Complaint of Member Misconduct

June 21st, 2018 by James Goudie KC in Standards

In Bennis v Stratford-on-Avon District Council, EA/2017/0220, the FTT said (para 29) that details of unsubstantiated complaints against Councillors ought not generally to be disclosed to the world at large under the provisions of FOIA.  The proper approach to such information is to consider the rights of the councillor concerned as a data subject.

The FTT however did not consider exemptions under Section 36 of FOIA to prevail. The request for disclosure was of advice that the Council had received when considering the complaint that was not upheld. The advice had been provided to the MO by an Independent Person (“the IP”) under the Localism Act 2011.  Given that the IP’s views would in any event have become public if a hearing had been directed, transparency prevailed over the risk of disclosure inhibiting the IP’s views.

 

HMOs

June 21st, 2018 by James Goudie KC in Housing

MHCLG has issued detailed non-statutory Guidance for Local Housing Authorities, “Houses in Multiple Occupation and residential property licensing reform”, on the implementation of requirements set out in 2018 Statutory Instruments on the licensing of HMOs. The scope of mandatory licensing has been extended so that properties used as HMOs in England which house 5 people or more in two or more separate households will in many cases require a licence. The minimum size to be applied to rooms used for sleeping accommodation has been deferred.  Requirements have been added relating to the provision of refuse disposal in licensed properties.

Chapter 2 of the Guidance relates to the extension of mandatory HMO licensing, including implementation and transitional provisions. Chapter 3 relates to new mandatory licence conditions, that is mandatory sleeping room sizes and waste disposal requirements, including sanctions.

 

Allocation and Homelessness

June 19th, 2018 by James Goudie KC in Housing

The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2018, SI 2018/730, coming into force on 9 July 2018, amend the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 in order to make a new category of persons eligible for an allocation of social housing and homelessness assistance. They make provision for persons who have been transferred to the United Kingdom under the Immigration Act 2016 s.67 and have limited leave to remain under para. 352ZH of the Immigration Rules to be eligible for an allocation of social housing and homeless assistance if they are “habitually resident” in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
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Damages

June 15th, 2018 by James Goudie KC in Housing

In XPQ v Hammersmith and Fulham LBC (2018) EWHC 1391 (QB) Langstaff J held that Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings does not enable a trafficked person to claim damages for any failure by a local housing authority to provide accommodation that is safe and appropriate.

 

Election candidates home address

June 7th, 2018 by James Goudie KC in Elections and Bylaws

The mayoral election procedure in R (Jarvis) v SoS for CLG (2018) EWHC 1259 (Admin) was governed by the Combined Authorities (Mayoral Elections) Order 2017.  The Order (“the 2017 Order”) includes a requirement for candidates to give their home address in full in their nomination papers in circumstances where that address is subsequently published (“the requirement”).  Mr Jarvis did not wish to publish his address.  He has been the subject of death threats.  He considered that publication would endanger his life, or that of members of his family.  He sought judicial review of the requirement and of the Returning Officer’s decision that Mr Jarvis had to abide by the requirement. Read more »

 

Boycotts

June 7th, 2018 by James Goudie KC in Local Authority Powers

In R (Palestine Solidarity Campaign Ltd) v SoS for CLG (2018) EWCA Civ 1284 the Court of Appeal allowed the SoS’s appeal against a declaration at (2017) EWHC 1502 (Admin) that part of his statutory Guidance relating to the Investment Strategy of local authorities administering local government pension schemes was unlawful.  The Court of Appeal ruled that the SoS was within the broad discretion afforded to him by the Public Service Pensions Act 2013 in issuing Guidance on non-financial considerations, including those of wider public interest, such as foreign and defence policy.  Nor was the relevant passage in the Guidance contrary to Article 18 of Directive 2003/41/EC on the activities and supervision of institutions for occupational retirement provision (“the IORP Directive”), which it was common ground applies in relation to the LGPS.  The Guidance included a summary requirement that administering authorities “should not pursue policies that are contrary to UK foreign policy or UK defence policy”, with a fuller statement in the accompanying text that “using pension policies to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries are [sic] inappropriate, other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government”. Read more »

 

Planning Obligations

June 6th, 2018 by James Goudie KC in Planning and Environmental

In Good Energy Generation Ltd v SoS for CLG and Cornwall Council (2018) EWHC 1270 (Admin) concerns the Council’s refusal to grant planning permission for a wind farm development. The refusal was upheld by the SoS and the Inspector.  Lang J declined to quash that decision.  The case is concerned with planning obligations and Regulation 122 of the Community Infrastructure Regulations 2010, which provides a statutory limitation on the use of planning obligations.  The developer submitted that in assessing the planning balance it was an error of law to disregard the benefits offered by the developer in a unilateral undertaking made under Section 106 of the Town and Country Planning Act 1990.  The benefits offered included a community investment scheme open to local residents and a reduced electricity tariff open to local residents.

Lang J said, at paragraph 71, that the tests in Regulation 122 are “more stringent” than the general test as to the materiality of a planning obligation, and “go wider” than the previous law. The question of what is “necessary” is now a test in law, which it was not beforehand. She held that the Regulation 122 Tests were not satisfied.

 

Breach of ECHR Article 8

May 31st, 2018 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (McDonagh) v Enfield LBC (2018) EWHC1287 (Admin) the Council was found to be in breach of the homelessness legislation, but there was no entitlement to damages for that breach under ECHR Article 8.  Breaches of statutory duty under Part VII of the Housing Act 1996 do not by themselves constitute contraventions of Article 8.  In all the circumstances of the case the Council had not acted incompatibly with Article 8.  A number of matters led the Judge to that conclusion.

Firstly, in considering all the circumstances of the case, it is important to consider not merely the fact of a breach of statutory duty, but also the nature of any breach. Here, the Defendant was making efforts to find suitable accommodation for the Claimant and her family. It was in breach of statutory duty because it could and should have taken more steps by recognising its duties lay under Part VII, but this was not a case of a flagrant breach where the Claimant’s needs were wholly disregarded. The degree of culpability on the Defendant’s part was not great. Read more »

 

Asset of Community Value

May 30th, 2018 by James Goudie KC in Land, Goods and Services

In Banner Homes Ltd v St Albans City and District Council (2018) EWCA Civ 1187 a landowner appealed against the Council’s listing under Section 88 of the Localism Act 2011 (“the Act”) of its undeveloped land as a community asset. The land was situated in the metropolitan green belt. It was crossed by two public footpaths. It had been used for more than 40 years by the local community for peaceful and beneficial recreational activities.

The landowner had been well aware of the existing community use when it purchased the land in 1996. It had taken no steps to oppose the use since.

The 820 strong residents’ association made a community nomination for the land to be listed as an asset of community value. The Council acceded, listed the land, and notified the landowner. The landowner applied for an oral review. Read more »

 

Ambit of Code of Conduct

May 23rd, 2018 by James Goudie KC in Standards

The main issue in R (Harvey) v Ledbury Town Council (2018) EWHC 1151 (Admin) was an issue as to jurisdiction, namely a dispute between the parties as to whether it was open to the Council to proceed against a member outside its Code of Conduct under the Localism Act 2011 (“the 2011 Act”).  Cockerill J held that the Council by doing so acted ultra vires. It was contrary to the intention of Parliament as expressed in the 2011 Act to run a process in tandem with or as an alternative to the Code of Conduct process envisaged by the 2011 Act: Judgment, paragraph 103.
Cockerill J said:- Read more »

 

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