Investment in commercial property

February 14th, 2020 by James Goudie KC in Local Authority Powers

The National Audit Office has produced an 82 page Report on “Local Authority Investment in Commercial Property”. The Report makes Recommendations for MHCLG, HM Treasury and CIPFA. The Report’s “Key Findings” include with respect to risks and risk management and the Government’s “stewardship role”. The Report’s Conclusion on Value for Money are summarised as follows:-

“26.     The acquisition of commercial property can enable authorities to generate income in the context of financial pressure, while also supporting regeneration. However, the scale of investment of public funds in this activity in the last three years, the concentration of this activity in a relatively small group of authorities, and the use of borrowing to finance such investments is striking. The benefits from this investment therefore must be considered against the potential financial sustainability and value‑for‑money risks that have emerged. Read more »

 

Overlooking

February 14th, 2020 by James Goudie KC in Land, Goods and Services

Fearn v Tate Gallery (2020) EWCA Civ 104 raises important issues about the application of the common law cause of action for private nuisance to overlooking from one property to another, and the consequent invasion of privacy of those occupying the overlooked property. The Court of Appeal held that (1) mere overlooking is not capable of giving rise to a cause of action for private nuisance: paragraphs 74 and 85; and (2) there is no sound reason to extend the common law tort of private nuisance to overlooking in the light of ECHR Article 8: paragraph 95.

 

Rating List

February 13th, 2020 by James Goudie KC in Council Tax and Rates

When should contiguous units of property occupied by the same occupier be entered on the non-domestic rating list as a single hereditament, pursuant to Section 64(3ZD) of the Local Government Finance Act 1988, as amended, and the Rating (Property in Common Occupation) etc Act 2018?

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Deprivation of Liberty

February 12th, 2020 by James Goudie KC in Social Care

In R (Jallow) v SSHD (2020) UKSC 4 the Supreme Court considers, in the context of an immigration curfew, whether the meaning of “imprisonment”, at common law, should be aligned with the concept of deprivation of liberty (“DoL”) under Article 5 of the ECHR.  Lady Hale explains that the ECHR distinguishes between DoL and restriction of physical liberty.   Whether there has been a DoL depends on a number of factors.  The Supreme Court unanimously declines to accept the argument by the SoS that the time has come to align the domestic law of false imprisonment with the concept of DoL.  This would be a retrograde step. It would restrict the classic understanding of imprisonment at common law with the “much more nuanced” concept of DoL. There is no need for the common law to draw a distinction between deprivation and restriction of liberty, and good reason not to do so. It is possible for there to be imprisonment at common law without a deprivation of liberty under ECHR Article 5.  It was not necessary to decide whether the concept is true.

 

Neighbourhood Development Plan (“NDP”)

February 12th, 2020 by James Goudie KC in Planning and Environmental

In R (Wilbur Developments Ltd) v Hart District Council (2020) EWHC 227 (Admin) Lang J helpfully summarises (1) the legislation on NDPs: paras 5-18; (2) the NPPF: paras 19-21; (3) the Planning Practice Guidance: paras 22-24; (4) the limitations upon a challenge to a decision of a local planning authority approving recommendations for a NDP or to an Examiner’s Report: paras 63-72; (5) the materiality of a planning decision in relation to the same land: paras 77-79; and (6) “reasonable alternatives” for the purposes of the SEA Directive and a Strategic Environmental Assessment: paras 106-109.

 

Artificial Intelligence

February 11th, 2020 by James Goudie KC in Standards

The Committee on Standards in Public Life has on 10 February 2020 published a Report on artificial intelligence (“AI”) and its impact on public standards, with Recommendations to Government. The Committee concluded that (i) the Seven Nolan Principles of Public Life remain a valid guide for public sector practice; (2) a new AI regulator is not required, but all regulators must adapt to the challenges that AI poses; and (3) all public bodies must comply with the law surrounding data-driven technology and implement clear, risk-based governance for their use of AI.

 

Deprivation of Liberty

February 11th, 2020 by James Goudie KC in Social Care

In Hertfordshire Council v NK (2020) EWHC 139 (Fam) the question before MacDonald J was whether the Court should grant a deprivation of liberty order (“DOL Order”) under the inherent jurisdiction of the High Court in respect of AK, aged 16, and with a diagnosis of ADHD and a conduct disorder, leading to a history of self-harm, suicidal ideation and low mood. The Council’s application for a DOL Order was opposed by AK’s Children’s Guardian, AK’s mother, NK, did not appear, and was not represented.

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Disability Discrimination

February 11th, 2020 by James Goudie KC in Decision making and Contracts

Ishola v Transport for London (2020) EWCA Civ 112 is concerned with the meaning of “provision, criterion or practice” (“PCP”) in Sections 20 and 21 of the Equality Act 2010, one of the three requirements in the creation of a duty to make “reasonable adjustments” in respect of a disabled person. A PCP is also part of the definition of “indirect discrimination” in Section 19 of the Act, but is not defined in the Act, or in its predecessory legislation.

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Director of Company as Joint Tortfeasor

February 6th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation

There is liability as a joint tortfeasor if (1) someone has acted in a way that assists the commission of the tort by the primary tortfeasor and (2) he/she did so pursuant to a common design to do or assist with the acts that constituted the tort. Whether that test is met in a particular case is a fact sensitive assessment that will turn on all the relevant circumstances. That law has been restated and applied in Red Bull v Big Horn (2020) EWHC 124 (Ch), at paragraphs 45-48 inclusive, where the primary tortfeasor was a company, and the issue was as to the personal liability of a director. The Judge said that the fact that the alleged tortfeasor was a director of the primary tortfeasor did not exclude liability, nor did it establish that the conditions for joint liability were met. There was liability in this action in the case of the sole director and entirely controlling mind of the company who was directly responsible for the activities and actions of his company vehicle.

 

Green Belt

February 5th, 2020 by James Goudie KC in Planning and Environmental

The issue in R ( Samuel smith Brewery ) v North Yorkshire County Council (2020) UKSC 3 was whether the Council as LPA properly understood the meaning of the word “ openness “ in para 90 of the NPPF as it applies to mineral working in the Green belt.

The Supreme Court, allowing the LPA’s appeal, holds that visual quality of landscape is not an essential part of “ openness “ for which the Green Belt is protected. “ Openness “ is the counterpart of urban sprawl. It does not imply freedom from all forms of development. Consideration of relatively limited visual impact does not have to be part of the analysis.

 

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