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 October 2016 to January 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:
- Cases of interest to local authorities.
- Other developments of interest to local authority lawyers.
CASES OF INTEREST TO LOCAL AUTHORITIES
Court of Appeal holds that council not permitted to appeal quashing of parking adjudicator’s decision given non-participation in judicial review (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.
Duty on LPA to give reasons when granting planning permission in exercise of delegated powers (High Court) (R (Shasha and another) v Westminster City Council)
The High Court has held that a planning permission granted for development by Westminster Council (council) was unlawful as the council had failed (among other matters) to provide reasons for the decision to grant the permission. The court held that regulation 7 of the Openness of Local Government Bodies Regulations 2014 imposes a duty on a local planning authority to give reasons for the grant of planning permission, where the decision to grant the permission is taken by an officer of the LPA under delegated powers.
The court emphasised that although planning legislation provides a comprehensive code of planning control, that legislation does not by itself provide a comprehensive code governing how planning decisions are to be taken by local authorities. Those matters will also be governed by the primary legislation applicable to the discharge of their functions by local authorities, including the relevant provisions in the Local Government Act 1972, Part 1A of the Local Government Act 2000, the Local Audit and Accountability Act 2014 and secondary legislation made under those Acts.
Conduct evidencing an injunction for anti-social behaviour not limited by section 21(7) of the Anti-Social Behaviour, Crime and Policing Act 2014 (High Court) (Birmingham City Council v Pardoe)
The High Court has rejected the appellant’s appeal against the county court decision that the council was entitled to take into account his anti-social behaviour conduct before 24 September 2014 when applying for an injunction under section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 (2014 Act). The appellant had sought to argue that the transitional provision in section 21(7) of the 2014 Act limited the anti-social conduct that could be considered by the council in deciding whether it was just and convenient to grant an application for an injunction to conduct after 24 September 2014. The High Court agreed with the county court’s conclusion that section 21(7) of the 2014 Act does not limit the conduct that can be considered in deciding whether it is just and convenient to grant an injunction.
The case will be of interest to local authorities given its discussion of the transitional provision in section 21(7) of the 2014 Act and its correct interpretation. Without that provision, an authority seeking to restrain anti-social behaviour would have faced potential difficulty where the conduct relied on as qualifying behaviour for an injunction application preceded the commencement date of the 2014 Act by a short period, or straddled the commencement date. Without section 21(7), those affected by anti-social behaviour would have had to endure more of it before a successful application could be made to the court. As both the High Court and county court recognised, ignoring anti-social behaviour before 24 September 2014 would lead to absurd results. With the passage of time, however, the transitional purpose and effect of the section will reduce because the longer the Act is in force, the less likely it is that an authority will be relying on pre-commencement conduct as qualifying behaviour.
Court of Appeal confirms no second succession to a secure tenancy and council’s allocation policy lawful (Holley v Hillingdon London Borough Council)
The Court of Appeal has confirmed that members of a deceased secure tenant’s family are not permitted to a second succession to a secure tenancy under the Housing Act 1985. In its consideration of when a proportionality defence can be raised in a housing possession claim, the court considered that the length of residence might form part of an overall proportionality assessment under Article 8 of the European Convention on Human Rights. However, it was unlikely to be a weighty factor given that Parliament had lawfully excluded second succession to members of a deceased secure tenant’s family.
The court also dismissed the appellant’s ground of appeal that the council’s second succession policy was unlawful because it did not contain or permit the exercise of any residual discretion as to allocation of public housing. The court did not need to decide that question. The appellant’s eviction on the facts of the case would not be unlawful because in view of the drastic shortage of three-bedroomed council accommodation, his case that he should be allocated the property came nowhere near the degree of exceptionality that was required to give him a real prospect of success under a residual discretion however widely framed.
Services Directive prohibits up-front charge for maintenance of licensing regime costs as part of licence application fee (CJEU) (Hemming and others v Westminster City Council)
The Court of Justice of the European Union (CJEU) has held that the fee structure of a local authority’s licence scheme breached Article 13(2) of the Services Directive (2006/123/EC) in that it required applicants to pay up-front fees covering both the costs of the application process and the maintenance of the licence regime. Article 13(2) requires that licensing and regulatory schemes must not be “dissuasive” and that any charges for authorisation must not exceed their cost. The Services Directive is implemented in the UK by the Provision of Services Regulations 2009 (SI 2009/2999) (POSR 2009). The POSR 2009 apply to licensing and regulatory bodies, including local authorities exercising statutory or discretionary authorisation schemes, in prescribed sectors.
The case related to Westminster City Council’s licensing scheme for sex shops, of which the claimant in the earlier proceedings in the UK courts was a licensee. The council charged applicants for a sex shop licence a fee that comprised the costs of both processing the licence application (part 1) and managing the licensing regime (including its enforcement) (part 2). The part 2 fee was refundable to unsuccessful applicants.
On referral from the Supreme Court, the CJEU issued a preliminary ruling to the effect that Article 13(2) prohibited a licensing scheme from charging applicants for part 2 fees up-front. Part 1 fees could not exceed the costs of the application process. The council could only charge part 2 fees to successful applicants, upon their application being granted.
