In cases brought by the Secretary of State [2019] EWHC 2890 (Ch) the High Court declined to wind up companies in the public interest that operated business rate avoidance or mitigation (but not evasion) schemes. The companies relied upon the exemption from business rate of companies that are being wound-up, compulsorily or (creditors or members) voluntarily. The respondent companies operated schemes to allow landlords of vacant commercial premises to avoid paying business rates. That was achieved by the landlords leasing the properties to a special purpose vehicle (SPV) incorporated by the respondents, with the effect that the SPV became the property owner for the purpose of business rates. Each lease had a fixed term of three years and provided that its purpose was to transfer liability for business rates to the SPV, that the landlord would pay a monthly fee, and that the landlord was able to determine the lease at any time on payment of a determination premium, which increased as time passed. Once the SPV held several leases, it would be placed in members voluntary liquidation. The respondents accepted that the determination premium provisions were entirely artificial and had been devised with a view to creating something of value to the SPV so that the liquidator would be required to maintain the members voluntary liquidation for the duration of the lease, so as not to lose the opportunity of receiving the determination premium. Read more »
Finney v Welsh Ministers and Carmarthenshire County Council
November 6th, 2019 by James Goudie KC in Planning and EnvironmentalIn Finney v Welsh Ministers and Carmarthenshire County Council (2019) EWCA Civ 1868, yet another wind turbine case, the Court of Appeal held that on an application under Section 73 of TCPA 1990 to vary a conditions of planning permission the LPA had no power to change the description of the development, including the height of the turbine to which the description attached. On such an application it is only the conditions that matter. First instance authority to the contrary was wrong.
The One Succession Rule
November 4th, 2019 by James Goudie KC in HousingThe decision of Murray J in Haringey Council v Simawi (2018) EWHC 2733 (QB), Local Government Bulletin 23 October 2018, has now been upheld on 31 October 2019, by the Court of Appeal, (2019) EWCA Civ 1770. Lewison LJ, with whom Bean and Baker LJJ agreed, began his Judgment as follows:-
“1. The issue on this appeal is whether the statutory provisions governing succession to secure tenancies unlawfully discriminate against Mr Simawi because of his status.”
Discrimination
October 28th, 2019 by James Goudie KC in Human Rights and Public Sector Equality DutyIn cases under Article 14 of the ECHR, in conjunction with Article 1/1, J.D. and A v UK, concerned with benefit reductions, the Strasbourg Court, on 24 October 2019, stated general principles, including the following:-
Consultation, etc.
October 25th, 2019 by James Goudie KC in Decision making and ContractsIn Electronic Collar Manufacturers Association v SoS for DEFRA (2019) EWHC 2813 (Admin) Morris J considered a number of consultation and other challenges. He summarised general principles on consultation at paragraph 27. From paragraph 109 he addressed together consultation and appearance of pre-determination. He said as to the law:-
Environmental Bill
October 24th, 2019 by James Goudie KC in Environment, Highways and LeisureThe Government has introduced a 130 Clause Environment Bill, with 20 Schedules, in the context of exiting the EU. Parts 1 and 2 relate to Environmental Governance, that had been the subject of a Draft Bill, including environmental targets, improvement plans, environmental monitoring and environmental principles, and a new Office for Environmental Protection. Part 3 relates to Waste and Resource Efficiency; Part 4 to Air Quality and Environmental Recall; Part 5 to Water; Part 6 to Nature and Biodiversity; and Part 7 to Conservation Covenants. The provisions include recycling and other obligations upon local authorities, pollution control and other powers for local authorities, and the mandating of net gain in biodiversity through the planning system.
Legal advice privilege
October 24th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn Curless v Shell International Ltd (2019) EWCA Civ 1710 the Court of Appeal has upheld the decision of an Employment Judge to strike out parts of a disability discrimination and victimisation claim on the basis that they referred to an email which attracted legal advice privilege. The employer (SI Ltd) was seeking advice on whether the claimant (C) –who had already made a claim of a failure to make reasonable adjustments – might be either offered voluntary severance or dismissed on the grounds of redundancy as part of a restructuring exercise. The Court of Appeal viewed this as the sort of advice which employment lawyers give ‘day in, day out’. It did not agree with the EAT’s interpretation that this was advice to act in an underhand or iniquitous way by ‘cloaking’ a discriminatory dismissal as a redundancy. Read more »
Equitable relief from forfeiture
October 24th, 2019 by James Goudie KC in Land, Goods and ServicesOn 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 »