Local Government - June 2009
Cases and Legislation April and May 2009
Cases
Legislation
Cases
Administrative Law
R (On the application of Enfield Borough Council) v (1) Secretary
of State for Health (2) Barnet Primary Care Trust (3) Enfield
Primary Care Trust (4) Haringey Teaching Primary Care Trust (2009).
The three PCTs were considering potential reconfiguration of
local hospital services. To keep one hospital open, safe and
running the same services, substantial capital investment was
required. Five scenarios were put forward but, for reasons of
financial feasibility and clinical sustainability, they only
considered two, both of which involved discontinuing the hospital's
24 hour accident and emergency service and its consultant-led
maternity service. Those scenarios were put forward in a formal
consultation document and one was chosen. A Joint Scrutiny
Committee then reported the trusts' decision to the Secretary of
State. They considered that the consultation had been inadequate
because the two options offered no choice about closure of the two
services. The Secretary of State concluded that the trusts had met
their legal obligations in terms of consultation overall and that
it was acceptable practice that only two options were put forward
and there was no requirement to put forward an option of no change
if there was evidence to support appropriate analysis and
non-feasibility. The LA issued proceedings against the Secretary of
State's decision on the last day of the time limit and outside the
period for bringing a challenge against the trusts' decision. The
LA alleged that a decision had been taken by the trusts to
discontinue specific services before the consultation had been
carried out and that the Secretary of State could not approve a
consultation that was unlawful. An expedited paper application was
put before the judge and he granted permission, before the time for
acknowledgement of service had elapsed and without giving the
Secretary of State or the trusts the opportunity to put forward
their objections. The Secretary of State and PCTs applied to set
aside the order. Their application was granted on the following
grounds: (1) The arguments raised by the Secretary of State and the
trusts in their acknowledgement of service merited consideration
before permission to apply for judicial review had been granted.
The court should exercise its inherent jurisdiction to set aside
the grant of permission and to hear the application afresh; (2) The
claim for judicial review of the Secretary of State's decision was
unarguable and fundamentally misconceived. It was the court's
function to rule on the legality of the consultation process, not
the Secretary of State's. The Secretary of State had reached the
decision that the proposal was in the interests of the local health
service and he was entitled to do so. (3) The real target of
complaint was the trusts' decision not to consult on the closure of
the two services, but the LA had failed to act promptly or even
within three months of that decision. The delay caused such a
degree of prejudice to the trusts that it was not in the public
interest to allow the claim to proceed further.
Rose Gibb v Maidstone & Tunbridge
Wells NHS Trust (2009)
G claimed for moneys owed, or
alternatively damages, against her former employer, an NHS trust
(M). G had been employed as M's chief executive with a basic annual
salary of £150,000. Her contract entitled her to six months notice
of termination. Following outbreaks of the "super bug" C.difficile
at hospitals managed by M, there was a significant number of deaths
and widespread public anger and anxiety. The Healthcare Commission
produced draft reports which were highly critical. Prior to the
final report M had decided to encourage, or if necessary force, G
to step down. A compromise agreement was executed which provided
for a payment to G of approximately £250,000, representing around
£75,000 in lieu of notice and a compensation payment of around
£175,000. G's successor withheld her severance pay on the basis
that the compromise agreement was ultra vires, although G was
subsequently awarded £75,000 in respect of her notice period. G
issued proceedings against M seeking to recover the £175,000
compensation element. G contended that she was entitled to that sum
under the terms of the compromise agreement or that, if the
compensation payment was ultra vires, she was entitled to an award
of equitable damages. M contended that that the agreement to make
the compensation payment was irrationally generous and fell outside
its powers as an NHS Trust as the payment of £75,000 would exceed
by over £100,000 the maximum which an employment tribunal could
award in respect of a potential claim for unfair dismissal. M
further denied the existence of any power to award equitable
damages. The Court rejected G’s claim. (1) As a public body, M's
powers were limited by statute and it had to exercise its powers in
the public interest in a way which was reasonable in the Wednesbury
sense. The sum of money which M had agreed to pay would be
Wednesbury unreasonable if the payment was one which no reasonable
trust properly exercising its statutory powers could have offered.
If expenditure on a lawful object was irrationally generous it
would be held to be ultra vires and void. M had been determined to
dismiss G and by seeking to achieve a compromise agreement, M had
plainly hoped to terminate G's employment cleanly making it easier
to present a picture to the public of action taken in response to
the report and to avoid the costs of proceedings before the
employment tribunal. However, G should not be the beneficiary in a
compromise agreement of a sum broadly equivalent to costs and
management time which might be incurred by M if there were a
contested tribunal hearing. Payment for past service, which had
already been rewarded, or payment for a potential period out of
work which significantly exceeded the contractual notice period,
and which would already be comprehended by the payment in lieu and
the compensatory element of any unfair dismissal award, was
excessive. (2) It was not appropriate to make any award of
equitable damages in the circumstances.
First Real Estates (UK) Ltd v Birmingham City Council
(2009)
F had been formed to supply properties to the
local authority to be used as accommodation for homeless people by
way of licence agreements. F subsequently became the biggest
supplier of temporary accommodation to the local authority. The
local authority received numerous complaints and issues arose as to
the safety of gas appliances. A meeting was arranged to resolve the
issues and F was informed that its services were being terminated
on seven days' notice. The issue arose whether the local authority
was exercising a public function when deciding to terminate the
arrangements with F. F contended that the decision of the local
authority was unfair and unreasonable. F submitted that there was
in force an over-arching agreement pursuant to which it had a
legitimate and reasonable expectation that the arrangements between
it and the local authority would not be abrogated in a summary and
arbitrary fashion with no adequate notice. The Court held: (1)
There had never been an over-arching agreement between F and the
local authority, just a sequences of licences. (2) The power
authorising the local authority to enter into individual licence
agreements with F was founded in private law as it was a
contractual power. (3) A decision to remove a contractor from an
approved list was capable of being challenged by judicial review as
a public authority's power to maintain a list of approved
contractors was derived from public law. However, F had never been
such an agent and the contested decision was not one that had the
effect of removing from F a public status that it had previously
enjoyed. (4) The conduct of the local authority had not created a
legitimate expectation that it would continue to take licences of
premises offered to it by F.
Adults
(1) X (2) Y (Protected Parties represented by their
Litigation Friend the Official Solicitor) v Hounslow London Borough
Council.
We have previously commented on the High
Court decision in this case. The Court of Appeal has now overturned
the decision. The local authority appealed against the decision
that they owed a duty of care to transfer a married couple who had
learning difficulties to temporary emergency housing, before they
were sexually and physically assaulted by local youths, even though
it was aware the couple were at risk. As Sir Anthony Clarke MR
concluded:
‘the Council did not assume a responsibility to the respondents
at common law, that neither it nor its employees owed them a duty
of care at common law and, in any event, that neither it nor its
employees was in breach of a duty to take reasonable care to remove
them from the flat into emergency accommodation as found by the
judge.’
Benefits
Gulhanim Yesiloz (formerly known as Gulhanim Aykac) v
Camden London Borough Council & Secretary of State for Work
& Pensions (2009).
Ms Yesiloz, a Turkish national
awaiting determination of her asylum claim, was living in the UK
under a grant of temporary admission and had sought housing
benefit. The social security commissioner said that she was not
entitled to housing benefit. Ms Yesiloz appealed; she submitted
that persons who were from contracting states to the European
Convention on Social and Medical Assistance should be included as
persons with a right to reside under the Housing Benefit Regs 2006
reg.10 and should therefore be eligible for benefit. The CA
dismissed the appeal. The Court held that the list of persons in
the Housing Benefit Regulations 2006 reg.10(3B) who were not to be
regarded as "persons from abroad" was comprehensive and did not
include nationals of states who were party to the European
Convention on Social and Medical Assistance. Those nationals could
not therefore be said to have a right to reside and their inclusion
in the schedule to the 2000 Regulations, excluding them from the
operation of s.115 of the IAA 1999, did not imply an entitlement to
reside.
R (on the application of Prince) v Social Security
Commissioners (and (1) Secretary for the Department of Work and
Pensions (2) Southwark London Borough Council
The
Claimant contended he had been paid jobseeker’s allowance during
the relevant period and therefore he was entitled to both housing
benefit and council tax benefit by virtue of passport provisions,
which entitled a claimant to both benefits if he/she were in
receipt of JSA. Mr Justice Hickinbottom held that as a matter of
law, the Claimant’s contention had no basis:
‘There is no simple passporting provision which means that if a
claimant is entitled to, or in receipt of, JSA he is automatically
entitled to housing benefit and council tax benefit. Instead, when
a claimant is "on" JSA, his income is disregarded for the purposes
of housing benefit and council tax benefit (which is, of course,
usually sufficient to entitle the claimant to the other two
benefits)’.
R (On The Application Of David Robert Purglove) v Social
Security Commissioners & Department For Work & Pensions
(2009)
Mr Purglove began to suffer from a heart
condition In 1995 and started to receive incapacity benefit. In
2002 the Department for Work and Pensions assessed that Mr Purglove
had been capable of working between October 1995 and May 2001, was
not therefore entitled to incapacity benefit during that period and
was liable to repay the overpayment. On appeal the tribunal found
that he had been capable of working from October 1995 to February
2001, but the benefit was only recoverable in respect of the first
year. Mr Purglove successfully appealed to the commissioners. The
matter was remitted to the appeal tribunal which again held that P
had been capable of working between October 1995 and February 2001,
but found that he was liable to repay the benefit for the whole of
that period. The tribunal refused permission to appeal, as did the
commissioner and Mr Purglove’s application to set aside the
commissioner's decision was rejected. Mr Purglove applied for
judicial review of the commissioner’s decision. His application was
refused; the court held that the social security commissioner had
not erred in refusing permission to appeal. The commissioner had
refused permission to appeal only in relation to the decision about
incapacity, the time for seeking permission to appeal against the
decision about recovery of the overpayment had long since expired.
The tribunal's decision that P had not been entitled to incapacity
benefit between October 1995 and February 2001 contained no error
of law.
Children
Re B (A child)
L’s father appealed against
the decision of a judge who had refused to appoint the National
Youth Advocacy Service (NYAS) as guardian of his daughter, in place
of the CAFCASS officer. Court proceedings in relation to L, now 14,
had been ongoing for 10 years. The CAFCASS officer had been
appointed guardian from the beginning of the proceedings, but the
CAFCASS officer’s relationship with L’s father had deteriorated.
The judge invited NYAS to prepare a report to assist with
re-establishing contact between the CAFCASS officer and L’s father,
including considering whether they should replace the CAFCASS
officer as guardian. Unless NYAS was formally appointed as
guardian, they did not have access to public funds and would not
intervene. L’s father sought an order that the NYAS should be
appointed as his daughter’s guardian, which the judge refused. The
Court of Appeal held that it was clearly within the judge’s
discretion not to make the order to replace the CAFCASS officer
with the NYAS.
Re K (Children) (2009)
The mother and
father were habitually resident in Spain where they had lived
together but never married. Their children were born in Spain where
their births were registered by both parents. It was accepted that
the father did not have parental responsibility under English law.
When mother removed the children the UK farther brought proceedings
under the Child Abduction and Custody Act 1985 including an
application for the summary return of the children under the Hague
Convention. The court had to determine as a preliminary issue
whether the father had rights of custody under Spanish law. The
Court found that the mother’s removal of the children from Spain
where the father was exercising rights of parental control and
custody of them under Spanish law, amounted to a breach of his
rights of custody under the Hague Convention on the Civil Aspects
of International Child Abduction 1980 art.3 and art.5.
Re R (A Child) (2009)
The mother and
father had separated when the child was two years old and the child
had then lived with mother. Mother suffered exhaustion when child
was nine years old and the parents agreed that he would stay with
father for the foreseeable future and move to a school closer to
his house. Father sought a residence order. The child had been
living with their father for 7 months by the time of the hearing.
The CAFCASS officer recommended that the child live with his mother
stating that he had indicated a preference for returning to mum.
The child had in fact said that he wanted to be with his mum when
she gave birth to the baby she was expecting shortly after the
hearing, and the CAFCASS officer inferred that he had a
subconscious need to reassure himself of his position child
himself. The judge found that he was settled with father and could
reassure himself of his position through contact and from the
security of his life with father. The mother appealed. The appeal
was successful; the court found that the judge had erred in his
treatment of her son’s wishes and in rejecting the recommendation
of the CAFCASS officer without hearing evidence from her.
R (on the application of G) v Southwark London Borough
Council (2009)
At the age of 17 G had moved out of
the family home after falling out with his mother and had presented
himself to the LA’s children's services department, asking to be
accommodated under s.20 CA. LA took the view that G's need for
accommodation could be met under s.17 by arranging for him to be
accommodated by the housing department under the homelessness
provisions of the Housing Act 1996 Pt VII. G appealed on the basis
that all the elements required by s.20(1) had been met, so that he
"require[d] accommodation" within the meaning of that section, even
if there was another way in which accommodation might be found for
him. The LA argued that in deciding whether a child "require[d]
accommodation" under s.20(1) it was entitled to take into account
the other sources of accommodation which might be available to the
child and that all G required was help to find or acquire that
other accommodation. The appeal was allowed; the court found that
where a child fulfilled all of the elements required by the
Children Act 1989 s.20(1), the LA was under a duty to provide him
with accommodation under that section. The LA could not side-step
that duty by claiming to have provided him with accommodation under
the general duty in s.17(1).
