Legal News

What, in summary, are the recent developments relating to the EU settlement scheme? Following earlier pilot phases, the scheme went live in full on 30 March 2019, making it accessible to every EU citizen and their family members. The caseworker guidance is extensive and divided into two texts: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members — a 104-page guide outlining eligibility, when an application is valid, what evidence to submit, the steps in the process, and particular rules for family members. EU Settlement Scheme: suitability requirements — a 22-page guide devoted to character and conduct considerations, and the ways these could affect an application under the EU settlement scheme. These materials assist applicants seeking a thorough grasp of the process and the paperwork they may require. Yet the breadth and depth of what is provided can feel daunting for...

Gladman Development Ltd v Secretary of State of Housing, Communities and Local Government and another [2019] EWHC 127 ( Admin) What are the practical implications of this case? The ruling introduces no novel principles, but it usefully reinforces the obligation on decision-makers to ensure consistency with prior determinations and to set out clear, adequate reasons for their conclusions. Plainly, whether a local policy is considered out of date, and the weight it attracts, will differ from case to case; however, the essential point is that where a previous appeal decision is directly pertinent or turns on the same policy interpretation, the decision-maker should explain any inconsistency with that earlier outcome and justify any departure from conclusions that diverge from their own. Although coherence between appeal decisions on the same subject matter or policy is clearly important, this does not require identical outcomes in all similar cases;...

UKI ( Kingsway) Limited ( Respondent) v Westminster City Council ( Appellant) [2018] UKSC 67 What is the law in this area? Liability for non-domestic rates turns on a property being recorded as a hereditament in the rating list. A newly constructed building is added to that list once a completion notice has been validly served. The notice fixes the date on which the building is deemed to be complete. What was the background? The dispute concerned the purported service of a completion notice intended to bring a new, unoccupied building into the rating list. The Court of Appeal upheld the appellant’s appeal against the decision of the Upper Tribunal ( Lands Chamber) ( UT), which had found that a completion notice had been served on it, despite the fact that transmission was effected through a person not authorised to accept service......

Upper Tribunal considers experts acting under success-related fees ( Gardiner & Theobald LLP v Jackson ( VO)) Gardiner & Theobald LLP v Jackson ( VO) [2018] UKUT 253 ( LC) What was the background? The UTLC President characterised the ruling as addressing significant questions of principle about the proper conduct of experts. In essence, it examined the effect of success‑linked remuneration and the circumstances in which such arrangements might be regarded as acceptable. The tribunal adopted a notably broad stance on experts’ obligations where success‑related fees arise, prompting unease among expert witnesses and their employers. Although the dispute was a rating matter, the tribunal made it clear that its observations were equally applicable in compensation cases. The panel presented its guidance as having wider application across comparable proceedings in both forums. Fee arrangements in the case The surveying practice had undertaken all rating work for Gardiner &...

SRCL Ltd v National Health Service Commissioning Board (also known as NHS England) [2018] EWHC 1985 ( TCC) What are the practical implications of this case? The court delivered a series of significant observations that merit close attention across multiple aspects of the dispute. On procedure, it highlighted the centrality of agreed lists of issues, stating that a List of Agreed Issues is an essential device in contemporary litigation, not just in the specialist courts but across the High Court. The court was distinctly unimpressed by SRCL’s effort to advance a new contention at trial that had not appeared on the agreed list, determining that parties should be bound by what they have settled in that list rather than treating it as merely indicative. As to limitation, the judgment demonstrates that the short time limits under the Public Contracts Regulations 2015 SI 2015/102 ( PCR...

What is the background to the case? The judicial review stemmed from the Department for Infrastructure’s ( Df I) approval of an energy-from-waste scheme at Hightown Quarry in North Belfast. The proposal was advanced by Arc21, a consortium of NI local councils formed to deliver waste management solutions for those authorities. The approval decision was taken in September 2017 by the Df I’s Permanent Secretary, more than a decade after the project was first envisaged. As a rule, the ultimate sign-off would fall to the departmental minister. However, following the fall of the Stormont Executive in January 2017, there was no minister in post. The Df I therefore found itself in the awkward position of waiting for either the return of the Executive or the imposition of direct rule by Westminster. In September 2017—and indeed at that time—neither outcome looked remotely likely. A local...

R (on the application of Tate) v Northumberland County Council [2018] EWCA Civ 1519 What are the practical implications of this case? It is unsurprising that the court adhered to the established law on material considerations and the consistent duty to give reasons. Where no explanation is offered for departing from a previous, comparable decision, decision-making can become erratic, causing real prejudice to members of the public affected by the grant of planning permission as well as to objectors. In such contexts, reasons are essential to preserve confidence in the development control regime. This judgment is a further reminder that decision-makers must provide sufficient reasons on the principal issues in planning determinations, so it is clear that the decisive questions have been confronted and resolved and, accordingly, that proper regard has been paid to material...

