Local Government - November 2009
Cases and Legislation in September and October 2009
Cases
Access to
Information
Children
Disability
Discrimination
Education
Housing
Penal Notices
Planning
Legislation
Adults
Benefits – subsidy to
authorities
Births and deaths
Capital financing and
accounts
Children
Council tax
Education
Highways
Planning
Power to trade
Rent officers
Safeguarding vulnerable
groups
Social security
Valuation tribunals
Cases
Access to Information
Veolia Es Nottinghamshire LTD v Nottinghamshire County
Council & (1) Shlomo Dowen (2) Audit Commission for Local
Authorities & The National Health Service in England
(2009)
Veolia, a waste management company challenged a decision by the
local authority to make certain documents available for inspection
by the first interested party, Shlomo Dowen (SD), who was a local
elector in the area of the local authority.
Veolia had a contract with the local authority for waste
management and submitted monthly invoices for work done under the
contract. In accordance with the Audit Commission Act 1998, the
local authority's accounts had to be audited by an auditor
appointed by the Commission who in turn had to be satisfied (by
examination of the accounts and otherwise) that the accounts had
been prepared in accordance with the Accounts and Audit Regulations
2003.
SD asserted, in accordance with section 15(1) of the Audit
Commission Act 1998, that he was entitled to inspect and take
copies of various documents, including schedules to the waste
management contract with Veolia which showed how payments under the
contract related to Veolia's performance, the monthly invoices
submitted by Veolia concerning the work carried out under the
contract and schedules to the invoices which detailed amounts
payable. Veolia asked the local authority to prevent disclosure of
the documents on the grounds of commercial confidentiality. When
the local authority indicated they were going to make the documents
available for inspection, Veolia brought proceedings to compel the
local authority to keep the documents confidential. They asserted
that the interpretation of the phrase ‘accounts to be audited’ in
section 15 of the Audit Commission Act should be narrowly
construed.
Mr Justice Cranton preferred the broader meaning of ‘accounts’
that the Audit Commission put forward; ‘accounts’ included the
general ledger and any account feeding into it. The narrow approach
advocated by Veolia would lead to absurdity as section 15 would
give no right to inspect a contract unless a line in the income and
expenditure account happened specifically to name it or unless the
line included the cost of a single contract, in which case that
single contract would be identifiable by the expenditure sum. A
tiny proportion of contracts would fall to be inspected under
Veolia’s approach. Although commercial confidentiality was an
understandable concern, section 15 did not impose a duty to keep
commercial confidentiality.
Children
RE L (A Child) sub nom CR v (1) Local Authority (2) His
Guardian (2009)
When L was 6 months old, he was admitted to hospital with very
serious multiple injuries. Care proceedings were brought and the
local authority asked the court to find that the injuries were
non-accidental and occurred when he was in his parent’s care. L’s
mother denied causing the injuries and asserted the bruising was
accidental. At a finding of fact hearing, the judge concluded there
had been a global family failure to protect L. The local authority
was invited to draw up a timetable to conclude the proceedings. The
mother applied for permission to instruct an expert to conduct an
assessment but this was refused on the ground that there was no
realistic possibility of a positive assessment and the delay which
would ensue would be detrimental to L. After the fact-finding
hearing, the judge became aware of the forthcoming trial of L’s
parents for charges relating to L’s mistreatment. However, the
judge listed the final hearing in the care proceedings before the
trial.
The mother appealed, arguing that the refusal of the assessment
was procedurally unfair and wrong as the judge had already decided
the outcome of the care proceedings and concluded adoption was the
only possibility, preventing the mother from putting relevant
evidence before the court. The mother also argued that the final
hearing of the care proceedings should be heard by a different
judge.
The Court of Appeal held that the judge had demonstrated a
misunderstanding of the split hearing process by concluding that
the only possible outcome of the care proceedings was adoption. The
judge had to determine whether the threshold criteria was met and
then make findings of fact upon which assessments of the parents
could be made. Accordingly, the refusal by the judge to allow the
mother to be assessed in relation to her parenting capacity was
wrong.
Lord Justice Wall noted that care needs to be taken with split
hearings:
‘…this case was a salutary reminder of the care which judges
need to take when conducting what have become known as “split
hearings” in care proceedings. Not only do judges need to examine
each case carefully in order to decide whether or not a split
hearing is called for and to identify precisely the issues which
need to be decided at such hearings: what is also required is that
a rigorous intellectual discipline is applied to such a hearing, so
that the judge conducting it does not overstep the mark and answer
questions more fitted to the welfare stage of the proceedings, when
the judge considers the best - or least worst - outcome for the
child in the light of the findings made and the assessments
undertaken by others consequent upon the judge’s findings of
fact.’
The court had on many occasions reiterated the close interaction
required between the care proceedings and any criminal proceedings.
On the facts, the outcome of the criminal case was clearly relevant
to the care proceedings and in any event may result in additional
material coming to light which would assist the final hearings of
the care proceedings. The criminal case should have been heard
before the final care proceedings. In the instant case, the
perception of fairness required that the final hearing in the care
proceedings should be before a different judge. Consequently, the
appeal was allowed.
A (Children) (2009)
The children’s mother appealed against a decision which
transferred residence of her three children to their father. The
father had made an application for contact after the breakdown of
their marriage but the mother made serious allegations of domestic
violence and used this as a reason to prevent contact. At the
hearing, the judge concluded the allegations were deliberate
inventions and therefore the children should be allowed contact
with their father. However, the mother refused to allow contact and
the father issued an application for a residence order. Before the
hearing, the mother filed a statement noting that she had been
wrong to refuse contact. Although the mother acknowledged that the
court should make a generous contact order in favour of the father,
she wanted the children to remain resident with her. At the
hearing, residence was transferred to the father as the judge held
he could not place reliance on the Mother's change of position
because she had previously refused to allow contact.
The appeal was allowed. Transferring residence from the primary
carer to a parent frustrated at the pursuit of contact was a
judicial weapon of last resort. The judge had to balance the risk
of removing the children, in light of the negative picture that
they had been given of their father who they had not seen for 17
months, against the risk of the mother refusing contact in the
future. The judge had been diverted from that risk balance and the
order made was premature.
Re MGR (A Child) sub nom Calderdale Metropolitan Borough
Council v (1) JD (2) JR (3) RD (4) MGR (by her
Guardian)
The local authority appealed against a decision that the
threshold criteria for making a care order in relation to M, an
eight month old baby, had not been met. M had been taken into
interim care after birth and her older half sister, 2 year old S
was also the subject of care proceedings. Both sets of care
proceedings were consolidated. In relation to S, her mother
conceded that the threshold for making a care order had been
crossed and she was likely to suffer significant physical and
emotional harm but no such concession was made in relation to M.
The care plans recommended that both children should be placed for
adoption. The judge held that in relation to M the threshold
criteria were not crossed and therefore M should return to the
parental home. In relation to S, the judge held that the parents
had made progress in ‘stabilising’ their lives since S's removal
that she should return to their care, on a trial basis. The hearing
in relation to S was adjourned for the local authority to consider
amending her care plan to provide for rehabilitation.
The appeal was allowed. Theoretically, it was not impossible for
a court to find that the threshold criteria had been crossed in
relation to one child and not another sibling. However, it was
unusual for a court to reach opposite conclusions about the
threshold in relation to two children where the evidence showed
such gross parenting deficits as were shown in relation to S when
she was removed from her mother and the concern in relation to M
arose only some 14 months later. In addition, the evidence from the
four professionals who gave evidence did not agree with the
conclusion of the judge that the changes in the parent’s were
sufficient to attempt S’s rehabilitation back with them; their
evidence was that the changes were too insubstantial to warrant
rehabilitation. Accordingly, that was evidence suggesting that at
the relevant date M had been likely to suffer significant harm.
The conclusions reached by the judge in addition to the
unanimous professional opinions that it was too dangerous to allow
the children to be cared for by their parents were consistent with
the conclusion that in relation to M there was a likelihood that
she would suffer significant harm if placed with the parents
otherwise than under a care order. Taking all the evidence into
consideration led to the conclusion that in M’s case, the threshold
was crossed. The original decision was set aside and an interim
care order was made.