Re R (a Child ) sub nom CP v (1) AR (2) CR (a child by
his guardian) (2009)
Following his parents separation
the child had lived with their mother, he was their only child.
Following the mother’s remarriage and the birth of her second child
the father began proceedings seeking contact and residence orders.
Both parents were implacably hostile to each other. The guardian
instructed an expert child psychologist who said that the child’s
involvement in the parental battle carried a high risk of
progressively increasing his negative and aggressive behaviours, of
inducing an increasingly negative self image and of causing him to
have relationship difficulties. The expert said that if the parents
did not act to form a constructive and stable agreement about the
future life arrangements for their son then they would both be
knowingly causing him harm and a change to independent foster care
should therefore be considered. The guardian's recommendation was
that neither parent was in a position to care for the son and a
residence order should be made in favour of his paternal
grandparents. The judge accepted the evidence by the expert and the
guardian and concluded that it was better for the child, aged
eight, to live with his grandparents, rather an a placement in
independent foster care, and made a residence order accordingly.
The mother appealed, on the basis that the judge’s decision had
been plainly wrong in that he had failed properly to consider the
central importance in the child’s life of being brought up by his
parent or parents, the importance of stability and his relationship
with his half-brother and step-father. She submitted that the judge
had failed properly to weigh the various competing factors and had
given undue weight to his finding of significant harm, and had
thereby led himself into error in placing the child with the
grandparents. Her appeal was allowed; the judge was wrong to have
made the residence order he had on the following grounds. The judge
was found to have failed to grapple with the fundamental
proposition that children have a right to be brought up by their
natural parents unless their welfare positively demanded the
replacement of that right, and further had lost sight of the fact
that he was removing the child not only from his mother's care but
depriving him of family life with his half-brother. The absence of
any discussion of these factors in the judgment was startling and
in relation to the second point this was a serious omission which
vitiated the judgment. The judgement was further flawed for whilst
it accepted the expert’s evidence the judge had then followed the
expert’s recommendation for foster care. Furthermore, there had not
been any proper consideration of the grandmother’s capacity to care
long term for a boy of eight or the effect this would have on
him.
Cremation
Davender Kumar Ghai and (1) Ramgharia Gurdwara Hitchin
(2) Alice Barker Welfare and Wildlife Trust v Newcastle City
Council and Secretary of State foe Justice
(2009).
The Cremation Act 1902 and the Cremation
(England and Wales) Regulations 2008 are clear in their effect: the
burning of human remains, other than in a crematorium, is a
criminal offence. Accordingly, open air funeral pyres are not
prohibited in the UK. Although the failure to provide land for open
air funeral pyres in accordance with orthodox Hindu beliefs was an
interference with the right to manifest religious belief under the
European Convention on Human Rights 1950 art.9, the interference
was justified as a significant number of people would find both the
principle and the reality of cremation by means of open air pyres
to be offensive. Mr Justice Cranston considered the impact of
article 8 on the issue:
‘Article 8 may in some circumstances offer protection to
particular funeral arrangements. In the case of cremation on an
open air funeral pyre, however, Article 8 has no purchase. The
claimant is stepping outside the private and familial spheres. The
event would have a public character and as such would not fall
under Article 8’s protective wing. In any event, there would be
justification for legislative interference with Article 8
protection; it would follow along the same lines as that with
Article 9’.
Education
Paul William Culkin v Wirral Independent Appeal Panel
(2009)
An Independent Appeal Panel was justified in
upholding a decision to permanently exclude a pupil from a school.
The panel had properly applied the civil standard of proof in its
determination that the pupil's conduct justified his exclusion.
Although the panel's decision was sparse in relation to its
reasons, the decision explained sufficiently the sanction of
exclusion by reference to the persistence of the pupil’s conduct
and the impact which that conduct could have on the welfare of
others in the school. R v Northamptonshire CC Ex p D (1998) Ed CR
14 QBD and W v Independent Appeal Panel of Bexley LBC (2008) EWHC
758 (Admin) were followed.
Weightmans acted for the IAP in this case.
Palmer v Cornwall County Council
(2009)
Palmer had sustained personal injuries when he
was hit in the eye by a rock thrown by another pupil during his
school lunch break, both pupils had been on the school field at the
time and in year 9. There had only been one dinner lady on duty at
the time. The dinner lady said that her attention had been focused
on the pupils in years 7 and 8 and she had only occasionally
glanced at pupils in years 9 and 10. Other former pupils said they
knew that stone throwing was prohibited and that they would not
have thrown stones if they had been aware that there was a
supervisor nearby. Palmer appealed against the earlier decision
that the LA was not liable in negligence for the injuries he had
sustained on the basis that no stone would have been thrown if
there been proper supervision. The LA submitted that the boys would
not have been deterred by the presence of more supervisors. The
Court of appeal allowed the appeal and held that it had been
negligent to have only one dinner lady supervise over 150 pupils in
years 7 & 8 and only glancing occasionally at pupils in years 9
and 10. The LA was found liable for the personal injuries Palmer
had sustained.
(1) Henry Webster (2) Joseph Webster (By His Mother
& Litigation Friend Elizabeth Webster) (3) Elizabeth Webster
(4) Roger Durnford V Ridgeway Foundation School Governors
(2009)
Henry Webster, a white pupil, had been injured
on the school grounds by Asian offenders to include other pupils,
who had subsequently been convicted of wounding with intent. Henry
and his family (the 2nd, 3rd and 4th applicants) issued proceedings
against the school governors for negligence on the grounds that the
governors' had failed to maintain proper disciplinary standards or
take proper care for pupils' security and that the school had
thereby allowed racial tensions to develop which had resulted in
the attack. Henry and his family sought specific disclosure by the
governors of unredacted copies of items to include: the names of
pupils that year heads believed had been involved in the climate of
racial tension; a log of investigations into racist incidents,
bullying and aggression; and a computerised system used to record
pupil misbehaviour which had been referred to in witness
statements. The Webster family argued that names of alleged victims
of racism, bullying or aggression should be disclosed so that they
could investigate whether those pupils might be able to provide
useful evidence. They further contended that the reference in the
statements to the computerised system entitled them to inspect a
copy of the database and the manuals, internal policies,
instructions and directives for its use. The Court dismissed their
claim on the basis that the governors were entitled to rely on
objections to inspection set out in CPR r.31.3, including
disproportionality, when considering whether there should be
disclosure of a document mentioned in witness statements. (1)The
Court confirmed that whilst a party might not object to disclosure
of a document if inspection was given only in redacted form, they
were under no obligation to then allow inspection of that which had
been covered up. Disclosing the document as a whole could not be
taken to amount to a concession of admission that every item in the
document was relevant. (2) The disclosure of names of pupils that
year heads believed had been involved with the climate of racial
tension would interfere with those pupils private lives and the
disclosure of their identities was not required for the purposes of
a fair trial. (3) Whilst mention in a witness statement of a
document could be equated with inclusion of a document in a
disclosure list and would normally trigger a right of exception
that was subject to the qualifications in CPR r.31.3. Allowing
inspection of the whole database would be disproportionate and
could therefore be resisted under r.31.3.
Elections
Christopher John Quinton v (1) Robin Heys Peirce (2)
James David Cooper (2009)
Q issued proceedings
against P and C alleging injurious falsehood or infringement of the
principles contained in the Data Protection Act 1998. Q was the
Conservative candidate in local elections. He was defeated by P,
who was the Liberal Democrat candidate. Q sued P and C, P's
election agent, in respect of an election leaflet alleged to
contain a number of untrue factual statements about Q. The leaflet
stated that Q had failed to attend and make representations at a
local planning meeting, failed to take part in a planning inquiry
and was one of many Conservative councillors who were actively
encouraging significant housing developments in the local area.
That statement arose as Q had reported in a local newspaper the
local authority's policy of encouraging local landowners to put
land forward for development. Q's case was that (i) he had only
arrived at the local planning meeting late; (ii) he had attended
the inquiry but made no contribution because he realised that the
appeal would be dismissed and saw no need to do so; (iii) P had
grossly mispresented his position on planning policy. Q contended
that P had published the allegations maliciously and that the
leaflet infringed two of the principles in the Data Protection Act
1998, namely the requirements for fairness and accuracy. The Court
rejected the claims. (1) The section of the leaflet referring to
the planning meeting had done little more than comment adversely on
the fact that Q had not attended in time. In respect of the
inquiry, the undisputed fact was that Q had made no contribution
either orally or in writing and that passage of the leaflet was
not, therefore, factually inaccurate. The allegation of
"encouraging" development was just a comment or inference about the
prominence he had chosen to give it in a press release. Neither P
nor C had been malicious. Dislike was not to be equated with
malice, and P had not been dishonest in his representations in the
leaflet. Q had, in any event, failed to establish that the leaflet
had been intended to cause him pecuniary loss, as it could not be
proved that the leaflet had caused him to lose his seat and the
associated financial allowances as a councillor. (2) It was not
necessary or proportionate to interpret the Act so as to afford a
set of parallel remedies when damaging information had been
published about someone which was neither defamatory nor malicious.
Even assuming that the offending material was data, and that P and
C were data controllers, there had been no infringement of either
of the principles requiring accuracy and fairness.
Employment
Joyce Slack and others v Cumbria County Council and
Equality and Human Rights Commission (2009)
At issue
in this appeal was when does the six months time limit for
instituting equal pay proceedings in the employment tribunal begin
to run against the claimant? Difficulties can arise if there has
been a succession of employment contracts between the same parties.
The Court of Appeal held:
‘if there is a succession of contracts in respect of the same
employment “within a stable employment relationship,” the six month
time limit runs from the end of the last contract in that
relationship. If the case is not within that exception to the
standard case, the rule is that the time limit is triggered on the
termination of the particular contract which contains the equality
clause.
Housing
Elyarna Alexander-David v Mayor and Burgesses of
Hammersmith and Fulham London Borough Council
(2009)
Under Part 7 of the Housing Act 1996, homeless
sixteen or seventeen year old applicants have a priority need for
accommodation. At issues, as Lord Justice Sullivan succinctly
summarised was:
‘How are local housing authorities to discharge their duty under
the 1996 Act to secure that accommodation is available for the
occupation of such applicants when they are told by the Law of
Property Act 1925 (“the 1925 Act”) that minors are not capable of
holding a legal estate in land (s.1(6)), and that by virtue of
paragraph 1(1) of Schedule 1 to the Trusts of Land and Appointment
of Trustees Act 1996 (“TOLATA”) any purported grant of a legal
estate to such an applicant will not be effective to pass the legal
estate, but will operate as a declaration that the premises are
held in trust for the applicant?
‘The Court of Appeal held that in principle, local housing
authorities may grant tenancies to minors that are effective in
equity (Kingston upon Thames Royal Borough Council v Prince (1993)
31 HLR 794). Any agreement with a minor should make clear that the
local authority is not granting a legal estate, ‘ but is instead
securing that accommodation is available by granting something
other than such an estate’. The local authority could agree to
grant a lease for the period until the applicant turns 18 rather
than the grant of a lease. Alternatively, when discharging their
social services and housing functions, local authorities could make
provisions in the agreement for some attention or services, or by
permitting inspection of the premises by those charged with the
child’s welfare. This would prevent the grant of exclusive
possession; any agreement with a 16-17 year old would not merely
expressed to be, but would be the grant of a licence rather than a
tenancy.
R (on the application of Leticia Mckenzie) v Waltham
Forest London Borough Council (2009)
Mckenzie had become pregnant whilst living in a hostel and was
served with notice requiring her to give up possession three months
after the baby was due, as children were not allowed to live in the
hostel. She immediately applied for homelessness accommodation but
was refused as the LA considered she was not homeless until the
possession date and they did not therefore owe her a duty to
provide temporary accommodation under the 1996 Housing Act.
Mckenzie applied for judicial review and the basis that she
currently had to share a bathroom with a male and that it was never
reasonable, except in exceptional circumstances, for a pregnant
woman in her third trimester to continue to occupy accommodation
where any of the facilities were shared with a male who was not a
member of her family. By the date of the hearing Mckenzie had been
re-housed and the issue was therefore academic. Mckenzie argued
that it was in the public interest for the court to still go ahead
and provide guidance as to how LAs should approach homelessness
applications by pregnant women. The court declined on the basis
that there was no evidence that similar cases existed or were
contemplated and the issue was fact-sensitive.
