On the banks of the Manchester Ship Canal, Vauxhall Motors has a large manufacturing plant. It drains surface water and treated industrial effluent into the Canal. It does so pursuant to a licence from the Canal Company. This is a valuable right, similar to an easement. It is terminable if Vauxhall are late in their payment of the licence fee. Inadvertently, Vauxhall was late with one instalment. The Canal Company terminated the Licence. Vauxhall asked the High Court to grant equitable relief from forfeiture. Relief was granted. The Court of Appeal upheld the grant of relief: (2018) EWCA Civ 1100. The position has now been addressed by the Supreme Court, who have unanimously dismissed the Canal Company’s appeal: (2019) UKSC 46, especially from paragraph 35, per Lord Briggs. Read more »
Homelessness
October 23rd, 2019 by James Goudie KC in HousingGuiste v Lambeth LBC (2019) EWCA Civ 1758 was a housing (further) appeal which, as so often, raised the question whether the appellant had a priority need for homelessness accommodation on the basis that he was vulnerable, within the meaning of Section 189(1)(c) of the Housing Act 1996 (“HA 1996”). Henderson LJ, with whom Rose LJ and Theis J agreed, said, at paragraph 45, that the legal principles which apply in deciding whether an appellant is vulnerable, within the meaning of that provision, are mainly to be derived from the two leading cases of Hotak (in the Supreme Court) and Panayiotou (in the Court of Appeal). Henderson LJ stated, at paragraph 46, that the following principles may be derived from Hotak:-
“(a) Section 189(1)(c) is concerned with an applicant’s vulnerability if he is homeless. It directs an enquiry as to his situation if he remains or becomes a person without accommodation: see the judgment of Lord Neuberger of Abbotsbury PSC at [37]. Read more »
Whether development can be completed
October 16th, 2019 by James Goudie KC in Planning and EnvironmentalA development must be carried out fully in accordance with the permission said to authorise it, and cannot lawfully be completed if it has become physically impossible to complete it fully in accordance with that permission, unless the permission is to be construed as authorising independent acts of development. So confirmed in Hillside Parks Ltd v Snowdonia National Park Authority (2019) EWHC 2587 (QB).
Interim Relief
October 11th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn R ( BARKING AND DAGENHAM COLLEGE ) v OFFICE FOR STUDENTS (2019) EWHC 2667 ( Admin) Chamberlain J addressed the proper approach to the grant of interim relief, and in particular interim relief to restrain publication by a public authority. He said, at para 35, that the right of a section of the public to receive information which a public authority wishes to communicate to them in what it regards as the public interest must carry very substantial weight in the balancing exercise. He said, at para 37, that the authorities rightly impose a high hurdle : “ pressing grounds “; “ the most exceptional circumstances” or “ exceptional circumstances” for the grant of interim relief to restrain publication of a report by a public authority. He said, at para 39, that it is difficult to see why the strength of the public interest in favour of publication should depend on whether the public authority is acting pursuant to a duty or a power.
Interim Injunction
October 9th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn R ( LOCHAILORT INVESTMENTS ) v MENDIP DISTRICT COUNCIL (2019) EWHC 2633 ( QB ) the Court was concerned with an application for an interim injunction to stay a Referendum on a Neighbourhood Plan. On the balance of convenience, Stein J said, at para 28, that an important factor is the general public interest in permitting a public authority to continue to act in a manner which it considers to be in the public interest. However, she considered, at para 35, that the cost, disruption and uncertainty of proceeding with a Referendum in circumstances where the lawfulness of doing so is the subject of a challenge that has reasonable prospects of success, are matters which, in the circumstances of the case, weighed in favour of granting the injunction. Moreover, para 39, the status quo was the position before the planned Referendum has taken place.
Concession Contracts
October 8th, 2019 by James Goudie KC in Decision making and ContractsIn OCEAN OUTDOOR UK LTD v LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2019) EWCA Civ 1642 the Court of Appeal has dismissed Ocean’s appeal from O’Farrell J’s Judgment dismissing Ocean’s claim that the Concession Contracts Directive and Regulations applied to two leases of land owned by the Council either side of the Hammersmith Flyover on which are situated substantial structures which support large digital advertising screens. The Court of Appeal confirmed (1) that the leases were not “services” concessions contracts, (2) that they were not contracts “for pecuniary interest”, and (3) that in any event the land exemption applied. As to (1), the Directive and Regulations relate to services which are for the benefit of the contracting authority or its residents, in furtherance of the authority’s strategic objectives or to satisfy their statutory obligations. As to (2), an essential requirement of a contract for pecuniary interest is that the contractor assumes a legally enforceable obligation to carry out the services. As to (3), the land exemption is wide: the leases were genuine leases and agreements for the rental of land.
PSED
October 8th, 2019 by James Goudie KC in Human Rights and Public Sector Equality DutyIn SIMONE v CHANCELLOR OF THE EXCHEQUER (2019) EWHC 2689 (Admin) Lewis J said, at para 63, with respect to Section 149 of the Equality Act 2010, that it is helpful to identify the specific function(s) that the public authority is exercising. This is because it is in the exercise of its functions that a public authority is under a duty to have due regard to the specified matters. Lewis J added that the question of what regard is due will be influenced by a number of factors, including, but not limited to (1) the nature of the decision being taken, (2) the stage of the decision-making process that has been reached, and (3) the particular characteristics of the function being exercised.
GPOC
October 7th, 2019 by James Goudie KC in Decision making and ContractsIn QUALTER v PRESTON CROWN COURT AND CHESHIRE WEST AND CHESTER COUNCIL (2019) EWHC 2563 (Admin) a Divisional Court emphasised the breadth of the General Power of Competence under Section 1 of the Localism Act 2011 as compared with the well-being power under Section 2 of the Local Government Act 2000. GPOC authorised a trading standards investigation into energy brokers. Investigations into fraudulent activity are not subject to the expediency test in Section 222(1) of the Local Government Act 1972 : they are different in this respect from a prosecution. The Court said that it is clear from the terms of Section 1 of the Localism Act that Parliament intended that the powers of local authorities should be “ widened” ( but not unfettered ). “ Any Court must be very slow to interfere with a local authority’s exercise of their general power. “
Air Quality
October 2nd, 2019 by James Goudie KC in Planning and EnvironmentalGladman Developments Ltd v SoS for CLG and Swale Borough Council (2019) EWCA Civ 1543 is concerned with the likely effects of a proposed housing development on air quality, the Air Quality Directive, 2008/50/EC, the national air quality plan and the NPPF, and mitigation measures proposed by the developer. The Air Quality Directive is transposed into domestic law by the Air Quality Standards Regulations 2010. The Council had published an Air Quality Management Area Action Plan.