Nicholas Hancox Solicitors
21 Contributions by Nicholas Hancox Solicitors Experts
PRACTICE NOTES
FORTHCOMING CHANGE:
The Charities Act 2022 (CA 2022) obtained Royal Assent on 24 February 2022. As explained in the Charities Act 2022: implementation plan, its provisions are intended to be commenced in three defined groups across three stages—on 31 October 2022, on 14 June 2023, and in ‘early 2024’. For an outline of what has been brought into effect so far, see Charities Act 2022: information about the changes being introduced. The CA 2022 enacts the bulk of the recommendations from the Law Commission’s 2017 report, ‘Technical Issues in Charity Law’. For a synopsis (as at 9 April 2021) of the proposals that have been accepted, refer to News Analysis: Government response to Law Commission report ‘Technical Issues in Charity Law’. In practice, while the same legislation applies to both, academies and free schools can differ considerably in respect of their land
Local Government
PRACTICE NOTES
This Practice Note reviews case law on the highway authority’s obligation to maintain highways at the public expense during periods of adverse weather. Those decisions reveal a clear distinction between permanent dangers arising from want of repair and transient hazards attributable to the elements, and confirm that, in practice, an authority is required only to act reasonably and is not expected to achieve daily miracles over the winter months. The duty on every highway authority to maintain any highway maintainable at the public expense becomes more onerous when severe conditions prevail in winter. Ice, snow and flooding all increase the risks on the highway network and each makes the maintenance authority’s task considerably more difficult. The following cases demonstrate the need to balance obligations owed to the public with the sensible use of limited
Local Government
PRACTICE NOTES
The main rights that a child has in school are:
the right to education
the right to receive care and protection comparable to that a reasonable parent would provide
The former is set out in statute, while the latter stems from common law.
The UN Convention on the Rights of the Child 1989
The UK government aims to honour the UNCRC 1989, although individuals cannot enforce it directly. It seeks to afford children various rights, including:
the right to have their views respected
the right to an adequate standard of living
the right to education
The Human Rights Act 1998
In education law, the Human Rights Act 1998 most notably protects:
the right to freedom of thought, conscience and religion
the right to education
the right to a fair trial
Strictly speaking, the right to education is a guarantee against being denied
Local Government
PRACTICE NOTES
This Practice Note outlines the legislative foundation, character and role of the definitive map and statement that a highway authority must maintain for the public rights of way within its area, under the Wildlife and Countryside Act 1981 (WCA 1981). It describes the authority’s obligation to keep the map and statement under continual review, to update and amend them when needed, and the events and orders that will necessitate alteration of the map and statement. It also details the procedures for making a modification order, whether commenced by the authority or prompted by an application to the authority from another party. It clarifies what triggers a review and how alterations are implemented.
Statutory basis and effect
Each highway authority is required to compile, and keep under review, a definitive map and statement (DMS) of the public rights of way in its area. The map
Local Government
PRACTICE NOTES
Home-to-school transport (early years) in England
Local authorities in England can offer home-to-setting transport for children in early years provision outside schools and may lawfully make a charge for providing it.
Home-to-school transport (compulsory school age) in England
Travel arrangements for eligible children
Unless, and until, an approved school travel scheme is in force—something that will not now occur; see below—a local authority in England must put in place whatever travel it considers necessary to ensure every eligible child of compulsory school age can reach their relevant educational establishment and return home. This does not have to be a door-to-door service, as confirmed in R (M&W) v Hounslow.
For an eligible child, the travel provided must be free of charge and must not require participants to incur extra costs. The DfE has issued guidance, including a model appeal process recommended for use by LAs to help resolve
Local Government
PRACTICE NOTES
FORTHCOMING CHANGE:
The Charities Act 2022 (CA 2022) obtained Royal Assent on 24 February 2022, and, as outlined in Charities Act 2022: implementation plan document, its measures are scheduled to commence in three specified and defined tranches across three phases, on 31 October 2022, on 14 June 2023 and in early 2024, respectively. For an overview of the CA 2022 provisions already brought into effect to date, see Charities Act 2022: information about the changes being introduced. The CA 2022 delivers the majority of the proposals from the Law Commission’s 2017 report, ‘Technical Issues in Charity Law’. For a synopsis (as at 9 April 2021) of the recommendations that have been accepted, see News Analysis: Government response to Law Commission report ‘Technical Issues in Charity Law’. This Practice Note is relevant solely to England, as such; there are no academies in Wales at all.
