Local Government - March 2009
Cases and legislation
Cases
Children and Young
Persons
Re A (A Child) sub nom A Local
Authority v (1) Department of Children Schools and Families (2)
CAFCASS Legal (2009)
This case concerned the
potential overseas adoption of children to their aunt and uncle who
lived in the United Sates of America. As Wall L.J
commented:
‘perhaps the single most important question
raised by this appeal is…whether, in an overseas adoption, a
child’s “home” with prospective adopter(s) during the period of 10
weeks immediately prior to the making of an order for parental
responsibility under section 84(1) of the 2002 Act has to be in
England and Wales (the Department’s view) or whether it can be with
the prospective adopters, wherever they happen to be living (the
view of the local authority). This is, by common consent, a
question of statutory construction.’
He concluded he was ‘wholly satisfied both
on construction and on policy grounds that section 84(4) of the
2002 Act does not require the period of 10 weeks referred to in
that section to be spent in the United Kingdom.
Re W (Children) subnom Webster v
Norfolk County Council (2009)
Despite fresh medical
evidence which demonstrated that a child’s injuries were caused by
scurvy rather than by abuse by the child’s parents, adoption orders
made three years previously would not be set aside. As Wall
L.J stated:
‘the public policy considerations relating to
adoption, and the authorities on the point – which are binding on
this court - simply make it impossible for this court to set aside
the adoption orders even if, as Mr and Mrs Webster argue, they have
suffered a serious injustice. … Adoption is a statutory
process. The law relating to it is very clear. The scope for
the exercise of judicial discretion is severely curtailed.
Once orders for adoption have been lawfully and properly made, it
is only in highly exceptional and very particular circumstances
that the court will permit them to be set aside.’
R (on the application of A) v Coventry
City Council (2009)
The claimant, aged 15, had run
away from his father’s house and gone to stay with the mother of
one of his friends, C, who explained to the local authority that
she was having difficulties supporting him without any financial
support. The council agreed to provide some financial assistance
and modest payments were made under s.17 of the 1989 Act. C
later wrote to the local authority to say that the claimant was a
child in need who was eligible for accommodation and assistance
under s.17 and s.20. The local authority replied that the
claimant was being accommodated and supported by C under a private
fostering arrangement agreed by his father and the responsibility
for paying for his care and accommodation therefore rested with
him. The claimant applied for judicial review.
The court said it was clear that he was a child in need, under s20,
and by its conduct the local authority had allowed C to believe
that she would receive financial support for looking after him, as
opposed to having to do so at her own expense. The authority
had not simply been facilitating a private fostering arrangement,
and it was ordered to pay the appropriate weekly allowance to
C.
Re G & B (Children) (2009)
The judge
conducting the first limb of a split hearing for care proceedings,
in which the local authority sought findings of fact sufficient to
satisfy the threshold criteria under s.31 Children Act 1989, found
that it was more likely than not that the father had unlawfully
killed the sibling, baby B by suffocation. The local
authority had filed a schedule of findings which it invited the
judge to make. This included a finding that the father and mother
had been neglectful and exercised harmful parenting practices, but
did not include a finding of unlawful killing. The judge had
heard from a medical expert that there was no pathological evidence
to support the contention that B had been unlawfully killed by
suffocation. The father appealed. The Court of Appeal
said that an experienced family judge was entitled to take a
proactive, quasi-investigative role in care proceedings, however,
where a local authority had provided a schedule of proposed
findings, very good reasons were required for the judge to depart
from the schedule and the judge had to be astute to ensure that any
additional or different findings made were securely founded in the
evidence and the fairness of the fact finding process was not
compromised. The evidence in the case, taken as a whole, did not
warrant a judicial finding that B had been unlawfully killed by one
or both of his parents, and the judge’s finding in that respect was
set aside. The Court also advised that the second limb of the
proceedings be taken by a different judge on the basis that the
litigant had legitimately lost confidence in the judge, or there
may be an appearance of bias.
Costs
R (on the application of Scott) v
Hackney London Borough Council
Scott had severe
learning disabilities. His mother believed the Council was
failing in its statutory duty towards him in relation to care
planning and service provisions. An application for judicial review
was made and permission granted. By the time of the trial there
were two outstanding matters, namely the provision of suitable day
care and the provision of a care plan. They were resolved on
the day of the trial. The judge made no order as to costs -
whilst Scott had had a strong claim, the local authority had a
strong defence. Scott appealed against this decision. The
Court of Appeal held that the judge had correctly exercised his
discretion and applied the principles under CPR r.44.3 as set out
in R (on the application of Boxall) v Waltham Forest LBC (2001) 4
CCL Rep 258 QBD (Admin).
Elections
Electoral Commission (Claimant) v City
of Westminster Magistrates’ Court (Defendant) & United Kingdom
Independence Party (2009)
A Magistrates Court had
discretion to determine the circumstances which were relevant when
considering whether to make, pursuant to section 58 of the
Political Parties, Elections and Referendums Act 2000, a forfeiture
order. However, the Court also had to consider the motive of
banning foreign donations and the policy which bans donations form
people not on the electoral role.
Housing
Holmes-Moorhouse v Richmond Upon
Thames London Borough Council (2009)
As Lord Hoffmann
concisely summarised, ‘[t]he important question of principle
concerns the relationship between the decision-making powers of the
court under the Children Act 1989 and those of the Council under
Part VII of the 1996 Act [Housing Act 1996].
The local authority appealed against a
decision that they had erred in law when they found that a father
(H) did not have a priority need for housing as he was a person
with whom dependent children ‘might reasonably be expected to
reside’ pursuant to the Housing Act 1996 s.189(1)(b). H had
separated from his partner and had agreed to a shared residence
order for the children. H applied to the council for
assistance as a homeless person. The appeal was
allowed.