James Plummer v Royal Herbert Freehold Limited [2018] Lexis Citation 48 What are the practical implications of this case? Businesses that previously regarded themselves as landlords may, in reality, be treated as service providers and therefore have an anticipatory duty to make reasonable adjustments. As a result, the needs of disabled people must be accommodated, and importantly this applies even where there are currently no disabled users of the service. A further consequence is that, as a service provider, the company must consider altering physical features—a duty not imposed on landlords under the Equality Act 2010 ( EA 2010). Another practical point concerns the potential scale of injury to feelings awards—in this matter, £9,000 was awarded, the highest known award in a civil disability discrimination claim. PSLProperty comment: The County Court is not a court of record, therefore the judgment carries no...

DLA Delivery Ltd v Baroness Cumberlege of Newick and another [2018] EWCA Civ 1305 What are the practical implications of this case? The judgment confirms that the Secretary of State must consider relevant rulings issued after an inquiry has closed, even where those rulings are neither relied upon in further submissions to him nor specifically flagged by the parties. Accordingly, appellants and respondents alike should monitor any analogous determinations handed down while their appeal is pending so they can calibrate expectations. The ruling further underlines that the Secretary of State cannot depend on the litigants to identify pertinent authorities; the responsibility rests with him to apprise himself of them. The Court of Appeal also reaffirmed that, if the Secretary of State proposes to adopt a different stance and reach a different outcome on like issues to earlier decisions at the appeal stage, he must give...

Jones v Birmingham City Council [2018] EWCA Civ 1189, [2018] All ER ( D) 129 ( May) What are the practical implications of the judgment? There has long been debate over whether the civil standard required to obtain a gang injunction accords with Article 6 ECHR. The decision in Jones resolves that, for now, by stating unequivocally that proceedings under PCA 2009 Part 4 and ASBCPA 2014 Part 1 do not determine a criminal charge within the meaning of Article 6(1) ECHR, and that the fair trial guarantees in Article 6 more generally do not demand application of the criminal standard of proof. In essence, relying on the civil threshold to secure these injunctions is compatible with Article 6 ECHR, and practitioners may proceed on that footing unless and until the Supreme Court or the European Court of Human Rights decides...

The full text of the Interim Report is available here. The Town and Country Planning Association ( TCPA) has asked for feedback on the Interim Report’s findings before the final report is published... What is the background to the Interim Report? The Raynsford Review of Planning (the Review), chaired by former planning minister Nick Raynsford, is an independent initiative established by the TCPA in 2017. It seeks to determine how government could reform the English planning system so it is fairer, better resourced and capable of delivering quality outcomes, whilst still promoting the creation of new homes. The Review was not commissioned by government; accordingly, its conclusions will not be binding. Nevertheless, the task force—comprising academics, politicians, policy makers and consultants—has been gathering evidence and engaging with stakeholders over an 18‑month period starting in June 2017. As a result, the final report, due in late 2018, is...

Original news R (on the application of Bishop) v Westminster Council [2017] EWHC 3102 ( Admin) What is the significance of the decision for authorities and developers? This ruling stands as a clear caution to developers and local planning authorities ( LPAs) to strictly observe the procedural rules governing planning applications. The court condemned the developer for recklessly submitting the wrong ownership certificate and other errors on the application form, which together were misleading and deprived an interested party of the chance to make representations on the proposal. Beyond placing any planning permission obtained through misleading statements at risk of being set aside, it is a criminal offence to issue an ownership certificate that you know is false or misleading, or to do so recklessly. Sound practice is to carry out a Land Registry search of the site before lodging an...

Original news Bohm and others v Secretary of State for Communities and Local Government [2017] EWHC 3217 ( Admin) What is the significance of the decision for decision-makers and developers? The ruling offers helpful guidance on the NPPF’s heritage provisions, which should be approached as a coherent whole and applied in a practical, purposive way, rather than read piecemeal. It draws a clear line between NDHAs, which lack statutory protection, and designated heritage assets, which benefit from it. NDHAs fall under paragraph 135 of the NPPF, requiring the application to be examined in its entirety, with a balanced judgement reached by the decision maker, based on the proposal’s overall merits. The NPPF does not prescribe the mechanics of that exercise, nor the weight to be attached to any given consideration, allowing professional judgement too. The correct methodology is that, where an NDHA...

