Judicial Review

August 4th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation

In R ( Packham ) v SoS for Transport (2020) EWCA Civ 1004 a Judicial Review challenge by an environmental campaigner  of the continuation of the construction of HS2 failed. The claim had been issued promptly, but a decision whether to proceed with such a project project is a matter of political judgment on a matter of national economic policy for which the SoS is accountable to Parliament. There would be only low intensity review by the Courts, with a broad margin of discretion for the SoS. The Government had not erred in its approach to environmental effects and the Paris Agreement on Climate Change.

Another judicial review challenge to HS2 works succeeded in R ( Hillingdon LBC) v SoS for Transport (2020) EWCA Civ 1005 on planning grounds.

 

Welsh Text

August 3rd, 2020 by James Goudie KC in Local Authority Powers

R ( Driver ) v Rhondda Cynon Taff CBC ( 2020) EWHC 2072 ( Admin) concerns the reorganisation by the Council of reorganisation of education in the Pontypridd area, and in particular the implications for 6th forms. Fraser J found the Council to be in breach of Section 50 of the School Standards and Organisation ( Wales) Act 2013, and of the Welsh Government School Organisation Code 2013, in relation to assessing the impact of the proposals upon the Welsh language.
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Dwellings

August 3rd, 2020 by James Goudie KC in Planning and Environmental

In Rectory Homes v SoS for MHCLG and South Oxfordshire DC Holgate J sets out general principles of interpretation of planning policy at paras 43-45 and 79 and addresses the meaning of “ dwelling” at paras 46-78 and 80/81.

 

Rates Avoidance Schemes

August 3rd, 2020 by James Goudie KC in Council Tax and Rates

Appeal in the cases noted in this Bulletin on 6 November 2019 have been dismissed : (2020);EWCA Civ 1017. Asplin LJ said at para 46 : “ … the authorities do not support the proposition that a transaction should not be regarded as genuine or a scheme should be considered to be contrary to the public interest on the grounds that their effects might be considered by some to be socially reprehensible.” At para 48 she said : “ Nor can it be relevant that each of the sequence of events is pre-determined…the pre-determined use of an SPV to which assets are transferred is a familiar feature in many corporate reconstruction schemes. Taking time in advance, to decide which steps to take, cannot of itself render the steps themselves contrary to the public interest.” At paragraphs 54-57 she said that once it is accepted that a step is genuine and not a sham, “ it cannot be undermined by the motive behind its creation.” The fact that the purpose for which a transaction has been entered into can be characterised as artificial in no way invalidates the transaction if it is not a sham. The fact that a device has been adopted in order to avoid legislative consequences cannot be taken into account in construing a document to find out what the true nature of the transaction is. One has first to find out what is the true nature of the transaction and then see whether and if so how the legislation operates upon that state of affairs. Floyd and Newey LJJ agreed.

 

Systemic Unfairness

July 24th, 2020 by James Goudie KC in Decision making and Contracts

As an aspect of the rule of law, it is for the Court to assess what fairness requires. That is to be determined in the particular case-specific context. So too the Court will determine in that context whether the procedure adopted meets those requirements. This is the case both when an individual decision is challenged and when a challenge is advanced on the ground that the arrangements themselves are systemically or inherently unfair.

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Termination of Employment

July 22nd, 2020 by James Goudie KC in Local Authority Powers

The Government has, in a consultation response dated 21 July 2020, made revisions to its draft Regulations that will implement a £95,000.00 cap on exit payments in the public sector.

 

Coronavirus

July 21st, 2020 by James Goudie KC in Local Authority Powers

The Government has published Guidance on Local Authority powers to impose coronavirus restrictions to support the No 3 Regulations and the procedures to be followed. The provisions include the following.
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Combined Authority

July 20th, 2020 by James Goudie KC in Decision making and Contracts

The draft Barnsley, Doncaster, Rotherham and Sheffield Combined Authority ( Functions and Amendment) Order proposes  (1) for certain functions to be exercised by the Combined Authority and its Mayor and (2) changes to governance and constitutional arrangements. The functions to be exercised by the Combined Authority relate to transport, education, skills and training, and housing and regeneration.

The proposed governance and constitutional arrangements deal with issues such as the appointment of political advisers, the establishment of an independent remuneration panel, and the ability of the Mayor to cast a deciding vote. The Order also proposes initial measures to create a Mayoral Development Corporation in the Combined Authority’s area.

 

Coronavirus Restrictions

July 20th, 2020 by James Goudie KC in Local Authority Powers

The Health Protection ( Coronavirus Restrictions) (England) Regulations 2020, S.I. 2020/750, accompanied by an Explanatory Memorandum, make provision for local authorities to give Directions relating to (1) individual premises ( Regulation4), (2) events ( Regulation 5), and (3) public outdoor events (Regulations 1 and 6-8 inclusive).

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Coronavirus

July 17th, 2020 by James Goudie KC in Local Authority Powers

The Prime Minister has on 17 July 2020 announced that (1) Regulations will take effect on 18 July 2020 to provide local authorities in England with new powers to (i) close specific premises, (ii) shut outdoor public spaces, and (iii) cancel events; and (2: draft Regulations will be published next week setting out Central Government can intervene at a local level, by taking such actions as (I) closing whole sectors or types of premises in an area, (ii) introducing local “ stay at home “ orders preventing people entering or leaving an area, or (iii) reducing the size of gatherings.

 

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