Practical Law

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 February to June 2017.

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:

• Legislative developments.
• Cases of interest to local authorities.
• Government guidance and publications of interest to local authority lawyers.
• Other publications of interest.
• Local Government Association publications.
• House of Commons Library briefing papers.
• Blogs of interest to local authority lawyers.
• Featured Ask queries.

LEGISLATIVE DEVELOPMENTS

The Local Authorities (Standing Orders) (Wales) (Amendment) Regulations 2017 (SI 460/2017) came into force on 5 May 2017. The 2017 regulations amend the Local Authorities (Standing Orders) (Wales) Regulations 2006 and require Local Planning Authorities in Wales to operate planning committees.

The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353) came into force on 31 March 2017. The regulations impose a duty on specified public authorities with at least 250 employees to publish gender pay gap information relating to employees, in order to demonstrate compliance with the public sector equality duty (PSED) imposed by section 149 of the Equality Act 2010.

On 9 March 2017, the Wales Act 2017 (Commencement No 1) Regulations 2017 (SI 2017/351) were made relating to provisions of the Wales Act 2017 concerning Welsh tribunals.

The Combined Authorities (Mayors) (Filling of Vacancies) Order 2017 (SI 2017/69) came into force on 28 January 2017. The order makes provision for the filling of vacancies in the office of mayor of a combined authority.

On 13 January 2017, the Local Government Finance Bill 2016-17 was introduced into the House of Commons. In order to provide further information on the measures in the Bill, the Department for Communities and Local Government published policy factsheets.

CASES OF INTEREST TO LOCAL AUTHORITIES

Joint tenants’ sporadic weekly occupation of council property does not constitute “principal home” status for a secure tenancy (Court of Appeal) (Dove and another v London Borough of Havering)

The Court of Appeal has held that joint tenants of the landlord council were not secure tenants under section 81 of the Housing Act 1985, given that they occupied their home on a sporadic weekly basis and provided no evidence of an intention to occupy as a principal home.

Council not permitted to appeal quashing of parking adjudicator’s decision given non-participation in judicial review (Court of Appeal) (Camden London Borough Council v Humphreys and another)

The Court of Appeal has dismissed an appeal by the London Borough of Camden (council) against an order made by the Administrative Court quashing a penalty charge notice that the council had issued against the respondent. It did so on the basis that the council had not participated in the judicial review proceedings despite having received the claim form and statement of grounds eleven months before the hearing. Although the court was sometimes willing to allow pure points of law to be raised afresh in appropriate circumstances, the court considered that course was not appropriate where, as here, the council not only wished to raise a fresh point of law for the first time but wished for the first time to contest the proceedings in any respect.

Even though the issue as to the validity of the penalty charge notice issued in respect of a parking contravention which was discussed by the Court of Appeal created no binding precedent and did not affect the outcome of the appeal, what was being raised by the council was an important point of law on which the judges had diverging views. Certainly the thrust of the judgments from two of the judges supported the council’s position that the offence was a strict liability offence.

 

Costs payable where error of law conceded in settlement of judicial review claim (High Court) (K (No 2) (Human Fertilisation and Embryology Act 2008))

The High Court has granted a claimant (X) his costs of judicial review proceedings against the local authority (LA), after it was conceded that the registrar (for whose acts the LA was liable), had erred in law in refusing to register X as the father of his twin children born following fertility treatment.

Claimants in public procurement challenge lacked standing to bring judicial review claim (Wylde and others v Waverley Borough Council)

The High Court has held that claimants granted permission to apply for judicial review challenging a council’s contract with a developer on the grounds that it was in breach of public procurement law, did not have standing to bring the claim.

The five claimants (two of whom were local councillors) were opposed to Waverley Borough Council’s (council) plans to regenerate and redevelop the East Street area of Farnham town centre. They sought to challenge a decision by the council to authorise a variation of the viability condition in the development agreement to reduce the minimum land value for the site under development (so as to ensure that the requirements of the agreement that had to be satisfied in order for the development to proceed would be met) on the basis that the council should have held a fresh competitive tendering exercise for the contract.

The court, applying the test on standing established in Chandler v Secretary of State [2009] EWCA Civ 1011, held that the claimants lacked the necessary standing to bring the claim because:

• They had difficulty in showing that any competitive tendering exercise for the varied contract would produce a different outcome.
• They were unable to demonstrate any direct impact upon them that would arise from the conduct of a competitive tendering exercise. The claimants were not economic operators or remotely approximate to any economic operator, nor could they begin to demonstrate any interest in the procurement process that might be akin to, or a proxy for, status as an economic operator.
• Although their concerns were entirely genuine and ostensibly in the public interest, the aforementioned two factors and their interest as either council tax or rate payers or as members of local authorities, were not sufficient to establish that the claimants were within the ambit of the Chandler test.

The decision sets out a detailed and helpful analysis of the existing case law relating to standing to bring a judicial review claim both generally, and in the context of challenges relating to public procurement exercises.

Council did not have a good reason to depart from statutory guidance relating to an unaccompanied young person (S v London Borough of Croydon and another)

The High Court has held that a council did not have a good reason for departing from statutory guidance issued under section 7 of the Local Authority Social Services Act 1970. The guidance required the council to provide accommodation and support to an unaccompanied young person. S, an Iraqi national (who had claimed asylum upon his arrival to the UK) was assessed by the Home Office to be an adult and placed in accommodation for adult asylum seekers. The council refused to provide accommodation and support pending its assessment of S’s age, which decision S judicially reviewed.

