Section 61N of the Town and Country Planning Act 1990 is a bespoke and complete scheme for legal challenges to specified decisions and actions within the Neighbourhood Plan process. The Section is self-contained and comprehensive. It leaves no gaps. It provides for proceedings to be pursued before a Neighbourhood Plan is made. The six weeks’ time limit for challenging Neighbourhood Development Orders cannot be extended. Claims must be brought at the particular stage at which a grievance arises. So held in R (Oyston Estates Ltd) v Fylde Borough Council (2019) EWCA Civ 1152
Waste
July 9th, 2019 by James Goudie KC in Environment, Highways and LeisureThe European Court Judgment in Case C-624/17, Tronex BV, concerns the concepts of “waste” and “shipment of waste”. The Court said:-
“16 Regarding the concept of ‘waste’, it should be borne in mind that Article 3(1) of Directive 2008/98 defines it as any substance or object which the holder discards or intends or is required to discard…
17 In accordance with the Court’s settled case-law, the classification of a substance or object as waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’… Read more »
Allocation
June 28th, 2019 by James Goudie KC in HousingThe decision in R (Z) v Hackney LBC, noted in this Bulletin on 6 February 2019, has been upheld by the Court of Appeal. The Court held that the allocation policy of the Agudas Israel Housing Association (“AIHA”) was permitted by Section 193(1) and Section 193(2)(b) of the Equality Act 2010: paragraph 62. A proportionality assessment was not required.
Executive Functions
June 26th, 2019 by James Goudie KC in Decision making and ContractsIn Williams v Caerphilly County Borough Council (2019) EWHC 1618 (Admin) the Claimant challenged two decisions taken by the Council, which operates executive arrangements: a Cabinet decision to adopt a Sports and Active Recreation Strategy for 2019-2020 (“the Sports Strategy” and “the Strategy Decision”); and a further and later Cabinet decision to close a Leisure Centre (“the Closure Decision”).
As regards the Strategy Decision, the first ground of challenge was that the Strategy Decision was unlawful because it was taken by Cabinet, when it should have been taken by Full Council, pursuant to the Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007 (“the 2007 Regulations”). Read more »
Homelessness
June 14th, 2019 by James Goudie KC in HousingIn Samuels v Birmingham City Council (2019) UKSC 28 the Supreme Court quashed the Council’s decision that Ms Samuels was intentionally homeless, on the ground that her accommodation was affordable and reasonable for her to continue to occupy, and that its loss was the result of her deliberate act in failing to pay the rent. The central issue was whether the Council adopted the correct approach in determining that the accommodation was “affordable” for the purposes of Part VII of the Housing Act 1996, Article 2 of the Homelessness (Suitability of Accommodation) Order 1996, and the Homelessness Code of Guidance for Local Authorities. The Council was required to take into account all Ms Samuels’ sources of income, including all social security benefits, and to consider all her reasonable living expenses. The question ought to have been what her reasonable living expenses, other than rent, were. This should have been determined having regard to her needs and those of her children.
Inherent Likelihood of Illegality
June 12th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn R (ZK) v Redbridge London Borough Council (2019) EWHC 1450 (Admin) Swift J held, at paragraph 37, that the existence of an unacceptable risk of illegality in the operation of a policy is capable of giving rise to a ground of judicial review challenge, whether or not the arrangements give rise to an unacceptable risk of unfairness. The principle (paragraph 38) is an applicable standard to judge substantive policies too.
Such capability is to be assessed (paragraph 39) “realistically and pragmatically”.
PSED
June 10th, 2019 by James Goudie KC in Human Rights and Public Sector Equality DutyIn London and Quadrant Housing Trust v Patrick (2019) EWHC 1263 (QB) Turner J at paragraph 42 listed the factors which are likely, at least in many instances, to be the most relevant to be considered in the context of possession cases:-
Alleged Negligent Failure
June 7th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationThe appeal to the Supreme Court in Poole Borough Council v GN (2019) UKSC 25, in which Judgment was given on 6 June 2019, was concerned with whether a local authority was liable for what was alleged to have been its negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of law raised was whether a local authority, or its employees, may owe a common law duty of care to children affected by the manner in which the authority exercises, or fails to exercise those functions, and, if so, in what circumstances.
Residential Leasehold Management Duty
June 4th, 2019 by James Goudie KC in Land, Goods and ServicesIn Newham London Borough Council v Samson Estates Ltd (2019) UKUT 110 (AAC) the Council appealed successfully against a FTT decision that an estate agent was not in breach of its above duties. The issue arose under Section 84 of the Enterprise and Regulatory Reform Act 2013 and the Redress Scheme for Letting Agency Work and Property Management Work etc Order 2014. The Order requires a person engaged in property management to be a member of an approved redress scheme for dealing with complaints in respect of that work. The Council is an enforcement authority. The UT held that the person so engaged had to be a member of a redress scheme for all categories of property management work in which they were engaged: paragraph 19 (Judge Levenson).