In EARL SKILTON TOWN COUNCIL v MILLER (2023) EAT 5 the EAT upholds an ET decision that the Town Council had discriminated against an employee because of her sex by providing inadequate toilet facilities for women. Female employees suffered a detriment and were treated less favourably than male employees.
Use of land
February 1st, 2023 by James Goudie KC in Land, Goods and ServicesIn FEARN v BOARD OF TRUSTEESOF TATE GALLERY (2023) UKSC 4 the Supreme Court holds that it is possible, as a matter of principle, for a private nuisance to exist where residential property is subject to visual intrusion. A nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. To amount to a nuisance, the interference must be substantial, judged by the standards of the ordinary person.
Even where there is a substantial interference, the defendant will not be liable if it is doing no more than making a common and ordinary use of its own land. What constitutes an ordinary use of land is to be judged having regard to the character of the locality, eg whether it is a residential or an industrial area.
It is no answer to a claim for nuisance to say that the defendant is using its land reasonably or in a way that is beneficial to the public. In deciding whether one person’s use of land has infringed another’s rights, the public utility of the conflicting uses is not relevant. The benefit of land use to the wider community may be considered in deciding what remedy to grant, and may justify awarding damages rather than granting an injunction. It does not justify denying a victim any remedy at all.
Variation of planning permission
January 30th, 2023 by James Goudie KC in Planning and EnvironmentalSection 73 of TCPA 1990 applies to Applications to develop land without compliance with conditions subject to which a previous planning permission was granted. ARMSTRONG v SoS for LEVELLING-UP etc and CORNWALL COUNCIL (2022) EWHC 142 (KB) concerned a refusal by the Council of the Claimant’s application to vary the plans for construction of a new dwelling under an extant planning permission. The main issue that arose was whether the Planning Inspector lawfully concluded that the Application would give rise to a fundamental variation to that permission such that the Application fell outside the scope of Section 73, in circumstances where the variation of the condition would not give rise to any conflict with the description in that permission of the development. The Court held that the Planning Inspector did not act lawfully, for any or all of 8 reasons, set out at paras 74-94 inclusive. The correct starting point is that there is nothing in Section 73 that restricts its application to non-fundamental variations. Provided that an application is limited to non-compliance with a condition, rather than any other part of the permission, it is within the scope of Section 73.
Principle of consistency
January 18th, 2023 by James Goudie KC in Decision making and ContractsIn R (Blacker) v Chelmsford City Council (2023) EWCA Civ 25 the Court of Appeal holds that a local authority’s Planning Committee had not breached the “ principle of consistency” in decision-making by refusing to grant planning permission for a development despite having previously indicated that it was “minded” to grant permission. The initial indication was just that. It was not a substantive decision. Having given it, the Committee’s decision was to defer the application for consideration at a subsequent Meeting. All options were left open.
The Committee had acted in accordance with the authority’s statutory Constitution. The Constitution required deferment because approval involved rejecting the Planning Officer’s Recommendation.
The importance of consistency in decision-making means that when there has been a previous decision to grant or refuse planning permission in respect of the same site that is capable of being a material consideration on a later application; and if the decision-maker is minded to depart from the previous decision it has to engage with the reasons for that decision and explain its departure from them.
However, the principle of consistency was not engaged. That was because there had been no earlier substantive decision.
The deferral requirement in the Constitution aimed to give the decision-making Committee the opportunity to stand back and think twice about the implications of rejecting an Officer Recommendation. That was the process that the Committee had duly followed.
Climate Change
January 16th, 2023 by James Goudie KC in Planning and EnvironmentalOnly Treaties which have been incorporated into domestic law give rise to legally enforceable rights. The 2015 Paris Climate Change Agreement has not been incorporated into domestic law. The Court of Appeal in R (Friends of the Earth) v Secretaries of State (2023) EWCA 14 holds that it was a tenable interpretation of the Treaty that approval of an investment in a liquefied natural gas project was aligned with the UK’s obligations under the Treaty. On the basis that questions of interpretation of an unincorporated Treaty are for the Executive to determine, the Court holds that a decision-maker cannot be challenged when they adopt a tenable view on a point of unincorporated international law.
Interpretation of contracts
January 13th, 2023 by James Goudie KC in Decision making and ContractsIn MALIK v HUSSAIN (2023) EWCA Civ 2, concerned with exchange of land contracts, at paras 40 &42 the Court of Appeal affirms that the question of interpretation of a contract is, and must be kept, distinct from the issue of whether terms are to be implied into the contract. The process of implication involves a rather different exercise than that of interpretation. The express terms must be interpreted before one can consider the question of implication. The appropriate course is first to interpret the express provision , carrying out the unitary exercise and adopting the iterative approach identified and explained in the Supreme Court in WOOD v CAPITA, it being unimportant whether one starts with the factual background and the consequences of rival constructions or a close examination of the relevant language in the contract. constructions
Care Act or Housing Act?
January 10th, 2023 by James Goudie KC in HousingR (Campbell)v EALING LBC (2023) EWHC 10 (Admin) concerns the withdrawal of funding of temporary accommodation and the interaction and interplay between a unitary local authority’s obligations under the Care Act 2014 and its obligations under Parts VI and VII of the Housing Act 1996. The lawfulness of the Council’s funding of the Claimant’s accommodation was at the centre of the case. Section 23 of the Care Act prohibited the meeting of a housing need that is required to be met under the Housing Act. Although the need for accommodation is not a need for care and support under the Care Act, local authorities have a power to provide accommodation under the Care Act in circumstances where accommodation is required to deliver care and support effectively. This power is not however unfettered. It does not extend to scenarios in which Section 23 bites. The Council had obligations under Part VI of the Housing Act under which the Claimant was a qualifying person and duly placed on the Council’s housing register. The Council owed duties to the Claimant under Part VII, but he wanted to pursue a Part VI process.
Caravan site licences
January 10th, 2023 by James Goudie KC in Planning and EnvironmentalIn TALLINGTON LAKES LTD v SOUTH KESTEVEN DISTRICT COUNCIL (2022) UKUT 334 (LC) the Tribunal addresses the concepts of “occupier” and “relevant protected site” under the Caravan Sites and Control of Development Act 1960. The appellant, the freeholder of the site, was found to be the occupier and the correct licence holder. The appellant’s argument that it was the management company which operated the caravan park that was the occupier failed. An occupier had to occupy the land by virtue of an estate or interest therein. That meant an equitable estate or interest. That did not encompass a licensee or the manager under a management contract. Where the licence and planning permissions allowed mixed use that included residential the site was a relevant protected site.