Human Rights
Wood v Commissioner of Police of the Metropolis
(2009)
Wood, a media co-ordinator for the
organisation Campaign against Arms Trade (CAAT), was photographed
by the police upon leaving the AGM of a company which organised a
trade fair for the arms industry. Wood had no criminal convictions
and had never been arrested. When he and other members of CAAT were
spoken to by the police, Wood declined to identify himself or
answer questions about the meeting. The police took photographs in
order to be able to identify offenders if offences were committed
or had been committed at the meeting and/or if offences were
committed later at the trade fair, his photo was not however added
to the database of images kept by the police for intelligence
purposes. Wood subsequently claimed that the taking and retention
of photographs of him by the police was a breach of his right to
respect for private life under Article 8 ECHR. The police argued
that art.8(1) had not been engaged because the photographs had been
taken in a public street where people could take photographs at any
time and there was no expectation that Wood would not therefore be
photographed. The high court had subsequently dismissed Wood’s
claim. The Court of Appeal however granted his subsequent appeal
finding that there had been an interference with his rights under
art.8(1) and that the police failed to justify that interference as
proportionate under art.8(2).
Licensing
Hall & Woodhouse Limited v Poole Borough Council
(2009)
H appealed by way of case stated against a
decision of a magistrates' court to convict it of four offences of
carrying on licensable activities contrary to the conditions of its
licence. H owned a number of public houses, some managed by them,
some let and managed by others. In respect of one of those public
houses the Council summonsed H under the Licensing Act 2003
s.136(1) in respect of four alleged breaches of conditions of the
premises licence. The public house manager and designated premises
supervisor admitted that the breaches occurred and pleaded guilty.
H denied the offences on the basis that whilst it was the premises
licence holder in respect of the public house it did not carry on a
licensable activity in respect of the public house. The
magistrates' court found that s.16 of the Act specified a
restricted list of person who might apply for a premises licence
and that the only basis on which H could apply for such a licence
was as a person who proposed to carry on a business which involved
the use of premises for licensable activities. The magistrates'
court further found that the use of the term involved denoted a
broad range of business that included a landlord such as H
receiving rent from licensed premises. The magistrates' court also
found that in making an application for a premises licence H had to
have considered itself to be carrying on a business which involved
the use of premises for licensable activities. The magistrates'
court held that the prosecuting authority had proved its case
beyond all reasonable doubt and that as H had called no evidence it
could not avail of the defence of diligence under s.139 of the Act.
The questions posed for the opinion of the High Court were whether
(i) for the purposes of s.136(1)(a) of the Act the acts of third
parties were imputed to a premises licence holder as a matter of
law; (ii) the magistrates' court was correct to find that H as
premises licence holder was carrying on licensable activities as
charged. The Divisional Court said “no”. Section136(1)(a) of the
Act was not directed at the holders of a premises licence but was
directed at a person who was alleged to have carried out a
licensable activity from a premises other than in accordance with
authorisation. The section was focused on actual conduct and the
defence under s.139 focused on the person's own actions. The mere
fact that a person was the holder of a licence in respect of
premises did not mean that he was responsible for the licensed
activities carried out at those premises. The determination of who
was responsible was a question of fact. A premises licence holder
was not obliged to put in place an adequate system to prevent a
person from carrying out unauthorised licensed activities as the
Act provided sufficient safeguards through other means. The
magistrates' court had carried out an impermissible leap from the
fact that H was the premises licence holder in respect of the
public house to a finding that H was actually responsible for
licensable activities carried out at the public house.
Litigation
Smith v Northamptonshire County Council
(2009)
Ms Smith was employed by the LA as a driver
and carer and was required to collect people from their homes and
take them by minibus to a day centre. On the day in question the
ramp which allowed wheelchair access in and out of one of the
service user’s homes, crumbled beneath her foot, causing her to
sustain injury. Smith had used the ramp many times, it had been
installed some years earlier by the NHS. Smith sought damages from
the LA. The judge at first instance held that the ramp was work
equipment that was being used at work and that there had therefore
been a breach of regulation 5(1) of the Provision and Use of Work
Equipment Regulations 1998. The Court of Appeal subsequently held
that while each case turned on its own facts, the ramp was not work
equipment nor was it being used at work. Ms Smith appealed to the
House of Lords. The Court dismissed her appeal on the basis that
whilst the ramp may be ‘work equipment’ it was not equipment
provided for use or used by Smith as an employee at work within the
meaning of reg.3(2) as it could not properly be said that the ramp
had either been incorporated into and adopted as part of the LA’s
undertaking or was under its control. The LA had not provided the
ramp, it neither owned nor possessed it, and nor did it have any
responsibility, or indeed any right without more, to repair it. The
Regulations only applied if the employee's use of the equipment for
the purpose of his work was known to or authorised by the employer,
and the employer could inspect and assess the equipment and could
reasonably instruct the employee not to use it.
Nuisance
R (on the application of Broxbourne Borough Council) v
North and East Hertfordshire Magistrates’ Court and Geoffrey Oliver
(2009)The Council applied for judicial review of two
decisions taken by Magistrates who were exercising their civil
jurisdiction, hearing an appeal by the Interested Party against an
Abatement Notice served on him by the Council alleging a statutory
nuisance by artificial light. The High Court quashed both decisions
holding that:
‘the fact that the Chairman visited the site, without the other
Justices, and conducted the experiments I have described is fatal
to the validity of the trial. The trial is bad. Justice has not
been seen to be done.’
Pensions
South Tyneside Metropolitan Borough Council v Lord
Chancellor and Secretary of Sate for Justice and another
(2009)
Regulation 79 of the Local Government Pension
Scheme Regulations 1997 imposed a liability to contribute to any
particular fund only on those whose employees contributed to that
fund.
Planning
Hounslow London Borough Council v (1) Secretary of State
for Communities & Local Government (2) Krishna Deoi Kapoor
(2009)The local authority appealed against decisions of a
planning inspector to quash an enforcement notice and grant
planning permission in respect of K’s property. K was refused
planning permission for the retention of a bungalow. Before her
appeal was determined the local authority issued an enforcement
notice. She appealed on the basis that permission ought to be
granted. On the enforcement notice appeal form, K indicated that
she had appealed against the refusal of planning permission, but
the local authority stated that no such appeal had been made. K's
planning appeal was dismissed but that decision was not
communicated to the inspector considering her enforcement notice
appeal. That inspector allowed K's appeal and granted planning
permission without hearing oral representations. The local
authority said that the previous refusal of permission was a
material consideration to which the inspector had failed to have
regard. K argued that since the local authority was at fault it was
appropriate to refuse the local authority relief. The Court held
that parties to planning appeals were obliged to put material
considerations before an inspector. If there was a failure to do
so, and a third party suffered detriment, that party should have
the opportunity of relief, and the failure would justify the
quashing of a decision made in ignorance of a material fact. An
inspector had no general duty to make inquiries, but here the
enforcement notice appeal form completed by K had indicated that
she had made a planning appeal and the inspector should have
checked. The primary fault was that of the local authority, but
where inspectors’ decisions had a public impact the correct
decisions had to be reached. The failure of the inspector to have
regard to the previous refusal was an error of law such that his
decisions were vitiated.
Peter Ellis v (1) Secretary of State for Communities
& Local Government (2) Chiltern District Council
(2009)
E applied to quash an inspector’s decisions
relating to E's house. The Planning permission for a house in the
green belt had been granted in 1961, subject to a condition that it
be occupied only by people employed in agriculture or forestry and
their dependants. It had always been occupied in breach of that
condition, apart from some brief periods when it was unoccupied.
During one such period the previous owner (H) applied for a
certificate of lawfulness on the basis that the breach had begun
more than 10 years earlier and for planning permission seeking the
removal of the occupancy condition. The local authority rejected
both applications. H appealed and following a public inquiry the
inspector held dismissed both appeals. She concluded that a
certificate of lawfulness could not be granted because the breach
had not subsisted continuously for at least 10 years at the date of
the application. She dismissed the appeal in relation to planning
permission on the basis that H had failed to demonstrate that there
was no continuing need for the occupancy condition. E submitted
that (1) a certificate of lawfulness should have been granted (2)
the inspector had mechanistically applied local plan policies
requiring a marketing exercise without considering whether material
considerations could enable a decision to be made having regard to
the purpose of the local plan policy and national policy guidance
in PPS 7, which did not require such an exercise. The Court held
that (1) The crucial question was whether the relevant breach of
planning control still subsisted at the date of the application.
The inspector had not erred in this respect. (2) The inspector had
not applied the local plan policy mechanistically.
Matilda Schlesinger v (1) Secretary of State for
Communities & Local Government (2) London Borough of Hackney
(2009)
S, an orthodox Jew, applied for a loft
extension to her house. Planning permission was refused, but she
built it anyway. on appeal on the basis that S's personal
circumstances were outweighed by the effect the extension would
have on the character and appearance of the dwelling and
surrounding area. S submitted that the decision was irrational as
(1) the inspector should have been made aware of a policy document
which stated that the local authority should seek to ensure that
religious beliefs were taken into consideration in planning
decisions (2) she was unable to gather all relevant information
regarding other appeals because she did not have the resources, and
there was therefore inequality of arms (3) the inspector took
irrelevant considerations into account in considering alternative
planning solutions (4) the inspector followed an unlawful procedure
in considering the appeal on the basis of the original planning
application rather than the built structure (5) the inspector fell
into error in failing to give proper consideration to the original
proposal. The Court held that (1) The policy document was not
applicable at the time the matter was considered by the inspector
and therefore formed no part of the local authority's relevant
development plan. (2) S did not submit at the hearing, that there
had been a violation of her human rights, so the inspector did not
expressly consider that issue. If it had appeared to the inspector
that there was a clear lack of equality in representation, and in
S's ability to deal with the appeal, she would have drawn attention
to it. S's representation was more than adequate. (3) It was not
wrong for the inspector to consider whether the family needs could
have been met in another way. (4) At the hearing, S went along with
the suggestion that the appeal should be dealt with in that way and
no formal objections were made. It was therefore no longer open to
S to argue otherwise. (5) It was clear that the inspector
considered both the original plan and the situation after the build
and had carried out the exercise properly.
Colney Heath Parish Council v (1) Secretary of State for
Communities & Local Government (2) St Albans City &
District Council (3) Peter Robb (2009)
The local
authority applied to quash an inspector’s decision granting R
planning permission to station a mobile home and caravans at a site
near to a river for his Gypsy family. At the inquiry, approximately
two years before, a witness from the environment agency (B) had
stated that the development would result in risk from flooding to
residents on the site and increase the risk of flooding elsewhere.
R's expert stated that the development would not increase the risk
of flooding to others. The inspector found that the development
would result in harm to the green belt. He found that mitigating
circumstances were insufficient to remove the risk to R's family
that could arise from potential flooding and that the development
would constitute highly vulnerable development. The inspector
concluded that the material considerations did not outweigh the
harm. Nevertheless, he found that the harm to safety arising from
occupation of the site was limited by its location and granted
temporary permission subject to conditions, including those imposed
to protect residents and others in the event of flooding. Following
the inquiry, R's expert stated that B had conceded under
cross-examination that the conditions would adequately mitigate the
risk of off-site flooding. The local authority submitted that the
inspector had erred in failing to consider the impact of
development on flooding outside the site. R contended that because
B had conceded that the suggested conditions would adequately deal
with off-site flooding, the inspector only had to consider imposing
appropriate conditions, which he had done. R argued that the
inspector had adequately dealt with the issue of off-site flooding.
The Court quashed the decision. (1) A decision letter needed only
to express its conclusions on the principal, important,
controversial issues, such as off-site. It had been for the
inspector, who had heard the witnesses, to draw conclusions from
that cross-examination and then draw conclusions on the issue
itself. It was not appropriate for the court to seek to do so,
particularly so long after the inquiry had taken place. (2) The
inspector had not dealt with the issue of off-site flooding at all,
in any real sense. He had therefore failed to deal with a principal
controversial issue, namely off-site flooding, and that raised the
inference that he had failed to take account of that issue. (3) The
local authority had suffered prejudice. There was a real
possibility that consideration of the off-site flooding issue would
have made a difference to the decision.
Ainsley David Powell & Jane Shergar Irani v
Secretary of State for the Environment, Food & Rural Affairs
& Doncaster Metropolitan Borough Council (2009)
P
applied to quash an inspector’s decision confirming a footpath
modification order made by the local authority under the Wildlife
and Countryside Act 1981. The effect of the order was that a public
footpath would run through the back garden of a newly built
property owned by P. The order was made before P purchased the
property, but P agreed with the property's builder (H) that the
builder would continue its objection to the order after the sale of
the property. After the deadline had passed for submitting
objections P was informed that H had not pursued its objection. P
instructed a planning consultant in respect of a public inquiry
that was to be heard some three weeks later. The planning
consultant and P sought to adjourn the public inquiry. The planning
inspector refused the adjournment on the basis that P had adequate
time to take an active role in the proceedings, and to prepare for
the public inquiry, as they had been aware of the order from when
they commenced negotiations to purchase. The planning inspector
further found that the impact of the order on P's property was
irrelevant so that he attached no weight to it. P contended that
the planning inspector's refusal to adjourn the planning inquiry
amounted to a breach of natural justice and thereby his decision
was outside the secretary of state's powers under the Act. The
Court granted the application. On the basis of the evidence the
planning inspector could not have properly suggested that P was at
fault in leaving it to H to pursue an objection to the order.