As Lord Hoffmann commented:
‘When a court determines any question with
respect to the upbringing of a child, the child’s welfare is the
paramount consideration: section 1(1) of the 1989 Act.
Section 1(3) contains the welfare check list to which regard must
be had when considering, among other things, whether to make a
residence order. These include his physical, emotional and
educational needs (paragraph (b)), and the likely effect on him of
any change in his circumstances (paragraph (c)). Thus the
court will take into account the emotional need for a child to be
able to treat his father’s home as his own and the effect which
depriving him of this security would have upon his
development. But paragraph (f) also requires the court to
consider “how capable each of his parents…is of meeting his
needs.” A child may have needs which a parent cannot
meet. It may be in the interests of a child to reside for
substantial periods with his father if the father has suitable
accommodation. If he has not, the court has no power under
the 1989 Act, whether in exercise of its public or private
jurisdiction, to conjure such accommodation into existence: compare
In re G (A Minor)(Interim Care Order: Residential
Assessment) [2006] 1 AC 576 and in particular Baroness Hale of
Richmond at p599, para 65. The court’s decisions as to what
would be in the interests of the welfare of the children must be
taken in the light of circumstances as they are or may reasonably
be expected to be. The question for a housing authority under
Part VII of the 1996 Act is not the same. In deciding whether
children can reasonably be expected to reside with a homeless
parent, it is not making the decision on the assumption that the
parent has or will have suitable accommodation available. On
the contrary, it is deciding whether it should secure that such
accommodation is provided. And this brings in considerations
wider than whether it would be in the interests of the welfare of
the children to do so. The fact that both the court and the
housing authority apply criteria which look superficially similar -
the court deciding what would be in the best interests of the child
and the housing authority deciding whether the children can
reasonably be expected to reside with the father - does not mean
that the questions are the same. The contexts are quite
different. The housing authority is applying the provisions
of a Housing Act, not a Children Act. The question of whether
the children can reasonably be expected to reside with him must be
answered in the context of a scheme for housing the homeless.
And it must be answered by the housing authority, in which (subject
to appeal) the statute vests the decision-making power.
The House gave guidance on the approach local
housing authorities should follow and this is an important judgment
which is worth reading. In addition, Baroness Hale of
Richmond commented ‘…the family court should not use a residence
order as a means of putting pressure upon a local housing authority
to allocate their resources in a particular way despite all the
other considerations which, as Lord Hoffmann has explained, they
have to take into account’.
Human rights
Trent Strategic Health Authority v
Jain & Anor
The Health Authority inspected J’s
registered care home under the Registered Homes Act 1984 (now the
Care Standards Act 2000) and applied to the Magistrates Court
without notice under section 30 for immediate closure. By the
time the matter came before a Tribunal, which reversed the
decision, J’s business had failed. J sought damages for
negligence. The House of Lords declined to acknowledge a duty
of care in these circumstances, on policy grounds. The events
pre-dated the implementation of the Human Rights Act 1998, so no
damages claim could be brought under the Act, but the House of
Lords indicated that these procedures would be incompatible with
Article 6 ECHR (right to a fair hearing) and that the legislation
needed to be altered.
R (on the application of Wright and
others) v Secretary of State for Health
Section 82 of
the Care Standards Act 2000 allowed the Secretary of State to place
care workers on a list of people considered unsuitable for looking
after vulnerable adults (the POVA list). The system included
a provisional listing followed some months later by a
determination. In the meantime, the worker is banned from
working in this field, and their reputation is damaged. There
is no right to a hearing before provisional listing. The
House of Lords held that the system was incompatible with ECHR
Article 6 (right to a fair trial) and Article 8 (right to respect
to family and private life).
Graham Thorne v The United Kingdom
(2009)
Thorne's claim for widower widow's payment and
widowed mother's allowance had been rejected on the basis that he
was not a woman. The European Court of Human Rights found that the
refusal of the domestic authorities to grant the benefits was not
based on any objective and reasonable justification and breached
the European Convention on Human Rights Art.14, taken in
conjunction with Protocol 1 Art.1. The difference in treatment
between men and women as regards entitlement to the benefits had
not been based on any "objective and reasonable justification".
Thorne was awarded EUR 3,000 in respect of pecuniary damage and EUR
2,400 in respect of costs and expenses.
SP v Secretary of State for Justice
(2009)
The claimant had served a custodial sentence
in various young offender institutions before being transferred to
and detained on mental health grounds in a secure hospital. She had
a history of serious and life-threatening self-harm. The secretary
of state agreed to arrange an investigation compliant with the ECHR
1950 art.2 into her treatment and that she would be consulted about
the terms of reference. A Prisons and Probation Ombudsman was
appointed to undertake the investigation but later withdrew.
Another investigator (P) was appointed and his terms of reference
were set out, but without consulting the claimant. P had previously
worked for the prison service for over 30 years. He had also eaten
lunch with the governor of one of the institutions where S had been
detained. S submitted that (1) the investigation would not be
sufficiently independent for the purposes of art 2; (2) she had a
legitimate expectation that if the investigation were to be
recommissioned she would be consulted about its terms of reference,
and that had been breached; (3) the secretary of state had failed
to conduct the investigation within a reasonable time; (4) the
funding arrangements did not adequately protect her interests in
and during the investigation.