A v (1) Leicester City Council (2) London Borough of
Hillingdon
The Claimant was a Somali orphan who entered the United Kingdom
when she was 16 and sought asylum, which was refused. She was
placed in the London Borough of Hillingdon’s care. The Claimant
left Hillingdon to stay with a family in Leicester. The family were
unable to provide for the claimant financially and in addition, the
accommodation she lived in was inadequate. Enquiries were made by
the London Borough of Hillingdon and they told the claimant that
she was no longer their responsibility. However, at this time,
Leicester City Council formed the view that the Claimant remained
under the care of the London Borough of Hillingdon and they were
therefore not under a duty to provide her with accommodation or
financial assistance. The claimant remained without long term
support and in unsatisfactory accommodation. The claimant issued
judicial review proceedings seeking, inter alia, a declaration that
one or both local authorities had acted unlawfully. She contended
that the London Borough of Hillingdon had breached their duty to
assess and make provision for her and had failed to discharge its
duty to provide accommodation in accordance with section 20 of the
Children Act 1989. The claimant also argued that when a child was a
looked-after child, the local authority became responsible, as a
corporate parent, for the child. The responsibility only ceased
when it was assessed as being no longer necessary or that the local
authority had exhausted means of looking after the child. Further
or in the alternative it was contended that if the court held that
the London Borough of Hillingdon had not breached their section 20
duty, then Leicester City Council owed a duty under section 20 of
the Children Act 1989 to the Claimant, which they had failed to
discharge.
The court held that the London Borough of Hillingdon could only
lawfully cease its duty under section 20 of the Children Act 1989
after a proper assessment of needs had been carried out, and
indeed, the duty could sometimes survive an assessment. The London
Borough of Hillingdon had not discharged their section 20 duty and
had erred in relying upon the claimant’s expressed wishes rather
than a rigorous assessment. Local authorities need to be alive to
the fact that people may ‘fall between the net’.
As His Honour Judge Farmer aptly stated:
‘On facts such as these, a prerequisite to bringing the duty to
an end would, in my judgment, be to ensure that every attempt
should be made to resolve difficulties as to resourcing between
local authorities. An interim plan for provision of services should
be made before a final decision or position is taken up. Local
authorities must do the best they can, if necessary, without resort
to the courts. The impasse that was reached in this case caused
Collins J understandable displeasure and indicates the sad reality
that, at least until Leicester agreed to make, without prejudice,
provision for the claimant, the danger of her falling between two
stools was a real one.’
Accordingly, in the circumstances, both Leicester City Council
and the London Borough of Hillingdon owed a concurrent duty to the
Claimant.
On the evidence, Leicester City Council had been aware of the
view of the London Borough of Hillingdon in relation to their
responsibility for the claimant. Leicester City Council should not
have refused to offer support to her or pass responsibility for her
back to the London Borough of Hillingdon. Local authorities should
be capable of devising contingency plans for circumstances such as
the present case, for example splitting the cost until the issue
was resolved. It is not lawful for a local authority to defer the
performance of duty of good parenting under the Act until the
conclusion of, in essence, a resource led dispute. Consequently,
the court declared both Leicester City Council and the London
Borough of Hillingdon had acted unlawfully.
R (on the application of S) v Hampshire County Council
(2009)
S, an 11 year old child, sought permission to apply for judicial
review of the local authority's decision not to provide services
for him as a child in need. S was said to be severely disabled and
he undoubtedly had serious behavioural difficulties. The local
authority investigated S’s needs and prepared a core assessment and
report and concluded they did not need to provide S with any
services. S alleged that the assessment had been unlawful,
procedurally unfair and discriminatory. Inter alia, the local
authority submitted:
1. S had an adequate alternative remedy which had not been
pursued;
2. claims should be made promptly; the delay between mid- May
2009 and 15 July 2009 was too long
3. S’s claim was unarguable.
The court refused the application; the reasons advanced by the
local authority were valid. The fact that S had an alternative
remedy would by itself have been enough for the court to reach the
conclusion that permission should be refused.
RE B (A Child) (2009)
X, who had recently been joined in care proceedings as an
intervener appealed against the decision of a judge not to grant an
adjournment. Allegations had been made in the care proceedings that
a young girl had been sexually abused by her father, a party in the
care proceedings and X. X had severe learning disabilities and was
unable to accept the invitation to join as an intervener at a case
management hearing. He was subpoenaed to give evidence but failed
to attend and was arrested. Legal representation was arranged on
X’s behalf and consequently half way through the proceedings he was
joined to the proceedings, having been assessed by a psychiatrist
who concluded that X was capable of instructing his
representatives. X’s legal representatives requested an adjournment
as there was a substantial amount of material that they required
instructions on but this was refused. In making his decision, the
judge took into account that the mother would no longer be able to
have her current representative, X’s right to a fair trial and his
refusal to answer the summons.
The Court of Appeal concluded that the judge had erred by
refusing to grant an adjournment. X’s right to a fair trial
outweighed any difficulties any of the parties may face as the
result of a short adjournment. The decision to refuse the
adjournment would not withstand the scrutiny of the European Court
of Human Rights. The judge was wrong to expect X to give
instructions on a piecemeal fashion as this could result in errors
which only became apparent at the end of the proceedings. The
appeal was allowed and the case was adjourned so that X could give
proper instructions.
Disability discrimination
R (on the Application of (1) Deborah Domb (2) Dulce
Sobral (3) Moses Bushiwa) v Hammersmith & Fulham Borough
Council) & Equality & Human Rights Commission
(2009)
Several service users appealed against the dismissal of their
claim for judicial review of a decision of the local authority to
introduce charges for its non-residential home care services. The
local authority provided non residential home care services in
accordance with the Health and Social Services and Social Security
Adjudications Act 1983. Section 17 of the Act permitted the local
authority to charge for the services. Indeed, the local authority
had previously charged for home case services but had discontinued
that policy. The local authority wanted to reduce council tax by 3%
and perceived a funding gap in its social services budget which
could be met either by reintroducing charges for home care services
or raising the threshold eligibility criteria.
The local authority consulted on the proposal to reintroduce
charges and the decision was taken to reintroduce charges. The
service users contended that the authority had failed to have due
regard to its disability equality duties contained in section 49A
of the Disability Discrimination Act 1995 and also to its gender
and race equality duties under section 76A of the Sex
Discrimination Act 1975 and section 71 of the Race Relations Act
1976.
The court held that the local authority had to have due regard
to its disability equality duties. The introduction of a charging
scheme would have an adverse impact on the users of home care
services. This was subject to the mitigation afforded by a scheme
which only sought charges from those who could afford to pay, and
then at a reasonable rate. There was no evidence that the local
authority did not have due regard to the equality duties. Indeed,
the report emphasised strongly that care needed to be taken by
decision makers before they acted. Smaller points on the detail of
the impact assessment and/or report did not lead to the conclusion
that there had been any material failure of due regard. The failure
to make specific mention of the racial and gender equality duties
in the report was not a serious flaw, given the evidence that there
would be no disproportionate adverse impact on racial groups and
women. Consequently, the appeal was dismissed.
Education
Ellis & Another v Merchant Taylors
School
E’s parents appealed against a decision of a judge dismissing
their claims for injunctive relief, breach of contract and damages
against the independent school. E's son had been expelled by the
school as result of his conduct. The decision to expel E’s son was
made by the school’s headmaster and confirmed by a review panel.
The independent member of the panel was a headmaster of another
independent school. The parents challenged the expulsion on the
grounds that it was an unreasonable reaction to their conduct of
their son. At the hearing, the parents also alleged that at the
review panel hearing, it was tainted by apparent bias as the
independent school headmaster was friendly with the head teacher of
the school E’s sons went to. The judge rejected all of the
claims.
The appeal was dismissed. A fair minded observer would not think
there was a real possibility of bias. The number of independent
schools was small and a fair minded observer would not consider it
significant that the headmasters knew each other on a limited
professional basis. There was no evidence to demonstrate the head
teachers socialised together, save that they attended the same
church twice a month. It followed that the judge had been correct
to find that the review panel had independently reassessed whether
expulsion was proportionate with E's son's conduct.
R (on the application of S) v Independent Appeal Panel
of St Thomas Catholic Primary School & Governors of St Thomas
Catholic Primary School
A mother, S, sought judicial review of the decision by an
independent appeal panel which dismissed her appeal against the
refusal to admit her son to a Catholic primary school. S stated on
the admission form that she was a member of the Russian Orthodox
Church, her husband was a member of the Church of England and the
family attended a Church of England Church. S did not provide any
information regarding the religion of her son on the admission
form. The school was oversubscribed and her son did not get a
place. Some of the unfilled places were allocated by the school in
accordance with their over-subscription criteria which ranked in
priority order the children in relation to their involvement with
the Catholic faith. The Board of Governors ranked S’s son in the
lowest category. The independent appeal panel held the school had
correctly applied their over-subscription criteria and therefore
had been entitled to reach the conclusion they did, namely to
refuse S’s appeal. S argued that the appeal panel failed to give
adequate reasons for their decision and misdirected themselves in
relation to the category that her son fell into.
