The Supreme Court has granted permission to appeal in conjoined cases R (Lancashire County Council) v SoS for DEFRA and R (NHS Property Services) v Surrey County Council on town and village greens, local authority owned land, and the important concept of “statutory incompatibility”.
Capital Finance
November 27th, 2018 by James Goudie KC in Capital Finance and CompaniesThe Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2018, SI 2018/1207 amend the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (the “2003 Regulations”). Regulation 3 amends regulation 23 of the 2003 Regulations in order to allow a local authority to use capital receipts to make a payment to an employee or officer under new regulation 30AA. Regulation 4 inserts a new regulation 30AA into the 2003 Regulations.
GPOC
November 26th, 2018 by James Goudie KC in Decision making and ContractsMHCLG is consulting on a proposal for the Secretary of State to make a Localism Order under the Localism Act 2011. This is in order to enable Harrogate BC to use GPOC, subject to Parliamentary approval, to host the race finish line for the 2019 UCI Road World Championships on a specific part of the Harrrogate Stray by, for the specific purpose of the Championships, temporarily lifting restrictions in the Harrogate Stray Act 1985. That is a private Act of Parliament. It makes provision for the management by the Council of the Stray. It restricts the Council’s flexibility to act, notwithstanding the significant social and economic benefits to the region that are expected from the event. The Order would follow two previous similar Orders.
HIGHWAY CONSULTATION
November 23rd, 2018 by James Goudie KC in Environment, Highways and LeisureIn R (Sefton MBC) v Highways England (2018) EWHC 3059 (Admin) Kerr J dismissed an application for judicial review by Sefton Council and held that Highways England, when considering options for a new link road, to improve access to the Port of Liverpool, were not acting unlawfully by declining to include in their consultation on their preferred option of an access road through a country park the alternative option of a tunnel. There was no procedural unfairness in dismissing the tunnel option, and excluding it from the consultation, on grounds of expense.
There was no legitimate expectation to the contrary. Highways England was entitled to limit the parameters of its consultation in the way that it did; and the consultation was, in the Court’s determination, fairly conducted. What fairness requires is fact sensitive. Consultees remained free to advocate so-called “dismissed” options and bring them back to centre stage.
Fairness does not require time and public money to be spent on a proposal costing substantially more than the allocated budget for the project would bear. Indeed the arguments that the tunnel should not be regarded as unaffordable, that alternative claims on public funds should be given a lower priority, and that the budget should be revised upwards, are political arguments, for government, not a matter for the Courts. There were appropriate processes available to consider environmental issues, including the processes with respect to a Development Consent Order.
Development Agreements
November 20th, 2018 by James Goudie KC in Decision making and ContractsA development agreement is entered into by a local authority land owner with a private contractor (St Modwen). There has been a competitive process. That complies with the Council’s duty to obtain “best consideration” on a land disposal, pursuant to its duty under Section 123 of the Local Government Act 1972 (and its “best value” duty). A challenge to its compliance with the Section 123 duty fails, at first instance, and is not pursued on appeal. However, there had been no procurement process, as would be required, not for a land transaction, or transaction whose “main object” was a land transaction, but for a public works contract. A challenge in this respect also failed at first instance, but has been pursued on appeal.
Pooled Investment Funds
November 9th, 2018 by James Goudie KC in Capital Finance and CompaniesThe Government has announced that it intends to:-
- Require local authorities to account for fair value movements in financial instruments in accordance with proper practices as set out in the Code on Local Authority Accounting published by CIPFA
- Introduce a mandatory statutory override requiring local authorities to reverse out all unrealised fair value movements resulting from pooled investment funds. This will be effective from financial year commencing 1 April 2018
- Extend the proposed period for which the statutory override applies to five years. The Government will keep use of the override under review
- Require Local Authorities to disclose the net impact of the unrealised fair value movements in a separate unusable reserve throughout the duration of the override
- Introduce a 2 year extension of the unequal pay regulation.
There will be no override for the expected loss model or for the extra disclosures that the new standard requires. Read more »
Housing supply
November 8th, 2018 by James Goudie KC in Planning and EnvironmentalIn Cheshire East Council v SoS for HCLG (2018) EWHC 2906 (Admin) the claimant Council sought an Order quashing the decision of the SoS’s Inspector to grant outline planning permission for 29 dwellings. The central issue in the claim was whether the Inspector misunderstood and/or misapplied paragraph 47 of the first NPPF, in particular with the requirement for LPAs to demonstrate a five-year “deliverable” housing supply. Read more »
Transfer of functions on merger
November 5th, 2018 by James Goudie KC in Land, Goods and ServicesThe Local Government (Boundary Changes) Regulations 2018, SI 2018/1128, provide that, when two or more councils come together through a merger to create a single, district council, there is a smooth transition, in practical terms, from the predecessor councils (the councils that will be abolished on the reorganisation date) to the successor council (the new council that is being created for the whole of the area). The Regulations provide for incidental, consequential, transitional and supplementary arrangements in consequence of any Orders made by the SoS under Section 10 of the Local Government etc Act 2007.