The court found (1) An investigation carried
out by P in S's case would not be sufficiently independent to
comply with art.2. The fact the proposed investigator had spent his
working life in the prison service did not by itself disqualify him
on the grounds of lack of independence, however, his objective
independence had been compromised due to his social
acquaintanceship with an important witness and given that he had
been closely concerned with the policy areas upon which he was
making recommendations as an investigator. (2) Terms of reference
had been achieved regarding the scope of the art.2 investigation
and it had been legitimate for the secretary of state not to offer
a second opportunity for procedural wrangling and delay. That
ground was therefore dismissed. (3) The delay did not amount to a
breach of art.2. The court found that the delay prior to the
publication of the terms of reference had not been the secretary of
state's responsibility: the secretary of state had been entitled to
obtain information from the prison service about the claimant and
her circumstances and to seek legal advice and the withdrawal of
the earlier investigator had not been reasonably foreseeable. (4)
There was no reason why the funding arrangements, which had been
applied in hundreds of inquests, should not be applied successfully
in S's case.
Licensing
R (on the application of Blackpool
Council) v Howitt
Howitt was an opponent of the
smoking ban and had been convicted on at least two occasions of
contravening the Health Act 2006 s.8 by failing to stop people from
smoking in his pub. The Council revoked his licence, with a
view to promoting the licensing objective of preventing "crime and
disorder", pursuant to the Licensing Act 2003. The judge held
that the words "crime" and "disorder" were to be read
conjunctively, so that the word "disorder" qualified the word
"crime". She held that the issue of unlawful smoking was not
relevant to the licensing objective of promoting the prevention of
crime and disorder. The Council appealed by case stated.
The appeal was allowed. By itself, a s.8
offence was not a crime of disorder. However the Secretary of
State’s guidance listed other serious crimes, which did not
necessarily involve any disorder on the premises. That undermined
the argument that crime and disorder were necessarily conjoined for
the purposes of s.4 of the 2003 Act. Although not a crime of
disorder, permitting smoking in a place where smoking was banned
was a criminal offence by virtue of s.8 and therefore as a simple
matter of definition it was a crime. The licensing authority had
been entitled to say that the revocation of H's licence did promote
the licensing objective of preventing crime. The fact that the
smoking ban had not been enacted prior to the 2003 Act was not
relevant.
Ombudsman
R (on the application of Richard
Parish) v Pensions Ombudsman (2009)
Following his
dismissal as the chief executive of an NHS special health
authority, Parish had brought proceedings for unfair dismissal and
breach of contract, which were settled. He later claim that
he was entitled to receive enhanced full early retirement benefits
as his employment had been terminated in the interests of the
efficiency of the service but the health authority said he was
dismissed because of serious shortcomings in his performance and
not in the interests of efficiency. Parish made a complaint to the
ombudsman, and applied for judicial review, with the intention that
the judicial review claim would be stayed pending the ombudsman's
decision however the judicial review claim was heard and permission
was refused. Parish then wrote to the ombudsman to defend his work
performance and contended that the true reasons for his dismissal
were not performance related. The ombudsman discontinued his
investigation on the basis that the substance of it had already
been determined through the judicial review. Parish applied for
judicial review of the ombudsman’s decision. The Court said
that the nature of the complaint had changed by the time the
ombudsman gave his final decision not to investigate it. Parish's
letter to the ombudsman to defend his work performance amounted to
a request for an investigation into the true reason for his
dismissal, and to decide in the light of such reason whether his
dismissal was in the interests of efficiency of the service. The
ombudsman had not appreciated that the complaint had undergone a
significant change and his decision to discontinue the
investigation had therefore been made on a false premise. The
hearing was however adjourned for the collection of additional
evidence as to the issues considered in the Employment Tribunal
which may still prevent the ombudsman from investigating the
complaint.
Planning - gypsies and
travellers
Bromley LBC v Secretary of State for
Communities and Local Government
F had unsuccessfully
applied to the Council for planning permission to develop the land
as a caravan site for two gypsy families, and the Council issued an
enforcement notice. F appealed, and the inspector allowed both
appeals and granted F temporary permission for two years. F's
accommodation needs and her family's circumstances were
substantively in favour of her residential use of the land, but
development would have a negative impact on the character of the
green belt such that it was inappropriate to grant permanent
planning permission. However, he found that there was a reasonable
expectation that new traveller sites would be provided after two
years so that, having regard to Circular 01/2006 and F's personal
circumstances, the very special circumstances needed to justify
temporary planning permission were demonstrated. The Council said
that the inspector had failed to have proper regard to Circular
11/1995 (Use of Conditions in Planning Permission) para.109, the
effect of which was that if there were grounds for refusing
permanent permission, and those grounds could not be met by
conditions, they should also be grounds for refusing temporary
permission. The Court held that the decision was entirely in
accordance with the policy contained in the 2006 circular, which
made express reference to the 1995 circular, and might be said to
build upon it. If the 2006 and 1995 circulars were looked at and
read together, if it was "necessary", a temporary condition was
appropriate where otherwise planning permission would be refused,
namely where there was some harm that would be unacceptable on a
permanent basis. The inspector had envisaged a significant change
in planning circumstances at or before the end of the two-year
period for which he granted temporary permission.
Theo Langton & Ruth Mcgill Vv(1)
Secretary of State for Communities & Local Government (2) West
Dorset District Council
A refusal to grant travellers
temporary planning permission for the change of use of land within
an ANOB was quashed because the inspector had failed to consider
whether there was a reasonable expectation that any new sites which
would meet their needs were likely to become available.
R. (on the application of McCarthy) v
Basildon DC
The McCarthy family lived on unauthorised
sites on green belt land. They accepted that they had reached the
end of the road in their attempts to obtain planning
permission. The Council decided to take direct enforcement
action under section 178 of the Town and Country Planning Act
1990. At first instance the judge held that the Council had
failed to consider all the options. The Council appealed. The
issues were (1) whether the Councilhad complied with its race
equality duties; (2) whether Article 8 of ECHR had been breached
(3) whether the Council had been entitled to take into account the
planning history and (4) whether the Council had properly
considered alternative sites, homelessness and the case of each
respondent.