S’s application was refused as both the school and the
independent appeal panel were entitled, on the information provided
by S, to conclude that her son fell into the lowest priority
category. In addition, the reasons provided by the panel for its
decision were adequate at common law and if regard was had to the
School Admissions Code.
Housing
Birmingham City Council v Mohammed Zafar Qasim & 11
Others (2009)
As required by Part VI of the Housing Act 1996, Birmingham City
Council had a housing allocation scheme which included provisions
for identifying applicants for residential accommodation tenancies.
A local authority housing officer granted tenancies to the
applicants, notwithstanding that they did not have priority under
the scheme, although none of the tenants were implicated in any
wrong doing. The local authority attempted to gain possession of
the flats. As the Master of the Rolls commented:
‘Possession can normally only be obtained against a secure
tenant if at least one of the grounds specified in schedule 2 to
the 1985 Act is established. Those grounds include ground 5, which
entitles a landlord to seek possession against a secure tenant
where the landlord was induced to grant the tenancy “by a false
statement made knowingly or recklessly” by or on behalf of the
tenant, but the court can only make an order for possession on this
ground if it is reasonable to do so, by virtue of section 84(2)(a)
of the 1985 Act. Most tenancies granted by registered social
landlords are assured tenancies under the Housing Act 1988, which
affords fairly similar protection to tenants.’
The local authority appealed against the decision that the
tenancies granted were secure tenancies which were therefore valid
and the circumstances in which they were granted did not justify
repossession. On appeal, the issue was whether a secure tenancy
which had been granted by a local authority in accordance with
section 79 of the Housing Act 1985 was void if it was granted to
someone who had not been chosen in accordance with the authority’s
housing allocation scheme.
The Court of Appeal held that the grant of the tenancies were in
fact breaches of the statutorily prescribed procedure for selecting
an applicant to be a secure tenant as opposed to a grant of secure
tenancies not in accordance with statutory requirements. The Court
of Appeal rejected the contention that even if allocation and grant
were separate concepts, a secure tenancy granted by a local
authority would be void unless the tenant had been selected in
accordance with the authority's allocation scheme. On the facts,
the local authority had failed to comply with statutorily required
procedures leading up to the grant of the tenancy, rather than
related to the grant. That failure related to allocation; the
subsequent grant of the tenancies was therefore not ultra vires.
Accordingly, the appeal was dismissed.
Penal notices
MSA v London Borough of Croyden (2009)
In this case Mr Justice Collins confirmed the continued practice
of the Administrative Court in relation to penal notices. Penal
notices are not necessary in orders made against public
authorities. As Mr Justice Collins noted:
‘A failure to comply with an order can be dealt with by an
application to the court for a finding of contempt and, if
necessary, a further mandatory order which may contain an
indication of what might happen should there be any further failure
to comply. Adverse findings coupled with what would probably be an
order to pay indemnity costs should suffice since it is to be
expected that a public body would not deliberately flout an order
of the court. Were that to happen, the contemnor could be brought
before the court and, were he to threaten to persist in his
refusal, an order could be made which made it clear that if he did
he would be liable to imprisonment or a fine.’
Planning
R (on the application of Clear Channel UK Ltd) v
Hammersmith & Fulham London Borough Council (2009)
There had been advertising hoardings at the appellant
advertiser’s (C ) site for many years. In 2008 the large display
was replaced with a digital hoarding which allowed images to be
displayed at intervals. The local authority served a notice on C
under the London Local Authorities Act 1995 s.11 requiring it to
remove the hoarding on the ground that it did not have consent. C
unsuccessfully claimed judicial review and appealed.
The CA dismissed the appeal on the basis that the finding that
there had been a material alteration was unassailable. Although the
judge had considered a reasonable person's response, he had already
asked and answered the right question in finding as a fact that
there had been a material alteration. All he had done was test his
conclusion by reference to a rational observer's response. The
video recordings of the site and photocopies of the large display
that had been before the judge were adequate for the purposes for
which they had been produced. While there had been no scientific
evidence such as measurements of the degree and intensity of
illumination, where amenity and public safety were concerned, the
impact on the viewer was likely to be more important than such bald
measurements. Further, what the local authority had thought about
the materiality of the instant change or the previous changes was
irrelevant: it was for the judge to decide whether the change from
the large display to the digital display was material. The digital
display did fall within Class 13 condition 13(4). Advertisement, as
defined in the Town and Country Planning Act 1990 s.336(1), was
capable of meaning both the image itself and the structure on which
it was displayed. The meaning of the word depended in each case on
its context) A right to revert had been found in relation to the
Town and Country Planning (Control of Advertisements) Regulations
1992 Sch.3 Pt 1 Class 13. The description of Class 13 in the 1992
Regulations had referred only to the continuity of use of the site
for advertising, and the relevant condition had directed attention
to the current use and required determination of whether it was
permitted. The language of the 2007 Regulations was quite
different. It directed attention to changes in the extent to which
the site had been used and to alterations in the manner in which it
had been used in the previous 10 years: if there had been any such
change or alteration that was material, the advertisement on the
site fell outside Class 13 altogether and did not enjoy deemed
consent. The position under the 2007 Regulations did not equate to
that under the 1992 Regulations. There was no right to revert under
the 2007 Regulations.
(1) Brian Connolly (2) Alison Connolly (3) Havering
London Borough Council v Secretary of State for Communities &
Local Government (2009)
The respondents (C's) neighbour (X) had applied for planning
permission to carry out alterations to the north and south sides of
his home. C were not notified of the application and so did not
object to it. The local authority was not opposed to the proposal
concerning the north side of the property, it refused the
application because the change to the south would have a
detrimental impact. X applied again for planning permission for
alterations to the north of his property. C objected to the
proposal and the local authority also refused that application. X
appealed to a planning inspector and the local authority provided
the inspector with information only about its decision on the first
application. The inspector distinguished between the north and
south sides of property and granted planning permission only in
respect of the north side proposal. C appealed and the judge
allowed the appeal on the basis that the inspector should have been
informed of the second planning permission application and that if
that information had been provided, the inspector's decision might
have been different. The secretary of state appealed.
The CA dismissed the appeal on the basis that there was
unfairness arising from the local authority's failure to provide to
the inspector the full and material planning history of the site.
The inspector had made her decision under the false impression that
she was possessed of that history when she had not been. There had
been a mistake as to the previous planning history of the site by
the omission of reference to the local authority's negative views
about what was accepted before the judge as a materially identical
proposal in relation to the north side. That evidence relating to
the planning history of the site was established in an
uncontentious and objectively verifiable form as it was documented
in the local authority's decision on the second application and it
was accepted before the judge that that application, so far as it
concerned the north side proposal, was materially identical to the
first proposal. Further, C were not responsible for the mistake and
the mistake played a material part in the inspector's reasoning. In
respect of the point about the difference between the applications,
the local authority, through the secretary of state, was asking the
court to trespass onto the planning merits of the appeal. It was
doing so on the basis of a last minute attempt to introduce new
evidence, and assertions of fact for which there was no evidence,
in support of an unpleaded ground of appeal which flew in the face
of a finding of the judge below representing the common
understanding of the parties before him.
Brentwood Borough Council v Ball & Ors
(2009)
Enforcement notices had been imposed against the former owner of
a plot of land in a green belt and required the removal of touring
caravans, the cessation of its use for residential purposes and its
reinstatement to a condition suitable for agriculture. There were
continued breaches but the local authority failed to seek
injunctions. After some of the respondent gypsies (B) had obtained
advice from a planning consultant, B jointly purchased the plot and
over a bank holiday weekend, without obtaining planning permission
and in breach of the notices, they moved onto the plot with
caravans, created an encampment and erected fencing there. B stated
that they wished to establish a permanent base and referred to the
medical and educational needs of their children and other family
members. The applicant local authority applied for an injunction
against requiring them to remedy alleged breaches of planning
control and enforcement notices. As an interim measure, an order
was made and B gave undertakings limiting their use of the site
until trial. B applied for planning permission which was refused
but an appeal was to take place after the instant hearing.