The CJEU’s judgment makes it clear that the authorisation schemes of “competent authorities” under the POSR 2009 can only charge an up-front fee that covers, and does not exceed, the cost of assessment and granting of a licence application. The CJEU’s judgment may require competent authorities to reconsider the mechanisms by which they seek part 2 fees in the application and authorisation process.
Principal authority is required to investigate and decide upon allegations of councillor’s breach of a parish council’s code of conduct under the Localism Act 2011 (High Court) (John Taylor v Honiton Town Council)
The High Court has quashed a decision of a parish council to impose sanctions on the claimant councillor. The court held, however, that sections 27 and 28 of the Localism Act 2011 (LA 2011) impose a duty on principal authorities of parish councils to investigate and decide upon allegations of breaches of parish councils’ codes of conduct, and that parish councils are excused from this requirement. It also considered that a sanction requiring a councillor to undertake training in respect of their conduct could be lawful and proportionate, depending on the circumstances of the case.
The judgment provides a rare and important clarification of the conduct regime implemented by the LA 2011 and welcome, but not complete, confirmation of the extent of principal authorities’ and parish councils’ responsibilities in this respect.
Correct tests for “exceptional circumstances” and A1P1 proportionality applied in council application for consent to appropriate local allotments for redevelopment (High Court) (R (Andrew Moore) v Secretary of State for Communities and Local Government)
The High Court has held that the Secretary of State for Communities and Local Government (SoS) had correctly applied the tests for “exceptional circumstances” and proportionality in accordance with Article 1 of the first Protocol to the European Convention on Human Rights (A1P1) in its determination of a council’s application for consent to appropriate a local allotment site.
The claimant was the leaseholder of an allotment on land owned by Watford Borough Council (council). The council sought to use its powers under sections 122 and 123 of the Local Government Act 1972 to appropriate and dispose of land that it owned and on which the claimant’s allotment was situated in order to serve a mixed-use redevelopment. In accordance with the Allotments Act 1925 (AA 1925), the council applied for the consent of the SoS to appropriate the claimant’s allotment. The SoS considered that:
- “Exceptional circumstances” applied, pursuant to its Allotment disposal guidance 2014: Safeguards and alternatives (guidance).
- The interference with the claimant’s right to peaceful enjoyment of the land in accordance with A1P1 was justified and proportionate.
The SoS granted the council consent to appropriate the allotment land from the claimant, which the council decided to enact. The claimant applied for judicial review of the SoS’s decision.
The court granted permission for the claimant’s application to proceed but dismissed the substantive claim. In particular, it held that:
- The SoS had not made an error in law by applying too low a threshold for the “exceptional circumstances” test pursuant to the guidance. The test did not require consent to be issued only in the “most extraordinary cases”.
- Rather, the correct interpretation of the guidance was that the SoS should exercise his discretionary judgment as to whether or not exceptional circumstances exist on the individual facts of each application. In this case, the SoS was entitled to reach the decision that he did.
- The court had correctly considered that the interference with the claimant’s A1P1 rights was justified and proportionate, and had struck a fair balance between the disadvantages that appropriation would create and the public interest benefits in including the allotment land in the redevelopment scheme.
This case will be of interest to councils and affected parties in disputes regarding allotments under the AA 1925 as well as wider planning and redevelopment disputes where a similar policy framework is engaged, particularly where a measure of discretion (such as determination of whether “exceptional circumstances” apply) is afforded to the decision-maker. The judgment also serves as a reminder that the principles of robust decision-making by public authorities, and the importance of not fettering an authority’s discretion by an over-rigid application of a policy, can apply in respect of relatively discrete local planning issues.
Council’s Traffic Regulation Order consultation held to be lawful despite being conducted with statutory notice process (High Court) (Surrey County Council v Royal Borough of Windsor and Maidenhead)
The High Court has held that the Royal Borough of Windsor and Maidenhead’s (the defendant) consultation on a proposed Traffic Regulation Order (TRO) was lawful despite being conducted at the same time as the statutory notice process. The court also held that the evidence the defendant had assessed was a matter for its discretion and that it had otherwise not acted irrationally in its consideration of this.
The defendant proposed to make a TRO pursuant to its powers as a traffic authority under the Road Traffic Regulation Act 1984 (RTRA 1984) on a road partly in its area and partly in that of the claimant, Surrey County Council. Regulation 6 of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 (SI 1996/2489) stipulates that before making a TRO under the RTRA 1984, a traffic authority must consult with various parties, of which the claimant was one in this case. Regulations 7, 8 and 13 set out the process by which a traffic authority must provide notice of the proposed TRO to consultees and to consider objections to the proposal. The defendant conducted its consultation under regulation 6 at the same time as it issued notice to consultees of the proposed TRO under regulation 7. Despite receiving objections from the claimant, it proceeded to make the TRO.
