This is the latest in our series of quarterly local government update blogs, which will enable readers to catch up on the most important cases, issues or developments in local government from August 2015 to October 2015.
Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments covered or if you think we have missed something that should be brought to the attention of local government practitioners.
In this post we look at:
- Cases of interest to local authorities.
- Various legislative and other developments of interest to local authority lawyers.
CASES OF INTEREST TO LOCAL AUTHORITIES
High Court finds housing association director’s involvement in planning decision gave rise to appearance of bias (Kelton v Wiltshire Council)
On 9 October 2015, the High Court considered a judicial review challenge to a planning permission decision on the basis that a councillor, M, who was the company director of a housing association (SHA) should not have participated in the planning committee’s decision as he had an interest in the outcome of the application. The decision related to the grant of outline planning permission by Wiltshire Council for a scheme of up to 35 custom built residential dwellings, including nine affordable homes, to the applicants for planning permission (HPH Ltd and HAB Housing). HPH Ltd had entered into discussions with SHA in 2011, regarding the provision of affordable and custom-built housing as part of a future affordable housing development project, with SHA providing free advice to HPH.
The High Court allowed the judicial review application and quashed the planning permission decision, holding that:
- M did not have a direct pecuniary or proprietary interest in the planning application. The decision to grant HAB and HPH planning permission did not directly lead to M obtaining any benefit and SHA was not a party to the decision in any case.
- SHA did not have a contract with HPH or HAB which meant that M stood to directly benefit from the grant of planning permission and therefore was not disqualified under section 31 of the Localism Act 2011.
- M’s involvement in the decision to grant planning permission did give rise to an allegation of apparent bias and he should not have participated in the meeting. It was in both SHA and M’s interests for the application to be approved and it was clear that SHA was in a superior position compared to other affordable housing providers in relation to the planning application and had been named by HAB and HPH as a potential partner going forward.
The decision provides useful clarification on when the appearance of apparent bias is likely to be found and also where it is possible that a particular person may or may not stand to benefit from a particular decision, here the grant of planning permission to HAB and HPH.
Criminal behaviour orders: High Court clarifies matters to be taken into account (Director of Public Prosecutions v Bulmer)
On 31 July 2015, the High Court in its ruling on several issues relating to criminal behaviour orders (CBOs) has provided some welcome clarity on the conditions for granting such an order. CBOs, which replaced anti-social behaviour orders (ASBOs) with effect from 20 October 2014, are made under the Anti-Social Behaviour, Crime and Policing Act 2014 (2014 Act). In this case, the High Court considered an appeal following a District Judge’s decision to refuse to make a CBO in respect of the respondent, to whom an ASBO already applied. The order sought was of unlimited duration and would have excluded the respondent from the centre of York. The District Judge had refused to make the order, because he considered that it would not fulfil the requirement in section 22(4) of the 2014 Act that it would help to prevent the respondent from engaging in criminal behaviour. The High Court held that:
- Parliament had not changed the emphasis from “necessity and protection” (regarding ASBOs) to “help and prevention” (regarding CBOs). The difference in wording between the Crime and Disorder Act 1998 (CDA 1998) and the 2014 Act was intended by Parliament to reduce the hurdle that prosecutors must overcome and to make CBOs more flexible than ASBOs.
- A person’s past unresponsiveness to previous orders is not of itself a reason for deciding not to make a CBO, although it could be a relevant factor.
- Section 22(4) of the 2014 Act does not explicitly impose any burden of proof on the prosecution, as it is an evaluative exercise for the court. The criminal standard of proof is not required. Whether the condition in section 22(4) has been satisfied is not a matter of the court’s “pure discretion”, but a higher court should not interfere with such a ruling unless it considers that the judge that made it has plainly erred in some way.
Request for information to be given at council meeting did not constitute FOIA information request (O’Hagan v Information Commissioner)
On 14 September 2015, the First-tier Tribunal (Information Rights) held that a council correctly refused to deal with a written request for questions to be answered verbally at a council meeting as a request made under the Freedom of Information Act 2000 (FOIA). The Tribunal rejected the applicant’s argument that although his initial request was not made under FOIA, once he had asked for a review, the initial request should have been treated as if it had been made under FOIA and a written response made to it. The Tribunal upheld the Information Commissioner’s decision that by referring to the council meeting in his email questions, the applicant had specifically taken himself outside of the provisions of FOIA. A request for information to be given at a council meeting was not later converted into a FOIA request simply by virtue of the fact that the applicant was dissatisfied with the response.
