Three Court of Appeal Judgments on one day, from an identically constituted Court, on local authorities and remote coronavirus hearings. L (Adoption) (2020) EWCA Civ 577 on covert sibling tests and ECHR Article 8. A (Children) (2020) EWCA Civ 583 providing general guidance. B (Children) (2020) EWCA Civ 584 on procedural principles.
Registration of Common Land
April 23rd, 2020 by James Goudie KC in Land, Goods and ServicesThe phrase “ the curtilage of a building” in the Commons Act 2006 requires the land in question to form part and parcel of the building to which it is related. The correct question is whether the land falls within the curtilage of the building , not whether the land together with the building fall within, or comprise, a unit devoted to the same or equivalent function or purpose. So held by Holgate J in Hampshire County Council v SoS for DEFRA (2020) EWHC 959 (Admin), especially at paras 127 and 132.
ECHR Article 14
April 22nd, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyOn objective and reasonable justification for difference in treatment, and in particular whether, fairly balancing the severity of the effects against the importance of the objective, the impact is disproportionate, and when the “ manifestly without reasonable foundation” criterion applies to an issue of justification, see R (Joint Council for the Welfare of Immigrants) v SSHD (2020) EWCA 542, from para 112.
Historic and Natural Environment
April 21st, 2020 by James Goudie KC in Planning and EnvironmentalR (Advearse) v Dorset Council (2020) EWHC 807 (Admin) concerned a major mixed development in an Area of Outstanding Natural Beauty and close to a conservation area of historical interest with a listed building. Issues considered by Swift J included what an Officer’s Report addressing the NPPF Part 16 provisions should contain.
Public Road on Private Land
April 16th, 2020 by James Goudie KC in Environment, Highways and LeisureR (Pereira) v Environment & Traffic Adjudicators (2020) EWHC 811 (Admin) concerned a parking ticket issued by Southwark Council. A judicial review challenge by a motorist succeeded. The case raised the question whether privately owned land, a stretch of pavement in Dulwich Village, was a “highway”, under Section 31 of the Highways Act 1980, or “any other road”, including pavement, under Section 15 of the Greater London Council (General Powers) Act 1974, “to which the public has access”, so as to preclude even the owner of the land, Dr Pereira, from parking there. Fordham J answered the question in the negative. There are twin preconditions for public access: factual public access and legal public access. Trespass, including tolerated trespass, can never be the basis of lawful public access.
Disability
April 16th, 2020 by James Goudie KC in HousingIn R (Idolo) v Bromley LBC it was held that the Council had not failed in its duties under the Care Act 2014, nor breached its positive obligations under ECHR Article 8, notwithstanding delay in rehousing a disabled resident into accommodation that was suitably adapted or adaptable. Rehousing needs being duly identified through the Care Act route could not shortcut the detailed system of balanced priorities under the allocation and homelessness provisions of the Housing Act 1996 and the Council’s lawful policies and scheme. The Court also made observations about human rights damages claims.
COVID-19 Response
April 15th, 2020 by James Goudie KC in Capital Finance and CompaniesA series of documents, updates and questions and answers have been issued regarding the 2014-2020 European Structural and Investment Funds Programme and the response to COVID-19, and appear on the MHCLG website.
Development Plan
April 15th, 2020 by James Goudie KC in Planning and EnvironmentalThe basic question in R (Corbett) v Cornwall Council (2020) EWCA 508 was whether the Council as LPA erred in law in granting planning permission for a development found to be in conflict with Development Plan (DP) policies for the protection of Areas of Great Landscape Value, but compliant with other relevant DP policies, including a DP policy encouraging development for tourism, and in accordance with the DP as a whole. The Court of Appeal held that the Council had not erred. It had correctly understood the relevant policies of the DP and applied those policies lawfully in considering whether the proposal accorded with the DP as a whole. The DP policies had to be read together.