Local Government
PRACTICE NOTES
At common law, highway ferries fall into two types, identified by the routes they take. One type operates between towns or to a specified island, while the more usual type links two named highways, each situated on opposite sides of a body of water. The Highways Act 1980 (HiA 1980) deliberately leaves ferries outside the statutory definition of a highway, yet the common law regards them as comparable to highways, carrying particular rights and obligations. What sets a ferry apart from other forms of highway is:
a ferry is a franchise vested in an individual or a corporation
the power to operate a ferry carries both privileges and duties
the ability to use a ferry is qualified and limited
A ferry as a franchise
The general principle is that anyone with a boat may transport a passenger across a navigable river; however, that principle yields where such use of a boat
Local Government
PRACTICE NOTES
This Practice Note sets out the principal highways law matters relating to bridges and tunnels—namely the public’s entitlement to pass and re‑pass across bridges or through tunnels, and who carries responsibility for their maintenance. It outlines the four categories of highway bridge and explains, for each, where the maintenance duty falls, with particular reference to the Highways Act 1980 (HiA 1980) and the Transport Act 1968 (TrA 1968). It also summarises relevant legislation that is specific to toll bridges and tolled tunnels, new bridges across navigable water, bridges across boundaries, and footbridges.
The main highways law issues concerning bridges and tunnels are as to the:
rights of the public to pass and re‑pass across bridges or through tunnels
maintenance liability for them
The HiA 1980 definitions of a bridge and a tunnel provide little practical assistance...
Local Government
PRACTICE NOTES
This Practice Note discusses the common law on highway diversions
It sets out that the essential feature is movement from A to B, rather than the specific parcel of land over which the right of way is believed to lie, and it also covers highway closure brought about by natural forces. It further explains that where a highway on or close to the coast is destroyed by incursions from the sea, the courts will not require the authority charged with its maintenance to reinstate it to a serviceable condition. While the common law acknowledges the force of the maxim ‘once a highway, always a highway’, there are, inevitably, some exceptions. In R v Secretary of State for the Environment, ex p Burrows; R v Secretary of State for the Environment, ex p Simms, Purchas LJ observed: ‘At common law the rule was and remains “once a
Local Government
PRACTICE NOTES
This Practice Note outlines the distinction between highway land that is only vested in the highway authority and highway land that is owned outright by the authority. It highlights leading cases and statutes, notably the Highways Act 1980 (HiA 1980) and the Local Government Act 1929 (LGA 1929), and clarifies that, where land is merely vested, the authority’s proprietary interest extends physically to the upper two spade-depths of the relevant land, or to such depth as is required for the construction and maintenance of the highway, including associated drains. Whilst that form of vested ownership will usually suffice, highway authorities may purchase freehold estates in land under the HiA 1980 for the creation of new or improved highways. Some highway land is only vested in the highway authority, whereas other highway land belongs entirely to the
Local Government
PRACTICE NOTES
This Practice Note
This Practice Note sets out that the standard of highway maintenance required is determined by the level of expected ordinary traffic on the route concerned. It further explains that a person injured by a danger on a highway may sue the highway authority in negligence, and that the authority has a statutory defence under the Highways Act 1980 (HiA 1980) if it can show it exercised reasonable care. It also notes that, at common law, the obligation is to keep the highway in a reasonable condition rather than to improve it. The authority must carry out routine inspections of the highway surface and run a system for incoming reports of damage; however, the duty to keep the highway in repair does not extend to damage caused by extraordinary traffic. A highway authority is under a duty to ‘maintain the
Local Government
PRACTICE NOTES
This Practice Note outlines highway nuisance law, and records that section 333 of the Highways Act 1980 (HiA 1980) expressly preserves common law.
It considers when activities on or over the road may constitute a nuisance, with reference to statute and the common law, including:
builders’ works, scaffolding and skips;
racing and unsuitable traffic;
stationary traffic; and
bridges and beams spanning the highway.
It also surveys likely nuisances arising from neighbouring land, such as:
domestic or farm animals;
pigeons;
smoke and fumes; and
trees.
Common law and statute law
Regarding highways, nuisance at common law substantially overlaps with statutory provisions (principally within the HiA 1980), yet HiA 1980, s 333 specifically preserves the common law. Pratt and Mackenzie’s Law of Highways (21st edition, 1967) describes a highway nuisance as any wrongful act or omission on or near a highway that
Local Government
PRACTICE NOTES
This Practice Note
This Practice Note sets out that determining a highway’s breadth is essentially a matter of fact. Under the common law, there must be evidence amounting to proof of the least width needed to accommodate the traffic entitled to use it. If such proof is absent, the Highways Act 1980 (HiA 1980) specifies minimum and maximum widths as defaults. The Note also outlines the various kinds of boundaries, explaining that there is frequently physical indication of a highway’s lateral limits, yet each instance turns on its own facts. It further notes that, under the HiA 1980, highway authorities may widen a highway, or build fresh bridges or footbridges. Historically, the breadth of a highway seldom gave rise to dispute. The highway right was (and remains) a right to pass and re-pass; a right to travel from A to B...
