In Croydon LBC v Kalonga (2022) UKSC 7 the Supreme Court considered a local housing authority seeking possession of a secure tenancy. An unexpired fixed term is not subject to termination under Section 82(1)(b) of the Housing Act 1985 unless and until, by forfeiture or otherwise, the landlord has an existing right to terminate early under the tenancy (1) which has become exercisable and (2) any requisite steps have been taken.
Local Government Reorganisation
March 4th, 2022 by James Goudie KC in GeneralIn R (Cumbria County Council) v SoS (2022) EWHC 388 (Admin) Fordham J. refused to the County Council’s renewed application on a number of grounds for permission to bring Judicial Review proceedings against a decision of the SoS, following Statutory Guidance and consultation, to split the County into 2 unitary authorities. There was no reasonable arguability with a realistic prospect of success. The Statutory Guidance was not an unlawful departure from Government policy in relation to “minimum population size”. Nor had the SoS acted unlawfully with respect to the possibility of a Mayoral Combined Authority, the strengths and weaknesses of an East/West proposal and a single unitary proposal, or consistency with his North Yorkshire decision.
Article 8
February 24th, 2022 by James Goudie KC in Human Rights and Public Sector Equality DutyIn Craig v Her Majesty’s Advocate (2022) UKSC 6 the Supreme Court consider the “in accordance with the law” element within Article 8(2) of the ECHR. An interference with Article 8(1) guaranteed respect for private and family life is capable of being justified under Article 8(2). Such interference can be justified only if (1) it is “in accordance with the law”, (2) pursues a “legitimate aim”, and (3) is “necessary in a democratic society”. The Supreme Court explains at paragraph 49 that in order to satisfy the first of those three requirements, the interference must be in accordance with domestic law and the domestic law must meet the requirements of the rule of law, so as to afford adequate legal protection against arbitrariness. The Supreme Court states at paragraph 50 that this is an absolute requirement. There is no margin of discretion in meeting it.
HMOs – Pinto v Welwyn Hatfield BC (2022) UKUT 47 (LC)
February 24th, 2022 by James Goudie KC in HousingPinto v Welwyn Hatfield BC (2022) UKUT 47 (LC) concerned the penalty imposed by a local housing authority for managing or being in control of a house in multiple occupation without a licence. The Upper Tribunal says that the term “sufficient evidence”, in paragraph 2(1) of Schedule 13A to the Housing Act 2004, read together with Section 249A, means evidence which is sufficient to prove the commission of the offence to the criminal standard, that is beyond reasonable doubt.
Environmental Impact Assessment (EIA)
February 21st, 2022 by James Goudie KC in Planning and EnvironmentalWas the Council in R (Finch) v Surrey County Council (2022) EWCA Civ 187 required to include in an EIA for a project of crude oil extraction for commercial purposes, an assessment of the impact of greenhouse gas emissions resulting from the eventual use of the refined products of that oil as fuel? No, say the majority of the Court of Appeal. Likely environmental effects do not extend beyond environmental effects, both direct and indirect, of the proposed development itself, to include anything which might follow as a consequence of planning permission being granted and implemented for that development.
Homelessness: Minolta v Cambridge City Council (2022)
February 21st, 2022 by James Goudie KC in HousingWhen may a local housing authority in England refuse to entertain a second homelessness application which purports to be a fresh application? That was the question in Minolta v Cambridge City Council (2022) EWCA Civ 159. Answer: only when the new application is identical to the previous application, that is based on exactly the same facts, disregarding only fanciful allegations and trivial facts.
The authority’s enquiry falls into two stages. Stage One: is it, on the above basis, an application at all? Stage 2: If so, is the application well founded? At Stage 2, if it is reached, there is no short cut for the authority. It must carry out the enquiries referred to in Section 184 of the Housing Act 1996.
Asset of Community Value
January 25th, 2022 by James Goudie KC in Environment, Highways and LeisureIn R (TV Harrison CIC) v Leeds City Council (2022) EWHC 130 (Admin) the claimant community interest company challenged the decision of the City Council to refuse to include the claimant’s Land in the list of Land in its area that is of community value that is maintained under Section 87(1) of the Localism Act 2011. The Land is described as a longstanding sports field and has recently been restored. However, the City Council seeks to proceed with a housing development. “Land of community value” is defined by Section 88 of the Act. Section 88(1)(b) is concerned with future use.
Amendment of claim out of time
January 25th, 2022 by James Goudie KC in Judicial Control, Liability and LitigationIn Mullaley v Martlet Homes Ltd (2022) EWCA Civ 32 a claimant was permitted to amend its claim out of time under CPR r.17.4 so as to include an allegation that the defendant’s use of combustible cladding material for tower block refurbishment breached a design and build contract. In considering whether such a new cause of action arose from “the same facts or substantially the same facts” as those which the defendant had put in issue in its defence, some limited flexibility is allowed for a claimant to rely on new facts or matters beyond those pleaded in the defence in order to allow for expansion, elaboration or
Discrimination
January 24th, 2022 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (TP) v SoS (2022) EWHC 123 Admin) the Court reiterates the relevant legal principles on discrimination under Article 14 of the ECHR from paragraph 98 as follows.
Interpretation of Policy
January 24th, 2022 by James Goudie KC in Planning and EnvironmentalIn Wiltshire Council v SoS (2022) EWHC 36 ( Admin ) the Court reiterates the legal principles to be applied by a Court when a decision of a Planning Inspector or other specialist decision-maker is challenged on the basis of alleged misinterpretation of policy.