Obtaining Injunction

June 20th, 2019 by James Goudie QC in Local Authority Powers

Birmingham City Council v Afsar and Others (2019) EWHC 1560 (QB) is a case  about a protest which has been carried on outside a primary school. Warby J granted interim injunctions, on the basis that the Council was likely to succeed at trial in showing that restraint on the way that protests were being conducted was justified.

The protest involved parents of pupils at the school, relatives of theirs, and other individuals opposed to some of the ways the school is teaching its pupils. It had been going on for a number of weeks. The focus of the protest has been the teaching of matters relating to sexual behaviour, sexuality, and gender.

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Homelessness

June 14th, 2019 by James Goudie QC in Housing

In Samuels v Birmingham City Council (2019) UKSC 28 the Supreme Court quashed the Council’s decision that Ms Samuels was intentionally homeless, on the ground that her accommodation was affordable and reasonable for her to continue to occupy, and that its loss was the result of her deliberate act in failing to pay the rent.  The central issue was whether the Council adopted the correct approach in determining that the accommodation was “affordable” for the purposes of Part VII of the Housing Act 1996, Article 2 of the Homelessness (Suitability of Accommodation) Order 1996, and the Homelessness Code of Guidance for Local Authorities. The Council was required to take into account all Ms Samuels’ sources of income, including all social security benefits, and to consider all her reasonable living expenses. The question ought to have been what her reasonable living expenses, other than rent, were. This should have been determined having regard to her needs and those of her children.

 

Inherent Likelihood of Illegality

June 12th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In R (ZK) v Redbridge London Borough Council (2019) EWHC 1450 (Admin) Swift J held, at paragraph 37, that the existence of an unacceptable risk of illegality in the operation of a policy is capable of giving rise to a ground of judicial review challenge, whether or not the arrangements give rise to an unacceptable risk of unfairness.  The principle (paragraph 38) is an applicable standard to judge substantive policies too.

Such capability is to be assessed (paragraph 39) “realistically and pragmatically”.

 

PSED

June 10th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In London and Quadrant Housing Trust v Patrick (2019) EWHC 1263 (QB) Turner J at paragraph 42 listed the factors which are likely, at least in many instances, to be the most relevant to be considered in the context of possession cases:-

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Alleged Negligent Failure

June 7th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

The appeal to the Supreme Court in Poole Borough Council v GN (2019) UKSC 25, in which Judgment was given on 6 June 2019, was concerned with whether a local authority was liable for what was alleged to have been its negligent failure to exercise its social services functions so as to protect children from harm caused by third parties.  The principal question of law raised was whether a local authority, or its employees, may owe a common law duty of care to children affected by the manner in which the authority exercises, or fails to exercise those functions, and, if so, in what circumstances.

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Residential Leasehold Management Duty

June 4th, 2019 by James Goudie QC in Land, Goods and Services

In Newham London Borough Council v Samson Estates Ltd (2019) UKUT 110 (AAC) the Council appealed successfully against a FTT decision that an estate agent was not in breach of its above duties.  The issue arose under Section 84 of the Enterprise and Regulatory Reform Act 2013 and the Redress Scheme for Letting Agency Work and Property Management Work etc Order 2014.  The Order requires a person engaged in property management to be a member of an approved redress scheme for dealing with complaints in respect of that work. The Council is an enforcement authority. The UT held that the person so engaged had to be a member of a redress scheme for all categories of property management work in which they were engaged: paragraph  19 (Judge Levenson).

 

Abandonment of Procurement

June 4th, 2019 by James Goudie QC in Decision making and Contracts

One of the issues in Amey Highways Ltd v West Sussex Council (2019) EWHC 1291 (TCC) was whether or not the Council had lawfully abandoned a procurement.  Stuart-Smith J stated relevant general principles as follows:

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Suspension of Contract

May 22nd, 2019 by James Goudie QC in Decision making and Contracts

Kenson Contractors v Haringey LBC (2019) EWHC 1230 (Admin) was an application made by the Claimant contractor, for an interim injunction against the Council to suspend its decision to award or execute a road-improvement contract to the Interested Party, Marlborough Highways Limited (“MHL”). Kenson came second in the procurement exercise for that contract and MHL came first. Because of the value of the contract (some £630,000 plus VAT) this procurement exercise was well below the threshold for the operation of the otherwise relevant parts of the Public Contracts Regulations 2015.  The underlying claim was brought by way of judicial review (“JR”) of the Council’s decision to award the contract to MHL rather than Kenson.

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Development Plan and TVG

May 20th, 2019 by James Goudie QC in Land, Goods and Services

The issue in Wiltshire Council v Cooper Estates Strategic Land Ltd (2019) EWCA Civ 840 was what it takes in a development plan document to identify land for potential development. If land is so identified, the right to apply for registration of a town or village green (a “TVG”) is suspended.

The reference to the “development plan” now includes development plan documents, and neighbourhood plans: Planning and Compulsory Purchase Act 2004 Section 38 (3). A neighbourhood plan must be in general conformity with the strategic policies contained in the development plan for the area: Town and Country Planning Act 1990 Schedule 4B paragraph 8 (2) (e). But it need not slavishly adopt every detail. Once made, a neighbourhood plan becomes part of the statutory development plan. The importance of development plan documents is stressed in the National Planning Policy Framework. Read more »

 

Justification of Article 14 Discrimination

May 16th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In the revised benefit cap case, R (DA) v SoS for Work and Pensions (2019) UKSC 21, the Supreme Court said, with respect to the United Nations Convention on the Rights of the Child (“the UNCRC”), that:-

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