Local authority open space land is held for the purposes of public recreation, public access and public enjoyment pursuant to the Public Health Act 1875 and the Open Spaces Act 1906. The land is held subject to a statutory trust for those purposes. It is not however a trust in the usual private law sense. The land and the trust are inseparable.
ECHR Article 14
December 23rd, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutySevere disability is a “ status” for Article 14 purposes. They can be compared to disabled people for discrimination purposes. So held in R (SH) v Norfolk County Council (2020) EWHC 3436 ( Admin).
ETOs
December 15th, 2020 by James Goudie KC in Environment, Highways and LeisureThe validity of a temporary Experimental Traffic Order, restricting access through a London street to zero omission vehicles, was upheld Tomkins v City of London (2020) EWHC 3357 (Admin). It was found that there had been no duty to carry out a non-statutory consultation. There was no legitimate expectation to that effect. However, declarations were granted in relation to failings to comply with procedural requirements and statutory requirements in relation to statement of reasons.
Misconduct
December 4th, 2020 by James Goudie KC in StandardsA 118 page Law Commission Report, No. 397, with 22 Recommendations, recommends substantive and procedural reform of the common law offence of misconduct in public office, which operates in parallel with the tort of misfeasance in public office. The Report proposes two replacement offences, not to be applicable to the provision of education and health services. They are “ corruption in public office”, with a test of what a reasonable person will think is “ seriously improper”; and “ breach of duty in public office”, to prevent death or serious injury. The Report also recommends a statutory list, to be capable of amendment by SI, of positions that constitute “ public office”, to which a functional test would be applied.
Liability for Accident in Public Park
December 4th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Lewis v Wandsworth LBC (2020) EWHC 3205 (QB) it is held that the local authority had been under no legal duty to warn those using a path in a public park that a game of cricket with a hard ball was in progress and that the boundary of the cricket pitch was alongside the path. Bolton v Stone (1951) AC 850 was considered. Reasonable foreseeability of an accident is not sufficient to found liability. The Court has to consider not only the potential seriousness of an accident but also the chances of an accident happening and the measures which could be taken to minimise or avoid an accident.
Consultation
December 3rd, 2020 by James Goudie KC in Decision making and ContractsIn R ( MP ) v SoS for Health and Social Care (2020) EWCA Civ 1634, dismissing an appeal from Lewis J, as he then was, the Court of Appeal observed :-
PSED
December 2nd, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyThe nature of the PSED duty to have regard is informed by the particular function being exercised. See ZK v Redbridge LBC (2020);EWCA Civ 1597 at paras 82-84. In any case where a public authority’s functions under legislation are expressly directed at the needs of a protected group it may be/unnecessary to refer to the PSED, or to infer from an omission to do so a failure to have regard to that duty.
Judicial Review
December 1st, 2020 by James Goudie KC in Judicial Control, Liability and LitigationThere is increasing concern about the need for appropriate procedural rigour in judicial review cases. In R (Dolan) v SoS for Health (2020) EWCA Civ 1605 the Court of Appeal says, at para 117 that procedural rigour is important for justice to be done and for fairness to all concerned.
LHAs Working with RSLs
December 1st, 2020 by James Goudie KC in HousingWPPN 02/20 provides Welsh Government guidance on procurement law for Local Housing Authorities working with Registered Social Landlords to deliver Housing Revenue Account development programmes, with particular reference to the Directive 2014/24/EU and PCR 2015 Regulation 12(7) exemption for cooperation between contracting authorities with respect to public services.