Local Government
PRACTICE NOTES
This Practice Note
This Practice Note concerns the public’s legal entitlement to use vehicles, to ride a horse, or to drive animals along most highways. It outlines that the commonest ways of categorising highways are by the traffic allowed (for example, a footpath or bridleway) and by the maintaining authority (for example, a classified road or GLA road). It also provides an alphabetical list with descriptions of the principal highway types in England and Wales.
The essential public right over a highway is for any person to pass and re‑pass along its length. On the majority of highways—though not every one—there is, in addition, a lawful right to use vehicular transport and/or to ride a horse and/or to drive animals from one place to another.
The most usual classifications of highways into types are by permitted traffic and by maintenance authority. The
Local Government
PRACTICE NOTES
The Basic Curriculum in England
In England, the Basic Curriculum consists of three components:
religious education
sex education
the National Curriculum
Collective worship
Each school day—though not always at the outset—pupils in maintained schools, including special schools, should take part in collective worship, either as a whole or in groups by age or school, and this is to happen on the school premises. On special occasions, the governing body, following consultation with the headteacher, may arrange for it to be held elsewhere...
Local Government
PRACTICE NOTES
This Practice Note outlines the statutory bases for Ofsted’s administrative framework and fields of activity, the cadence and character of school inspections in particular, the distinct categories of inadequate schools in England, and the actions that a local authority may need to take under the Education and Inspections Act 2006 (EIA 2006) if one of its schools is deemed inadequate.
Ofsted
Ofsted is a non-departmental public body funded by government, working in England and led by His Majesty’s Chief Inspector of Education, Children’s Services and Skills (HMCI). The bulk of Ofsted’s powers and responsibilities sit in Part 1 of the Education Act 2005 (EA 2005), while the overarching functions and duties of His Majesty’s Chief Inspector are specified in EIA 2006, ss 116–119. In line with EIA 2006, Sch 12, these functions can be delegated lawfully. Ofsted inspectors (HMIs) are accountable to a senior HMI. This
Local Government
PRACTICE NOTES
This Practice Note
This Practice Note outlines the statutory obligation on the relevant authority, under the Wildlife and Countryside Act 1981 (WCA 1981), to maintain the Definitive Map in continual review. It sets out the circumstances that may justify a modification, and indicates who will commonly seek a modification order. It also describes how to make a Definitive Map Modification Order (DMMO), highlighting the proper form, the supporting material required, and the decision-making steps taken by the Definitive Map authority. The subsequent formal steps after a DMMO are also covered, identifying which authority must carry out each task. The purpose of the Definitive Map and Statement (‘Definitive Map’) of public rights of way, and allied matters, is that it is conclusive. Yet, despite its definitive status, it is not immutable. The local highway authority (the County Council or a Unitary District Council) has an
Local Government
PRACTICE NOTES
‘Working together to improve school attendance’ is statutory guidance from the government that explains the considerations to which all schools, trusts, governing bodies and local authorities must have regard when striving to secure consistently high attendance across England. It clarifies that this guidance should be read alongside other documents, notably the statutory ‘Keeping children safe in education’...
Compulsory school age
Children who are of compulsory school age must receive an education, which does not have to take place in a school setting. When judging whether a child’s attendance is adequate, the first question is whether the child has reached compulsory school age.
when they reach five years old, if that birthday falls on a prescribed day; and
otherwise, from the beginning of the next prescribed day after their fifth birthday
The prescribed days for the commencement of compulsory school age are 31 August, 31
Local Government
PRACTICE NOTES
This Practice Note outlines the procedure for statutory undertakers and holders of street works licences to use the highway for utility works and apparatus under the statutory framework in the New Roads and Street Works Act 1991 (NRSWA 1991) and other enabling legislation. It explains who qualifies as statutory undertakers and sets out the duty of care owed, both under statute and at common law, to other highway users.
Street works at common law
At common law, interfering with the surface of a highway amounts to a nuisance. In the nineteenth century, utility companies seeking to route underground pipes and cables along highways—though these were the most obvious corridors—were, in the absence of statutory powers, restrained by the courts from placing their apparatus. The Sheffield Gas and Cambridge Gas cases illustrate this principle.
Street works—liability in negligence
Even where legislation authorises interference with, or use of, the
Local Government
PRACTICE NOTES
The right to roam over open land shares traits with the ability to move from A to B that defines a public highway, yet it exists solely by statute. It is chiefly contained in the Countryside and Rights of Way Act 2000 (CRWA 2000). Unlike highway rights, roaming requires no fixed origin or destination in either use or definition. CRWA 2000 was brought in to clarify and broaden the public’s right to walk across open countryside. The legislation’s assorted regulations and restrictions make plain that walking is allowed, while walkers must respect the rights of other countryside users. CRWA 2000 was brought in to clarify and broaden the public’s right to walk across open countryside. The legislation’s assorted regulations and restrictions make plain that walking is allowed, while walkers must respect the rights of other countryside users.
Access land
CRWA 2000 provides and defines access solely on
Local Government
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