Thereafter P sought to find advisers with relevant expertise in
footpath. Whilst the impact of the order on P might not have been
relevant to the substantive issue that was before the planning
inspector, it was relevant to matters of procedural fairness, and
it was not inevitable that the planning inspector's decision would
have been the same had P been given the opportunity to prepare
their case. . Accordingly, the planning inspector's decision to
refuse P's application for an adjournment of the public inquiry was
made in breach of the rules of natural justice and thereby outside
the Secretary of State's powers under the Act.
Suburban Property Investments Ltd v (1) Secretary of
State for Communities & Local Government (2) Wandsworth London
Borough council (2009)
S owned a site comprising of a
garage and forecourt. The garage had parking for 24 cars and had
been built in accordance with planning permission in 1965 as part
of the development of a block of flats. S refurbished the site and
let car-parking spaces to members of the public under licence. The
local authority issued an enforcement notice alleging a breach of
planning control consisting of a failure to comply with a condition
which stated that "the garages and car parking accommodation shall
not be used for any purposes other than those incidental to the
enjoyment of a dwelling house or flat and no trade or business
shall be carried on therefrom." The planning inspector found that
the planning permission was for a block of flats with associated
parking provision and that the car parking permitted was an
integral part of a sizeable development and not a freestanding
grant. Accordingly, the letting of car-parking spaces to members of
the public was in breach of the condition. He further found that it
had not been demonstrated by S that the unlawful use of the garage
had continued for a 10-year period before the enforcement notice
was served. S’s appeal was dismissed (1) The planning inspector was
correct to adopt the construction of the condition that he did. The
condition had to be looked at in context. The garage could only be
used for a use incidental to dwelling houses or flats in the block
of flats, so, accordingly, S's use of letting car-parking spaces to
members of the public under licence was not such an incidental use
and in breach of the condition. (2) The planning inspector was
entitled to find on the evidence that was before him that S had not
demonstrated that the unlawful use of the garage had continued for
a 10-year period before the enforcement notice was served.
City & District of St Albans v Secretary of State
for Communities & Local Government : Hertfordshire County
Council v Secretary of State for Communities & Local Government
(2009)
The applicant local authorities applied to
quash certain policies contained in a regional spatial strategy
published by the respondent Secretary of State. The Secretary of
State had carried out a draft revision to the strategy that
allocated housing development to four towns in the London Arch,
namely Hemel Hempstead, Welwyn Garden City, Hatfield and Harlow,
identified as being key centres for development and change. That
revision was adopted and implanted in the plan through the
introduction of various planning policies. The local authorities
argued that, contrary to Directive 2001/42 and the Environmental
Assessment of Plans and Programmes Regulations 2004, no proper
environmental assessments, in particular regarding encroachment
into the green belt that would result from housing development
being allowed, had been carried out before the revision to the plan
had been adopted.
The application was granted. Article 5 of the Directive and
reg.12 of the Regulations required that reasonable alternatives to
development should be described and evaluated before a choice was
made as to how a plan should be modified. Whilst the policies read
alone did not justify encroachment into the green belt, the
information that accompanied the policies made clear that although
significant areas around the towns were designated as green belt,
in exceptional circumstances such as the need for sustainable
development, in particular with regard to housing, encroachment
would probably be necessary. With regard to Hemel Hempstead, Welwyn
Garden City, and Hatfield, no reasonable alternatives to
development that might affect the green belt had been identified or
examined. Accordingly, a decision had been made to erode the green
belt without reasonable alternatives being properly considered
through means of environmental assessments that were compliant with
the Directive and the Regulations. With regard to Harlow, it was
clear that development around the town was properly considered
through an iterative process.
Chas Storer Ltd v (1) Secretary of State for Communities
& Local Government (2) Hertfordshire County Council
(2009)
A planning inspector upheld an enforcement
notice issued by the local authority. For many years the Claimant
had occupied a site, on which it operated a waste collection and
processing business. The enforcement notice alleged a material
change in the use of the site from mainly paper to co-mingled
waste. The notice imposed requirements restricting the type of
materials, the hours of operation, and the number of lorry
movements. On appeal, the Claimant contended that any change in the
character of its activities on the site had not amounted to a
material change of use in the 10 years up to the date of the
enforcement notice. The inspector found that there had been a
material change of use and upheld the notice, but in less
restrictive terms than the original in relation to hours of
operation and number of vehicle movements. The Court allowed the
appeal: (1) The inspector was clear in his finding that the receipt
and bulking of co-mingled waste, and that alone, constituted the
material change of use not the increase in vehicle movements or the
hours of operation in the 10 years up to the enforcement notice.
Therefore increases in vehicle movements and hours of operation in
the 10-year period did not amount to development and those
activities remained lawful use. The inspector was not entitled to
impose requirements that went beyond what was necessary to confine
relevant activities to lawful use. Therefore he erred in law by
imposing requirements restricting vehicle movements and hours of
operation, and the decision would be remitted for rehearing. (2) If
that was wrong, and the inspector intended a wider change of use,
then such was not adequately stated in his decision, and the
decision would have been remitted on the grounds of inadequate
reasoning amounting to an error of law.
R (on the application of Peters) v (1) Secretary of
State for Communities & Local Government (2) Surrey Heath
Borough Council (2009)
Families of travelling showpeople (P) applied to quash a refusal of
temporary planning permission in respect of land they occupied. The
land was in the green belt and within five kilometres of a Special
Protection Area (SPA), as was the whole of the second respondent
local authority's area. The local authority refused planning
permission for the occupation, and the planning inspector rejected
P's appeal against that decision, on the grounds that the
occupation was inappropriate development in the green belt for
which no material considerations outweighed the harm, and that it
would have a significant effect on the SPA. He found that there
were no available lawful sites in the area and no reasonable
expectation of such sites becoming available within three to five
years. Had there been such sites, that would have weighed in favour
of granting temporary permission. The inspector criticised the
local authority for rejecting earlier recommendations to provide
additional sites for travelling showpeople, but held that that
failure did not prevent the local authority from relying on sites
not being available. The application was refused (1) The inspector
had looked at the matter more widely than the local authority's
area and rightly so. (2) The inspector had carefully considered the
local authority's alleged past failures. However, he was entitled
to take the view that the very special circumstances that existed
meant that there was no need to find a reasonable expectation of a
site becoming available. (3) The inspector had properly sought the
views of English Nature, the body responsible for safeguarding
SPAs, as to the impact of the development on the SPA. Those views
had to be sought in terms of the Conservation (Natural Habitats,
&c) Regulations 1994 reg.48. English Nature had advised that
the development would be likely to contribute to a deterioration of
the quality of the habitat in the SPA, that measures would be
needed to mitigate the risk, but that the development, as a small
development, would be unlikely to be able to provide such
measures.
R (on the application of Westminster City Council) v (1)
Secretary of State for Communities & Local Government (2) said
Lariba (3) Cosmichrome Ltd (2009) [2009] EWHC 1131
(Admin)
A cafe sandwich bar in the local authority's
area had previously been used as a ground floor showroom. The local
authority issued an enforcement notice against the cafe owner
alleging unauthorised change of use under the Town and Country
Planning Act 1990 s.174(2). The cafe owner appealed against that
enforcement notice on the ground that planning permission should
have been granted for the change of use. The relevant unitary
development plan policy governing the change of use of showrooms in
the area provided that planning permission which resulted in the
loss of wholesale showrooms at ground floor and basement levels
within a defined area would not normally be permitted. An inspector
allowed the appeal and granted planning permission which validated
the change of use on the ground that it did not significantly harm
the character or function of the area. The applicant local planning
authority applied to quash that decision. The local authority
contended that the inspector had misinterpreted the policy, that
the appeal site fell within the area defined in the policy and that
the inspector had ignored its submissions and had given inadequate
reasons for his decision.
HELD: Application granted (1) The inspector had attached
significance to the lack of other showrooms in the vicinity of the
cafe and had concluded on that basis that the loss of the showroom
did not matter because there were no other showrooms in the area.
However, the policy did not require that an area of specific
character be delineated; all it required was that an area be
examined. The area then had to be assessed for the contribution
which a showroom made to the area's character and function. The
inspector's approach effectively treated a peripheral area capable
of supporting a core area as being no different from one which was
wholly remote from it. That demonstrated a misunderstanding of the
policy objective of protecting the showroom uses which contributed
to the character and function of the areas in which they were found
and ignored differences in the character of different areas. It
followed that the inspector's approach of delineating a specific
area for individual consideration was not contemplated by the
policy. For that reason, the inspector's decision was informed by a
wholly artificial approach for which there was no policy basis. (2)
The inspector's reasoning as to the delineation of the area to be
examined was legally inadequate and made no reference to evidence
of the local authority's witness that the appeal site was in an
area where there was a concentration of showrooms in close
proximity.
Dacorum Borough Council v George Purcell & ors &
(1) British Waterways Board (2) Secretary of State for Communities
& Local Government (2009)
The respondent Gypsy
family (G) had owned a site of land within the vicinity of a large
raised reservoir. A cottage was also located in the vicinity. In
order to live on the site G applied to change its use for the
stationing of caravans, to re-use the existing buildings on the
site as a day room, and for permission to install a septic tank.
That application was refused and G appealed to a planning inspector
instructed by the Secretary of State. The inspector dismissed the
appeal on the basis that the granting of such planning permission
would have required the British Waterways Board to upgrade the
reservoir because a breach could have endangered a community
because G consisted of more than 10 members. He stated that the
safety standards would need to be raised to the level appropriate
for a reservoir located close to human habitation, and found that
the cost of those works would be grossly disproportionate to the
benefits to be gained by G. G appealed and made a fresh planning
application for occupation of the site by only six people. G
submitted that the inspector erred in (1) concluding that the
reservoir would have to be upgraded; (2) not considering the grant
of temporary planning permission; (3) failing to consider the value
attributed by the European Convention on Human Rights, art.8 to
their caravans as an integral part of their ethnic identity as
Gypsies. The Court rejected the appeal. (1) Although the inspector
could have dealt with the issue of upgrading at greater length he
did not fail to set out his reasons intelligibly. (2) The inspector
was satisfied that even if temporary planning permission was
granted, an engineer was likely to require the Waterways Board to
upgrade the reservoir, and concluded that the cost to the board
would have been grossly disproportionate. Further, the benefit to G
of temporary planning permission was bound to have been less than
the benefit of indefinite planning permission. That ground did not
establish a realistic prospect of success.(3) There was no basis on
which it could plausibly be contended that reference to art.8 would
have made any difference to the inspector's decision. (4) The
inspector had reasoned that a limit could not be placed on the
number of occupants of the neighbouring cottage. If he had been
asked to consider the fresh application, he was bound to conclude
that an engineer would require the board to upgrade the reservoir.
Any prospect of the approval of the fresh application would be
fanciful, not realistic, and safety considerations would still
apply.
Terence Charles Adams (t/a Strategic Land Partnerships)
v (1) Secretary of State for Communities & Local Government (2)
Cheltenham Borough Council (2009)
The applicant
proposed to build a number of houses on a field lying within an
Area of Outstanding Natural Beauty at the edge of an urban area,
bounded by residential development. The proposed development would
have assisted the local authority in meeting its housing needs.
Permission was refused and the applicant’s appeal dismissed. In her
decision letter, the Secretary of State concluded that development
plan policy afforded the highest protection to designated
landscapes, including Areas of Outstanding Natural Beauty, and that
the proposed development would result in significant harm to the
relevant land. She found that the local authority did not have
sufficient housing to satisfy expected demand, and therefore
applications for development were to be considered favourably, as
outlined in the relevant planning policy statement. However, she
stated that the proposed development was not provided for in
approved development plans, and that the most recent regional
spatial strategy established a clear preference for development in
an area that the relevant land was not within. S applied to quash
the decision. The application was refused. It was not possible to
conclude that the Secretary of State's reasoning that the proposed
development was not reflective of the relevant spatial vision was
not reasonably open to her. It was clear that the regional spatial
strategy had a clear preference for development in a particular
area, and the land in question was not in that area. Although the
housing need element would have been reflected in the proposed
development, it was also necessary for the Secretary of State to
consider the counter-balancing features involved. It was clear from
her decision letter that the Secretary of State had correctly
assessed the harm that only the proposed development would cause,
and that she was not required to find exceptional harm. In
addition, there was no need for her to perform a comparative
assessment with another Area of Outstanding Natural Beauty, and
there was no basis for suggesting that there was an error of law in
the Secretary of State's assessment.