The Court of Appeal allowed the appeal. (1)
The judge had been right to conclude that a failure to refer
specifically to the race equality duty could not render a decision
unlawful provided that it was apparent that the decision-maker made
clear that he had in substance had due regard to the relevant
statutory duty. (2) The statement of the European Court of Human
Rights in Chapman v United, that the court would be slow to protect
those who, in conscious defiance of the law, established a home on
an environmentally protected site was of particular relevance.
There was no positive obligation to provide as many sites as the
Gypsy community sought. (3) The planning history could
legitimately form the basis for a decision to take action under
s.178. (4) In the context, the local authority had not erred in
failing to give further consideration to alternative sites at the
time the decision to proceed under s.178 was taken..It had been
mindful of its duties under the homelessness legislation and had
authority had given sufficient consideration to the case of each
respondent.
R. (on the application of Jordan) v
Secretary of State for Communities and Local
Government
Thurrock Council refused planning
permission for a mobile home park dwelling in the green belt.
An inspector dismissed Jordan’s appeal. Jordon appealed,
arguing that although he had not sought temporary permission, as
his Article 8 ECHR rights were engaged the inspector should have
considered the point. The Court held that the inspector
should have considered the point, but did not allow the
appeal. Even if the point had been considered, there was no
prospect of a temporary permission being given, on the planning
merits.
R. (on the application of Massey) v
Secretary of State for Communities and Local
Government
Massey and others sought to challenge an
inspector’s decision which had the effect of refusing planning
permission for their occupation of a travellers site. He had
found that they were not “gypsies and travellers” for the purposes
of Circular 01/2006 because they had ceased to have a nomadic way
of life. The Court rejected their appeal.
R. (on the application of South
Staffordshire DC) v Secretary of State for Communities and Local
Government
D and his family, including children with
special needs occupied a caravan on an open site in the green belt.
Their planning application came before an inspector, who granted
personal permission. There were very special circumstances in
favour of granting permission but she need not consider granting a
temporary permission as the Council had not carried out aa needs
assessment for many years, and she doubted that there was a
reasonable expectation that new sites were likely to become
available at the end of a reasonable period. On appeal, the Council
argued that (1) the inspector ought to have looked at the provision
of alternative suitable sites in the sub-region as well as in the
area of the Council itself; (2) the inspector had not clarified
what was meant by a "reasonable period" (3) the inspector had
misapplied the circular by applying too high a test as to the
likelihood of sites becoming available; (4) the inspector's reasons
were confusing overall. The Council’s application for judicial
review was refused. There were no sites within the sub-region in
any event, and the inspector’s reasoning was adequate.
Planning – other cases
(1) Derek Watson (2) Julia Watson (3)
Jill Wilson v Croft Promo-Sport Ltd
Home owners were
entitled to an injunction to restrain motor racing activities at a
former aerodrome so that they no longer constituted an actionable
nuisance. There were no exceptional circumstances which would
justify awarding damages in lieu of an injunction. The
implementation of planning permissions which permitted motor racing
had not altered the nature and character of the locality, which was
essentially rural.
R. (on the application of Enstone
Uplands and District Conservation Trust) v West Oxfordshire
DC
Planning permission for a car motor sport circuit
and amended the permitted use of an existing rally course on the
same site (1) limited the number of cars permitted at any one time
on each circuit (2)( was for a limited period of five years (3) was
personal to V and (4) was subject to a condition that the
level of noise emitted should not exceed an average or a maximum
level at any time. The Trust’s expert disagreed with the condtion.
The planning sub-committee visited the site and other noise
sensitive locations in the surrounding area. Several members said
that they were unable to hear any noise. The Trust’s expert
said that the noise had been half as loud as would be permitted
under the conditions. The Trust sought judicial review of the
decision to grant permission on the grounds that (1) the
sub-committee were not told that the permitted noise would be
louder than they had experienced (2) they did not take into account
that the imposition of a personal condition which was contrary to
Planning Circular 11/95 para.93; (3) the condition setting down the
average and maximum levels was imprecise, unintelligible and
unenforceable (4) the Council had failed to explain why it
considered that the conditions would limit noise to levels
reflecting the levels actually heard and why the imposition of a
personal condition was justified.
Their application was refused. (1) The
sub-committee were well aware from the material before them that
what they were permitting would allow higher levels of noise. (2)
The Council had failed to take account of the fact that the
inclusion of a personal condition was contrary to the advice of the
planning circular but this was directly related to the temporary
period of the permitted use, which itself was imposed to enable a
review of the environmental aspects of the proposal. The condition
was not prejudicial to the Trust. It was imposed for a justifiable
planning purpose and was not unlawful. (3) The condition was
sufficiently precise. (4) It was never the local authority's case
that the conditions would limit the noise to levels that reflected
the noise levels actually heard during the site visit and the tests
and the issue of the imposition of a personal condition was not one
of the main issues in the case. The reasons given for the grant of
permission were adequate and complied with the Town and Country
Planning (General Development Procedure) Order 1995.
Christopher Mellor v Secretary of
State for Communities and Local
Government
Case
C-75/08
Advocate General opinion that Member States
are required to make available to the public the reasons for a
decision that it was not necessary to subject certain projects to
an environmental impact assessment in accordance with arts 5 to 10
of that directive. This followed a reference from the Court
of Appeal.
