Decision Making and Contracts

January 6th, 2020 by James Goudie KC in Decision making and Contracts

In R (AA) v Rotherham MBC (2019) EWHC 3529 (Admin) Jefford J, a case on closure of a Day Centre for adults with learning difficulties, following two consultations, and the Council’s responsibilities for the claimant’s care needs under the Care Act 2014, Jefford J stated with respect to the law on consultation and options:-

“83.     … the following propositions can be stated:

(i)        It is not necessary in all cases where a particular proposal is the subject matter of a consultation to set out alternatives including those that may have been rejected or explain why they have been rejected.

(ii)      Fairness requires that to be done where it is necessary to allow informed or intelligent responses. That is sometimes the case as Lord Wilson said at paragraph 27 of this speech.

(iii)     Whether that is necessary, and correspondingly whether the consultation is a fair one, is a broad question in answering which the matters that fall to be considered include the purpose of the consultation, the nature of the proposal being consulted on, and what consultees can be reasonably taken to know about the proposal and its context. Read more »

 

Planning and Environment

January 6th, 2020 by James Goudie KC in Planning and Environmental

In R (Asda Stores) v Leeds City Council (2019) EWHC 3578 (Admin), Lieven J held, considering Zurich Assurance v North Lincolnshire Council (2012) EWHC 3708, that paragraph 90 of the NPPF, which provides that planning permission for out-of-town retail developments “should” be refused where the proposed development was likely to have significant adverse impact on town centre vitality and viability, did not create a presumption in favour of refusing such developments. It was still for the decision-maker to weigh the competing material considerations. Paragraph 90 did not create a presumption in favour of refusal. The NPPF had to be read as a whole, and in a way that made sense of the document as a whole. It was notable that, in relation to sustainable development, the NPPF used the specific term “presumption”, set out a structure by which that presumption was to be applied, indicated the particular circumstances it could be outweighed, and explained how it worked in particular types of case. This created a “tilted balance”, which gave effect to the presumption. By contrast, the word “presumption” was not used in paragraph 90, there was no suggestion of a tilted balance, and there was no attempt to tell decision-makers that they should put more weight on one factor rather than another. Although there were paragraphs in the NPPF which indicated, as a matter of policy, that particular weight should be given to particular matters, paragraph 90 was not one of them. Thus, the retailer’s argument could not be correct on a textual analysis of the NPPF as a whole. Moreover, the approach for which it contended would create a legal minefield for decision-makers, with potentially different presumptions pulling in different directions. That was precisely the type of excessive legalism infecting the planning system which the decision in Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 warned Courts to be vigilant against.

 

Probity in Planning

December 23rd, 2019 by James Goudie KC in Standards

The LGA has published an updated Guide on Probity in Planning for Councillors and Officers making planning decisions.  It addresses the planning system and the role of decision makers; Councillor and Officer conduct; registration and disclosure of interests; predisposition, predetermination, or bias; development proposals; lobbying of and by councillors; discussions before a decision is taken; Officer Reports to Committee; public speaking at Planning Committees; decisions which differ from a Recommendation; Committee Site Visits; reviewing past Planning Decisions and the outcomes; and complaints and record keeping.

 

Permitted Development Orders

December 23rd, 2019 by James Goudie KC in Planning and Environmental

New World Payphones Ltd v Westminster City Council (2019) EWCA Civ 2250 raised important questions concerning the proper approach to the scope of development covered by a permitted development order.

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Time Limits

December 23rd, 2019 by James Goudie KC in Judicial Control, Liability and Litigation

In the 2019 Rail Franchising Litigation, SoS for Transport v Arriva Rail East Midlands Ltd (2019) EWCA Civ 2259, the issue in the appeal was the applicable time limit for the bringing of claims arising out of a public procurement process which was not governed by the Public Contracts (and similar) Regulations. It raised the stark contrast between the 3-month time limit required for an application for Judicial Review, and the 6-year limit for a claim for breach of statutory duty provided by the Limitation Act 1980.  It also raised an issue as to the correct approach to the 3-month limit where the public law issues arise not from a one-off decision, but an ongoing process.

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Environmental Information

December 19th, 2019 by James Goudie KC in Environment, Highways and Leisure

The question that arose in DoT v ICO (2019) EWCA Civ 2241 was as to the application to the information in issue of the definition of “environmental information” in the Environmental Information Regulations 2004 (“the EIR”), implementing EU Directive 2003/4/EC. The case concerned information of potentially “mixed character”: some environmental material, and some not.

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Landlord Liability

December 17th, 2019 by James Goudie KC in Judicial Control, Liability and Litigation

Essex County Council v Davies (2019) EWHC 3443 (QB) mainly concerned the long established Cavalier v Pope principle that a landlord is not liable for injuries arising from a property having been let in a dangerous state. The nine claimants were employees and visitors at a College leased from the County

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Non-Domestic Rates

December 13th, 2019 by James Goudie KC in Council Tax and Rates

In Derby Teaching Hospitals NHS Trust and 16 Others v Derby City Council and 44 Others (2019) EWHC 3436 (Ch) the 17 Claimant NHS Foundation Trusts accepted that they occupied Hospitals and other properties on which they were liable to pay non-domestic rates to their local rating authorities, but claimed that they were entitled to a discount because they were a charity or occupied the relevant property wholly or mainly for charitable purposes: Section 43(6) of the Local Government Finance Act 1988.  The claims failed.  Morgan J held that Foundation Trusts, under the consolidating National Health Service Act 2006, albeit public benefit corporations, are not charities within Sections 1-4 of the Charities Act 2011.

 

Fees

December 12th, 2019 by James Goudie KC in Local Authority Powers

The fixing by local authorities of fees for taxis and minicabs has been considered by the Court of Appeal in R (Rehman) v Wakefield Council and LGA (2019) EWCA Civ 2166.  The charging power is Section 70 of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”). The Council’s case was not accepted that the costs of enforcing drivers’ conduct fell within Section 70 of the Act.  The Court of Appeal said that it was clear from the wording of Section 70 in the context of the Act that the cost of monitoring and enforcing driver conduct could not be taken into account in fixing the vehicle licence fee.  Part II of the Act provided for distinct and detailed regimes for (a) vehicle licences for taxis and private hire vehicles; (b) drivers’ licences; and (c) operators’ licences.  Each type of licence was governed by a comprehensive and self-contained statutory regime which addressed grant, terms, suspension, revocation and fee. There was no cross-referencing in relation to any of those matters. Thus, the notion that the fee for one type of licence could reflect the costs involved in another was entirely contrary to the structure of the Act. The “control and supervision” referred to in Section 70 was control and supervision by the local authority, not the driver.  It would be a strained and artificial interpretation of those words to claim that the local authority controlled the vehicle by monitoring and enforcing the driver’s behaviour. Moreover, the words in Section 70 could not have been intended by Parliament to authorise something entirely alien to the structure of Part II of the Act in view of its comprehensive self-contained regime for each category of licence. Nor could the proper interpretation of the legislation governing a licensing regime be affected by resource considerations.

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Village Greens: “Statutory Incompatibility”

December 12th, 2019 by James Goudie KC in Land, Goods and Services

In linked appeals R (Lancashire County Council) v SoS for DEFRA and R (NHS Property Services Ltd) v Surrey County Council (2019) UKSC 58, the Supreme Court was primarily concerned with the issue whether the concept of “statutory incompatibility” applies to prevent land from being registered as a village green where it is held for general statutory purposes.

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