Ardagh Glass Ltd (Claimant) v (1) Chester City Council
(2) Ellesmere Port & Neston Borough Council (Defendants) &
Quinn Glass Ltd (Interested Party) (2009)
Q, a major
glass manufacturer, had commenced development of a large glass
container factory without planning permission but applications were
made later. The Secretary of State called them in for
determination, by which time much of the plant was already
functioning. Permission was refused. Thereafter, Q submitted a
retrospective planning application, accompanied by an environmental
impact statement, to the local authorities. The Secretary of State
used her power under Directive 85/337 to direct the local
authorities not to grant planning permission without express
authority. The claimant company (X) sought (i) the grant of a
mandatory order that enforcement action be taken by the defendant
local planning authorities against the interested party (Q) before
April 2009; (ii) an order prohibiting the grant or the making of a
resolution to grant planning permission, alternatively a
declaratory order that it would be unlawful for the local
authorities to grant planning permission for Q's proposed
development. It was common ground between the parties that Q's
development was currently unlawful development and that if
effective enforcement action was to be taken against Q the
enforcement notices had to be served within four years of the
substantial completion of the development. The issues for
determination concerned the timing of enforcement action and
whether the local authorities or the Secretary of State might
lawfully grant planning permission for Q's development. X contended
that the time limit for serving enforcement notices was April 2009
and that as the local authorities were unwilling to issue such
notices, they should be ordered to do so. The local authorities
submitted that, on the proper construction of the law as to what
amounted to "substantial completion" of the development, they had
until November 2009 to serve the notices. They argued that it was
for them to decide whether and when it was expedient to take
enforcement action against Q, and that it could not be said that
their decision not to take immediate action was beyond the range of
choices open to them on the facts. X further contended that to
grant retrospective planning permission would undermine the
preventive objectives of the Directive, of which the principal one
was that effects on the environment should be taken into account at
the earliest possible stage and before works were carried out. X
submitted that to grant retrospective permission would be unlawful.
The local authorities and Q contended that retrospective planning
permission might properly be granted as, on its true
interpretation, Community law did not preclude the regularisation
of existing environmental impact assessment development in
exceptional cases.
The Court gave judgment for claimant in part. It would be a
betrayal by the local authorities of their responsibilities and a
disgrace upon the proper planning of this country were Q's
development to achieve immunity because enforcement action was not
taken in time. The advantage of taking enforcement action by
issuing a notice was that it would at once prevent immunity arising
for at least another four years and would avoid the need for
certainty about the date of substantial completion of Q's plant.
The local authorities had erred in basing their consideration of
the timing of enforcement action upon the proposition that, in
respect of a very large and complex development, made up of several
distinct, though physically and functionally connected, elements,
substantial completion could not be achieved for any part of it
until the totality of all the operations were complete. The local
authorities had, therefore, made errors of law in their
consideration of whether it was expedient to issue an enforcement
notice on Q's development. The court, accordingly, made a mandatory
order to the local authorities to issue within 14 days of the
judgment an enforcement notice in respect of Q's unlawful
development requiring the removal of the buildings and works, and
cessation of Q's activities. (2) There was a distinction to be
drawn between the Irish statutory provisions and those in England.
Retrospective planning permission could lawfully be granted so long
as the competent authorities paid careful regard to the need to
protect the objectives of the Directive. Enforcement procedures
under English law were well able to take into account and protect
those fundamental objectives. Permission would not be granted
unless the Secretary of State was satisfied that a satisfactory
environmental impact assessment had been undertaken. In order to
uphold the Directive, the Secretary of State could and should
consider whether granting permission would give a developer an
advantage he ought to be denied, whether the public could be given
an equal opportunity to form and advance their views, and whether
the circumstances could be said to be exceptional. The court,
accordingly, declined to make a declaratory order concerning the
grant of permission.
R (on the application of (1) Stamford Chamber of Trade
& Commerce (2) FH Gilman & Co v (1) Secretary of State for
Communities & Local Government (2) South Kesteven District
Council (Costs) (2009)
Should unsuccessful claimants
in an application for judicial review pay the costs of the first
defendant Secretary of State and the second defendant local
authority? The application was for the judicial review of the local
authority's decision not to request the safeguarding of a local
planning policy, and the Secretary of State's direction that the
policy was not to be saved. At first instance the judge had refused
their application..
The Court held that yhe general principle set out in Bolton MDC
v Secretary of State for the Environment (Costs) (1995) 1 WLR 1176
HL in respect of planning appeals did not necessarily apply to the
instant type of case. That was because in the instant case the
court had before it not only two different defendants, but also two
different decisions challenged by way of judicial review. It was
eminently reasonable for the local authority to come to court to
defend its decision, which was directly challenged. Although one of
the issues before the court had not directly arisen against the
Secretary of State, it was understandable that the Secretary of
State wished to make submissions upon it as the remaining issue,
which did arise against the Secretary of State, was entirely
dependent upon it. In addition, on any practical view of the case,
the ultimate target was the Secretary of State's decision not to
save the policy, as only the Secretary of State had the power to
make that decision. Even if the approach set out in Bolton applied,
the instant case was one where, in the court's exercise of
discretion, the costs of both the local authority and the Secretary
of State should be granted in full.
Elizabeth Eley v (1) Secretary of State for Communities
& Local Government (2) Watford Borough Council (3) Visao Ltd
(2009)
It was suspected that there was a badger set on a development site.
The developer (V) commissioned a report on badger activity and
submitted it to the local authority. The report found no evidence
of badgers. However, a report prepared by the local authority's
development manager stated that badgers were present. The planning
committee refused the application, for reasons unrelated to
ecological considerations. V successfully appealed, using the
written representations procedure. V instructed a different firm of
consultants (X) to undertake a further assessment of the site. X's
report confirmed the existence of badger activity. V disclosed that
information to the local authority. However, the inspector hearing
V's appeal decided to take no account of the information because it
was provided after the nine-week period specified in reg.7(8). V
had stated on its application for planning permission that it did
not own or control any land adjoining the application site. Shortly
afterwards, V was granted an option to purchase some land adjoining
the site, and it went on to exercise that option. It did not
disclose that matter to the inspector. The applicant applied to
quash the appeal decision arguing that V had failed to disclose to
the inspector matters which materially undermined its case. E
submitted that the appellant in a planning appeal was under a duty
to disclose such matters by virtue of the principle of fairness. E
further argued that the inspector's decision should be quashed
because it was founded upon mistakes as to existing and established
facts which were at least potentially material to the decision.
The application was refused (1) Fairness did not demand that
there should be a general obligation upon the appellant, applicable
in every case in which an appeal was conducted by the written
representations procedure, to disclose documents which contained
facts which were adverse to its appeal. That conclusion also
applied to factual information which was not documented. It was
difficult to imagine circumstances in which factual information
existed that was relevant to the planning application, but was
unknown to the local authority and was of such a type and quality
that it could not be ascertained by the local authority upon
reasonable investigation. Although fairness did not demand that a
general duty to disclose adverse facts was imposed, that did not
mean that a duty to disclose material facts which were adverse to
the appellant's proposals could never arise. Each case had to be
considered on its own facts. However, there was one class of case
when a duty to disclose adverse factual material would, in all
probability, arise. That was where the appellant had chosen to give
voluntary disclosure of a document containing factual material or
voluntary disclosure of information in non-documentary form, and
his failure to disclose other documents or information would have
the effect of misleading or even potentially misleading an
inspector about the true nature of the undisclosed material. (2) A
mistake of fact by an inspector who was determining a planning
appeal which gave rise to unfairness was established as a head of
challenge in an appeal under the Town and Country Planning Act 1990
s.288. A local authority had a public interest, shared with the
Secretary of State through her inspector, in ensuring that
development control was carried out on the correct factual basis.
The appellant also shared an interest in achieving that objective.
(3) V had been obliged to disclose the information from X, as it
was in stark contrast to the conclusions which had been reached by
V's previous consultant. Although X's conclusions did no more than
confirm the view of the local authority's officer, nonetheless it
was potentially relevant for the inspector to know that the
information was essentially agreed. However, V had disclosed it to
the local authority. The local authority had never considered the
existence of badgers to be a reason for refusing planning
permission. The inspector had deliberately chosen to ignore the
most up to date information on badger activity because it was
provided after the nine-week period; that decision was not
unlawful. Even if that conclusion was wrong, it was most unlikely
that the inspector's mistaken belief that there was no conclusive
evidence of the existence of badgers on the site played a material
part in his decision, E v Secretary of State applied. Thus the
decision did not fall to be quashed on the basis of V's
non-disclosure of X's report. (4) V did own or control land
adjoining the site, by virtue of the option to purchase the land.
It should have indicated on the plan submitted to the Planning
Inspectorate that that was the case. When V went on to purchase the
land, fairness required that disclosure should be given of the
changed circumstances. However, V's failure to disclose the
information ultimately had no effect on the inspector's
decision.
Property and compensation
(1) Terrence John Carter (2) Jane Frances Carter v (1)
Jeffrey Mark Cole (2) Jacqueline Pamela Cole
(2009)
The respondents ( R ) had sold part of their
land to the appellants ( A ). The remainder had for some years been
leased to a spring-water producer. The lease provided for a right
of way over the land which was later sold to A. The right of way
included access to the main road for a water-bottling facility, and
included access by lorries. The water-bottling operation needed
planning permission. Temporary planning permission was granted on
three occasions, each grant save the third imposing a condition as
to a visibility splay at the junction of the main road for
highway-safety reasons. A erected fencing and planted shrubs on
land forming part of the visibility splay. Thereafter, the local
authority refused to make the planning permission permanent and a
planning inspector upheld its refusal, finding that, on the basis
of existing sight lines, the use of the access was potentially
dangerous. He concluded that there was no scope to improve the
sight line to a satisfactory standard as R had no control over the
necessary land. Thereafter, the spring-water company decided to
relocate and exercised its option to break the lease. R claimed
that, by their works of fencing and the planting of shrubs so as to
interfere with the visibility splay, A had derogated from the grant
of a right of way, and they claimed both a mandatory injunction
requiring A to restore the splay, and damages.They were successful
in the first instance obtaining an injunction and damages of
£35,831. A appealed submitting that it was the insistence of the
highway authority and the local planning authority that R were not
in a position to exercise control over the splay which was the real
cause of the problem as regards access by lorries. The cause of the
loss was the refusal of planning permission, caused by the fact
that R had no control over the splay. A argued that the fact that
the third grant of temporary planning permission did not contain a
condition about the splay showed that the splay was not causally
linked to the planning permission.
The appeal was allowed in part (1) There had been a derogation
of grant by A. If A had not interfered with the splays the planning
inspector would not have found that the junction was dangerous. Nor
would he have said that there was no scope to improve the site
lines. That was wrong, R did have control over the necessary land
in the sense that neither A nor any successor in title could
interfere with the splay. A's argument that the fact that the third
grant of temporary planning permission did not contain a condition
about the splay, and that that showed that the splay was not
causally linked to the planning permission, was not an acceptable
argument. What mattered was what was known to the parties at the
time of grant. Quite clearly both knew about the condition in the
planning permission at that time. So what was granted, and could
not be derogated from, was a right of access for lorries, which
itself required the splay as contemplated by both parties. The
later permission without the condition was simply irrelevant. (2)
The judge was right to grant an injunction requiring A to restore
the visibility splays. He had taken entirely proper reasons into
account in exercising his discretion. (3) However, on the basis of
the material available to the instant court, the damages would be
reduced to £20,000.
Amanda Clarke v (1) Thomas Jerome Peter Murphy &
Katherine Helen Murphy (2) Grant Telfer & Diana Telfer (3)
Frank William Lomax & Anne Lomax (4) Rorie Devine (5) Keith
Davis sub nom 4 One Tree Lane, Beaconsfield, Buckinghamshire, HP9
2BU (2009)
The applicant’s property had been
constructed along with eight others by the same builder (G) in the
1950s and all were of a similar type. All of the properties
contained restrictive covenants that prevented more than one
dwelling house and for that dwelling house to be sub-divided. The
applicant obtained outline planning permission for the demolition
of one dwelling and the erection of three new dwellings in its
place and applied to the tribunal for modification or discharge of
those covenants so as to permit such development to take place. The
tribunal was required to determine as a preliminary issue whether
the fourth and fifth objectors were entitled to object to that
application. The applicant argued that whilst the other objectors
could rely on the restrictive covenants on her property as they
derived their title through conveyances from G which post-dated G's
conveyance to her predecessor in title, the fourth and fifth
objectors could not as their title predated that of her predecessor
in title. The fourth and fifth objectors contended that a building
scheme existed in respect of the properties so that they had the
benefit of the restrictive covenants and could object to her
application. The court held that a building scheme was created in
respect of the properties. That was so as (a) all parties derived
titled from a common vendor, namely G; (b) G had laid out an entire
estate consisting of the nine properties before selling any of them
and it was clear that G had prepared a standard form conveyance for
selling off the properties and had intended to impose the same
restrictive covenants on every property and duly did so; (c) the
restrictions were intended by G to be and were for the benefit of
all the properties intended to be sold; (d) the original purchasers
purchased their properties upon the footing that the restrictions
were to enure for the benefit of the other properties sold by G.
Accordingly, as a building scheme, it followed that the fourth and
fifth objectors were entitled to the benefit of the restrictive
covenants and they were entitled to object to the application.
