Heritage Assets/Development Plan Policies

January 24th, 2019 by James Goudie KC in Planning and Environmental

R (Liverpool Open and Green Spaces Community Interest Company) v Liverpool City Council (2019) EWHC 55 (Admin) was two claims by the applicant community interest company (LOGS) against the grant of planning permissions by the defendant local planning authority (the LPA). The first permits relocation and laying out of a miniature railway with associated buildings and parking. The second permission is for the building of 39 new dwellings and conversion of a historic house and grounds into

12 apartments. The site for these proposed developments is an area of open land at Calderstones Park, Liverpool (the park). LOGS is concerned to prevent the developments which, it says, would unlawfully change the character of the park. Read more »

 

Religious Rights

January 24th, 2019 by James Goudie KC in Human Rights and Public Sector Equality Duty

R (Atta Ul Haq) v Walsall Metropolitan Borough Council (2019) EWHC 70 (Admin) was a claim for judicial review in which the Claimant challenged the lawfulness of a policy adopted by the Defendant, Walsall Metropolitan Borough Council, entitled ‘Rules and Regulations in respect of Cemeteries and Crematoria’ (the “Cemetery Policy”), specifically those provisions which preclude individuals from erecting raised edging around the grave of a deceased person. The Claimant is a practising Barelvi Muslim. His father was a prominent member of the community and an Imam, passed away on 21 June 2015 and was buried on the following day at Streetly Cemetery. It is administered by the Defendant local authority. The Defendant had refused to give the Claimant permission for the erection of a four-inch raised marble edging around his father’s grave. The Claimant’s request arises from his religious belief that the grave is sacrosanct and stepping on the grave is an offensive, religiously proscribed act that must be prevented. Read more »

 

Ultra Vires

January 23rd, 2019 by James Goudie KC in Local Authority Powers

Local Authorities in Bermuda, such as the capital, Hamilton, do not have a General Power of Competence.  Nonetheless the decision of the Privy Council on 21 January 2019 in Mexico Infrastructure Finance LLC v The Corporation of Hamilton (2019) UKPC 2 is of general interest.  The Privy Council ruled 3-2 that the Corporation had acted beyond its powers, because “municipal” is a word of limitation and the Corporation was not acting for a “municipal purpose”. Read more »

 

“Meat”/Transparency/Equal Treatment

January 23rd, 2019 by James Goudie KC in Decision making and Contracts

Case T-117/17 Proximus v Council of the European Union, concerns the negotiated procedure for a public services framework contract, what constitutes the most economically advantageous tender (“MEAT”), and the lawfulness of a tender evaluation method, in terms of the general principles of transparency, non-discrimination and equal treatment.  The General Court said:- Read more »

 

Cuckooing

January 22nd, 2019 by James Goudie KC in Human Rights and Public Sector Equality Duty

An individual is vulnerable to exploitation because of physical and/or mental disability. Their flat has been taken over by others to deal drugs. This is a situation known as “cuckooing”. The individual’s local authority or housing association landlord seeks a possession order, on the ground of anti-social behaviour, involving drug use, in the flat, which causes distress to fellow residents, over an extended period of time. This situation has not been considered by the Courts in the context
Read more »

 

Duty of Equal Treatment

January 22nd, 2019 by James Goudie KC in Decision making and Contracts

Regulation 18 of the Public Contracts Regulations sets out the EU principles of procurement. These include that contracting authorities “shall treat economic operators equally and without discrimination”. Comparable situations must not be treated differently. Different situations must not be treated in the same way, unless such treatment is objectively justified. The question whether or not there has been a breach of the principle is to be considered in context, and having regard

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General Permitted Development Order (“GDPO”)

January 22nd, 2019 by James Goudie KC in Planning and Environmental

Is a nursery, attended by young children, a “school”, within the meaning of Class M of the GPDO? That was the question of construction posed in Bright Horizons v SoS for CLG and Watford Borough Council (2019) EWHC 14 (Admin). The Court held that there was no good reason for giving to the word “school” in the GPDO anything other than its ordinary meaning, which does not include a nursery.

 

Public Authorities and Trading

January 17th, 2019 by James Goudie KC in Local Authority Powers

In Apt Training and Consultancy Limited v Birmingham & Solihull Mental Health NHS Trust (2019) EWHC 19 (IPEC) the Judge found that the NHS Trust’s use of the Claimant’s sign in relation to educational and training services and related material was use for the purposes of trade mark infringement, and that such use was use “in the course of trade”.

The NHS Trust denied infringement on the basis that it had not used the sign “in the course of trade”, because it was a non-profit making entity, whose primary function was the provision of services to the NHS, rather than commercial activities with a view to economic advantage. This defence failed. The Judge held that, in assessing whether a sign was used “in the course of trade”, the fact that goods or services were offered on a non-profit making basis was not decisive. A non-profit making body could make external, commercial use of a sign in various ways.

 

Whether Rates Proposal Invalidated by Omission

January 9th, 2019 by James Goudie KC in Council Tax and Rates

In Alam v Valuation Officer (2018) UKUT 266 (LC) Mr Alam is the proprietor of the restaurant.  He took a lease of a Property. His agents submitted a proposal to reduce the rateable value of the Property.  In their proposal they stated correctly that Mr Alam was the occupier of the Property but also stated that the Property was “owner/occupied”.  The proposal was completed in that way because of a misunderstanding between Mr Alam and his agents.  As a result, the agents did not include any information in response to the question “if not owner/occupied, is a rent or licence fee paid?” and, in particular, did not state the rent payable, the date it had first become payable and the date of the next rent review. All of this was information required by Regulation 6(3) of the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 (“the 2009 Regulations”).  The issue in Mr Alam’s appeal to the Upper Tribunal (Lands Chamber) concerned the consequence of the mis-statement of the capacity in which Mr Alam occupied the Property and the omission of any information about the rent payable.  The Valuation Tribunal for England (“VTE”) found that the proposal was invalid, explaining: Read more »

 

Material change in circumstances

December 20th, 2018 by James Goudie KC in Council Tax and Rates

In Merlin Entertainments Group Ltd v VO (2018) UKUT 406 (LC) the Upper Tribunal was concerned with whether there had been a material change of circumstances under paragraph 2(7)(d) of Schedule 6 to the Local Government Finance Act 1988.  It was held that there had not been such a change. The change (a fall in visitor numbers at Alton Towers following a fatal crash) was not a matter which was “physically manifest” in the locality of the hereditament on the relevant day.

Paragraph 2(7) enacts the physical state and user limbs of the reality principle, in relation to both the hereditament and its locality. Regulation 2(7) sets out the factors to which the reality principle applies. They include, (d), matters affecting the physical state of the locality in which the hereditament is situated or which, though not affecting the physical state of the locality, are nonetheless “physically manifest” there. One of the issues which arose was whether a purely economic matter can fall within paragraph 2(7)(d). Read more »

 

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