VARIOUS LEGISLATIVE AND OTHER DEVELOPMENTS OF INTEREST TO LOCAL AUTHORITY LAWYERS
On 1 November 2015, the Modern Slavery Act 2015 (Duty to Notify) Regulations 2015 (SI 2015/1743) (Regulations) will come into force. Section 52 of the Modern Slavery Act 2015 (MSA 2015) places a duty on specified public authorities, including local authorities, to notify the Secretary of State where they have reasonable grounds to believe that a person is a victim of slavery or human trafficking.
On 8 October 2015, the House of Commons library published a briefing paper on the Cities and Local Government Devolution Bill, which Bill will devolve powers over housing, transport and planning to England’s cities to boost local grown and rebuild the economy. The paper sets out the development of policy on the devolution of power within England under the coalition government and examines the devolution deals applying to the four areas (Greater Manchester, Sheffield City region, Leeds City Region and West Yorkshire and Cornwall), that have been published by the government to date. It also summarises the main policy areas in which each deal proposes an enhanced role for the local area.
On 5 October 2015, HM Treasury announced its plans to devolve a number of powers to local government in relation to local taxes, and in particular business rates. The government’s intention is that, by the end of the current parliament (2020), local authorities will:
- Be able to retain 100% of local taxes to spend on local government services.
- Have the power to cut business rates in their areas, given the proposal to abolish the uniform business rate.
On 18 September 2015, the Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Guidance) Regulations 2015 (SI 2015/1697) came into force. They brought into force from 18 September 2015 revised statutory guidance for local authorities and schools (and other specified authorities as listed in Schedule 6 to the Counter-Terrorism and Security Act 2015 (Act)). The revised guidance covers how specified authorities in Scotland, England and Wales should perform their duty under section 26(1) of the Act to have due regard to the need to prevent people from being drawn into terrorism.
On 7 September 2015, the Welsh Government published a consultation on draft statutory guidance on how the Well-being of Future Generations (Wales) Act 2015 will affect public bodies. The draft includes technical guidance on how public bodies, public services boards and community councils can ensure compliance and how the Act, which focuses on improving the social economic, environmental and cultural well-being of Wales, will affect them on a daily basis.
On 4 September 2015, the Local Government Association (LGA) published guidance for local authorities on their role in tackling serious and organised crime. Local authorities have a duty under section 17 of the Crime and Disorder Act 1998 to ensure that they do all that they reasonably can to prevent crime and disorder in their areas and the guidance:
- Explains what is meant by “serious and organised crime” and in particular “organised crime groups” and how they are involved in criminal activity.
- Sets out the role of local authorities and their partners in tackling serious and organised crime, for example, through community safety partnerships (CSPs) and multi-agency safeguarding hubs.
On 2 September 2015, the Cabinet Office announced that, with effect from September 2015, fluent English will be a legal requirement for all public sector employees (including local government employees, social workers, teaching staff and assistants) who work in a customer-facing role. The requirement will be introduced as part of new provisions in the Immigration Bill. Following that announcement, the Cabinet Office published a consultation on a draft Code of Practice that is intended to assist public authorities in meeting their obligations under Part 7 of the Immigration Bill 2015-16 and also to provide a higher quality service offering to the public.
On 5 August 2015, the government published a consultation on proposals to devolve to local areas the power to set their own Sunday trading rules (which measure was announced in the July 2015 Budget). In its consultation, the government proposes to devolve Sunday trading rules to local areas in England and Wales by devolving powers to one or both of:
- Local areas (such as metro mayors) through “devolution deals”.
- Local authorities more generally across England and Wales.
On 31 July 2015, HM Treasury published a consultation on the government’s proposals to introduce a cap of £95,000 on the total value of exit payments made to public sector employees. Any waiver of the cap would require consent from the relevant Minister, or from the full council in the case of local government exit payments. The reform proposals would cover:
- Current and future employees and office holders of all local government departments.
- All types of payments made in relation to leaving employment, including voluntary and compulsory exits, and would take into account the monetary value of any extra leave, allowances or other benefits granted as part of the exit process that are not payments in relation to employment.