The application was refused. Whilst there had been knowingly
unlawful conduct by B, it had been borne out of desperation and
frustration rather than cynicism. Any hardship caused to a child of
a gypsy, against whom an injunction was sought and whose occupation
of the plots was unlawful, even deliberately unlawful, should be
accorded no less weight than it otherwise would be on its merits by
reason only of the illegality or deliberate illegality of the
conduct of their parent. On the balance of probabilities, none of B
had alternative accommodation or any realistic prospect of
obtaining such accommodation. It was likely that they would be
forced to expose themselves and their children to the dangers
inherent in resorting to unlawful and peripatetic roadside parking.
An injunction would therefore cause significant hardship to B and
to members of their families and in particular to their children.
Further, the local authority had not applied for injunctions
against the former owner of the plot and the occupiers of the
adjacent plots for several years It was also necessary to seek to
weigh in the balance the detriment to the environment and the
importance of upholding planning law on the one hand and the
hardship likely to be caused to B and their families on the other.
However, there was little, if any, evidence to suggest that the
local authority had carried out that exercise before deciding to
apply for an injunction. The instant court would also not be
prepared to contemplate sending B to prison for contempt of court
if the injunction were granted and they were to subsequently break
it. B's planning appeal also had a real prospect of success. It
would cause avoidable and unnecessary hardship and also disruption
to order an injunction before the outcome of the appeal was known.
If B were to win their appeal the local authority could make a
renewed application.
Michael Howells v (1) Secretary of State for Communities
& Local Government (2) Gloucestershire County Council
(2009)
The local authority had issued an enforcement notice stating
that The claimant (H) had breached planning control through the
unauthorised use of agricultural land for the importation and
storage of inert waste materials and requiring that the land be
restored to its lawful use. The planning inspector dismissed H's
appeal to him and amended the plan attached to the enforcement
notice so as to slightly increase the land to which it was
applicable. The planning inspector held that the land had been used
for a mixed use in the period of ten years preceding service of the
enforcement notice and not for any lawful use of the land for the
storage of inert waste materials which could be preserved. The
planning inspector concluded that it was appropriate to alter the
plan as it differed from the actual development present on the site
and as the alteration would not cause any injustice to H. H
appealed.
Appeal dismissed. It was clear from authority and the wording of
the Town and Country Planning Act 1990 s.176(1) that a planning
inspector had the power to extend the requirements of an
enforcement notice and had the power to amend the plan attached to
an enforcement notice so long as injustice was not caused to the
parties. That power was not constrained to reducing the area to
which the plan pertained. In so far as the Encyclopaedia of
Planning Law and Practice (London: Sweet & Maxwell), Vol.2,
para.173-25 stated that a planning inspector did not have such a
power or that any power had to be exercised in favour of an
appellant, it had to be borne in mind that that guidance and the
authorities citied by it were outdated as it and they referred to
the statutory predecessor of s.176(1), which conferred a materially
narrower discretion on planning inspectors than s.176(1) did. The
modification to the plan did not cause H any injustice. On the
evidence before him the planning inspector was entitled to find
that the land had been used for a variety of mixed uses in the ten
years preceding service of the enforcement notice and that there
was no lawful use of the land for the storage of inert waste
materials which could be preserved.
R (on the application of The River Club) v (1) Secretary
of State for Communities & Local Government (2) Royal Borough
of Kingston upon Thames (2009)
The claimant ( R ) had unsuccessfully applied for retrospective
planning permission for a fitness studio that it had constructed at
its premises in an area of metropolitan open land. On appeal before
the planning inspector, R accepted that the fitness studio
constituted inappropriate development within the area of
metropolitan open land but maintained that it was justified by very
special circumstances, in particular that the club was not
financially viable without the fitness studio. The planning
inspector dismissed the appeal and R applied to quash the
decision.
The application was granted. PPG2 para.3.2 dealt with what was
required to make inappropriate development acceptable in the green
belt. That meant considering the development as a whole to evaluate
the harm that flowed from it being appropriate, together with any
other harm that the development might cause, to enable a clear
identification of harm against which the benefits of the
development could be weighed so as to warrant grant of planning
permission. There were no qualifying words used in PPG2 para.3.2.
Inappropriate development, by definition, caused harm to the
purposes of the green belt and might also cause harm to the
objectives of the green belt. Therefore, "any other harm" must have
referred to some other harm than that which was caused through the
development being inappropriate. Accordingly, the words "any other
harm" were to be given their plain and ordinary meaning such that
"any other harm" meant that any harm that would occur through
allowing a development in a green belt fell to be considered in
assessing whether "very special circumstances" existed.
Accordingly, the harm referred to in PPG2 para.3.2 was not a green
belt specific harm. The planning inspector had concluded that the
use of the site would be harmful in terms of its reliance on less
sustainable forms of transport. When he came to carry out the
balancing exercise, as he was obliged to do so, to be able to
determine whether R had established very special circumstances, it
was incumbent upon him to, firstly, set out the harm that would
flow from the development. It followed that far from being
irrational or unreasonable to consider sustainability as part of
that exercise, the planning inspector had to do so. Only then was
he able to correctly measure whether very special circumstances
were sufficient to outweigh the harm. In considering whether "very
special circumstances" existed, a planning inspector had to
carefully evaluate the factors relied upon, individually and
together, and decide whether those circumstances amounted to "very
special circumstances". However, that approach to determining "very
special circumstances" was not a straight jacket upon a planning
inspector such that he was required to attribute an exact weight to
each circumstance. In the instant case, it was not apparent from
the planning inspector's decision that he had reached a cumulative
decision as to whether the circumstances before him amounted to
very special circumstances. Whilst the decision did set out his
overall conclusion that no special circumstances existed, that
decision was linked back to the individual circumstances and was
not a cumulative decision.
Nirah Holdings Ltd v (1) British Agricultural Services
Ltd (2) Hanson Building Products Ltd (2009)
The defendant (H) had granted the claimant (N) an option to
purchase land to build a major visitor attraction and science
research park. N submitted an application for outline planning
permission with H's consent. The local planning authority was
minded to approve N's application for outline planning permission
for the development, subject to a number of conditions and planning
obligations one of which concerned a proposed shuttle bus service
for visitors from a park and ride facility. The planning authority
sent an engrossed s.106 agreement to N. Satisfactory planning
permission was a pre-condition to the exercise of the option, and
without the s.106 agreements required, it would not be granted. N's
case was that H was obliged to approve and enter into the s.106
agreement. H maintained that it had insufficient information to
decide whether to approve the draft agreement in particular about
the route of the proposed shuttle bus link, to make an assessment
as to whether its terms would be detrimental to its own development
aims.
The court allowed the application declaring that H was obliged
to approve the draft s. 106 agreement. The contrast between
enhancing value in respect of H's land and maximising value in
respect of N's project meant that the agreement required H to
accommodate and make allowances for N's project in any future plans
for its own land. Construing the agreement to enable H to block any
aspect of N's project that would prevent H from maximising the
value of the future development of its land was inconsistent with
the balance of aims set out in the option. H was not entitled to
take the view that it need not consent to any proposal by N, which
either prevented it from maximising the value of its remaining land
or about which there was some uncertainty. The application for
planning permission satisfied the requirements of the option
agreement and the terms upon which H consented to it being
submitted. N had not wrongfully varied the terms of the application
for planning permission it had submitted. There was agreement
between the experts that the shuttle bus route was not part of the
application, and, even if it was, N had not taken any steps to
amend or vary it. H had been provided with sufficient information
about the proposed shuttle bus link road, travel plans, and the
proposed highway mitigation measures to enable it to form a view as
to whether it should approve the form and enter into the final
draft s.106 agreement. The fact that the routes under consideration
included routes that, if outline planning permission was granted,
would require an application to amend the relevant condition of the
permission did not entitle H not to approve the draft agreement.
The draft s.106 agreement was lawfully capable of approval in
accordance with the terms of the proposed planning permission. H
had not provided evidence that the shuttle bus routes under
consideration adversely impacted, interfered with, or in any other
way prevented its stated aims in clause 2.1. H had sufficient
information to enable it to decide whether to approve the s.106
agreement and to enter into it. The reasons given for not doing so
were unreasonable. H's counterclaim for declarations that it was
entitled to terminate the option agreement failed.