Payne v Caerphilly
CBC
Payne ran tipping operations which the Council
claimed were in breach of planning control. Payne asserted that
they were entitled to tip waste on the whole of the land by virtue
of an old planning permission. They started operations to
recover minerals from the land and the Council served an
enforcement notice. Payne appealed against the notice and continued
with their operations. The Council then served a stop notice. A
planning inspector upheld the enforcement notice, but the Council
appealed and the Court remitted the decision to the Secretary of
State, who quashed the enforcement notice. Interim
injunctions were later granted, followed by the judge deciding that
Payne's activities were in breach of planning control and made the
injunction permanent. Payne then claimed compensation for loss
suffered through compliance with stop notices where enforcement
notices were later quashed. The Land Tribunal needed to
decide if the activity prohibited by the stop notices was, at the
time, a breach of planning control. It held that it was clear that
the question of the scope of the old planning permission had been
decided, and that the operations constituted an actual breach of
planning control.. It was clearly not the case that only the
Secretary of State could determine whether there had been a breach
of planning control. The consequence of the injunction being made
permanent was that the matters were res judicata. It was not open
to P to contend either that the operations were not carried out or
that they did not constitute a breach of planning control.
R. (on the application of Etherton) v
Hastings BC
The Council granted planning permission
and conservation area consent for a building development. Etherton
had objected to the development, on the grounds of the effect of
the development on the character of the area, highway safety and
overdevelopment. The objections were noted and a report
prepared. A site visit was arranged. The Committee had
a protocol which stated that (1) formal site visits by members of
the planning committee were only to be made in exceptional
circumstances (2 the reasons for a site visit were to be recorded
(3) all members were to be invited to attend site visits (4)
members who had not undertaken a site visit, if required, could
only participate in a subsequent planning decision if they had
sufficient relevant knowledge of the site. Only three members of
the planning committee attended, some in part because they did not
receive letters informing them of the site visit. In addition the
attendance note was not completed. At the committee meeting, four
of the ten members withdrew, most on the basis that they did not
have sufficient relevant knowledge. Of the remaining six, only two
had attended the site visit. The other members claimed to
have knowledge of the site. Etherton applied for judicial review to
quash the decision. The Court refused the application.
Whilst there had been some failures to adhere to the guidance
contained in the protocol, it could not be said that those failures
had prejudiced Etherton or were significant. There was no evidence
to suggest that the planning committee would have reached a
different conclusion if all of its members had attended the site
visit.
R. (on the application of Fuller) v
Secretary of State for Communities and Local
Government
Fuller had appealed against two conditions
imposed by the Council for work to their home. The appeals were
initially to be dealt with by way of public inquiry but were
changed to the written representations procedure. The
inspector mistakenly sent Fuller a copy of the Council’s response
to their representations on one appeal (appeal A) and not the other
(appeal B). Fuller sent a document in reply, dealing with appeal A
only and pointing out that the local authority had made no
representations on appeal B. The inspector tried to put things
right, but by mistake sent Fuller a third document which Fuller had
already seen, and which was very similar to the actual
representations. Fuller responded saying that they had no further
comments, since they had already seen the document and it raised no
new points. Fuller applied for judicial review of the decision to
refuse their appeals, and gave evidence that it would have made a
real difference to their response if they had known of and seen the
representations on appeal B. The Secretary of State admitted that
there had been a breach of the Regulations, but submitted that no
breach of natural justice had been caused, nor had there been
substantial prejudice to Fuller. Had Fuller applied common
sense they would have realised that a mistake had been made.
The Court granted the application. There had
been a breach of natural justice and thus the inspector's decision
had not been within the statutory powers and in any event there was
a breach of s.288(1)(b)(ii) , and Fuller's interests had been
thereby substantially prejudiced.
Shaikh v Secretary of State for
Communities and Local Government
Shaikh lived on an
open plan housing estate. It was a condition of the original
planning permission that the estate would remain open plan. Shaikh
had erected a fence. The Council issued a breach of condition
notice, Shaikh applied for planning permission, the application was
rejected and the inspector dismissed Shaikh's appeal. Dhaikh
applied to quash that decision on the ground that the local
authority had acted inconsistently in its decision to enforce the
planning condition because other residents had created boundary
fences between their properties and no similar enforcement action
had been taken. The application was refused. The proceedings
were a challenge to the decision of a planning inspector exercising
a planning judgment on an appeal. Therefore the court's
consideration was limited to an assessment of whether that
inspector had erred in law or reached an irrational decision. It
was not for the court to decide whether Shaikh had disclosed a
reasonable ground for the erection of the fence as the proceedings
were not in the form of an application to challenge the
reasonableness of the local planning authority's decision to
enforce the planning condition.
The Secretary of State sought an order for
costs in the sum of almost £7,500. S submitted that these costs
were vastly miscalculated. The Court held that they were
significantly inflated beyond what was reasonable. A claim of over
24 hours' work on the documents seen by the court was excessive.
The costs were assessed at £4,000.
JG Ipswich LLP v Secretary of State
for Communities and Local Government
JGI applied for
planning permission to redevelop a site for mixed housing, retail
and business use. The application was refused and JGI appealed
against the decision. The secretary of state concluded that,
although the proposed housing provision would significantly
contribute to the region's housing requirements, the proposal did
not conform to the requirements for employment-related use of the
site in the local plan. JGI argued that (1) the Secretary of State
should have concluded that its failure to comply with how the local
plan required it to demonstrate the non-viability of the site for
employment-related uses was inconsequential (2) the evidence did
not justify the conclusion that it had not demonstrated the site's
non-viability for employment-related uses (3) the job creation
potential of both uses had not been taken into account and, if it
had, the Secretary of State's conclusion was irrational (4)
insufficient reasons had been given for the critical finding that J
had not demonstrated that the site was not viable for
employment-related uses.
