Does an employee continuing to work following implementation of a pay freeze constitute acceptance of a variation of contractual provisions in collective agreements giving entitlement to pay progression? It all depends on the circumstances of the case, says the Court of Appeal in Abrahall v Nottingham City Council (2018) EWCA Civ 796. Underhill LJ reviewed Rigby v Ferodo, Jones v Associated Tunnelling, Selectron, Khatri, and Cartwright v Tetrad. Underhill LJ described Khatri as “significant”, including because of its endorsement that conduct relied upon to constitute an acceptance must be “only acceptable to the employee having accepted the proposed variation”. Underhill LJ said:-
Variation of Employment Contracts
April 24th, 2018 by James Goudie KC in Decision making and Contracts
Interpretation and Implication
April 24th, 2018 by James Goudie KC in Planning and EnvironmentalIn Lambeth LBC v SoS for CLG (2018) EWCA Civ 844 considered again the interpretation of planning permissions (paragraphs 23-37) and implication (paragraphs 63-75). Lewison LJ (with whom Hamblen and Coulson LJJ agreed) said as to the interpretation of a condition that the ultimate question was what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the Court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. It is not right to regard the process of interpreting a planning permission as differing materially from that appropriate to other legal documents.
Prejudice to commercial interests
April 18th, 2018 by James Goudie KC in Decision making and ContractsIn Case No. EA/2017/0057, Hartlepool Borough Council v The Information Commissioner, the FTT was concerned with whether under FoIA Section 43(2) disclosure would or would be likely to prejudice the commercial interests of any party and if so whether the public interest in maintaining that exemption outweighs the public interest in disclosure. The FTT upheld the Commissioner’s Decision that the disputed information must be disclosed. The Borough Council’s Appeal was dismissed.
The request was for information in relation to the transfer of ownership in 2003 of what was then Teesside International Airport (“TIA”). TIA had been owned by 6 Tees Valley local authorities, including Hartlepool. In 2003, Peel Group reached an agreement with them to acquire a 75% shareholding in TIA. TIA became Durham Tees Valley Airport (“DTVA”). The 6 local authorities retained a combined 25% shareholding in DTVA, with Peel Investments Limited, a wholly owned subsidiary of the Peel Group, being the majority shareholder. The aggregate shareholding of the 6 local authorities in DTVA is currently 11%. Read more »
Village Greens
April 18th, 2018 by James Goudie KC in Environment, Highways and LeisureDid the concept of “statutory incompatibility” defeat an application for the registration of land as a town or village green under Section 15 of the Commons Act 2006? That question arose in each of two appeals, R (Lancashire County Council) v SoS for the Environment and R (NHS Property Services) and Surrey County Council v Jones, (2018) EWCA Civ 721. No, ruled the Court of Appeal, unless there was an inherent inconsistency between the statutory purpose for which the land was held and the use for public recreation. The use of land for educational or healthcare purposes was not incompatible with its use as a village green.
Permission on Erroneous Basis
March 27th, 2018 by James Goudie KC in Planning and EnvironmentalIn R (Thornton Hall Hotel Ltd) v Wirral MBC (2018) EWHC 560 (Admin) unconditional and permanent planning permission for the erection of three marquees on a green belt site was quashed where it had been granted on an erroneous basis, namely the omission of conditions including a five-year time limit which had clearly been envisaged by the local authority’s planning committee in approving permission. To allow the marquees to remain in place would subvert the public interest in the integrity of the planning process. Read more »
Underground Car Park
March 26th, 2018 by James Goudie KC in Decision making and ContractsIn Case E-4/17, EFTA Surveillance Authority v Norway, Judgment on 21 March 2018, the EFTA Court considered a tender procedure launched by the Municipality of Kristiansand for the construction and operation of an underground car park. The issue was whether the contracts constituted a public works concession. The Court concluded that the contracts were of pecuniary interest (paragraph 73), they were of direct economic benefit to the municipality (paragraph 74), and constituted a public contract (paragraph 75); that the construction of the car park constituted works (paragraph 76); that the titles given to the contracts cannot be decisive (paragraph 77); that the crucial objective of the contracts was the construction of the car park, but there was an element of services inherent in the contract, the services element could not be singled out in a separate procedure, and the works and services elements of the contracts formed an indivisible whole (paragraph 79); that when contracts include elements of both works and services, it is the “main object” of the contract which determines the body of rules to be applied (paragraphs 80-82); that the main object was the works (paragraphs 83-84); and that the contracts were public works contracts (paragraph 85). Read more »
Waste
March 19th, 2018 by James Goudie KC in Planning and EnvironmentalThe Waste Enforcement (England and Wales) Regulations 2018, SI 2018/369, enhances powers to tackle illegal activity at waste sites. It gives waste regulation authorities and waste collection authorities in England and Wales the power by notice to require waste from a site to be removed where it has been unlawfully kept or disposed of, including waste that was initially lawfully deposited. It also gives the Environment Agency and Natural Resource Body for Wales the power, by notice or by application to Court for an order, to restrict access and the importation of waste to premises.
