requirement to increase the biodiversity value of developments sites. Alternative arrangements must be made to minimise the adverse effect of the development on the biodiversity of the habitat where that habitat is deemed “ irreplaceable “. The Consequential Amendments Regulations, S.I.2024/49, relate to biodiversity gain plans.

 

Cumulative Impact

January 19th, 2024 by James Goudie KC in Environment, Highways and Leisure

In R (Substation Action Save East Suffolk Ltd) v SoS for Energy Security and Net Zero ( 2024 ) EWCA Civ 12, concerned with Regulation 21 if the Environmental Impact Assessment Regulations, development consent for windfarm construction, and flood risk, Lewis LJ reiterated, at paras 55 and 60, that, where two or more linked sets of works are properly to be regarded as separate projects, ( 1 ) the objective of securing environmental protection is sufficiently secured by considering the cumulative effects when the first project is assessed, so far as that is reasonably possible, but (2 ) a decision=maker could defer that decision where, amongst other things, there is insufficient information on which a cumulative assessment can be made.

 

CONFIDENTIAL INFORMATION DISCLOSURE

January 5th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

Competition Appeal Tribunal Direction 1/2024 from the President sets out the general approach to be taken with respect to managing issues related to CONFIDENTIALITY RINGS, whereby the disclosure of  documents which contain SENSITIVE INFORMATION is restricted to specified individuals, usually external or in-house legal representatives or other external advisors or experts.  The Direction applies where the first Case Management Conference in a case, at which a Confidentiality Protocol should be provided,  takes place after 4 January 2024. That approach “permits a degree of pragmatism”. The population of documents for which confidential treatment is sought should be reduced to a “minimum”.

 

Accommodation

January 3rd, 2024 by James Goudie KC in Social Care

In R ( BC )v SURREY COUNTY COUNCIL ( 2023 ) EWHC 3209 ( Admin ) a challenge succeeded to the  Council’s refusal to provide suitable accommodation under Section 20 ( 1 )  of the Children Act 1989 to a 17 year old child as a “ child in need “ within their area. Once the criteria under Section 20 are met, the duty is immediate and unqualified. The authority must accommodate the child.It cannot resist the duty because of lack of resources, or because it considers that provision can or should be made under some other power, or because some other authority or body, such as the local housing authority, can provide accommodation under a different legislative scheme. The child was without suitable accommodation; and his mother was “ prevented “ from providing him with suitable accommodation. The widest possible scope must be given to this provision. It makes no difference whether the reason is one which the carer has brought about by her own act or is one which she was resisting to the best of her ability.

 

PROVISION OF ACCOMMODATION

December 29th, 2023 by Claire Halas in Housing

In R ( DF ) v v Essex County Council (2023) EWHC 3330 (Admin) the Court holds, at paras 74/75, that the fact that the Claimant was homeless, for the purposes of Section 175 of the Housing Act 1996, did not automatically mean that she required accommodation under Section 20 of the Children Act 1989. The Section 20 question entails a “ separate evaluation of a wide range of factors”.

 

LIABILITY FOR NEGLIGENCE

December 20th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

In HXA v SURREY COUNTY COUNCIL and YXA v WOLVERHAMPTON CITY COUNCIL (2023) UKSC 52 the Supreme Court allows the local authorities’ appeals and holds that the claims should be struck out. These claims were for failing allegedly negligently to protect children from abuse. The Supreme Court holds that the necessary starting point for a negligence claim is a common law duty of care, and there is none such, That is because there had been no assumption of responsibility.

 

STRIKE OUT

December 20th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

In GLOVER v FLUID STRUCTURAL ENGINEERS (2023) EWHC 3219 (TCC) the Defendant submitted that the claims advanced by the Claimants cannot succeed as a matter of law, and therefore should be struck out, or dismissed summarily, rather than be allowed to go to trial. The Judge set out the proper ambit of and approach to such applications as follows:-

(1) A Court may strike out a claim where, amongst other things, the statement of case discloses no reasonable grounds for bringing or defending the claim;
(2) A Court may give summary judgment where: (a) the claimant has no real prospect of succeeding on the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial;
(3) Where applications are made to strike out under the CPR as disclosing “no reasonable grounds” for bringing the claim and, in the alternative, for summary judgment, there is no difference between the tests to be applied;
(4) Proper grounds for strike out and for summary judgment exist where the facts of the case, do not, even if true, amount in law to a defence to the claim;
(5) However, it is generally not appropriate to strike out a claim on assumed facts in an area of developing jurisprudence;
(6) Proper grounds for summary judgment include that on current evidence a claim has no realistic prospects of success and there is no additional evidence that can reasonably be expected to be available at trial (including any oral testimony) that is likely to add to or alter the evidence that will be available to a trial judge and so affect the outcome of the case; (7) However, the Court should not conduct a mini-trail on disputed evidence.