The application to quash the decision was
refused. (1) The secretary of state had not regarded J's failure to
comply with the procedural requirements as decisive. (2) The
secretary of state agreed with the planning inspector that the
evidence regarding the viability of the site for employment-related
uses was inconclusive, and was entitled to determine that issue on
the basis that the burden to demonstrate non-viability was on JGI,
who had not satisfied the burden. (3) The Secretary of State had to
perform a balancing exercise of the proposed development's greater
potential for job creation against the loss of the site for other
uses, and there was no reason to suppose that she had ignored any
relevant considerations in that exercise. (4) The secretary of
state had given sufficient reasons.
Friends of Basildon Golf Course v
Basildon DC
The Council, which had owned and operated
the land in issue as a for a number of years, entered into an
agreement for lease of its golf course of the land with a developer
who applied for full planning permission. Iome of the engineering
works involved the remodelling of areas of the course and the
deposit of waste material. The Council produced a screening opinion
that an environmental impact assessment (EIA) was not required and,
despite the Friends' opposition, and the objection of Natural
England, conditional planning permission was granted. The Friends
applied to quash the decision. They argued that (1) the local
authority's manager of planning services (S) had erred in his
approach to whether an EIA was required because he had not
considered whether the application, taken together with the further
development contemplated for the future, required the provision of
an EIA, and the Council should have considered the screening
opinion afresh in light of the response from Natural England (2)
the Council should have consulted the county planning authority and
considered the policies relating to waste within the Statutory
Development Plan .
The Court refused the application refused. (1)
S had considered not only the planning application already
submitted but also the overall development contemplated at the golf
course (2) On the evidence, the Council had addressed itself to
whether the application should be considered by the county planning
authority and had been entitled to conclude that it, and not the
county authority, had jurisdiction over the application.
R. (on the application of JC Decaux UK
Ltd) v Wandsworth LBC
JCD’s advertising hoarding had
been affixed to the flank wall of a building for more than 10
years, under a licence agreement with the land owner. The hoarding
also protruded into the airspace of the adjoining school and there
was a licence agreement with the playground owners permitting
access onto the school's land to service the display. The licence
with the owner of the flank wall was terminated. JCD replaced
the support structure with a self-supporting steel structure in the
playground. Wandsworth decided to serve a notice requiring the
removal of the hoarding and its supporting structure under the
London Local Authorities Act 1995. JCD sought to quash that
decision. The issues for determination were (1) whether the
changes had led to a new site being used for advertising and
therefore whether the site fell outside the deemed consent
provisions contained in the Town and Country Planning (Control of
Advertisements) (England) Regulations 2007 (2) if it was the same
site, whether there had been material changes in extent or use such
as to take the advertisement site outside the remit of any deemed
consent.
The application was refused. (1) Under the
definition of "advertisement" contained in section 336 the Town and
Country Planning Act 1990, the structure supporting the display
panel formed part of the overall mechanism for the display of an
advertisement, and could therefore be described as part of the
advertisement itself. What constituted a site for the purpose of
Class 13 of the Regulations was a question of fact. Under the
definition section of the 2007 Regulations, "site" meant land or
building. Looking at the matter as a whole, in light of the
guidance from the Regulations, it was not the same site for the
purposes of Class 13. (2) Even if the site was the same, the limits
of the Class 13 deemed consent had been exceeded. The bringing
forward of the structure and the considerable additional steel work
required to support the hoarding free from the wall were all
capable of having an impact on the visual amenity of the area and
constituted a material alteration in the manner of the display and
a material increase in its extent.
Village greens and rights of
way
R (on the Application of Kevin Lewis)
v (1) Redcar & Cleveland Borough Council (2) Persimmon Homes
(Teeside) Ltd
Lewis and others applied to register
part of the Council’s golf course as a village green. An
independent inspector found that, until 2002, the land had been
used for golfing and parts of the land had been used extensively by
local inhabitants for general recreational activities, supporting
the application, but advised that the informal use, was not “as of
right” because the overwhelming evidence was that it deferred to
the extensive use as a golf course. The Judge at first
instance had agreed that deference prevented use being “as of
right”. Lewis submitted that there was no room for a
principle of deference provided that there was sufficient
continuity of use by the local inhabitants such that the local
inhabitants' use was not interrupted and their use was as of right
in the sense that it was not by force, nor stealth, nor the licence
of the owner.
The Court of Appeal upheld the
decision. In determining whether local inhabitants had
indulged in lawful sports and pastimes "as of right" within the
meaning of s.15 of the Commons Act 2006, it had to be shown that
their user was such as to give the outward appearance to the
reasonable landowner that the user was being asserted and claimed
as of right. The principles of interruption and of
“deference” might be relevant to a determination of whether the
user had been sufficient to bring home to the reasonable owner that
the local inhabitants had been asserting a right to use the
land. In a case where there was a conflict between the
activities of the owner and the local inhabitants, who deferred to
the owner's use, the activities of the local inhabitants may not
have the appearance of asserting a right against the owner. On the
contrary, those activities may have the appearance of an
acknowledgment by the local inhabitants that they had no
right.
Ridley v Secretary of State for
Environment Food and Rural Affairs
Ridley applied to
quash a decision of a planning inspector confirming an order made
by a local authority under the Wildlife and Countryside Act 1981
that modified a definitive map by upgrading the status of part of
an existing footpath to that of a bridleway. The inspector had held
two public inquiries into various submissions about the path, then
issued an interim decision letter, then finally concluded that the
other lanes were not public vehicular highways, but that the
footpath was a bridleway. Ridley contended that the inspector erred
by misreading the evidence and thus had regard to an immaterial
consideration, reached a conclusion that was perverse, as it was
based on insufficient evidence and failed to consider relevant
evidence. The Court disagreed.
