Habitats

May 1st, 2020 by James Goudie KC in Planning and Environmental

In Case C-254/19, Friends of the Irish Environment v Irish Planning Board, Advocate-General Kokott has on 30 April 2020 delivered her Opinion in relation to the extension of a development consent for the construction of a liquefied natural gas regasification terminal next to two Special Areas of Conservation. The consent was for 10 years. The works had not started. The extension would be for a further 5 years. The primary question was whether the extension was a plan or project within Article 6 of the Habitats Directive. Yes, says the A-G. Therefore it is subject to an appropriate assessment of the implications for wild flora and fauna.

 

Remote Hearings

May 1st, 2020 by James Goudie KC in Judicial Control, Liability and Litigation

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.

 

Boycotts

April 29th, 2020 by James Goudie KC in Local Authority Powers

Important powers of authorities for themselves and their employees and the authorities of others relate to the Local Government Pension Scheme (the LGPS), for which some authorities are “administering authorities” (AAs). AAs make investments. What are their powers as to what investments they make in that capacity?

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Community Protection Notice

April 27th, 2020 by James Goudie KC in Local Authority Powers

A Community Protection Notice under Section 43 of the Anti-Social Behaviour, Crime and Policing Act 2014 may not be served on person A in respect of anti-social behaviour by person B, say a child, on account of A being in a position to, and expected to, exert control over B. So held by a Divisional Court in Staffordshire Moorlands District Council v Sanderson (2020) EWHC 962 (Admin). Andrews J said, at para 35, that Parliament has chosen not to attribute the anti-social behaviour of one person to another person even if that other person has some power of control unless the behaviour can be treated as if it were the behaviour of that other person. Hickinbottom LJ, at para 41, gave the examples of when the anti-social behaviour is encouraged or supported.

 

Registration of Common Land

April 23rd, 2020 by James Goudie KC in Land, Goods and Services

The 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 Duty

On 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 Environmental

R (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 Leisure

R (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 Housing

In 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 Companies

A 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.

 

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