 

PUBLIC SPACES PROTECTION ORDER

December 18th, 2023 by James Goudie KC in Local Authority Powers

In TOSSICI-BOLT v BOURNEMOUTH, CHRISTCHURCH AND POOLE COUNCIL (2023) EWHC 3229 (Admin) the Claimant challenged the validity of a Public Space Protection Order (PSPO) made by the Council in October 2022 (the Order). The Council was prompted to make the Order by activities in the vicinity of a clinic in Ophir Road, Bournemouth, which provides abortion services (the Clinic). The Order designates the area around the Clinic as a “safe zone” within which it is prohibited to engage in protest related to abortion services and other specified activities. The main issues were whether the Order is unlawful because it goes beyond the scope of the Council’s statutory powers to make PSPOs or because it involves unjustified interference with individual rights and freedoms, including the freedoms of conscience and religion, expression and assembly guaranteed by Articles 9, 10 and 11 of the ECHR and is hence a breach of the Council’s duties under s6 of the Human Rights Act 1998 (HRA).

The purpose of the PSPO is to prevent antisocial behaviour in public places. This is achieved by imposing legally enforceable controls on the behaviour of individuals. Power to make a PSPO is conferred on local authorities by s59 of the Antisocial Behaviour, Crime and Policing Act 2014 (the 2014 Act). A PSPO can last for up to three years and there is power to extend during that period (ss60-61 of the 2014 Act).

A person who fails without reasonable excuse to comply with a PSPO is liable on summary conviction to a fine of up to £1,000 (s67).

Section 59(1) provides that a local authority may make a PSPO if two threshold conditions are met. The first of these is specified by a s59(2): “that (a) activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or (b) it is likely that activities will be carried on in a public place within that area and that they will have such an effect.” The second threshold condition is specified by s59(3). It is that “the effect, or likely effect, of the activities (a) is, or is likely to be, of a persistent or continuing nature, (b) is or is likely to be, such as to make the activities unreasonable, and (c) justifies the restrictions imposed by the notice.”

Section 59(4) defines a PSPO as “an order that identifies the public place referred to in subsection (2) (‘the restricted area’) and (a) prohibits specified things being done in the restricted area, (b) requires specified things to be done by persons carrying on specified activities in that area, or (c) does both of those things.” Section 59(5) limits the prohibitions or requirements that may be imposed to “ones that are reasonable to impose in order (a) to prevent the detrimental effect referred to in subsection (2) from continuing, occurring or recurring, or (b) to reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.”

Section 72(1) provides that in deciding whether to make a PSPO the authority (must have particular regard to the rights of freedom of expression and freedom of assembly” set out in Articles 10 and 11 of the ECHR. Section 72(3) requires the authority to carry out “the necessary consultation” before making a PSPO. This means consulting with “the chief officer of police, and the local policing body, for the police area that includes the restricted area” and with appropriate community representatives and those who own or occupy land within the restricted area: s72(4). Section 72 allows the Secretary of State to issue guidance to local authorities about the exercise of their functions under Chapter 2. The guidance current at the relevant times identified the purpose of a PSPO as “to stop individuals or groups committing antisocial behaviour in a public place”.

Section 66 sets out a procedure by which the validity of a PSPO may be challenged. A challenge may be brought by “an interested person”, defined to mean “an individual who lives in the restricted area or who regularly works in or visits that area”. The challenge is to be made by an application to the High Court which must be brought within six weeks of the Order being made. The only ….that may be relied on are that “(a) the local authority did not have power to make the order … or to include particular prohibitions or requirements imposed by the order …; (b) that a requirement under this Chapter was not complied with in relation to the Order …” If satisfied that these conditions are met or that the interests of the applicant have been substantially prejudiced by a failure to comply with a requirement of the relevant Chapter the Court may quash the Order or any of its prohibitions or requirements.

Applications under s66 have been considered in two cases: Summers v Richmond upon Thames London Borough Council [2018] EWHC 782 (Admin), [2018] 1 WLR 4729 and Dulgheriu v Ealing London Borough Council [2019] EWCA Civ 1490, [2020] 1 WLR 609.

From these decisions the Divisional Court drew the following propositions of relevance to the present case:
(1) The term “in the locality” in s59(2)(a) of the 2014 Act is capable in law of embracing not only local residents but also those who regularly visit or work in the locality and occasional visitors such as women attending a clinic and their family members and supporters; a local authority has a wide discretion to decide who falls within that term on the facts of the case;
(2) A local authority also has a wide discretion to determine what activities are troublesome and are having or likely to have a “detrimental effect” on the “quality of life” of those whom it considers to be “within the locality”;
(3) Whether prohibitions or requirements are “reasonable” to deal with the detrimental effect of the relevant activities is a matter of judgment for the local authority, taking into account the particular needs of and circumstances pertaining to the local area;
(4) In a challenge under s66 the Court exercises a supervisory jurisdiction in accordance with ordinary judicial review principles;
(5) But where the case requires consideration of fundamental human rights the Court has to identify the rights at stage and form its own judgment on the extent of any interference with those rights and whether such interference is justified rather than merely considering whether the local authority reached its decision by a proper process.

