In BARKING & DAGENHAM LBC v GBADEGESIN (2023) EWHC 2571 ( KB ) the Council was granted a final injunction to secure compliance with Improvement Notices under Sections 11 & 12 of the Housing Act 2004. The remedial works required by the Notices remained outstanding. That was despite the landlord having been convicted pursuant to Section 30 of the Act of failure to comply with the Notices.
SUBSIDY CONTROL/STATE AID
September 21st, 2023 by James Goudie KC in Capital Finance and CompaniesSection 2 of the Subsidy Control Act 2022 defines “subsidy”. It includes conferring an “economic advantage” on one or more “enterprises”, elaborated upon in Section 3, and financial assistance which is “specific”, elaborated upon in Section 4. These concepts derive from EU State Aid Law, and have been considered by the General Court in its Judgment on 20 September 2023 in MAGNETROL INTERNATIONAL v EUROPEAN COMMISSION. The Court says at paragraph 45-47 inclusive that the concepts of “advantage” and “selectivity” are 2 separate criteria, but may be examined together.
So far as “advantage” is concerned, in order for there to be State Aid the measure must “improve the financial situation of the recipient”. So far as “selectivity” is concerned, in order for them to be State Aid the measure must not benefit other undertakings that are in a factual and legal situation “comparable” to that of the recipient.
UNLAWFUL PROTESTS
September 1st, 2023 by James Goudie KC in Judicial Control, Liability and LitigationEsso v Breen ( 2023 ) EWHC 2013 ( KB ) concerns an application for a permanent injunction to restrain unlawful protests. The claimant must (1) establish a specific cause of action’ (2) as regards persons unknown, satisfy the Canada Goose guidance in so far as it applies to final relief, (3) satisfy s 12(2) HRA 1998 as to service, and (4) show interference with ECHR Articles 10 and 11 is justified.
VICARIOUS LIABILITY
August 25th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationIN MXX v A Secondary School ( 2023 ) EWCA Civ 996 the Court of Appeal examines the 2 stage test for vicarious liability : (1 ) Whether the relationship of the defendant and the tortfeasor is one that is capable of giving rise to vicarious liability, which is not limited to employment, and ( 2 ) , if so, whether whether the connection that links that relationship between the defendant and the tortfeasor with the act or omission of the tortfeasor is sufficiently close to give rise to vicarious liability.
HOMELESSNESS
August 14th, 2023 by James Goudie KC in HousingIn R ( Ahamed ) v Haringey LBC ( 2023 ) EWCA Civ 975 the Court of Appeal considers the relationship between Sections 189B and 193 of the Housing Act 1996. At paragraph 46 Newey LJ says that he would not exclude the “ possibility “ of a person being homeless, and so owed the main housing duty, despite having suitable accommodation available for occupation and a reasonable prospect of retaining it for at least 6 months, but that this is not a likely scenario. TYPICALLY the matters rendering the accommodation potentially suitable for at least 6 months will also “ tend to make “ it such as it would be reasonable to continue to occupy.
INCIDENTAL POWER
August 2nd, 2023 by James Goudie KC in Decision making and ContractsIn these post-GPOC days, now in Wales as well as England, source of vires issues tend to loom less large, as the localism legislation intends, but questions still crop up as to what may be authorised by the general power in Section 111 of the Local Government Act 1972, in conjunction with some other power. In R ( Ball ) v Hinckley & Bosworth BC (2023) EWHC 1922 ( Admin ) at para 73 a reminder : “ That section has a wide ambit but its scope is not unlimited. “ Where there are provisions expressly defining the way in which a local authority’s particular powers are to be exercised then Section 111 does NOT operate to enable the exercise of those powers in a different way : Sutton LBC v Morgan Grenfell. Similarly, Section 111 CANNOT be used as an “ escape route “ to act in a way that is inconsistent with other statutory provisions “Credit Suisse v Allerdale BC.
PRIVATE-HIRE VEHICLES
July 31st, 2023 by James Goudie KC in Environment, Highways and LeisureIn Uber Brittania Ltd v Sefton MBC (2023) EWHC 1975 ( JB ) the Court grants a declaration that in order to operate lawfully under the Local Government ( Miscellaneous Provisions) Act 1976 a licensed operator who accepts a booking from a passenger is required to enter as principal into a contractual obligation with the passenger to provide the journey which is the subject of the booking.
DATA PROTECTION
July 31st, 2023 by James Goudie KC in Non Judicial ControlArticle 6 of the GDPR states that processing of data shall be lawful ONLY IF AND TO THE EXTENT that at least one of 6 situations applies. These include when processing is NECESSARY for the performance of a task carried out in the PUBLIC INTEREST or in the exercise of official authority vested in the controller. In Case C-252/21, the META case, the CJEU Grand Chamber says at paras 108-112 inclusive that this means that the legitimate data protection issues pursued must not be reasonably capable of being achieved just as effectively by other means less restrictive of the rights and freedom of data subjects. A balance then requires to be struck. Particular attention must be paid when the data subject is a child.
EMISSIONS
July 28th, 2023 by James Goudie KC in Environment, Highways and LeisureIn R ( Hillingdon LBC ) v Mayor of London ( 2023 ) EWHC 1972 ( Admin ) Swift J dismisses all 3 grounds of challenge to the Mayor’s decision under the Greater London Authority Act 1999 to confirm the Greater London Low Emission Zone Charging Order, expanding, with effect from 29 August 2023, the London Ultra Low Emission Zone road charging area ( the ULEZ ).
The first ground was whether it was lawful for the Mayor to extend the ULEZ by amending the existing vehicle charging scheme and whether the 2022 Order was made consistently with all obligations arising under the 1999 Act ; paras 3-24 inc.
The second ground was whether there was sufficient and sufficiently clear information provided for the purposes of the consultation exercise: paras 25-37 inc.
The third ground was whether the Mayor’s decision was lawful on the grant payment to meet the cost of the scrappage scheme : paras 38-46 inc.