Legislation
Education
The Education (Admissions Appeals
Arrangements) (England) (Amendment) Regulations 2009
SI2009/25
These Regulations make one amendment to the
Education (Admissions Appeals Arrangements) (England) (Amendment)
Regulations 2008 to correct the commencement provision contained in
regulation 1(2) of those Regulations.
The Education (Inspectors of
Education and Training in Wales) Order 2008 SI
2008/3118
This Order appoints the persons named in
the Schedule Her Majesty's Inspectors of Education and Training in
Wales.
The Education (Maintained Special
Schools) (Wales) (Amendment) Regulations 2009 SI
2009/48
These Regulations amend the Education
(Maintained Special Schools) (Wales) Regulations 1999 by
substituting a new regulation 12. The change it makes from the
previous regulation is to allow a sixth form pupil to withdraw from
religious worship at a special school if the pupil so wishes. A
sixth form pupil is defined in section 71(8) of the Schools
Standards and Framework Act 1998 as any pupil who has ceased to be
of compulsory school age and who is receiving education suitable to
the requirements of pupils over compulsory school age. This aligns
the law with that for mainstream schools in section 71 of the
School Standards and Framework Act 1998 as amended by section 55 of
the Education and Inspections Act 2006.
The Education and Inspections Act 2006
(Commencement No.2) (Wales) Order 2009 SI
2009/49 (W.17) (C.5)
The Order brings section 55 of
the Education and Inspections Act 2006 (the 2006 Act) into force on
9 February 2009.
Section 55 of the 2006 Act amends section 71
of the School Standards and Framework Act 1998 so as to enable
sixth form pupils at maintained schools to withdraw from religious
worship and so as to require a governing body to make arrangements
for giving sixth form pupils who are boarders, if they so request,
a reasonable opportunity to attend religious education or worship
in accordance with the tenets of a particular religion. It also
requires regulations to make provision enabling sixth form pupils
at maintained special schools to withdraw from religious
worship.
Environment
The Environmental Damage (Prevention
and Remediation) Regulations 2009 SI
2009/153
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. They provide that, for
certain economic activities, where there is a 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—
(a) on summary conviction, with a
fine not exceeding the statutory maximum or to imprisonment for a
term not exceeding three months or both; or
(b) on conviction on indictment,
with a fine or to imprisonment for a term not exceeding two years
or both.
Local government
The Local Government (Assistants for
Political Groups) (Remuneration) (Wales) Order 2009 SI
2009/40
One of the requirements relating to the terms on which a person is
appointed to, or holds, an appointment in pursuance of section 9 of
the Local Government and Housing Act 1989 (assistants for political
groups) is that the annual rate of remuneration for the post is
less than £13,500 or such higher amount as may be specified by
Order made by the Welsh Ministers.
This Order, which applies to local
authorities in Wales, provides for the annual rate of remuneration
to be the maximum amount that is from time to time fixed by the
National Joint Council for Local Government Services as that
applicable to spinal column point 44 on their salary scales for
local government officers.
The Local Government (Structural
Changes) (Areas and Membership of Public Bodies in Bedfordshire and
Cheshire) Order 2009 SI 2009/119
Part 1 of the Local Government and Public
Involvement in Health Act 2007 provides for the establishment of a
single tier of local government for areas in England. There is a
single tier of local government for an area if there is either a
county council and no district councils for that area, or a
district council and no county council for that area (section 1(2)
of the 2007 Act). 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 about the membership of
public bodies which is incidental, consequential, transitional and
supplementary to the implementation by order of a single tier of
local government in Bedfordshire (S.I. 2008/907) and Cheshire
(S.I. 2008/634).
The Local Government (Structural
Changes) (Further Financial Provisions and Amendment) Regulations
2009 SI 2009/5
The Local Government (Structural Changes)
(Transitional Arrangements) Regulations 2008 and
The Local Government (Structural Changes)
(Finance) Regulations 2008 make provision for the transition to a
single tier of local government in relation to areas in England for
which an order has been made under section 7 of the Local
Government and Public Involvement in Health Act 2007. These
Regulations make further provision for the transition to single
tier local government in those areas for which a section 7 order is
made. They concern matters relating to finance, which are relevant
to councils which will be abolished on the reorganisation date and
to the single tier councils that will succeed them.
Rates
The Non-Domestic Rating (Collection
and Enforcement) (Local Lists) (Amendment) (England) Regulations
2009 SI
2009/204
These Regulations amend the Non-Domestic
Rating (Collection and Enforcement) (Local Lists) Regulations 1989
to make special provision in relation to the collection of certain
backdated liability to rates. The 1989 Regulations provide
for annual rates liability to be discharged in installments in many
cases. However, where a demand notice - or rates bill - is issued
after the end of the financial year to which it relates, the sum
becomes payable in full. This can happen where a hereditament is
shown on a rating list for the first time with effect from a date
in that year following an amendment to the rating list which is not
made until after the year has ended.
Social care
The Safeguarding Vulnerable Groups
Act 2006 (Transitory Provisions) Order 2009 SI
2009/12
This Order provides for the next stage in the transition to the new
Vetting and Barring Scheme under the Safeguarding Vulnerable Groups
Act 2006 by requiring: Ministers to cease to take barring decisions
on new referrals under current arrangements for safeguarding
children and vulnerable adults from harm or the risk of harm by
employees whose work (paid or unpaid) gives them access to these
groups; These referrals to be made instead to the Independent
Barring Board for consideration in accordance with the Act (though
until the Act is brought fully into force, the consequences of any
decision to bar are to be equivalent to those under the current
arrangements). The Government and the IBB plan to start these
changes in early 2009, subject to Parliamentary approval.