R (on the application of Kimberley Miller) v North
Yorkshire County Council & Tarmac Ltd (2009)
The claimant (M) applied for judicial review of a decision of
the defendant mineral planning authority to grant to the interested
party quarrying company Tarmac had been granted conditional
planning permission for the extraction of sand and gravel at a site
and had quarried sand and gravel from land adjacent to the site but
had previously unsuccessfully sought to extend its quarry onto the
site. Tarmac’s subsequent application to extend its quarry over the
site to provide an additional extraction area of over 25 hectares
was allowed. The claimant applied for judicial review of the
decision. The basis for the decision was that, having regard to
policies contained in its minerals local plan, the extension was a
"small-scale" extension to an existing site such that it was
appropriate to grant planning permission even though the site was
not in a preferred area or an area of search as identified in the
local plan. The permission was subject to a condition that the
extended quarry be restored to a wetland landscape upon the
completion of quarrying, which raised the issue of the risk of
bird-strike to aircraft using an airfield 9km away. The quarry was
close to a scheduled ancient monument.
The court refused the application holding that the authority was
entitled to conclude that the extension was a small-scale extension
to an existing site, and it had properly considered all material
matters. The policy that the authority was construing was its own.
In such circumstances, the court would pay considerable deference
to the interpretation adopted and would only interfere where that
interpretation was perverse. The authority was not making a
quantitative calculation but rather a qualitative planning
judgment. Accordingly, the fact that the percentage increase in
size of extraction area in the instant case was only slightly less
than that of another development that was held not to be
small-scale was immaterial. Further, it was clear that the
authority had considered the fact that the development had
triggered the need for an EIA but had properly considered that,
whilst that was an indication of the significance of the
development in relation to the Town and Country Planning
(Environmental Impact Assessment) (England and Wales) Regulations
1999, assessment of the scale of the development had to be carried
out by reference to the applicable policies contained in the plan.
The purposes of the Directive and the policies in the plan were
very different. Accordingly, the fact that the development met the
threshold criterion for a mandatory EIA under the Directive, as it
was over 25 hectares, was indicative of its potential environmental
impact, but it was no more than that; it was not a threshold
criterion in relation to whether it was small-scale. Further, The
authority had properly assessed the impact of the development on
the setting of the ancient monument. T had carried out a
comprehensive assessment of the setting, and all of the expert
evidence before the authority was that the impact of the extension
on it would not be significant. The authority had considered the
setting "in the round" as it was required to do and the evidence
before it did not justify any finding other than the one it had
reached. The authority had taken into account all relevant matters
pertaining to bird management after restoration of the site. What
was relevant for the authority was an assurance that the
restoration scheme, which it was being asked to approve, was secure
and not at risk because of bird management issues. On the evidence,
the authority had had that assurance. The fact that the bird
management strategy required further work was neither unusual nor
relevant to the authority's decision-making process.
(1) Historic Buildings & Monuments Commission For
England (English Heritage) (2) Westminster City Council (3) William
Ashton v (1) Secretary of State for Communities & Local
Government (2) Lambeth London Borough Council (3) Greater London
Authority (4) Coin Street Community Builders (2009)
Planning permission was granted for a development in Lambeth
including a 43-storey tower, the provision of a community sports
centre and swimming pool which was to be funded by the developer
for 50 years, but no affordable housing. The site was not in a
conservation area but the impact of the tower on nearby
conservation areas and buildings such as Somerset House was a major
issue. The planning inspector concluded that planning permission
should be refused but the secretary of state disagreed with the
inspector and granted permission. She considered that the benefits
of the scheme, including the provision of the sports centre and
housing, outweighed the damage to the settings of Somerset House
and the conservation areas. The applicants applied to quash a
decision of the secretary of state but were refused. The court
decided that although the inspector had concluded that the tower
would have an adverse impact on the setting the secretary of state
had been entitled to find that the impact would not be
unacceptable, making an overall planning judgment. The inspector
had used the word "intrude" with a negative connotation, but in
context it was clear that the secretary of state was not equating
"impact" or "intrude" with "harm". The inspector's conclusion that
the intrusion would be harmful was a value judgment with which the
secretary of state was entitled to disagree, if she saw fit, giving
such weight as she thought proper to the contrary view that the
proposed tower would not be harmful. In the same way the secretary
of state was entitled to disagree with the inspector in respect of
the impact on Somerset House as a matter of planning judgment. She
found that there would be significant harm by reason of the
visibility of the tower over the southern range of Somerset House
and took that into account. She simply gave that harm different
weight from the inspector in concluding that it would not be
sufficiently great, by itself, to justify withholding planning
permission. The inspector gave reasons for not dealing with
questions as to whether the benefits of the proposal might be
secured by a different form of development. He was entitled to
conclude that the issue of alternatives was one that he did not
have to resolve for the reasons he gave and the secretary of state
was not required to refer to it expressly. The argument that the
development was not financially viable but the grant of permission
would set a precedent was rejected. The inspector's consideration
of the question of viability was bound up with his assessment of
the developer's case for not providing affordable housing. The
secretary of state effectively adopted the inspector's conclusions
that reasons for omitting affordable housing withstood examination,
notwithstanding criticisms of the financial robustness of the
scheme, and did not need to say more. The complaint about setting a
precedent was misconceived: if the development was not viable it
would not be capable of forming a precedent. The secretary of state
did not make a mistake of fact or have regard to an immaterial
consideration although she had stated that the leisure facilities
would be provided "at no public cost”. The secretary of state was
entitled as a matter of planning judgment to find that an agreement
under the Town and Country Planning Act 1990 s.106 was a sufficient
arrangement in respect of the running costs of the leisure
facilities and it was not necessary for security to be given by way
of a bond. The third applicant, who was a local resident, was not
in the circumstances a "person aggrieved" within s.288 of the Act,
since he did not take a sufficiently active role in the planning
process.
Legislation
Adults
The Mental Health and Mental Capacity (Advocacy)
Amendment (England) Regulations 2009 SI 2009/2376
These Regulations amend the Mental Capacity Act 2005
(Independent Mental Capacity Advocates) (General) Regulations 2006
and the Mental Health Act 1983 (Independent Mental Health
Advocates) (England) Regulations 2008.
The effect of these amendments is that, for the purposes of
deciding whether a person satisfies the requirement as to integrity
and good character in connection with their appointment as an
Independent Mental Capacity Advocate or an Independent Mental
Health Advocate, an enhanced criminal record certificate which
includes suitability information relating to vulnerable adults or
children must be obtained.
Benefits – subsidy to authorities
The Income-related Benefits (Subsidy to Authorities)
(Temporary Accommodation) Amendment Order 2009 SI
2009/2580
This Order amends the Income-related Benefits (Subsidy to
Authorities) Order 1998, which provides for the calculation and
payment of housing benefit and council tax benefit subsidy to local
authorities in England, Wales and Scotland which administer those
benefits.
Article 2 substitutes a new article 17 and inserts a new article
17A. The substituted article 17 provides for the calculation of
subsidy in relation to temporary accommodation held under a licence
agreement that is not self-contained or where board and lodging is
provided. The new article 17A provides for the calculation of
subsidy in respect of temporary accommodation held under a licence
agreement that is self-contained, or that is leased on a short
lease by a local authority. Article 2 also inserts a new Schedule 7
which lists local authorities that are in London and makes a
consequential amendment to article 14.
Births and deaths
The Registration of Births and Deaths (Amendment)
(England and Wales) Regulations 2009 SI 2009/2165
These Regulations amend the Registration of Births and Deaths
Regulations 1987 and the Registration of Births and Deaths (Welsh
Language) Regulations 1987. They make amendments to allow for the
recording of information in a birth, death or still-birth entry
relating to an ‘other parent’ which is the second female parent as
defined by sections 42 and 43 of the Human Fertilisation and
Embryology Act 2008. They provide accordingly for alternative forms
of birth and still-birth entry and associated prescribed
forms.
Capital finance and accounting
The Local Authorities (Capital Finance and Accounting)
(England) (Amendment) (No.2) Regulations 2009 SI
2009/2272
These Regulations amend the Local Government (Capital Finance
and Accounting) Regulations 2003.
Regulation 3 inserts paragraph (2D) into regulation 14 of the
2003 Regulations. The effect of the new paragraph is that where
housing land (defined in regulation 1(5) of the 2003 Regulations)
is the subject of an agreement made under section 80B of the Local
Government and Housing Act 1989, the capital receipt arising on
disposal of an interest in such land by a local authority may be
regarded as a capital receipt that may be treated as provided for
in regulation 14(1)(c) of the 2003 Regulations.