Kent County Council v Union Railways (North) Ltd &
Anor (2009)
The local authority had used its
compulsory powers to acquire land from a company (B), which was
close to a proposed railway line owned by the respondent (U ). U
alleged that it had previously acquired property rights over the
land from B, so as to lay cables across it. The rights included
options to acquire the freehold of the land or a lease, and an
easement to lay the cables. U claimed statutory compensation,
claiming that it was unable to take advantage of those rights after
the land had been taken, and the cables had had to be diverted. The
local authority had served notices to treat and notices of entry on
B, but not on U. It appealed the decision that it was obliged to
have done so. The local authority denied that U had any such
rights, but argued as a preliminary point that even if U had such
interests, it had no claim to statutory compensation, no steps
having been taken by the local authority to acquire those interests
under the order. The local authority argued that (1) it was open to
it, even if it had been aware of U's alleged interests, not to have
served notice to treat on it; (2) it had discretion under the
Compulsory Purchase Act 1965 s.5 to decide which interests in the
land to acquire, and it was not therefore bound to serve notice or
acquire U's interests, even if they were valid; (3) s.22 of the Act
did not create a right to compensation if the acquiring authority
chose not to take advantage of it; (4) s.10 was concerned solely
with injurious affection where no land was taken and gave no
independent right to compensation for land taken.
HELD: Appeal dismissed (1) The local authority's arguments were
approached with some scepticism. Having used compulsory powers to
acquire the land, it should not be surprised if it had to pay
statutory compensation. While it was entitled to question the
rights on which the claim was based, it was artificial and
unattractive that, even if the rights were established, it should
be able to avoid the statutory claim and leave U to its rights at
common law, on the basis that it was content to retain possession
of U's interests unlawfully. It was also unclear what benefit the
local authority's approach was expected to give it: if it
considered that the measure of damages at common law would be lower
than statutory compensation, or there was a procedural advantage at
common law, that would imply that it was seeking to take advantage
of its own wrong. The court would lean towards an interpretation
which avoided that consequence. The local authority could not,
acting reasonably, resist U's claim once its entitlement was
established. (2) The test under s.5 was what was "required" for the
scheme. There could be no serious dispute that the local authority
needed to acquire or secure the release of any options to purchase
owned by third parties, otherwise there would be nothing to stop
the third parties exercising their options and then suing for
trespass. It had to be taken to have acquired U's option because
otherwise the purchase of the freehold would not serve its purpose.
(3) U was entitled to initiate the s.22 procedure. The local
authority had needed to acquire the options if they existed:
whether it had made a mistake in not serving notice could not be
determined until the interests' validity had been established, but
if it was established, the local authority would, as a matter of
law, have made a mistake in not serving, notwithstanding its stated
position. Although the section was expressed in terms which
suggested that it was for the protection of the acquiring
authority, it had to be read against the background of its duty
under s.5 to serve notice to treat, and the general principle that
land was not to be acquired compulsorily without compensation. The
implication was that the authority would use the section if an
interest had been wrongly omitted, unless it was willing to give up
possession; where there was no prospect of it giving up possession,
there was no reason why the claimant should not initiate the
process. (4) (Obiter) Although it was not necessary to decide the
point, it appeared that s.10 could be used, if necessary, to secure
compensation for land taken. The opening words of the section
referred in terms to a case where land "has been taken"; the
retention of those words as part of the consolidation in the 1965
Act suggested that the draftsman was not satisfied that they had no
substantive effect.
Public procurement
J B Leadbitter and Co LTD v Devon County Council
(2009)
The claimant construction company claimed that
their tender to participate in a framework agreement under which
construction projects could be procured by local public bodies was
incorrectly excluded from the procurement process being undertaken
by the defendant local authority. The original tender submission
deadline had been extended for all potential applicants as on
companying applying had suffered a power cut which was out of it’s
control. The Claimant company submitted the tender document but
forgot to include the case study document which was also part of
the tender process. The local authority excluded the Claimant’s
tender from the process. The Court held that a procurement process
by necessity required a deadline for the submission of tenders; a
deadline is a deadline. The relevant documents clearly stated the
requirement for a single upload and submission before the deadline,
which the Claimant had clearly understood. In some circumstances,
proportionality would require the acceptance of the late submission
of a tender. For example, this would include circumstances which
resulted from fault on the part of the procuring authority. Even if
there was a discretion to accept late submissions, there was not a
requirement to do so, and in this instance particularly because the
late submission was caused by the Claimant.
The decision by the local authority to reject the Claimant’s
tender was well within their margin of discretion.
Legislation
Adults
The Mental Capacity (Deprivation of Liberty: Monitoring
and Reporting; and Assessments -Amendment) Regulations 2009 SI
2009/827
These Regulations contain measures relating
to the monitoring and reporting of the operation of Schedule A1 to
the Mental Capacity Act 2005 which concerns the deprivation of
liberty of residents of hospitals and care homes. They also amend
provisions in regulations 3(2) and 19 of the Mental Capacity
(Deprivation of Liberty: Standard Authorisations, Assessments and
Ordinary Residence) Regulations 2008 (S.I. 2008/1858). Regulation
19 is amended so that where as a result of a determination of
ordinary residence the identity of the local authority as to which
should exercise the functions of the supervisory body changes, one
local authority may recover from another any expenditure it has
incurred (regulation 6(3)).
Children
The Children and Young Persons Act 2008 (Commencement
No.1) (Wales) Order 2009 - SI 2009/728
(W.64)
This Order brings into force on 6 April 2009
sections 30, 35 and 42 of, and Schedule 4 to, the Children and
Young Persons Act 2008, to the extent specified in the Order.
The Children and Young Persons Act 2008 (Commencement
No.1) (Wales) Order 2009 - SI 2009/728 (W.64)
This
Order brings into force on 6 April 2009 sections 30, 35 and 42 of,
and Schedule 4 to, the Children and Young Persons Act 2008, to the
extent specified in the Order.
The Family Proceedings (Amendment) (No.2) Rules 2009 SI
2009/857
These rules amend the Family Proceedings
Rules 1991 in relation to the attendance of persons, in particular
representatives of the media, during family proceedings heard in
private and the communication of information regarding proceedings
relating to children, giving effect, for family proceedings in the
High Court and county courts, to policy changes arising out of the
Ministry of Justice consultation Confidence and confidentiality:
openness in family courts – a new approach (Cm 7131) and outlined
in the response to consultation Family Justice in View (Cm
7502).
The Family Proceedings Courts (Miscellaneous Amendments)
Rules 2009 SI 2009/858
These rules amend the Family
Proceedings Courts (Children Act 1989) Rules 1991 and the Family
Proceedings Courts (Child Support Act 1991) Rules 1993. The
amendments to the 1991 Rules concern the attendance of persons, in
particular representatives of the media, during proceedings
relating to children, and the communication of information relating
to such proceedings. The amendment to the 1993 Rules is
consequential on those made to the 1991 Rules.
Education
The Education and Skills Act 2008 (Commencement No.1 and
Savings) (Wales) Order 2009 - SI 2009/784 (W.70)
This
Order is the first commencement order made by the Welsh Ministers
under the Education and Skills Act 2008. Article 2 brings into
force on 31 March 2009 the majority of section 162 of the Act. This
amends the functions of the Welsh Ministers in relation to external
vocational and academic qualifications under section 30 of the
Education Act 1997. It imposes new functions of developing and
publishing criteria for the recognition of persons who wish to
award or authenticate qualifications, and recognising persons who
apply for recognition and meet the criteria. The remainder of
section 162 is commenced by article 5. Article 3 brings into force
on 31 March 2009 sections 150, 152 and 153 of the Act which
introduce new provisions about preferences relating to sixth form
education from the school year 2010-2011 and makes other minor
consequential school admissions amendments. Article 4 provides that
the amendments to sections 86 and 94 of the School Standards and
Framework Act 1998 do not affect school admissions for the school
year 2009-2010.
The Education (Admission Appeals Arrangements) (Wales)
(Amendment) Regulations 2009 - SI 2009/823
These
Regulations amend the Education (Admission Appeals Arrangements)
(Wales) Regulations 2005, in the following ways:
- The amendment in regulation 2(2) requires Appeal Panels hearing
appeals which concern infant class size to consider whether the
original decision was one which a reasonable admission authority
would have made in the circumstances of the case.
- Regulation 2(3) substitutes a new Schedule 2 in the 2005
Regulations. The new Schedule makes provision for appeals in cases
where decisions are made about children entering the sixth form, or
receiving education after they have ceased to be of compulsory
school age. In cases where the child and any parent of the child
make appeals in respect of the same school, the appeals must be
heard together. The new Schedule removes references to the Council
on Tribunals. The Administrative Justice and Tribunals Council,
which has replaced the Council on Tribunals, has an automatic right
to attend hearings over which it has jurisdiction, so the omitted
provisions are no longer required. In addition, observers will be
permitted to attend appeal panel hearings for the purposes of
appraisal and training.
The Education (Admission of Looked After Children)
(Wales) Regulations 2009 SI 2009/821
These
Regulations prescribe the actions to be taken and the circumstances
in which an admission authority for a maintained school must give
priority in their admission arrangements to a “relevant looked
after child” in the following ways:
- Reg. 3 requires admission authorities to give priority in their
oversubscription criteria to relevant looked after children,
subject to the exceptions in regulations 4, 5 and 6.
- Reg. 4 allows admission authorities for schools designated as
having a religious character to give first priority in their
oversubscription criteria to all relevant looked after children,
regardless of their faith. The regulation requires them, in any
event, to give higher priority to relevant looked after children of
the faith of the school, over other children of that faith, and to
give higher priority to relevant looked after children not of that
faith than other children not of that faith.
- Reg. 5 requires admission authorities for schools which have
made provision in their admission arrangements for selection by
ability or aptitude since the beginning of the 1997-1998 school
year to give priority to relevant looked after children who have
been selected by ability or aptitude over other children who have
been selected by ability or aptitude. Relevant looked after
children who have not been allocated a place on the basis of
ability or aptitude must be given priority over other children who
have not been allocated a place on that basis.
- Reg. 6 requires admission authorities for schools which make
provision for selection by banding to give priority to relevant
looked after children within each band.
- Reg. 7 permits an admission authority, in order to comply with
these Regulations, to vary the admission arrangements that have
already been determined in respect of the school year 2010/2011
without the need to refer the proposed variation to the Welsh
Ministers.
- Reg. 8 requires admission authorities of maintained schools in
Wales to admit a child looked after by a local authority in Wales.
It also requires the local authority to consult with the admission
authority. An admission authority may make a reference within 7
days to the Welsh Ministers if the admission of the child would
cause serious prejudice to the efficient use of education or the
efficient use of resources. The manner in which the local authority
is to consult, and the manner in which the admission authority is
to make the reference to the Welsh Ministers and the information
that may be required are to be prescribed in the code for school
admissions.
- Reg. 9 disapplies section 95(2) of the School Standards and
Framework Act 1998 in relation to relevant looked after children.
Section 95(2) of the School Standards and Framework Act 1998 places
a duty on the local education authority, as the admission authority
for a community or voluntary controlled school, to enable the
governing body of the school to appeal against any decision made by
or on behalf of the authority to admit a twice excluded pupil to
the school. Regulation 9 requires the local authority to consult
with the governing body. A governing body may make a reference
within 7 days to the Welsh Ministers if the admission of the child
would cause serious prejudice to the efficient use of education or
the efficient use of resources. The manner in which the local
education authority is to consult, and the manner in which the
governing body is to make the reference to the Welsh Ministers and
the information that may be required are to be prescribed in the
code for school admissions.
The Education (Areas To Which Pupils And Students Belong
(Amendment) (England) Regulations 2009 SI
2009/1301
These Regulations amend the Education
(Areas to which Pupils and Students Belong).
Regulations 1996 (the “Belonging Regulations”). The amendments
make it clear that the Belongings Regulations do not have effect
for the purposes of determining the LEA which is the responsible
authority for the purposes of section 321(3) of the Education Act
1996. The Regulations also remove the provisions of the Belongings
Regulation which make specific provision in relation to further
education students.
The Education (Free School Lunches) (Working Tax Credit)
(England) Order 2009 SI 2009/830
This Order
prescribes, for the purposes of section 512ZB of the Education Act
1996, Working Tax Credit where the parent is entitled to that
Credit in the circumstances defined in regulation 7D of the Working
Tax Credit (Entitlement and Maximum Rate) Regulations 2002.
The effect of the Order is that where a parent is entitled to
Working Tax Credit during the four-week period immediately after
their employment ceases, or after they start to work less than 16
hours per week, their child is entitled to free school lunches.
The Education (Infant Class Sizes) (Wales) (Amendment)
Regulations 2009 SI 2009/828
These Regulations amend
the Education (Infant Class Sizes) (Wales) Regulations 1998 and
come into force on 22 April 2009. They make five amendments to the
categories of excepted pupils set out in the Schedule to the 1998
regulations (“the Schedule”). They add three new categories. They
add looked after children who are admitted to schools outside a
normal admission round; pupils admitted outside the normal
admission round for whom education at a school of a particular
religious character is desired and children who are admitted to the
school within an age group in which pupils are normally admitted
and after the first day of the relevant school year, where the
school has not yet reached its admission number but has already
organised its classes and the admission of the child would mean
that the school would have to take relevant measures.
