Protected Species

April 27th, 2021 by James Goudie KC in Planning and Environmental

There are protected species under Regulation 42 of and Schedule 2 to the Conservation of Habits and Species Regulations 2017. Under Regulation 43 it is an offence deliberately to disturb, damage or destroy a breeding site or resting place of any wild animal of such a species, unless there is a derogation licence. By Regulation 55(9) such a licence cannot be granted unless the licensing body is satisfied that there is no satisfactory alternative and that the action authorised will not be detrimental to the maintenance of the species concerned at a favourable conservation status at their natural range. In Kier v Natural England (2021) EWHC 1059 ( Admin ) Holgate J said : (1) the word “ detrimental” is all of a piece with the precautionary principle : para 42; (2) the judgment required involves consideration not just of the impact of the activities to be authorised, but also the mitigation and compensation measures to be secured by the licence : ibid; (3) the Court affords an enhanced margin of appreciation to a judgment of a scientific expert deciding issues of the kind raised: para 43. Holgate J also summarised, at para 44, the principles determining when fresh and expert evidence may be received in proceedings for judicial review, at para 45, the approach which should be taken to the grant of an injunction, and, at para 46,:how Decision Letters of Planning Inspectors are to be read.

 

AUDIT

April 23rd, 2021 by James Goudie KC in Non Judicial Control

In Moss v Kingston RLBC (2021) EWHC 1032 ( Admin ) Thornton J stated that (1) a public’s right to inspect a local authority’s accounts is a long standing right : para 61; (2) the statutory right of inspection does not lie in policies of transparency and openness, but in financial and democratic accountability of public authorities for the use of public money and the conduct of public business : para 62; (3) The main purposes of the rights to inspect, question the auditor and object to the accounts are to enable electors and other persons interested to assist the auditor in his audit, in advance of its completion : para 63; (4) The auditor must satisfy himself that the authority has made proper arrangements for the 3Es, economy, efficiency and effectiveness : para 64; (5) The right of inspection is subject to the gateways that a sufficient interest must be demonstrated and it must be the right time in the audit timetable : para 67; .and (6) The potential exemptions from the right to inspect are limited and do not include the audited body’s time or cost of compliance : paras 69-76 inc.

 

Rateable Occupation

April 20th, 2021 by James Goudie KC in Council Tax and Rates

In R (SoS) v Harlow District Council (2021) EWHC 909 (Admin) Kerr J sets out, in Annex A, a checklist of 12 propositions of law as to when premises are occupied for rating purposes, and, in Annex B, a 13 item Protocol for resolution of disputes about occupation of premises.

 

Systemic Unfairness

April 15th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

A rule, administrative system or policy is unlawful if it gives rise to an “unacceptable risk of unfairness”. The threshold however is a high one. It requires showing unfairness which is “inherent in the system itself”, not just the possibility of aberrant decisions and unfairness in individual circumstances.

In MR v SoS (2021) EWCA Civ 541 it is held that, where there is systemic unfairness, it is not an answer to say that Judicial Review is available to correct unfairness in any single case. Nonetheless the important distinction must be maintained between adjudicating in cases, which is for the Courts, and determining policy, which is not.

 

State Aid during Covid

April 15th, 2021 by James Goudie KC in Capital Finance and Companies

Damage is caused by an exceptional occurrence, such as the Covid-19 pandemic. The entirety of the damage is not made good. Not all victims receive aid from state resources. In Cases T-378&379/20, Ryanair v Commission, it is held that it does not follow that a measure benefitting an individual company is state aid and/or discriminatory, provided that the benefit does not overcompensate and is proportionate.

 

Ordinary Residence

April 1st, 2021 by James Goudie KC in Social Care

The approach to the question of “ordinary residence” under the Mental Health Act 1983 is different from that under National Assistance Act 1948/Care Act 2014. So held by Linden J in R (Worcestershire County Council) v SoS (2021) EWHC 682 (Admin). LA 1 provided after-care services for a person discharged from hospital after being detained there under Section 3 of the 1983 Act. LA 1 placed the person in a care home in the area of LA 2. Then that person was detained again. When they were discharged again after the second period of detention, was it LA 1 or LA 2 who was responsible for the second period of after-care? Answer: LA 2. Reason: for the purposes of Section 117 (3) of the 1983 Act they were “ordinarily resident” in LA 2’s area “immediately before” the second period of detention.

 

Highway Safety

March 30th, 2021 by James Goudie KC in Environment, Highways and Leisure

When determining whether planning consent should be granted to upgrade an advertising hoarding to a digital display, not only must the residential amenity of the display be considered. Specific conditions should be addressed, in the interests of highway safety, in relation to the use of moving images and both the frequency and the speed of change of advertisements on the display. So held in Calderdale Borough Council v SoS (2021) EWHC 695 (Admin).

 

Proprietary Estoppel

March 30th, 2021 by James Goudie KC in Land, Goods and Services

A claim for possession of land may be defeated by a proprietary estoppel that is satisfied by an irrevocable licence for life, even when a contract for the sale of the land had been oral. The requirements of Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 probably did not affect proprietary estoppel, especially when the relief sought was not to enforce the contract. So held by Snowden J in Howe v Gossop (2021) EWHC 637 (Ch).

 

Duty of Care

March 30th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

In Anchor Hanover Group v Oxfordshire County Council and Others (2021) EWHC 543 (TCC) O’Farrell J at para 59 stated principles as follows: (1) Local and other public authorities do not owe any duty of care at common law simply by exercising their statutory duties and powers; (2) The absence of a duty of care extends to advice given as part of the exercise of such duties; (3) However, a common law duty to protect from harm may arise, where the principles applicable to a private party would impose that duty; and (4) Such cases include where there is an assumption of responsibility.

 

 

GPOC: Wales

March 24th, 2021 by James Goudie KC in Decision making and Contracts

Note the draft General Power of Competence (Commercial Purpose) (Conditions) (Wales) Regulations 2021, pursuant to Sections 24 and 27/28 Of the Local Government and Elections (Wales) Act 2021, requiring amongst other things authorities to prepare and approve a Business Case before using the General Power to do things for a commercial purpose/trading, together with regulatory Impact Assessment, and Welsh Government Consultation Document, for response by 11 June 2021. The General Power comes into force for principal councils on 1 November 2011 and for eligible community councils on 5 May 2022.

 

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