Proportionality

February 6th, 2019 by James Goudie KC in Decision making and Contracts

In R (MAS) v SoS for DEFRA (2019) EWHC 158 (Admin), Morris J, at paragraphs 53/54, stated the principles of proportionality as follows:-

(1)      Proportionality is a general principle of EU law;

(2)      Its application in any particular case is always highly fact-sensitive;

(3)      It applies to national measures falling within the scope of EU law;

(4)      It applies only to measures interfering with protected interests;

(5)      Protected interests include the fundamental freedoms governed by the EU Treaties;

(6)      Where the issue is the validity of a national measure, it is for the national Court to reach its own conclusion on proportionality; Read more »

 

Scheme for allocation of social housing

February 6th, 2019 by James Goudie KC in Housing

R (Z and others) v Hackney LBC and Agudas Israel Housing Association (2019) EWHC 139 (Admin) challenged the arrangements made by AIHA for the allocation of social housing properties owned or controlled by AIHA, which in present circumstances in effect preclude any persons who are not members of the Orthodox Jewish community from becoming tenants of such properties. The claim also challenges the lawfulness of Hackney’s arrangements as a local housing authority for the nomination of applicants to these properties, which again in present circumstances in effect precludes any persons who are not members of the Orthodox Jewish community from receiving nominations for the properties owned by AIHA. In short, the claimants contended that these arrangements discriminated against them because they are not members of the Orthodox Jewish community, and are unlawful, principally, under the Equality Act 2010. Read more »

 

Assessment of need

February 4th, 2019 by James Goudie KC in Social Care

In R (JA) v Bexley LBC (2019) EWHC 130 (Admin) there was a decision, following an assessment, that children were not in need of accommodation and support pursuant to Section 17 of the Children Act 1989 (“the 1989 Act”). The Judge described the legal framework as follows:-

(1)       The general duty under Section 17(1), together with paragraph 1 of Schedule 2 to, the 1989 Act imposes a duty upon local authorities to assess the needs of putative children in need: R (G) v LB Barnet [2004] 2 AC 208;

(2)       A child without accommodation is a child in need within the meaning of Section 17(10): R (G) v Barnet; Read more »

 

Planning Enforcement

February 4th, 2019 by James Goudie KC in Planning and Environmental

 Johnson v Windsor and Maidenhead RBC (2019) EWHC 160 (Admin) is concerned with enforcement proceedings in relation to land, pursuant to the Town and Country Planning Act 1990 (“the TCPA”). Justine Thornton QC, sitting as a Deputy High Court Judge, described the legal framework as follows:-

(1)       Planning permission is required for the carrying out of development of land;

(2)       The making of a material change in the use of land is development;

(3)       Carrying out development without the required planning permission, or failing to comply with any condition or limitation pursuant to which the planning permission has been granted, constitutes a breach of planning control; Read more »

 

Review

February 1st, 2019 by James Goudie KC in Standards

The Committee on Standards in Public Life, chaired by former M15 head, Lord Evans of Weardale, on 30 January 2019 issued a 110 page Report to the Prime Minister, following its review of local government ethical standards in England. The Report concludes that, whilst the consistency and independence of the system could be enhanced, there is no need to reintroduce a centralised body, and that local authorities should retain ultimate responsibility for implementing and applying the Seven Principles of Public Life in local government.

The Report makes 23 Recommendations. The Report also contains a list of 15 “best practice” recommendations, directed to local authorities.

 

Delay in applying for Judicial Review

January 31st, 2019 by James Goudie KC in Judicial Control, Liability and Litigation

In Maharaj v National Energy Corporation of Trinidad and Tobago (2019) UKPC 5 the Privy Council considered provisions resembling those in England and Wales relating to delay in making an application for leave to apply for judicial review, and, in particular, the precise significance of the presence, or absence, of prejudice to the rights of any person, or detriment to good administration, resulting from the grant of leave, or of any relief.  Lord Lloyd-Jones said:-

“26. The classic exposition of the approach to delay in applications for judicial review in England and Wales is to be found in the speech of Lord Goff of Chieveley in Caswell. … even if there is good reason for extending time, the court may still refuse leave on grounds of prejudice or detriment. Caswell concerned the inter-relationship of section 31 of the Supreme Court Act 1981 and RSC Order 53, rule 4.2 Lord Goff agreed with the reasoning and conclusion of Ackner LJ in Jackson that even though a court may be satisfied that there was good reason for the failure to apply promptly or within three months, the delay, viewed objectively, remains “undue delay” and the court therefore retains a discretion to refuse to grant leave or the relief sought on the substantive application on the grounds of delay if it considers that it would be likely to cause substantial hardship or prejudice or would be detrimental to good administration. … The court, however, had the power to grant leave despite the fact that the application was late if it considered that there was good reason to exercise that power. … Read more »

 

Community Infrastructure Levy

January 30th, 2019 by James Goudie KC in Planning and Environmental

On the requirement for substantial compliance by a notice for exemption from the levy, see R (Shropshire Council) v SoS (2019) EWHC 16 (Admin). The decision of the Court of Appeal in R v SoS, ex p Jeyeanthan (2000) 1 WLR 354 was distinguished.  The Judge said:-

“29. Jeyeanthan helps to answer the question what is to happen if a person undertaking a particular act has failed to comply with all the requirements prescribed for that act. But that can be a relevant question only if the actor has actually engaged in the regulated conduct. If the path of compliance has not, so to speak, been trodden at all, there is likely to be little scope or need for analysis of error or omissions in attempted or partial compliance. Read more »

 

Air Quality

January 29th, 2019 by James Goudie KC in Planning and Environmental

The duty of the Secretary of State under Directive 2008/50 and the Air Quality Standards Regulations 2010 is to ensure the preparation and implementation of an Air Quality plan. The duty as “competent authority” does not extend to exercising his power in any particular way, such as by calling in a planning application for his own determination. So held in R (Shirley) v SoS, Canterbury City Council Interested Party (2019) EWCA Civ 22.

 

Conservation Areas

January 29th, 2019 by James Goudie KC in Planning and Environmental

On the relationship between the Strategic Environmental Assessment Directive and the Habitats Directive, see the Opinion of Advocate-General Kokott, delivered on 24 January 2019, in Cases C-43/18 and C-321/18.

 

Stop Notices

January 29th, 2019 by James Goudie KC in Planning and Environmental

There is an entitlement to compensation in respect of any loss or damage directly attributable to any prohibition contained in a stop notice. However, such compensation has to be for an ascertainable loss. The loss has to be attributable to the prohibition in the stop notice, not some other cause. The entitlement to compensation is there predicated on there being, in the relevant period, some actual loss, not a hypothetical one. What matters is the circumstances as they actually were while the notice was in force, not some other, imaginary, scenario.

Moreover, compensation is excluded for the prohibition of “any activity” that “when the notice is in force, constitutes or contributes” to a breach of panning control. It is immaterial that the activity might not be in breach of planning control by the time it was carried out.

So held in Huddleston v Bassetlaw District Council (2019) EWCA Civ 21.

 

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