Regulation 14(1)(c) provides for the amount of the capital
receipt to be treated as reduced by an amount determined by the
local authority up to the value of its available capital allowance.
That value is determined in accordance with regulations 15 and 16
of the 2003 Regulations.
Children
The Adoptions with a Foreign Element (Amendment)
Regulations 2009 SI 2009/2563
These Regulations amend the Adoptions with a Foreign Element
Regulations 2005 (the ‘FERs’) and make provision regarding
adoptions under the Convention on Protection of Children and
Co-operation in respect of Intercountry Adoption, concluded at The
Hague on 29th May 1993 where the UK is the receiving State. The
Regulations extend to England and Wales and come into force on 23
October 2009.
Regulation 2(2) amends the procedure following receipt of
information under Article 16 of the Convention from the Central
Authority of the State of origin of the child. The effect of the
amendment is to remove a requirement in regulation 19 of the FERs
for the prospective adopter to have visited the child in the State
of origin and a requirement to confirm various matters in writing
to the adoption agency; in practice, this means that the relevant
Central Authority may issue at an earlier stage of the process than
at present its agreement for the purposes of Article 17(c) of the
Convention that the adoption may proceed. Regulation 2(3) makes a
consequential amendment to regulation 20 of the FERs which provides
for the procedure where the proposed adoption is not to
proceed.
The Children and Young Persons Act 2008 (Commencement
No.2) (England) Order 2009 SI 2009/2273
This Order is the second Commencement Order made by the
Secretary of State for Children, Schools and Families under the
Children and Young Persons Act 2008 which brings provisions of the
Act into force only in relation to England.
The Children Act 1989 (Higher Education
Bursary)(England) Regulations 2009 SI 2009/2274
These Regulations are made under section 23C(5B) of the Children
Act 1989. As this is the first time the powers in section
23C(5B)(b) (prescribing the meaning of ‘higher education’ for the
purposes of section 23C(5A)) have been exercised, the Regulations
have been laid in draft before, and approved by a resolution of,
each House of Parliament in accordance with section 104(3A) and
(3B) of the 1989 Act.
Her Majesty’s Chief Inspector of Education, Children’s
Services and Skills (Fees and Frequency of Inspections) (Children’s
Homes etc) (Amendment) Regulations 2009 SI 2009/2724
These Regulations, which apply in relation to England only,
amend Part 4 of Her Majesty’s Chief Inspector of Education,
Children’s Services and Skills (Fees and Frequency of Inspections)
(Children’s Homes etc) Regulations 2007, in so far as that Part
applies to fostering agencies, residential family centres, boarding
schools, residential colleges, residential special schools and
local authority adoption functions.
These Regulations reduce or cap the annual fees that are to be
paid under the Care Standards Act 2000, the Education and
Inspections Act 2006 and the Children Act 1989 to the Chief
Inspector of Education, Children’s Services and Skills in respect
of fostering agencies, residential family centres, boarding
schools, residential colleges, residential special schools and in
respect of local authority adoption functions. These fees would
otherwise be greater than the actual average cost of compliance or,
as the case may be, inspection, for providers in each of those
categories.
For providers in these categories where the annual fee has
become payable between 1st April 2009 and 1st November 2009, but
has not yet been paid, the fee will be payable on 2nd November
2009.
Council tax
The Council Tax (Alteration of Lists and Appeals)
(England) Regulations 2009 SI 2009/2270
These Regulations, which apply in relation to England only,
revoke and partially re-enact the Council Tax (Alteration of Lists
and Appeals) Regulations 1993.
Education
The Education (Supply of Information about the School
Workforce) (No.2) (England) (Amendment) Regulations 2009 SI
2009/2266
These Regulations amend the Education (Supply of Information
about the School Workforce) (No. 2) (England) Regulations 2007.
Regulation 8(2) is amended to include the administrator of the
Teachers’ Pension Scheme as a person to whom the Secretary of State
may supply the information referred to in Schedule 1 in respect of
qualifying workers or qualifying trainees.
The Education (Free School Lunches) (Child Tax Credit)
(Wolverhampton City Council) Order 2009 SI 2009/2300
Parents who receive child tax credit but not working tax credit
already qualify for free school lunches for their children under
the Education (Free School Lunches) (Prescribed Tax Credits)
(England) Order 2003. This Order enables Wolverhampton City Council
to run a pilot scheme for three years to allow parents who receive
child tax credit to qualify for free school lunches for their
children, even when they also receive working tax credit. The Order
ceases to have effect after 31st October 2012.
The Inspectors of Education, Children’s Services and
Skills (No. 3) Order 2009 SI 2009/2750
This Order appoints the persons named in the Schedule as Her
Majesty’s Inspectors of Education, Children’s Services and
Skills.
Highways
The Highway Litter Clearance and Cleaning (Transfer of
Responsibility) (England) Order 2009 SI 2009/2677
Section 89 of the Environmental Protection Act 1990 places a
duty on each local authority to ensure that land comprised in the
highways maintainable at the public expense within its area (other
than motorways) are so far as is practicable, kept clean and clear
of litter and refuse. Section 86(11) empowers the Secretary of
State to transfer responsibility for the discharge of these duties
as respects all or any part of such a highway from the local
authority to the highway authority for that highway.
This Order transfers responsibility in respect of those parts of
the trunk roads listed in the Schedule from the local authorities
who would otherwise be responsible, to the Secretary of State for
Transport who is the highway authority for them. The transfer
becomes effective on 30th October 2009.
Planning
The Planning and Compulsory Purchase Act 2004
(Commencement No.4 and Consequential, Transitional and Savings
Provisions) (Wales) (Amendment No.1) Order
2009
Coming into force 21 October 2009
This Order brings to an end the transitional arrangements made
under the Planning and Compulsory Purchase Act 2004 (Commencement
No.4 and Consequential, Transitional and Savings Provisions)
(Wales) Order 2005 in relation to The Council of the City and
County of Swansea. Under those arrangements, each local planning
authority listed in the Schedule to the No.4 Order is able to
continue with the process leading ultimately to the adoption of its
unitary development plan under the Town and Country Planning Act
1990, instead of having to start work on the preparation of a local
development plan under the Planning and Compulsory Purchase Act
2004. This Order removes the Council from the list of local
planning authorities in the Schedule to the No.4 Order and thus
places the Council under a duty to prepare a local development plan
for its area.
The Planning (Listed Buildings and Conservation Areas)
(Amendment No.2) (England) Regulations 2009 SI
2009/2711
These Regulations amend the Planning (Listed Buildings and
Conservation Areas) Regulations 1990 to update the prescribed forms
of notice to be served by local authorities on owners and occupiers
of buildings that have been included in or excluded from one of the
statutory lists of buildings of special architectural or historic
interest approved by the Secretary of State for Culture, Media and
Sport under the Planning (Listed Buildings and Conservation Areas)
Act 1990.
Section 1 of the Planning (Listed Buildings and Conservation
Areas) Act 1990 provides that the Secretary of State for Culture,
Media and Sport shall compile or approve lists of buildings of
special architectural or historic interest and may amend any list
so compiled or approved. Section 2(3) of the 1990 Act gives local
authorities a statutory responsibility to notify every owner and
occupier of a building that the building has been included in or
excluded from a list compiled or approved under section 1. The
Planning (Listed Buildings and Conservation Areas) Regulations 1990
provide local authorities with a prescribed form of words on which
they must base this notification. This instrument applies to
England.
The Town and Country Planning General (Amendment)
Regulations 1992
These Regulations amend the Town and Country Planning General
Regulations 1992. The effect of the amendment is that a grant of
planning permission for development which falls within regulation 3
of those Regulations (other than development of any land by an
interested planning authority or by an interested planning
authority jointly with another person specified in the planning
application) enures for the benefit of the land and of all persons
for the time being interested in it.
