Practical Law

PLC Public Sector reports: 

Make sure that you have not missed a key development in your area of the law by reviewing our latest list of recommended actions.

 Civil litigation: civil litigators will find the following High Court decisions helpful in that they provide guidance on:

• When the court will consider an application without a hearing, Church v MGN Limited [2012] EWHC 693 (QB).
• The approach to be taken on a late application to adjourn a trial for medical reasons, The Governor and Company of the Bank of Ireland v Syed Asalat Shabbir Jaffer [2012] EWHC 734 (Ch).

Civil litigators are also likely to be interested in the following decisions this week:

• The European Court of Human Rights in Reynolds v The United Kingdom holding that an applicant was entitled to have her case heard in the European Court even though she had not exhausted all routes of domestic appeal from the original county court decision striking out her claim.
• The case of R (Berky) v Newport City Council and Others in which the court considered (obiter) the issue of “promptness” in judicial review proceedings as part of an appeal by the claimant against a decision to refuse judicial review proceedings in relation to a planning permission granted by Newport City Council to W.M Morrison Supermarkets plc.

Employment: employment lawyers should be aware that when the Unfair Dismissal and Statements of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 comes into force on 6 April 2012:

• The qualifying period to claim unfair dismissal will increase from one year to two years.
• The qualifying period for entitlement to written reasons for dismissal will increase from one year to two years.

FOIA: information lawyers will be interested in:

• The First-tier Tribunal’s decision in Peter Bolton v Information Commissioner EA/2011/0216 in which the Tribunal held that the local authority should have disclosed personal data relating to the role of senior (although not junior) council employees and councillors in the recruitment process. As a result of the decision, public authorities will be entitled to withhold the personal details of applicants for even senior roles that are obtained during the recruitment process, such as the curriculum vitae and any presentation that the applicant gives and also the prospective employer’s interview and shortlisting notes.
• The statement issued by the Information Commissioner’s Office confirming that, in connection with the government’s plans to introduce legislation requiring increased retention of communications data by communication service providers, it will press for limitations and safeguards to mitigate the impact on the privacy of individuals.
• The further guidance published by the Information Commissioner’s Office on the meaning of the term “disproportionate effort” in section 8(2) of the Data Protection Act 1998 and its impact on a data controller’s obligation to comply with subject access requests.

Health: local authority lawyers interested in understanding the central role that local authorities will play in the NHS reforms will find our fuller update on the Health and Social Care Act 2012: key provisions for local authorities in England helpful.

Localism Act 2011: local authorities should be aware that a number of statutory instruments have been published relating to the commencement of various provisions of the Localism Act 2011:

• The Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012 (SI 2012/965) and The Localism Act 2011 (Consequential Amendments) Order 2012 (SI 2012/961). The Orders deal with the eligibility of parish councils holding the general power of competence and make consequential amendments to the Localism Act 2011 and other related legislation including the Local Government Act 2000 (replacing the well-being power with the general power of competence) and the Land Compensation Act 1961 (in relation to taking account of planning permission when assessing compensation and certificates of appropriate alternative development).
• The Localism Act 2011 (Commencement No. 2 and Saving Provision) (Wales) Order 2012 (SI 2012/887), which brings the parts of the Localism Act 2011 into force relating to the powers of fire and rescue authorities in Wales, repeals provisions within the Local Democracy, Economic Development and Construction Act 2009 about petitions to local authorities and makes amendments to the grounds for the recovery of possession in relation to secure tenancies after a previous tenant’s death, and a saving provision in relation to this section (Wales only).

Procurement: procurement officers will be interested in the:

• Decision of the Northern Ireland High Court in Clinton (t/a Orient Training Services) v Department for Employment and Learning [2012] NIQB 2, upholding an unsuccessful bidder’s appeal against the public authority’s procurement exercise on the basis that the authority applied an interpretation, which constituted a manifest error, to one of the criteria which would not have been clear to all reasonable bidders.
• Conclusion of the European Court of Justice in Case C‑599/10 – SAG ELV Slovensko a.s., and others v Úrad pre verejné obstarávanie that Article 55 of Directive 2004/18 required a provision to be included in national law requiring a contracting authority to ask a tenderer, who offered an abnormally low price, to clarify their price proposal in writing.

Property and planning: property and planning lawyers in Wales should be aware that the:

• Planning Act 2008 (Commencement No. 1) (Wales) Order 2012 comes into force on 30 April 2012 and will bring into force those sections of the Planning Act 2008 not already enacted (sections 188, 197 and 238).
• Residential Property Tribunal Procedures and Fees (Wales) Regulations 2012 came into force on 21 March 2012, which regulate the procedure to be followed when making an application or an appeal to a residential property tribunal under the Housing Act 2004, Part 9 of the Housing Act 1985 (demolition orders) and the Mobile Homes Act 1983.
• Welsh Government has announced the launch of the five Welsh Enterprise Zones.

Planning lawyers in England and Wales will also be interested in the Court of Appeal’s decision in Oliver v Symons [2012] EWCA Civ 267 which is a useful reminder of how easements will be construed. In dismissing the appeal, the Court of Appeal held that the High Court had correctly construed the right of way, with or without vehicles along a track belonging to a landowner, as it had considered the words that were used in the grant and the surrounding circumstances (such as physical limitations on the exercise of the right of way) before concluding the parties’ intention was as expressed in the deed.

Regulation and enforcement: local authority regulation and enforcement officers may be interested in the final report that has been published by the Law Commission and the Scottish Law Commission recommending targeted reforms to consumer law to provide consumers with a new statutory right of redress for loss suffered through misleading and aggressive trading practices.

Waste authorities: the Court of Appeal in Cornwall Waste Forum St Dennis Branch v Secretary of State for the Communities and Local Government has overturned the Administrative Court’s previous decision to quash planning permission for an energy-from-waste incinerator on the basis that objectors to the incinerator did not have a legitimate expectation that the Secretary of State would undertake an appropriate assessment of the scheme under the Habitats Regulations.  Waste authorities will be particularly interested in the Court of Appeal’s conclusion that, rather than having to undertake his own assessment under the Habitats Regulations, the Secretary of State could reasonably rely on the expertise of the Environment Agency as it will help in those cases where there is more than one competent authority to undertake the appropriate assessment.

Consultations: this week consultations were published on:

• The Department of Energy and Climate Change’s consultation on simplifying the CRC Energy Efficiency Scheme.
• Reforming consumer law enforcement powers.

The Cabinet Office has also published a call for evidence on whether there should be a right to choice set out in legislation as part of the government’s plans originally set out in its public services White Paper.