The instrument inserts new Sections 59ZB and 59ZC into the Environmental Protection Act 1990, allowing waste regulation authorities and waste collections authorities (defined in Section 30 of that Act) to issue a notice on the occupier or owner of land to remove unlawfully kept or disposed of waste and to take specified step to eliminate or reduce the consequences of the unlawful keeping or disposal of waste. The new Sections supplement existing powers in Sections 59 and 59ZA of that Act. Read more »
Consultation
March 19th, 2018 by James Goudie KC in Decision making and ContractsIn Kebbell Developments Ltd v Leeds City Council (2018) EWCA Civ 450 Singh LJ said in relation to an alleged duty of consultation at common law:-
“61. … on its facts, Moseley concerned a situation in which there was a statutory duty of consultation. There was therefore no issue in that case about the existence of a duty of consultation.
- In my respectful view, it is important to be careful to distinguish between different senses of the word “consultation” which can sometimes be found in the authorities on this subject. First, there may be cases in which there is no dispute about the existence of an obligation to consult which is imposed upon a public authority. Very often the source of that obligation will be legislation, so there will be a statutory duty of consultation. In such cases the context will usually be not an individual decision which affects a particular person or persons but rather the formulation of general policy or draft legislation.
- The issue which may then arise is what the exact content of that duty of consultation requires. That was considered in the well known case of Gunning … :
“First, … consultation must be at a time when proposals are still at a formative stage. Second, … the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third … adequate time must be given for consideration and response and, finally, fourth, … the product of consultation must be conscientiously taken into account in finalising any statutory proposals.” Read more »
Wales
March 14th, 2018 by James Goudie KC in Capital Finance and CompaniesThe Local Authorities (Capital Finance and Accounting) (Wales) (Amendment) Regulations 2018 (SI 2018/325 (W.61)) amend the Local Authorities (Capital Finance and Accounting) (Wales) Regulations 2003 by: introducing new definitions of “securitisation transaction” and “money market fund”; providing that a securitisation transaction must be treated as a “credit arrangement” for the purposes of the Local Government Act 2003 s.7; making a substitution to provide for the calculation of the cost of a securitisation transaction; replacing the term “fixed asset” with the current terminology in local government accounting practice; making it clear that sums received by the local authority in respect of the redemption of a bond on its maturity, or disposal of a bond, must not be treated as a capital receipts, unless the bond was acquired before 1 April 2018 and the expenditure on acquisition was treated as “capital expenditure”; inserting a new reg.8A which provides that the value of any consideration received as a result of a securitisation transaction by a local authority must be treated as a capital receipt; removing the requirement that only capital receipts received in respect of a disposal of an interest in land other than housing land may be used to meet the costs of, or incidental to, the disposal, provided such costs do not exceed 4% of the capital receipt arising from the disposal; removing the requirement for expenditure by local authorities on the acquisition of loan capital to be treated as “capital expenditure”; extends the ability of local authorities to defer charging liabilities for back pay due to equal pay claims to revenue account until the date on which the local authority must pay that back-payment; and removing the reference to one of the documents identified as constituting “proper practices” for the purposes of the Local Government Act 2003 s.21.
Reverter of school site
March 13th, 2018 by James Goudie KC in Land, Goods and ServicesRittson-Thomas v Oxfordshire County Council (2018) EWHC 455 (Ch) concerned two grants of land under Section 2 of the School Sites Act 1841 (“the 1841 Act”). It gave rise to a question concerning the exercise of the power of sale contained in Section 14 of the 1841 Act. Although the operation of the 1841 Act has been amended by the Reverter of Sites Act 1987 (“the 1987 Act”), the 1841 Act remains in force, and has, it seems, generated a good deal of litigation. However, the question at the heart of this case had not previously fallen for determination. Read more »