The Central Lincolnshire Joint Strategic Planning
Committee Order 2009 SI 2009/2467
This Order establishes a joint committee to be the local
planning authority for the City of Lincoln, the district of North
Kesteven and the district of West Lindsey for the purposes of Part
2 of the Planning and Compulsory Purchase Act 2004. The Order
reflects an agreement made between the councils of those areas and
Lincolnshire County Council. Part 2 of the 2004 Act provides for
local development plans in England. Local planning authorities
prepare local development documents consisting of development plan
documents and supplementary plan documents. Development plan
documents, taken as a whole, together with the relevant regional
spatial strategy under Part 1 of the Act constitute the development
plan for the area. Applications for planning permission must be
determined in accordance with the development plan, unless material
considerations indicate otherwise. Section 29 of the 2004 Act makes
provision for one or more local planning authorities to agree with
one or more county councils to establish a joint committee. The
Secretary of State may by order constitute a joint committee to be
the local planning authority for the purposes of Part 2 of the 2004
Act for such areas and make provision in relation to such matters
as the constituent authorities agree. The joint committee
established by this Order will exercise the functions of a local
planning authority under Part 2 of the 2004 Act in relation to the
preparation, submission and revision of a joint local development
scheme – which is in effect a “project plan” for the preparation of
development plan documents – and local development documents. This
instrument applies in relation to England.
The Building and Approved Inspectors (Amendment No. 2)
Regulations 2009 SI 2009/2465
This instrument postpones the coming into force of a number of
amendments to the Building Regulations 2000 (“the Building
Regulations”) and the Building and Approved Inspectors Eegulations
2000 (“the Approved Inspectors Regulations”) from 1st October 2009
to 6th April 2010. The Building Act 1984 enables building
regulations to be made for England and Wales with respect to the
design and construction of buildings and the services, fittings and
equipment provided in or in connection with buildings for a number
of purposes. These purposes include securing the health, safety,
welfare and convenience of persons in and about buildings,
preventing waste, undue consumption, misuse or contamination of
water, furthering the protection or enhancement of the environment,
and facilitating sustainable development. The Building Regulations
and the Approved Inspectors Regulations have been made pursuant to
these powers. The Building Regulations establish general functional
requirements for buildings when constructed, and are supported by
Approved Documents, issued under section 6 of the Building Act,
which set out detailed practical guidance on compliance. The
Building Regulations also set out procedures for the control of
building work by local authorities. The Approved Inspectors
Regulations, in conjunction with Part 2 of the Building Act 1984,
make provision for a private sector building control system as an
alternative to that offered by local authorities. 4.3 This
instrument postpones from 1st October 2009 to 6th April 2010 the
coming into force dates and the associated transitional provisions
of amendments to the Building Regulations and to the Approved
Inspectors Regulations that were made in the Building and Approved
Inspectors (Amendment) Regulations 2009 (S.I. 2009/1219) and the
Building 2 (Amendment No.2) Regulations 2009 (S.I. 2009/2397). The
amendments in those instruments concern sanitation, hot water
safety and water efficiency. This instrument extends to England and
Wales.
The M62 and M606 Motorways (Chain Bar Roundabout) (Car
Share Lane) Regulations 2009 SI 2009/2247
This instrument will restrict the use of the free flow link road
bypassing the Chain Bar Roundabout and connecting the M606
southbound exit slip road with the M62 eastbound entry slip road
(the car share lane).
The Smoke Control Areas (Exempted Fireplaces) (England)
(No. 3) Order 2009 SI 2009/2302
This instrument allows the use (subject to strict conditions) of
a number of wood burning boilers and stoves capable of smokeless
operation within smoke control areas. These fireplaces do not burn
the fuels generally authorised for use in such areas, and
consequently have been assessed by Defra and are considered to be
capable of meeting, or have met, the requirements of BS PD 6434
'Recommendations for the design and testing of smoke reducing solid
fuel burning domestic appliances' published by BSI.
The Town and Country Planning (General Development
Procedure) (Amendment No. 3) (England) Order 2009 SI 2009/2261; The
Planning (Listed Buildings and Conservation Areas (Amendment)
(England) Regulations 2009 SI 2009/2262
The Town and Country Planning (General Development Procedure)
(Amendment No. 3) (England) Order 2009 amends the Town and Country
Planning (General Development Procedure) Order 1995 (S.I. 1995/419)
( the GDPO ) for the purpose of implementing section 190 of the
Planning Act 2008. The Order also amends the procedure for
applications under section 73 of the Town and Country Planning Act
1990 for permission to develop land without conditions previously
attached. Thirdly, it introduces a new procedure for dealing with
applications to replace an extant planning permission which meets
specified criteria. The Planning (Listed Buildings and Conservation
Areas) (Amendment) (England) Regulations 2009 amend the Planning
(Listed Buildings and Conservation Areas) Regulations 1990 (S.I.
1990/1519) to remove the requirement for a design and access
statement, and additional copies, where applications to replace an
extant consent meets specified criteria. Section 190 of the
Planning Act 2008 (power to make non-material changes to planning
permission) comes into force on 1st October 20091. The GDPO sets
out the procedure for making and determining planning applications
and other applications under the 1990 Act. The requirements for
certain consent applications are set out in the Planning (Listed
Buildings and Conservation Areas) Act 1990, and the Planning
(Listed Buildings and Conservation Areas) Regulations 1990. Section
190 inserts a new section 96A into the 1990 Act. This allows local
planning authorities to make non-material changes to planning
permissions following an application by a person with an interest
in the relevant land. Section 73 of the 1990 Act provides for the
granting of permission for development without complying with
conditions previously attached. Although sometimes referred to as
‘varying’ those conditions, the effect is to grant a new
permission. An application under section 73 is therefore still an
application for planning permission. Sections 91 and 92 of the 1990
Act impose default time limits on the implementation of planning
permissions: three years on a full permission and, on an outline
permission, three years to apply for reserved matters and two years
to implement the permission from the final approval of reserved
matters. In 2004, the period in section 91 was reduced from five to
three years, and section 73 was amended2 so that an application to
vary conditions could no longer be used to extend the time limit
for implementation of a permission. Section 18 of the Planning
(Listed Buildings and Conservation Areas) Act 1990 imposes an
equivalent time limit of three years on the implementation of
listed building and conservation area consents. This instrument
applies only in relation to England.
The Infrastructure Planning (Applications: Prescribed
Forms and Procedure) Regulations 2009 SI 2009/2264; The
Infrastructure Planning (Model Provisions) (England and Wales)
Order 2009 SI 2009/2265; The Infrastructure Planning (Environmental
Impact Assessment) Regulations SI 2009/2263; The Conservation
(Natural Habitats etc.) (Amendment) (NO.2) Regulations
2009
This Explanatory Memorandum deals with a suite of statutory
instruments that, together with non-statutory guidance documents,
set out the procedures which applicants for consent for nationally
significant infrastructure projects will be required to follow
before and after submitting an application to the Infrastructure
Planning Commission (“IPC”) under the Planning Act 2008 (“the
Act”), and the content of such applications. Applicants will be
expected to carry out thorough and effective pre-application
consultation (including on environmental issues) with a wide
variety of persons. Specific requirements for this are given in the
regulations on applications and procedures and in the regulations
transposing the Environmental Impact Assessment Directive and the
Habitats Directive. The statutory instruments also specify in
detail how an application should be set out, and what information
must, or potentially could, be included. The IPC must satisfy
itself before accepting an application that the applicant’s
pre-application consultation activity and the application contents
have met the required standards. In particular, the application
must include a draft of the order that contains provisions which
describe all the development that the applicant is intending to
carry out. The Infrastructure Planning (Model Provisions) (England
and Wales) Order (“the model provisions Order”) sets out model
provisions which may be included in the draft proposed order. These
model provisions are designed to assist applicants when they are
preparing the draft proposed order but they are not mandatory. The
IPC are also required to have regard to these model provisions when
making an order granting development consent (section 38(2)of the
Act). Defra has produced another Explanatory Memorandum which
covers the whole of those regulations. Regulations are also
included in this suite to transpose the requirements of the
Environmental Impact Assessment Directive and the Habitats
Directive for the new regime for nationally significant
infrastructure. This is the first use of powers under sections 37,
38, 48, 51, 56, 58 and 59 of the Act. These sections are brought
into force on 1st October 2009 by the Planning Act 2008
(Commencement No.2) Order 2009 (S.I. 2009/2260). The power to make
Orders and Regulations came into force on the day on which the Act
was passed – see section 241 of the Act. These Regulations are made
under the Planning Act 2008 (“the Act”), except for the
Conservation (Natural Habitats &c.) (Amendment) (No.2)
Regulations (“the Habitat Regulations”) and the Infrastructure
Planning (Environmental Impact Assessment) Regulations (“the EIA
Regulations”) which are both made under section 2(2) of the
European Communities Act 1972, to legislate to create a new system
for dealing with development consent for nationally significant
infrastructure projects. The Planning Bill was introduced to
Parliament on 27 November 2007, and received Royal Assent on 26
November 2008 as the Planning Act 2008. Parts 1 to 8 of the Act
provides for the grant of development consent for development
consisting of nationally significant infrastructure projects. Where
development consent is required under the Act, there is no need for
certain other consents to be obtained –such as planning permission,
pipeline authorisation or consent under the Electricity Act 1989 or
the Gas Act 1965. The Act also provides for the establishment of
the IPC who will examine and, where a national policy statement has
been designated, determine applications for development consent.