The Safeguarding Vulnerable Groups Act
2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations
2009 SI 2009/37
These Regulations set out
the prescribed criteria needed for the purposes of the Safeguarding
Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009,
which is intended to come into force in January 2009; and for the
purposes of the full implementation of Schedule 3 (Barred Lists) of
the Safeguarding Vulnerable Groups Act 2006, which is planned for
October 2009. They also make amendments connected to the
arrangements provided for under the Transitory Provisions
Order.
The Safeguarding Vulnerable Groups Act
2006 (Commencement No.3) Order 2009
SI
2009/39
This is the fifth Commencement Order made
under the Safeguarding Vulnerable Groups Act 2006 ("the Act").
- Article 2 brings into force section 2 of the
Act for the purposes of the Safeguarding Vulnerable Groups Act 2006
(Transitory Provisions) Order 2008, as well as related provisions
in Schedule 3 to the Act, which makes provision relating to
barring. These provisions relate to the maintenance of a children's
barred list and an adults' barred list and the process by which a
person may be included in, or removed from, either list.
- Article 2 also brings section 5 and Schedule
4 into force in full, providing the definition of regulated
activity, as well as bringing into force section 53, which defines,
and makes provision relating to, fostering.
- In addition, article 2 brings into force
sections 37, 40, 42 and 46 of the Act, which impose duties on
various persons to provide information to the Independent Barring
Board at the IBB's request, together with section 57, which makes
provision relating to damages where a person has suffered loss or
damage in consequence of an individual being included in a barred
list, or of the provision of information in pursuance of duties
including those mentioned above.
- Article 2 also brings into force in relation
to England amendments to the Teaching and Higher Education Act 1998
(c. 30). These amendments will have the effect that some
people whose cases would formerly have been referred to the
Secretary of State will now be referred to the General Teaching
Council for England.
- Finally, article 2 brings into force sections
28 and 29, which amend the Police Act 1997 (c. 50) in relation
to England, Wales and Northern Ireland. Section 28 places the post
of Independent Monitor of relevant police information, disclosed as
part of the Criminal Records Bureau's Enhanced Disclosure process,
on a statutory footing and applies similar provisions to relevant
police information to be provided to the IBB. Section 29 extends
the remit of the code of practice required to be published under
section 122 of the Police Act and also broadens the range of
options at the disposal of the Secretary of State in the event that
a person or body fails to comply with the code.
Social security
The Social Security (Contributions)
(Amendment) Regulations 2009 SI
2009/111
These Regulations amend the Social Security
(Contributions) Regulations 2001 in three main ways. They—
- amend the manner in which the prescribed
equivalents of the upper earnings limit ("UEL") are calculated so
as to bring their calculation into line with the calculation of the
prescribed equivalents of the primary and secondary thresholds and
accordingly the prescribed equivalent of the UEL where the earnings
period is a month is £3,656 and where the earnings period is a year
is £43,875;
- amend the prescribed equivalents of the
primary and secondary thresholds so that where the earnings period
is a month the threshold is £476 and where the earnings period is a
year the threshold is £5,715; and
- reflect the changes made by the Pensions
Act) and the National Insurance Contributions Act 2008 as regards
the upper accrual point. The upper accrual point was introduced by
the 2008 Act for the tax year 2009-10 and subsequent years. It
replaces the upper earnings limit in respect of limiting the amount
of earnings on which a contracted-out rebate or minimum
contribution is payable and which are taken into account in
calculating earnings factors for the purposes of the state second
pension.
Street works
The Street Works (Inspection Fees)
(England) (Amendment) Regulations 2009 SI
2009/104
These Regulations amend the Street Works
(Inspection Fees) (England) Regulations 2002 so as to increase the
fee payable by undertakers for inspections of their work by street
authorities in England under regulation 3 of those
Regulations. The fee for such inspections, which was last
altered in April 2008, is increased by 100% from £25 to £50.
Transport
The Local Transport Act 2008
(Commencement No.1 and Transitional Provisions) Order 2009
SI 2009/107
This Order brings into force provisions
of the Local Transport Act 2008. The provisions are brought
into force on different dates and, where the Act provides for the
Welsh Ministers to commence provisions as respects Wales,
provisions applying to both England and Wales are commenced in
relation to England only. A number of transitional provisions are
also made.
The Public Service Vehicles
Accessibility (Amendment) Regulations 2009 SI
2009/143
The Public Service Vehicles Accessibility
Regulations 2000 prescribe wheelchair accessibility requirements
and general accessibility requirements for single-deck and
double-deck buses and coaches. These Regulations amend the 2000
Regulations so as to give effect to ECE Regulation 107.01 and
107.02 (uniform provisions concerning the approval of category M2
or M3 vehicles with regard to their general construction).
Regulation 2 amends regulation 5 of the 2000 Regulations so that
the specified requirements may alternatively be met by a vehicle
satisfying both the requirements of such Annexes as apply to it and
the requirements of Annex 8 to ECE Regulation 107.01 or 107.02. It
also inserts definitions of ECE Regulations 107.01 and 107.02 into
regulation 5(5) of the 2000 Regulations.
The Road Vehicles (Construction and
Use) (Amendment) Regulations 2009 SI 2009/142
These Regulations amend the Road Vehicles
(Construction and Use) Regulations 1986 in respect of the
requirements to fit mirrors to certain goods vehicles first used on
or after 1st January 2000; the speed limiter requirements for
passenger carrying vehicles and goods vehicles; and the
construction requirements for minibuses and coaches so as to give
effect to ECE Regulations 52.01, 107.01 and 107.02.
Waste
The Joint Waste Authorities
(Proposals) Regulations 2009 SI 2009/105
These
Regulations set out the matters that local authorities must include
in a proposal for the establishment of a joint waste authority
under section 205 of the Local Government and Public Involvement in
Health Act 2007. Regulation 2(b) and Schedule 2 set out the
information that must accompany such a proposal.