 

High Court holds that council disposed of land at less than best consideration but declines to grant relief given delay in bringing proceedings and substantial prejudice to third party (Whitstable Society v Canterbury City Council)

The High Court has held that Canterbury City Council, in its disposal of open space land, had breached its statutory duty under section 123 of the Local Government Act 1972 to obtain the best consideration reasonably obtainable. The valuation that the council obtained was calculated on the basis it was inevitable that affordable housing would be required on the site (which had the effect of reducing the value of the land). The court found that the claimant’s case on this ground was made out. However, the court considered that it was not appropriate to grant a quashing order in relation to the decision of the council’s Executive to sell the land, bearing in mind the undue delay that had occurred and the prejudice to third parties (the developer) and good administration that would occur if such an order was made.

The case is a useful reminder that, unlike private and commercial landowners, a local authority is in the position of a trustee in relation to the land that it holds on behalf of the community and has a statutory duty to sell land at the best price reasonably obtainable. A local authority will only be able to demonstrate that it achieved the best consideration by obtaining an appropriate valuation of the land; in this case, the valuation that was provided to the members of the council’s Executive was some eight months old. Given that fact, and the possibility that planning permission might be obtainable without an affordable housing requirement, the council should have made further enquiries of its planning department.

Allotments de-listed as asset of community value (FTT(GRC)) (New Barrow Ltd v Ribble Valley Borough Council (Community Right to Bid))

The First-tier Tribunal (General Regulatory Chamber) (tribunal) has held that land used as allotments and listed as an asset of community value (ACV) by Ribble Valley Borough Council should be de-listed to allow for its use as part of a housing development.

This case is of interest as the tribunal clearly re-stated the purpose of the ACV regime. The tribunal emphasised the fact that land listed as an ACV imposes a finite restriction on disposal of the land by its owner, and that changing circumstances leading to the requirements in section 88(1) of the LA 2011 no longer being met will lead to de-listing.

Allotment gardens listed as an asset of community value (FTT(GRC)) (Earl Percy’s Appointed Fund v London Borough of Hounslow)

The First-tier Tribunal has decided that the London Borough of Hounslow was correct to list allotment gardens as an asset of community value. This decision is of interest in terms of the evaluation of allotment land in relation to its potential listing as an asset of community value.

Council’s licence conditions for re-use of information held to be unnecessarily restrictive and in breach of Re-use of Public Sector Information Regulations 2015 (Information Commissioner) (ICO Decision notice: FS50619465)

The Information Commissioner (IC) has held that conditions for re-use of information imposed by Cambridgeshire County Council breached regulation 12 of the Re-use of Public Sector Information Regulations 2015 (SI 2015/1415) (RPSI). The complainant requested permission to re-use geographical mapping data concerning local public rights of way provided by the council in accordance with the Open Government Licence (OGL).

In imposing a one year term on the licence and prohibiting end-users’ manipulation of the data, the council’s terms of re-use were more stringent than the OGL’s conditions. The IC held that they constituted an unnecessary restriction in breach of regulation 12 of RPSI and ordered the council to grant re-use of the requested information under the OGL. The council was also held to have breached regulation 17 in not arranging for an internal review of the complainant’s complaint. The decision notice is the first issued by the IC that relates to a breach of the RPSI, and serves as a reminder to councils and other public sector bodies of the duties imposed by the RPSI and, particularly, the mechanics of re-use under the OGL.

GOVERNMENT GUIDANCE AND POLICY

On 12 April 2017, the Cabinet Office published a report on the post implementation review of the Civil Contingencies Act 2004 (Contingency Planning) Regulations 2005 (SI 2005/2042).

On 12 April 2017, the Department for Communities and Local Government (DCLG) published a consultation on preserving the free use of public parks.

On 4 April 2017, the House of Lords Select Committee on the Licensing Act 2003 (LA 2003) published a post-legislative scrutiny report of the LA 2003, and analysed local authorities’ performance and funding arrangements under its framework.

On 17 March 2017, the National Assembly for Wales issued a consultation on the general principles of the Abolition of the Right to Buy and Associated Rights (Wales) Bill, which purports to abolish the right to buy and rights to acquire in Wales.

On 9 February 2017, the DCLG published a consultation document containing proposed amendments to the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (SI 2003/3146).

OTHER ITEMS OF INTEREST

In March 2017, the Local Government Information Unit published an introductory guide to crowdfunding for local authorities to enable them to make informed choices about whether or not to take advantage of such opportunities.

On 6 February 2017, the Local Government Ombudsman published a report calling for greater fairness in the administration of parking fines.

LOCAL GOVERNMENT ASSOCIATION PUBLICATIONS

On 13 June 2017, the Local Government Association (LGA) published guidance for councils on Public Space Protection Orders.

On 13 June 2017, the LGA published guidance to councils on setting local licence fees, aimed at assisting councils to understand the full breadth of issues that should be considered in the process.

On 9 June 2017, the LGA published guidance on the Digital Economy Act 2017 and its key provisions for local authorities.

On 14 February 2017, the LGA published updated guidance on the publicity restrictions that should be observed by local authorities during the pre-election and pre-referendum period.

HOUSE OF COMMONS LIBRARY BRIEFING PAPERS

The House of Commons Library has published the following briefing papers of interest to local government lawyers:

• An updated version of Purdah before elections and referendums.
• Local government in England: structures.

BLOGS

We have published the following blog:

• Local government: the legal department of the future.

FEATURED ASK QUERIES

• Can a local authority accept voluntary donations (under the general power of competence) to be applied for expressly stated purposes (to improve a park)?
• Does a Welsh local authority have the power to set up a charity owned by the council?
• What action can my client take to challenge the fact that they were not consulted on the local plan?