The Court observes that it is inherently likely that some PSPOs will interfere with the exercise of the rights guaranteed by Articles 10 and 11 of the ECHR. It is therefore understandable that s72(1) of the 2014 Act highlights and requires a local authority tohave “particular regard” to the right guaranteed by those Articles. The statutory language is similar to that of s12(4) of the HRA which requires a Court to have “particular regard” to the importance of the right protected by Article 10 when it is considering whether to grant any relief that may affect the exercise of that right. There are four uncontroversial points to be made:
(1) Firstly, it is not every PSPO that will affect the freedom of expression or assembly;
(2) Secondly, the rights granted by Articles 10 and 11 are both qualified rights; measures that interfere with freedom of expression or assembly can be justified where that is necessary in a democratic society in pursuit of one of the legitimate aims specified in the Article, and proportionate to that aim;
(3) Thirdly, a requirement to have “particular regard” to a specified Convention right is not a duty to have regard “only” to those rights: it does not relieve a public authority of the duty imposed by s6 of the HRA to avoid acting incompatibly with other human rights that are relevant in the circumstances of the case;
(4) Finally, a requirement to have “particular regard” to a qualified ECHR right does not give it any presumptive priority over another qualified right; such rights as such are of equal value; any conflict between them falls to be resolved by focussing intensely on the comparative importance of the specific rights in play and the necessity and proportionality of any interference with them.

At paragraph 79/80, the Court recalled that, where a statute identifies something that has to be done by the holder of a named office, it can be inferred that the act must be performed personally buy the office-holder. However that need not be so. Context is important.

The Court concluded that Parliament did not, when enacting s72(4)(a) of the 2014 Act, intend thereby to compel local authorities to secure a personal response from the Chief Constable as a precondition to making a valid PSPO. The Chief Constable was not the person charged with decision whether to “create new crimes”, if that is an appropriate description. That responsibility lay with the Council. The Chief Constable was no more than a consultee. The legislative aim of imposing this duty of consultation is tolerably clear: to enable the Council to factor into its decision-making an expert professional policing assessment of the implications of the measures which it was proposing. As Parliament can be taken to know, a Chief Constable bears overall responsibility for the conduct of policing in his or her area but it is most unlikely to possess the relevant local knowledge. Delegation to an appropriate person was legally permissible. This being essentially a matter of neighbourhood policy it was not improper for the response to come from the Chief Inspector in charge of that aspect of Dorset’s policing function.

When making the Order the Council lawfully followed the democratic and consultative procedures prescribed by the 2014 Act. The decision-maker was entitled to conclude that the threshold conditions for making an order were satisfied. The detailed provisions of the Order are consistent with s59(5) of the 2014 Act and with the Council’s duty under s6 of the HRA. To that extent that the Order interferes with the human rights of the Claimant and those of non-parties on which she has relied in support of her claim the interference is justified by the legitimate aim of protecting the rights of women attending the Clinic, their associates and the staff. The claim and another like claim were dismissed.

 

BANNING ORDER

December 12th, 2023 by James Goudie KC in Housing

HUSSAIN v NEWHAM LONDON BOROUGH COUNCIL (2023 ) UKUT 287 ( LC ) concerns the making of a Banning Order under the Housing and Planning Act 2016. Such an Order prohibits a person from letting property or managing tenanted property. The UT says that the FTT was entitled to admit evidence of spent convictions, and to take account of them when considering whether to make the Order. The words in Sections 15 and 16 of the Act “ has been convicted of a banning order offence “ were not to be construed as covering exclusively convictions that were not spent.

 

Affirmation of Contract

November 30th, 2023 by James Goudie KC in Decision making and Contracts

If one party to a contract commits a repudiatory breach of that contract, the other party can choose one of two courses : affirm the contract, and insist on its future performance; or accept the repudiation, in which case the contract is at an end. Affirmation can be express or implied. In BROOKS v BROOKS LEISURE EMPLOYMENT SERVICES LTD ( 2023 ) EAT 137 it is restated that (1) the innocent party must, at some stage, elect between the two courses, (2) if he or she once affirms the contract, the right to accept the repudiation is at an end, (3) he or she is not bound to elect within a reasonable or any other time, (4) mere delay by itself, unaccompanied by any express or implied affirmation of the contract does not constitute affirmation, and (5) if it is prolonged it may be evidence of an implied affirmation.

 

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