Where the admission authority for the school is not the local
authority, confirmation is required from the local authority that
there are no places available at a school of a particular religious
character within a reasonable distance of the child’s home before
the child can be counted as an excepted pupil. They amend paragraph
5 of the Schedule so that when the admission authority of the
school concerned is not the local authority, confirmation is
required from the local authority that there are no places
available at a suitable school within a reasonable distance of the
child’s home before the child can be counted as an excepted
pupil.
Paragraph 6 of the Schedule is replaced and the exception
originally in paragraph 6 (children admitted to the school in the
normal year of entry for whom education at a school which is Welsh
speaking is desired and where the school concerned is the only such
school within a reasonable distance of their home) now also applies
to pupils who are admitted outside the normal admission round.
Where the admission authority for the school is not the local
authority, confirmation is required from the local authority that
there are no places available at a Welsh-speaking school within a
reasonable distance of the child’s home before the child can be
counted as an excepted pupil.
The Education Maintenance Allowances (Wales)
(Revocation) Regulations 2009 SI 2009/825
These
Regulations revoke the Education Maintenance Allowances (Wales)
Regulations 2007.
The Education (Student Support) Regulations 2008
(Amendment) Regulations 2009 SI 2009/862
These
Regulations amend the Education (Student Support) Regulations 2008
as amended (“the 2008 Regulations”) which provide for financial
support for students taking designated higher education courses in
respect of academic years beginning respectively on or after 1st
September 2008 and before 1st September 2009.
The Inspectors of Education, Children’s Services and
Skills Order 2009 SI 2009/882
This Order appoints the
person named in the Schedule as Her Majesty’s Inspector of
Education, Children’s Services and Skills.
The Education and Inspections Act 2006 (Commencement No.
3) (Wales) Order 2009 SI 2009/1027 (W.89) (C.60)
This
Order brings sections 4 and 164 of the Education and Inspections
Act 2006 into force on 1 September 2009. Section 4 inserts a new
section 436A into the Education Act 1996 which requires local
education authorities to make arrangements to establish the
identities of children in their area who are not receiving suitable
education. Section 164 inserts a new section 537B into the
Education Act 1996. This allows the Welsh Ministers to make
regulations requiring information to be provided about children
receiving education outside school which is funded by a local
education authority and makes provision about sharing such
information.
The School Admissions (Admission Arrangements) (England)
(Amendment) Regulations 2009 SI 2009/1099
These
Regulations make a minor amendment to the School Admissions
(Admission Arrangements) (England) Regulations 2008. These
Regulations amend regulation 31(2) so as to remove the requirement
to publish a copy of the adjudicator’s full determination in the
local newspaper. New regulation 31A now provides that a notice of
the determination must be published rather than the entire report.
This notice must contain details of how a full copy of the report
can be obtained.
Elections
The European Parliamentary Elections (Amendment) (No.2)
Regulations 2009 SI2 2009/848
These Regulations
correct errors in the European Parliamentary Elections Regulations
2004 (S.I. 2004/293) which were introduced in amendments made to
those regulations by the European Parliamentary Elections
(Amendment) Regulations 2009.
The European Parliamentary Elections (Returning
Officers’ Charges) (Great Britain and Gibraltar) Order 2009 SI
2009/1069
The European Parliamentary Elections (Local Returning
Officers’ Charges) (England, Wales and Gibraltar) Order 2009 SI
2009/1077
These Orders provide for payments for
services and expenses of returning officers in connection with the
conduct of European Parliamentary elections.
Environment
The Environmental Damage (Prevention and Remediation)
(Wales) Regulations 2009 SI 2009/995 (W.81)
These
Regulations implement Directive 2004/35/EC of the European
Parliament and of the Council on environmental liability with
regard to the prevention and remedying of environmental damage.
They apply to damage to protected species, natural habitats, sites
of special scientific interest, water and land (regulation 4). They
are enforced by the bodies specified in regulations 10 and 11
including local authorities. They provide that, for certain
economic activities, where there is an imminent risk of
environmental damage, the operator must take steps to prevent it,
and if it has occurred must prevent further damage. Where damage
has occurred the enforcing authority must assess the damage and
identify remedial measures. It must then serve a remediation notice
on the responsible operator specifying what remediation is required
(Part 3). They make provision for enforcement (Part 4). Breach of
specified provisions of the Regulations is an offence punishable on
summary conviction, with a fine not exceeding the statutory maximum
or to imprisonment for a term not exceeding three months or both;
or on conviction on indictment, with a fine or to imprisonment for
a term not exceeding two years or both.
EU Law
The European Communities (Definition Of Treaties)
(United Nations Convention On The Rights Of Persons With
Disabilities) SI 2009/1181
This Order specifies the
United Nations Convention on the Rights of Persons with
Disabilities as a Community Treaty for the purposes of the European
Communities Act 1972. The provisions of section 2 of the Act (which
provide for the general implementation of Community Treaties) will
apply in relation to the UN Convention and will be available for
implementation of its provisions should the need arise.
Finance
The Local Authorities (Capital Finance and Accounting)
(Wales) (Amendment) Regulations 2009 SI
2009/560
These Regulations amend the Local
Authorities (Capital Finance and Accounting) (Wales) Regulations
2003 and apply in relation to local authorities in Wales. They
alter the ordinary accounting treatment of certain financial losses
suffered by local authorities by allowing an affected local
authority to record an offsetting credit in its accounts of up to
the value of the loss. The effect of this is that whilst the
authority’s accounts continue to fully show the loss that has been
incurred, the effects of the loss on the authority’s budget
calculations are mitigated. This is a temporary arrangement: the
offsetting credit must be fully reversed in the financial year
beginning on 1 April 2010 if it has not already been reversed by
then.
Health and Social Care
The Financial Assistance Scheme and Incapacity Benefit
(Miscellaneous Amendments) Regulations 2009 SI
2009/792
These Regulations amend the Social Security (Incapacity Benefit)
Regulations 1994 (S.I. 1994/2946), the Financial Assistance Scheme
Regulations 2005 (S.I. 2005/1986)), the Financial Assistance Scheme
(Internal Review) Regulations 2005, the Financial Assistance Scheme
(Provision of Information and Administration of Payments)
Regulations, and the Financial Assistance Scheme (Appeals)
Regulations 2005. The financial assistance scheme provides for
payments to be made to, or in respect of, certain members or former
members (or their survivors) of certain occupational pension
schemes where the liabilities of the scheme to those people are
unlikely or unable to be satisfied in full.
Regulation 2 of these Regulations amends the Social Security
(Incapacity Benefit) Regulations 1994 to provide that for the
purposes of section 30DD of the Social Security Contributions and
Benefits Act 1992 a “pension payment” includes a payment under the
FAS Regulations made to anyone who first becomes entitled to such a
payment on or after the date on which these Regulations came into
force.
The Health and Social Care Act 2008 (Commencement No.1)
(Wales) Order 2009 SI 2009/631 (W.57)
This Order
brings into force on 6 April 2009 section 147 of the Health and
Social Care Act 2008 (and associated provisions). Section 147
removes the liability of a spouse or parent to contribute to the
cost of accommodation provided by a local authority for the person
concerned under Part 3 of the National Assistance Act 1948.
The National Assistance (Assessment of Resources and
Sums for Personal Requirements) (Amendment) (Wales) Regulations
2009 SI 2009/632 (W.58)
These Regulations set the
weekly sum which local authorities are to assume, in the absence of
special circumstances, that residents who are in accommodation
arranged under Part 3 of the National Assistance Act 1948 will need
for their personal requirements. From 6 April 2009 all such
residents will be assumed to need £22.00 per week. Secondly, these
Regulations make further amendments to the National Assistance
(Assessment of Resources) Regulations 1992 (“the Principal
Regulations”). The Principal Regulations determine the way that
local authorities assess the ability of a person to pay for
accommodation arranged for him or her under the Act. The amendments
provide for an increase in the lower capital limit and an increase
in the amount of savings credit to be disregarded.
Highways
The Street Works (Charges for Unreasonably Prolonged
Occupation of the Highway) (England) (Amendment) Regulations 2009
SI 2009/1178
These Regulations amend regulation 15(5)
of The Street Works (Charges for Unreasonably Prolonged Occupation
of the Highway) (England) Regulations 2009.
Housing
The Housing and Regeneration Act 2008 (Commencement
No.1) (Wales) Order 2009 SI 2009/773 (W.65)
This is
the first Commencement Order made under the Housing and
Regeneration Act 2008 in relation to Wales. Article 2 brings into
force section 315 of the Housing and Regeneration Act 2008 on 30
March 2009.
The Housing and Regeneration Act 2008 (Commencement No.4
and Transitory Provisions) Order 2009 SI
2009/803
This Order brings into force certain
provisions of Parts 1, 2 and 3 of the Housing and Regeneration Act
2008. The provisions commenced in articles 2 and 7 relate to
preparatory steps in advance of the new regulatory regime coming
into force. The provisions commenced in articles 3 and 8 are those
relating to the abolition of the Commission for the New Towns and
the Urban Regeneration Agency and the dissolution of the Housing
Corporation. Articles 4 to 6 are transitory provisions as to the
preparation and audit of final accounts and preparation of the
final report for the CNT and the URA and the Secretary of State’s
account of any sums issued to the Secretary of State and advanced
to the CNT under the New Towns Act 1981. Article 9 commences
section 309 (former right to buy and other flats: equity share
purchases) on 6th April 2009. Article 10 commences certain repeals
and revocations consequential upon the commencement of provisions
mentioned above.
The Housing and Regeneration Act 2008 (Commencement
No.5) Order 2009 SI 2009/1261
This Order brings into
force certain provisions of Parts 3 and 4 of the Housing and
Regeneration Act 2008. Article 2 brings further into effect
(subject to the exceptions in article 3) section 299 and Schedule
11, concerning possession orders relating to certain tenancies. In
summary, Part 1 of Schedule 11 amends the law relating to the
termination of residential tenancies, so that a tenant subject to a
possession order in favour of the landlord will not lose tenancy
status while continuing to live in the property. Part 2 of Schedule
11 provides that, subject to conditions being met, new tenancies
will arise for tenants subject to possession proceedings who have
already lost tenancy status. The provisions referred to in article
3, which relate to the court’s discretionary powers under section
85(4) of the Housing Act 1985 and section 9(4) of the Housing Act
1988 are not commenced. Article 4 commences a repeal in Schedule 16
consequential on the commencement of section 299 and Schedule
11.
The Housing (Replacement of Terminated Tenancies)
(Successor Landlords) (England) Order - SI
2009/1262
This Order, which applies in relation to
dwelling-houses in England only, provides for Part 2 of Schedule 11
to the Housing and Regeneration Act 2008 to apply, subject to
specified modifications, to successor landlord cases. Schedule 11,
which is introduced by section 299 of that Act, makes provision in
relation to a tenant whose tenancy of a dwelling-house (“the
original tenancy”) ended as a result of a possession order but who
continues to live in the dwelling-house. Part 2 provides that, in
the circumstances specified in that Part, a new tenancy is treated
as arising between the ex-landlord and the ex-tenant on the
commencement date. “The commencement date” is defined in paragraph
26 of Schedule 11 as the date on which section 299 comes into force
for purposes other than making orders under Part 2. The provisions
in Part 2 apply where, on that date, the ex-landlord is entitled to
let the dwelling-house. A successor landlord case is one where the
ex-landlord’s interest in the dwelling-house was transferred to
another person after the original tenancy ended but before “the
commencement date”, and, on that date, belongs to the initial
transferee or a subsequent transferee (the “successor landlord”).
In the circumstances specified in Part 2, as modified, on the date
this Order comes into force, a new tenancy is treated as arising
between the successor landlord and the ex-tenant.
The Housing Renewal Grants (Amendment) (Wales)
Regulations 2009 SI 2009/1087 (W.95)
These
Regulations further amend (in relation to Wales) the Housing
Renewal Grants Regulations 1996 (S.I. 1996/2890) which set out the
means test for determining the amount of grant which may be paid by
local housing authorities under Chapter 1 of Part 1 of the Housing
Grants, Construction and Regeneration Act 1996.
Local Government
The Local Government (Structural Changes) (Miscellaneous
Amendments and Other Provision) Order 2009 SI
2009/837
Part 1 of the Local Government and Public
Involvement in Health Act provides for the establishment of a
single tier of local government for areas in England. Where the
Secretary of State has received a proposal or a recommendation that
there should be a single tier of local government for an area, the
Secretary of State may make an order to implement the proposal or
recommendation with or without modification. This Order makes
provision which is incidental, consequential, transitional and
supplementary to the implementation by order of a single tier of
local government in Bedfordshire, Cheshire, Cornwall, County
Durham, Northumberland, Shropshire and Wiltshire.
The Crime and Disorder (Overview and Scrutiny)
Regulations 2009 SI 2009/942
These Regulations
supplement the provisions made in section 19 of the Police and
Justice Act 2006 regarding the operation of local authority crime
and disorder overview and scrutiny committees in England and Wales.
In particular, the Regulations make provision regarding the
co-opting of additional members to that committee, the frequency of
meetings, the provision of information to the committee, the
attendance of officers and employees of responsible authorities and
co-operating persons or bodies before the committee and the
required response of responsible authorities and co-operating
persons or bodies to recommendations made by the committee.