Original news A Local Authority v AMc C and others [2017] EWHC 2435 ( Fam), [2017] All ER ( D) 49 ( Oct). Care orders were granted for two boys, aged 13 and 15, because remaining in their existing residential placements was judged to be in their welfare best interests. The Family Division also found that the near‑18‑year‑old brother’s presumption of capacity had not been displaced; nonetheless, an injunction was made which did not oblige him to live in any specified accommodation, but barred him from residing at his mother’s home until capacity and jurisdiction could be revisited. What is the significance of this case? Why is it important for practitioners? This appeal succeeded against the final care orders on grounds of procedural unfairness. Those final orders were imposed at a re‑listed issues resolution hearing rather than at a final hearing. The process was held to have...

What is the significance of this case? Why is it important for practitioners? On 10 August 2017, at a hearing at Highbury Corner Magistrates’ Court, Green Live admitted two offences contrary to the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 (the Regulations). The prosecution concerned the issuing of supposed ‘licences to occupy’ when the arrangements were in fact tenancies. Thought to be the first matter of its kind in the UK, its significance lies in showing that local authorities can, and will, act where agents or landlords attempt to evade obligations to afford tenants security of tenure and to protect deposits. While tenants have long resisted possession claims and pursued statutory penalties for failures to safeguard deposits, this case makes clear that landlords and agents engaging in such conduct risk criminal prosecution as well as civil...

Oates v Secretary of State for Communities and Local Government [2017] EWHC 2716 ( Admin) What is the significance of the decision for authorities and developers? This ruling examines when those taking decisions should treat an enforcement notice as void, instead of relying on the power in section 176(1) of the Town and Country Planning Act 1990 ( TCPA 1990) to put right a flaw in a notice. The court confirmed that the obiter remarks in Miller- Mead v MHLG [1963] 2 QB 196, viewed in a fair and objective way, signify that where a contravention of TCPA 1990, s 173(1) and (3) is made out—namely, the enforcement notice fails to identify the alleged breach of planning control and the steps the addressee must take to cure it—then nullity must follow. By contrast, where the deficiency does not amount to such a clear...

What is the background to this case? In R (on the application of CXF (acting by his mother, his litigation friend)) v Central Bedfordshire Council and another, [2017] EWHC 2311 ( Admin), Dinah Rose QC, acting as a Deputy High Court Judge, examined the operation of section 117 of Me HA 1983. This framework supports people discharged after compulsory detention under Me HA 1983. The entitlement derives from Me HA 1983, s 117, widely known as ‘section 117 aftercare’. Such aftercare is supplied without charge, regardless of financial means, unlike much social services support. Funding is shared between health services, through CCGs, and social services, via local authority adult social services departments ( LAs). Certain provisions do not fall within section 117 aftercare: these are services seen as meeting only basic needs, lacking a sufficient nexus with an individual’s mental health disorder. The notion of...

Original news Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 What is the significance of the decision for authorities and developers? This ruling offers a clear restatement of how a fallback scheme should be treated as a material consideration in planning decisions. The Court of Appeal underlined that courts should shun rigid or mechanistic tests and remember the breadth for a lawful exercise of planning judgment by the decision-maker. Because fallback scenarios depend heavily on their particular facts, the application of planning judgment is paramount. In this instance, there was no legal misdirection in giving weight to the fallback available under permitted development rights. The Court of Appeal also affirmed the High Court’s view that, for the purposes of Class Q in Part 3 of Schedule 2 to the Town and Country Planning ( General Permitted Development) ( England) Order 2015, SI...

What crisis is the UK currently facing in terms of housing? Anyone paying even minimal attention recognises the shortage of truly affordable homes. Aspiring first-time buyers struggle ever more to step onto the property ladder, rents continue to rocket, and homelessness is climbing. Earlier in 2017, trade union campaigners and community figures issued an open letter demanding more social housing and condemning the ‘severe harm’ caused by ‘precarious, unaffordable, substandard’ homes. They sensibly stressed that building genuinely affordable dwellings is essential, and that this hinges on sustained government funding and resolve. In May 2017, Inside Housing reported that fewer than half of Right to Buy replacements qualify as social housing. Inside Housing further noted that Sheffield Hallam University, for the Consortium of Associations in the South East, warned that government proposals to cap housing benefit at Local Housing Allowance levels would exclude 84% of young...

Original news Re V (a child) (recognition of foreign adoption) [2017] EWHC 1733 ( Fam), [2017] All ER ( D) 59 ( Jul) The applicants, Nigerian citizens temporarily present in the UK, sought recognition of a Nigerian adoption order. Having reviewed the full range of criteria relevant to acknowledging adoptions made abroad, the Family Court granted the application. Why does this matter, and what should practitioners take from it? The decision engages the doctrine of comity in the context of recognising adoption orders from other jurisdictions. Where the order originates in a state that has ratified the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, it is automatically recognised as a Chapter 4 ‘overseas adoption’ ( Adoption and Children Act 2002, ss 66, 87; Adoption ( Recognition of Overseas Adoptions) Order 2013, SI...