Part 5 of the Act sets out the procedure to be followed prior to
making an application for development consent and how to make an
application. Sections 55 to 59 of Part 6 of the Act deal with what
the IPC must take into account when accepting an application and
notification procedures that must be followed once an application
has been accepted. The Infrastructure Planning (Applications:
Prescribed Forms and Procedure) Regulations 2009 (regulations 3 and
4) prescribe who, in addition to those bodies and persons set out
in the Act, must be consulted as part of the pre-application
requirements of the Act. The Act places significant emphasis on
wide public consultation before an application is made. The
regulations also set out how a notice of consultation must be
termed and where it must be placed. In addition the Act requires
consultation with the local community in liaison with the local
authority who can offer its expertise in reaching the wider
community in the best way. Section 37 of the Act requires an
application for development consent to be made.
Planning Act 2008 apart from Regulation 7 which extends to
England and Wales only and Regulation 8 which extends to Scotland
only.
The Planning Act 2008 (Commencement No. 3) Order
2009
This Order may be cited as the Planning Act 2008 (Commencement
No. 3) Order 2009. Provisions coming into force on 1st October
2009. Paragraphs 24 to 27 of Schedule 1 to the Act, so far as not
already in force, shall come into force on 1st October 2009.
Article 2 of this Order brings into force, on 1st October 2009,
paragraphs 24 to 27 of Schedule 1 to the Planning Act 2008. The
effect of this, together with section 240(6) of the Planning Act
2008, is that those paragraphs, which make amendments to various
enactments so as to insert references to the Infrastructure
Planning Commission, will be in force for the United
Kingdom.
Power to trade
The Local Government (Best Value Authorities) (Power to
Trade) (England) Order 2009 SI 2009/2393
This Order, made under the power in sections 95 and 96 of the
Local Government Act 2003, provides that all best value local
authorities in England, and fire and rescue authorities in England,
are authorised to trade in any of their ordinary functions subject
to certain conditions. The Order revokes the Local Government (Best
Value Authorities) (Power to Trade) (England) Order 2004 and all
Orders that amended the 2004 Order.
Rent officers
The Rent Officers (Housing Benefit Functions) Amendment
Order 2009 SI 2009/2459
This Order amends the Rent Officers (Housing Benefit Functions)
Order 1997 and the Rent Officers (Housing Benefit Functions)
(Scotland) Order 1997.
Safeguarding vulnerable groups
The Safeguarding Vulnerable Groups Act 2006
(Commencement No.6, Transitional Provisions and Savings) Order 2009
SI 2009/2611
Article 2 of the Order brings into force section 3 of the
Safeguarding Vulnerable Groups Act 2006 which has the effect of
barring from regulated activity a person who is included in one of
the barred lists under section 2 of the Act, namely the children’s
barred list and the adults’ barred list. The barred lists are
established under section 2 of the Act and are maintained by the
Independent Barring Board (‘IBB’) which is a body established under
section 1 of the Act.
The Order also brings into force various other sections of the
Act. The Order also contains transitional provisions.
Social Security
The Social Security (Miscellaneous Amendments) (No. 3)
Regulations 2009 SI 2009/2343
These Regulations further amend:
- the Social Security (General Benefit) Regulations 1982,
- the Social Security (Incapacity Benefit) Regulations 1994,
- the Social Security (Incapacity for Work) (General) Regulations
1995; and
- the Employment and Support Allowance Regulations 2008.
The Housing Benefit and Council Tax Benefit
(Miscellaneous Amendments) Regulations 2009 SI
2009/2608
These Regulations amend the Housing Benefit Regulations 2006,
the Housing Benefit (Persons who have attained the qualifying age
for state pension credit) Regulations 2006, the Council Tax Benefit
Regulations 2006 and the Council Tax Benefit (Persons who have
attained the qualifying age for state pension credit) Regulations
2006.
The Social Security (Miscellaneous Amendments) (No.4)
Regulations 2009 SI 2009/2655
These Regulations amend a number of different regulations
relating to social security.
The Social Security (Flexible New Deal) (No.2)
Regulations 2009 SI 2009/2710
These Regulations amend the Jobseeker’s Allowance Regulations
1996 in the case of claimants who are subject to a benefit sanction
because it has been determined that they have failed to participate
in a programme known as the Flexible New Deal and who have
previously been subject to benefit sanctions. Where a claimant
agrees in writing to undertake the Flexible New Deal activities set
out in an action plan, the Regulations provide for the benefit
sanction to last for either four weeks or for the period beginning
with the determination and ending with the claimant’s agreement to
comply with the relevant requirements for the programme (whichever
is the longer) otherwise the sanction will last for 26 weeks.
Valuation Tribunals
The Valuation Tribunals (Consequential Modifications and
Saving and Transitional Provisions) (England) Regulations 2009 SI
2009/2271
Part 13 of the Local Government and Public Involvement in Health
Act 2007 establishes the Valuation Tribunal for England, abolishes
existing valuation tribunals in England and transfers their
jurisdiction to the newly established Valuation Tribunal for
England.
The Valuation Tribunal for England (Membership and
Transitional Provisions) Regulations 2009 SI 2009/2267
On 1st October 2009 English valuation tribunals established by
regulations under Schedule 11 to the Local Government Finance Act
1988 are abolished and the Valuation Tribunal for England (VTE) is
established in place of those tribunals. These Regulations provide
for the initial composition of the VTE (with the exception of the
President and Vice-Presidents, who have been appointed by the Lord
Chancellor) and for the transfer of appeals part-heard by English
valuation tribunals when jurisdiction transfers to the VTE. They
also provide for the transfer from English valuation tribunals to
the VTE of records
The Valuation Tribunal for England (Council Tax and
Rating Appeals) (Procedure) Regulations 2009 SI
2009/2269
These Regulations, which apply in relation to England only, set
out the procedures to be followed in connection with appeals
relating to council tax or non-domestic rating that arise
under:
- section 16 of the Local Government Finance Act 1992
- regulation 7 or 10 of the Council Tax (Alteration of Lists and
Appeals) (England) Regulations 2009
- regulation 8 or 13 of the Non-Domestic Rating (Alteration of
Lists and Appeals) (England) Regulations 2009
- paragraph 4 of Schedule 4A to the Local Government Finance Act
1988 as it applies for the purposes of—
Part 3 of that Act; and
Part 1 of the Local Government Finance Act 1992;
- paragraph 5C of Schedule 9 to the Local Government Finance Act
1988; or
- paragraph 3 of Schedule 3 to the Local Government Finance Act
1992.
The Regulations reflect the establishment on 1st October 2009
under Part 13 of the Local Government and Public Involvement in
Health Act 2007 of the Valuation Tribunal for England (VTE), which
is to assume the jurisdiction currently exercised by 56 valuation
tribunals in England. Those tribunals, which are to be abolished,
deal with matters arising under:
- regulations under section 55 of the Local Government Finance
Act 1988
paragraph 4A of Schedule 4A to the 1988 Act,
paragraph 5C of Schedule 9 to the 1988 Act,
- section 45 of the Land Drainage Act 1991,
- section 16 of the Local Government Finance Act 1992,
regulations under section 24 of the 1992 Act, and
paragraph 3 of Schedule 3 to the 1992 Act.
The Valuation Tribunal for England (Membership and Transitional
Provisions) (Amendment) Regulations 2009 SI 2009/2613
These Regulations correct an error in regulation 5(1)(b) of the
Valuation Tribunal for England (Membership and Transitional
Provisions) Regulations 2009. That provision currently disqualifies
a person for membership of the Valuation Tribunal for England
(‘VTE’) after 1st October 2009 if the person or their spouse or
civil partner is a member of the Valuation Tribunal Service or of
its staff. The amendment made by regulation 2 of these Regulations
limits disqualification to persons who are, or whose spouse or
civil partner is, a member of the VTE’s staff.