The Local Government and Public Involvement in Health
Act 2007 (Commencement No.1) (England) Order 2009 SI
2009/959
This Order commences further provisions of
the Local Government and Public Involvement in Health Act 2007 in
relation to England. Section 126 makes amendments to section 19 of
the Police and Justice Act 2006 including in particular the
substitution of a new section 19(3) to (8B). The new provisions
state that a local authority must ensure that its crime and
disorder committee (as created under section 19 of the 2006 Act)
has the power to make a report or recommendations on relevant
matters to the local authority and to ensure that any member of the
authority who is not a member of the committee has a power to refer
relevant matters to the committee. The new provisions also set out
certain procedures that must be followed where a person refers a
relevant matter to the local authority. This Order also commences
an associated repeal.
Pensions
The Local Government Pension Scheme (Amendment)
Regulations 2009 SI 2009/1025
This instrument paves
the way for the introduction of arrangements as to how the future
increases in the cost of the Local Government Pension Scheme will
be met.
Planning
The Planning (Consequential Provisions) Act 1990
(Appointed Day No.2 and Transitional Provision) (England) Order
2009 SI 2009/849
This Order appoints 6th April 2009
as the day on which paragraphs 3 to 16 of Schedule 4 to the
Planning (Consequential Provisions) Act 1990 partially cease to
have effect. Those paragraphs made transitory modifications to
various provisions of the principal planning legislation. The
effect is that on the appointed day, section 322 of the Town and
Country Planning Act 1990 (orders as to costs of parties where no
local inquiry held) and paragraph 6 of Schedule 6 to that Act
(amongst other provisions) come further partially into force. The
latter provision gives inspectors the same power to award costs as
the Secretary of State has under section 322. The provisions are
specifically commenced in this Order for the purposes of awards of
costs by the Secretary of State or inspectors in relation to
proceedings which are dealt with on the basis of representations in
writing. The Order also makes corresponding provision in relation
to the equivalent powers to award costs in the Planning (Listed
Buildings and Conservation Areas) Act 1990 and in the Planning
(Hazardous Substances) Act 1990. The commencement does not apply
where proceedings under section 259 of the Town and Country
Planning Act 1990 are dealt with on the basis of representations in
writing. The transitional provisions in article 3 of the Order
ensure that the new power to award costs in a case where the matter
is dealt with on the basis of representations in writing is not
available where the matter which gave rise to the proceedings was
initiated before 6th April 2009, or in the case of a referred
application, was not called in before that date.
The Town and Country Planning (Fees for Applications and
Deemed Applications) (Amendment) (Wales) Regulations 2009 SI
2009/851 (W.76)
These Regulations further amend, in
relation to Wales, the Town and Country Planning (Fees for
Applications and Deemed Applications) Regulations 1989. The effect
of these Regulations is to increase certain fees payable, in
relation to Wales, under the 1989 Regulations by 4.2%.
Planning Act 2008 (Commencement No. 1 and Savings) Order
2009 SI 2009/400.
The Planning Act 2008 received
Royal Assent on 26 November 2008. The provisions of the Act
relating to changes to the existing planning regime are contained
in Part 9, Chapter 2. Most of the provisions in Part 9 came into
effect in November 2008 or January 2009, the sections indicated
below were brought into force on 6 April 2009, by the Planning Act
2008 (Commencement No. 1 and Savings) Order 2009 (S.I 2009/400). It
is expected that further sections of the Act, relating to the
existing planning regime, will be brought into force, either later
this year, or in 2010.
Provisions commenced on 6 April 2009 (insofar as not already
commenced)
Section 179: Delegation of functions of regional
planning bodies
This section amends Part 1 of the
Planning and Compulsory Purchase Act 2004 (PCPA) and the Regional
Development Agencies Act 1998. It allows the regional planning body
(RPB) to make arrangements with the regional development agency
(RDA) for its region for the exercise of the RPB’s functions,
together with ancillary matters. Delegation can only occur where
there is agreement between the RPB and the RDA.
Section 180: Local development
documents
This section amends the PCPA. It has three
main effects:
(i) removes the requirement for supplementary planning documents
to be specified in the local development scheme;(ii) removes the
requirement for the sustainability appraisal of supplementary
planning documents; and
(iii) removes the requirement for a statement of community
involvement to be specified in the local development scheme and
removes the requirement for it to be subject to independent
examination.
Section 181: Regional spatial strategies: climate change
policies
This section amends section 1 PCPA so as to require regional
spatial strategies to include policies designed to secure that the
development and use of land in the region contribute to the
mitigation of, and adaptation to, climate change.
Section 182: Development plan documents: climate change
policies
This section amends section 19 PCPA so as to require development
plan documents, taken as a whole, to include policies designed to
secure that development and use of land in the local planning
authority’s area contribute to the mitigation of, and adaptation
to, climate change.
Section 183: Good design
This section amends section 39 PCPA so as to require plan-makers
to (in particular) have regard to desirability of achieving good
design.
Section 184: Correction of errors in
decisions
This section amends section 56(3)(c) PCPA so as to remove the
requirement, in England, for the Secretary of State to obtain the
consent of the applicant or landowner before correcting minor
errors in decision documents.
Section 185: Power of High Court to remit
strategies
This section amends section 113 PCPA, enabling the High Court to
not only quash a plan, wholly or in part, but to remit the plan to
a relevant person or body with directions as to the action to be
taken in relation to the plan. This will allow the plan to be
returned to a specified stage in its preparation process.
Section 194(1) and Schedule 9: Use of land: power to
override easements and other rights
Subsection (1) of section 194 and paragraphs 1 to 4 and
paragraph 6 of Schedule 9 only.
This section amends section 237 TCPA and equivalent provisions
in other legislation, so as to allow easements and other rights
restricting the subsequent use of land to be overridden. This will
allow development land to be acquired with a “clean title”, which
will reduce development risk.
Section 197 and Schedule 11: Appeals: miscellaneous
amendments
The Town and Country Planning (General Development
Procedure) (Amendment) (Wales) Order 2009 SI 2009/1024
(W.87)
The Town and Country Planning (General
Development Procedure) Order 1995 specifies the procedures
connected with planning applications, appeals to the Welsh
Ministers and related matters so far as these are not laid down in
the Town and Country Planning Act 1990. This Order amends the 1995
Order in relation to Wales. Article 2(1) substitutes a new article
4D into the 1995 Order. The new article 4D makes provision for
design and access statements, which are required to accompany
specified applications for planning permission. Paragraph (1)(c) of
the new article 4D provides that, for limited categories of
application, a statement dealing only with access matters is
required. The new article 4D replaces article 4D as inserted into
the 1995 Order by the Town and Country Planning (General
Development Procedure) (Amendment) (Wales) Order 2006 (S.I.
2006/3390 (W.310)), which made provision for access statements.
Article 2(3) makes a consequential amendment to the 1995 Order.
The Planning (Listed Buildings and Conservation Areas)
(Amendment) (Wales) Regulations 2009 SI 2009/1026
(W.88)Regulation 3 of the Planning (Listed Buildings and
Conservation Areas) Regulations 1990 makes provision for
applications made to local planning authorities for listed building
consent or conservation area consent. Regulation 2 of these
Regulations substitutes a new regulation 3B into the 1990
Regulations. The new regulation 3B makes provision for design and
access statements which are required to accompany applications for
listed building consent. The new regulation 3B replaces regulation
3B as inserted into the 1990 Regulations by the Planning (Listed
Buildings and Conservation Areas) (Amendment) (Wales) Regulations
2006 (S.I. 2006/3316 (W.301)) (“the 2006 Regulations”), which made
provision for access statements.
Regulation 3 of these Regulations is a consequential revocation
of the 2006 Regulations.
The Town and Country Planning (General Development
Procedure) (Amendment) (No.2) (England) Order 2009 SI
2009/1304
This Order amends the Town and Country
Planning (General Development Procedure) Order 1995. The amendments
are consequential on section 188 of the Planning Act 2008, which
removes the stipulation that local development orders must be based
on local development plan policies.
Standards
The Standards Committee (Further Provisions) (England)
Regulations 2009 SI 2009/1255
These regulations
enable the Standards Board for England to suspend a LA standards
committee’s power to undertake the initial assessment of an
allegation that a member or co-opted member of its authority has
failed to comply with the authority’s code of conduct. The
Regulations also make provision to enable two or more LAs to
establish a joint standards committee to exercise functions under
Part 3 of the Local Government Act 2000 and Part I of the Local
Government and Housing Act 1989 The Regulations also revoke the
Relevant Authority (Standards Committees) (Dispensations)
Regulations 2002 and replace them with new provisions prescribing
the circumstances in which a standards committee may grant
dispensations to members or co-opted members who would otherwise be
prohibited from engaging in the business of an authority, and the
procedure for doing so. The Regulations come into force on 15th
June 2009.
Traffic
The Local Authorities Traffic Orders (Procedure)
(England and Wales) (Amendment) (England) Regulations 2009 SI
2009/1116
These Regulations amend the Local
Authorities’ Traffic Orders (Procedure) (England and Wales)
Regulations 1996. Sections 85 and 86 of the Traffic Management Act
2004 impose prohibitions on double parking and parking at dropped
or raised footways in special enforcement areas designated under
that Act. Sections 85(8) and 86(9) of the 2004 Act provide that the
prohibitions are enforceable as if imposed by orders under section
1 or 6 of the Road Traffic Regulation Act 1984. Regulation 2 of
these Regulations amends regulation 18 of the 1996 Regulations so
as to provide that there is no requirement to place and maintain
traffic signs to indicate the effect of sections 85 or 86 on roads
in a special enforcement area.
Vehicles
The Road Vehicles (Approval) Regulations 2009 SI
2009/717
The primary purpose of these Regulations is
to implement Directive 2007/46/EC of the European Parliament and of
the Council establishing a framework for the approval of motor
vehicles and trailers and of systems, components and separate
technical units intended for such vehicles, known as the “Framework
Directive” . The Directive has been amended by Regulation (EC) No.
1060/2008, which, for the most part, updated its technical and
administrative requirements. The Regulations extend to the whole of
the United Kingdom.
The Road Vehicles (Individual Approval) (Fees)
Regulations 2009 SI 2009/718
The Road Vehicles
(Approval) Regulations 2009 implement Directive 2007/46/EC of the
European Parliament and of the Council establishing a framework for
the approval of motor vehicles and their trailers, and of systems,
components and separate technical units intended for such vehicles.
These Regulations prescribe the fees payable in accordance with
applications, appeals and the issue of documents in respect of
individual approval, which are made in accordance with the Approval
Regulations.
The Motor Vehicles (Type Approval and Approval Marks)
(Fees) (Amendment) Regulations 2009 SI 2009/719
The
Motor Vehicles (Type Approval and Approval Marks) (Fees)
Regulations 1999 prescribe the fees payable for the examination of
vehicles and vehicle parts, and the issue of documents in
connection with the type approval (both European and National) of
vehicles and vehicle parts. These Regulations insert new fees
provisions (in respect of national small series type approval and
new EC type approval schemes) into, and make consequential
amendments to, the 1999 Regulations as a result of the Road
Vehicles (Approval) Regulations implementing Directive 2007/46/EC
of the European Parliament and of the Council establishing a
framework for the approval of motor vehicles and their trailers,
and of systems, components and separate technical units intended
for such vehicles.
The Motor Vehicles (Driving Licences) (Amendment)
Regulations 2009 SI 2009/788
These Regulations amend
the Motor Vehicles (Driving Licences) Regulations 1999.
The Public Service Vehicles Accessibility (Amendment)
Regulations 2009 SI 2009/876
These Regulations amend the Public Service Vehicles Accessibility
Regulations 2000. The 2000 Regulations apply to single-deck and
double-deck buses and to single-deck and double-deck coaches, where
such vehicles are used to provide local and scheduled services and
have a capacity of more than twenty-two passengers.
The Public Service Vehicles (Conditions of Fitness,
Equipment, Use and Certification) (Amendment) (No.2) Regulations
2009 SI 2009/877
These Regulations amend the Public
Service Vehicles (Conditions of Fitness, Equipment, Use and
Certification) Regulations 1981.
The Public Service Vehicles (Registration of Local
Services) (Amendment) (England and Wales) Regulations 2009 SI
2009/878
These Regulations increase the fees for the
registration of, or the variation of the registration of, a local
bus service.
The Road Vehicles (Registration and Licensing)
(Amendment) Regulations 2009 SI 2009/880
These
Regulations amend the Road Vehicles (Registration and Licensing)
Regulations 2002. The Vehicle Excise and Registration Act 1994
provides for reduced rates of vehicle excise duty to be applicable
to certain buses, haulage vehicles and heavy goods vehicles which
meet the reduced pollution requirements. Regulation 5 of, and
Schedule 2 to, the 2002 Regulations prescribe the reduced pollution
requirements for the purposes of the 1994 Act and provide for the
issue of reduced pollution certificates where the requirements are
found to be satisfied.