The court held that regulation 6 did not require the defendant to consult the claimant in the formulation of the proposed TRO, and before it was required to issue notice of the proposal under regulation 7. The court did not consider, therefore, that the defendant’s consultation under regulation 6 consultation breached the Sedley criteria for fair and lawful consultation (R (Gunning) v Brent London Borough Council (1985) 84 LGR 168), despite being conducted at the same time as the notification and objection process under regulations 7, 8 and 13. The court also held that it was for the defendant to determine the extent of evidence it required to reach its decision to make the TRO, and otherwise that it had not acted irrationally in this respect. The claimant’s claim for judicial review was dismissed.
The case is useful for councils proposing TROs since it indicates that the regulation 6 consultation can be conducted at the same time as the notification and objection process, and need not be a precursor to the formulation of a proposed TRO. Whilst this may streamline the procedure somewhat, the case serves as a reminder that it is critical that a council satisfies the Sedley criteria. The court’s comments on the extent of its scrutiny of a council’s discretionary judgment are also notable in the context of proposed TROs, and helpful to councils for reaffirming that a council will typically be afforded a wide discretion in this respect.
OTHER DEVELOPMENTS OF INTEREST TO LOCAL AUTHORITY LAWYERS
On 4 October 2016, Mark Drakeford, the Cabinet Secretary for Finance and Local Government in the Welsh Government, announced proposals for mandatory and systematic regional delivery of key services by Welsh local authorities, in addition to further plans for local authorities and community councils.
On 20 October 2016, the Department for Communities and Local Government (DCLG) published its response to the Communities and Local Government Committee’s report following its inquiry into the government’s imposition of commissioners on the councils of Tower Hamlets and Rotherham.
On 23 October 2016, the DCLG published updated guidance for local authorities on making, amending and revoking byelaws, and a model revocation byelaw.
On 31 October 2106, the Immigration Act 2016 (Commencement No 2 and Transitional Provisions) Regulations 2016 (SI 2016/1031) were made. The regulations brought into force, on 21 November 2016, the requirement in sections 77 to 84 of the Immigration Act 2016 for public authorities to ensure that public sector employees in England in customer-facing roles speak fluent English (or Welsh in relation to public sector employees in Wales).
On 9 November 2016, the DCLG published a consultation seeking views on allowing joint committees and combined authorities in England to hold meetings by video conference.
On 16 November 2016, the Surveillance Camera Commissioner published his third annual report for the period 2015 to 2016.
On 23 November 2016, the House of Commons Library published a briefing paper summarising the main developments regarding the process of devolution of powers to local government within England since 2014.
On 29 November 2016, the Code of Practice (English Language Requirements for Public Sector Workers) Regulations 2016 (SI 2016/1157) were made. The regulations brought into force, on 22 December 2016, the code of practice on the language requirements for public sector workers under section 77 of the Immigration Act 2016.
On 2 December 2016, the DCLG outlined a revised intervention package for the London Borough of Tower Hamlets. The revised intervention package follows a recommendation by the Tower Hamlets commissioners on 11 October 2016 that the authority’s grants functions should be returned and that the commissioners’ oversight of the authority’s procurement practices and processes should end.
On 5 December 2016, the draft Public Service Ombudsman Bill 2016-17 was published. The draft Bill sets out in detail the government’s plans to modernise the Public Service Ombudsman and the proposed measures to create a single Public Service Ombudsman from the Local Government Ombudsman (LGO) and the Parliamentary and Health Service Ombudsman (PHSO). The creation of a single Public Service Ombudsman has been welcomed by the LGO and the PHSO on the basis that the existing complaint system is too complex and fragmented. They consider that the new framework will make it easier for members of the public to have their complaints about public services resolved.
On 7 December 2016, the draft Combined Authorities (Overview and Scrutiny Committees, Access to Information and Audit Committees) Order 2016 was laid before Parliament. The Order will come into force on 8 May 2017.
On 13 December 2016, the Counsel General for Wales, Mick Antoniw, announced that the Welsh Government is to introduce a major programme to build a distinct body of Welsh law.
On 13 December 2016, the DCLG launched a consultation on proposed ‘banning order’ offences under the Housing and Planning Act 2016.
On 14 December 2016, the Local Government Ombudsman published new guidance, Key principles of complaint handling in a devolved setting. Although the design of complaints systems and procedures is a matter for each authority, the principles set out in the guidance comprise key benchmarks authorities will want to use to ensure their complaints procedures are simple, fair and encourage organisational improvement.
On 16 December 2016, the Department of Health published the government’s response to the House of Commons Health Committee’s Report on Public Health post-2013 (Second Report of Session 2016-17).
On 13 January 2017, the House of Commons Library published a briefing paper discussing the draft Public Service Ombudsman Bill 2016-17.
On 17 January 2017, the Secretary of State for Communities and Local Government published the draft West of England Combined Authority Order 2017, which will create a new West of England combined authority, consisting of the councils for the local government areas of Bath and North East Somerset, Bristol City and South Gloucestershire, and creates a mayor for the new combined authority.
On 27 January 2017, the Combined Authorities (Mayors) (Filling of Vacancies) Order 2017 (SI 2017/69) was made. The order came into force on 28 January 2017.