In tort a person owes a duty of care not to cause physical damage to another person’s property. If there is a breach of that duty there is a liability to pay damages. The measure of the damages is compensation for (i) the reduced value of the property and (ii) any financial loss consequent on the physical damage. The Supreme Court unanimously allows the appeal ARMSTEAD v ROYAL SUN ALLIANCE ( 2024 ) UKSC 6, and holds that a claimant in the tort of negligence can recover, as damages, the amount of a contractual liability that the claimant owes to a third party, when that contractual liability is incurred as a result of the defendant’s wrongful act in negligently damaging the claimant’s property. Such a loss is not “ pure economic loss “; and where the question is whether a loss is too remote from a tort, the burden of proof in respect of remoteness is on the defendant.
PERMITTED CHANGE OF USE
February 14th, 2024 by James Goudie KC in Planning and EnvironmentalThe Town and Country Planning ( General Permitted Development ) ( England ) ( Amendment ) Order 2024 S.I. 2024/141, made on 13 February 2024, and coming into force on 5 March 2024, amends the GDPO, by, amongst other respects, permitting the use of commercial, business and service us to use as dwelling houses. It will no longer be necessary that the building has been vacant for a continuous period of at least 3 months.
RESIDENTIAL DEVELOPMENTS
February 13th, 2024 by James Goudie KC in Planning and EnvironmentalThe Department for Levelling Up, Housing and Communities has commenced Consultations on (1) changes to several existing permitted development rights and (2) changes to national planning policy to support brownfield development.
PLANNING POLICY
February 13th, 2024 by James Goudie KC in Planning and EnvironmentalThe two claims in REDROW HOMES LTD v SoS for LEVELLING UP, HOUSING AND COMMUNIIIES and HERTSMEREBOROUGH COUNCIL and in MEAD REALISATIONS LTD v SoS and NORTH SOMERSET COUNCIL ( 2024 ) EWHC 279 ( Admin ) raised issues about both the interpretation and the application of the sequential test in national policy on flood risk.
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FAIR HEARING : RIGHT TO SILENCE
February 12th, 2024 by James Goudie KC in Human Rights and Public Sector Equality DutyArticle 6 of the ECHR provides for a fair hearing when the determination by a public authority of civil rights and obligations is engaged. However, internal disciplinary proceedings will not generally engage Article 6.
BIODIVERSITY
February 12th, 2024 by James Goudie KC in Planning and EnvironmentalThere is a duty not only to conserve but also to enhance biodiversity. Section 135 of the Environment Act 2023, on biodiversity net gain, pre-development biodiversity value and habitat enhancement, comes into force from 12 February 2024 : S.I. 2024 No. 92 ( C. 6 ).With some exemptions, all major housing developments are now required to deliver at least a 10% benefit for nature. Biodiversity Gain Requirements, linked to Biodiversity Plans, and with a concept of “ irreplaceable habitat “ , will be a condition of planning permissions. This follows six sets of Regulations made in January 2024 on biodiversity : S.I.s 2024 /45-50inv.
Commons Register
February 7th, 2024 by James Goudie KC in Land, Goods and ServicesCOTHAM SCHOOL v BRISTOL CITY COUNCIL (2024 ) EWHC 154 ( Ch ) concerned a claim under the Commons Registration Act 1965 foe an amendment of the Commons Register. The Court ruled that a local authority could not appear on the Court Record as two separate defendants, (1) in its capacity as Commons Registration Authority, and (2 ) as landowner. The Court also ruled that a claim by an Academy School for an entry on the Commons Register to be reversed was not an Aarhus Convention claim for the purposes of costs.
SECURE TENANCY
February 6th, 2024 by James Goudie KC in HousingThe issue in RAHIMI v CITY OF WESTMINSTER COUNCIL (2024) EWCA Civ 73 was whether Mr Rahimi was entitled to a secure tenancy on the death of his grandmother. That, in turn, depended on whether at the date of her death the grandmother was the tenant under a tenancy of the flat granted to her alone. The tenancy had originally be granted to her and her husband, as joint tenants, but her husband was no longer living there. Mr Rahimi was a member of his grandmother’s family and had resided with her throughout the period of 12 months ending with her death.
Lewison LJ at paragraphs 17-22 inclusive identified the statutory framework in relation to secure tenancies. The effect was that if there was a surrender and regrant amounting to the grant of a fresh tenancy to the grandmother alone, a succession was still available, but if the joint tenancy continued in being, Mr Rahimi would not have been entitled to succeed. The joint tenancy would have vested by right of survivorship in the grandmother’s husband, at which point the tenancy would have ceased to be a secure tenancy, because the husband did not occupy the property as his home.
From paragraph 28 Lewison LJ addressed the principle of surrender and regrant. Rights held jointly must be surrendered jointly, by both the joint tenants and by the landlord. Conduct relied upon must be unequivocal. Individual equivocal acts can however be combined to surmount the evidential threshold. From paragraph 40 Lewison LJ considered whether there was unequivocal conduct in this case. What was required was an agreement by the landlord with the assent of the outgoing tenant. On the facts, there was no such agreement, and no grant of a new sole tenancy to Mr Rahimi’s grandmother.
Newby LJ agreed with Lewison LJ in dismissing Mr Rahimi’s appeal, and Macur LJ dissented. Newey LJ said, at paragraph 81:-
“No one suggests that there is direct evidence of a fresh tenancy having been granted. The question is whether there is material from which a grant could be inferred. In that connection, evidence of conduct which is just as consistent with the continuation of the original joint tenancy will not suffice.”
PROCEDURAL FAIRNESS
January 31st, 2024 by James Goudie KC in Judicial Control, Liability and LitigationIn Potanina v Potanin (2024) UKSC 3 the Supreme Court reaffirms that it is a fundamental rule of procedural fairness that , before making an Order requested by one party, the Judge must give the other party the chance to object. If, for some reason, it is not practicable to do this, the Judge must do the next best thing. If the Judge makes the Order that is to give the other party an opportunity to argue that the Order should be set aside, or varied. What is always unfair is to make a Final Order, capable of correction only on appeal, after hearing only from the party who wants the Order made.
DAMAGES
January 31st, 2024 by James Goudie KC in Judicial Control, Liability and LitigationIn EU law the Francovich/Factortame conditions for state, that is public authority, liability in damages include that the breach is “ sufficiently serious “. This applies for example to damages for breach of the Public Contracts Regulations 2015 and the Concession Contracts and Utilities Contracts Regulations 2016, implementing EU law There has been case law on what constitutes being “ sufficiently serious “, notably Energy Solutions v NDA (2016) EWHC 3326 (TCC) and (2017) UKSC 34. The post Brexit Procurement Act 2023, not implementing EU law, contains no express requirement for a breach to be sufficiently serious. Does this mean that the requirement has gone? No, says Coulson LJ in Braceurself Ltd v NHS England (2024) EWCA Civ 39.