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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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The Building Act 1984 ( BA 1984) authorises the Secretary of State and the Welsh Ministers to make Building Regulations for a range of purposes, including protecting the health and safety of people in or around buildings. It creates criminal liability for contraventions of those regulations and confers enforcement powers on local authorities. This Practice Note outlines guidance on the enforcement of Building Regulations. See Practice Note: Obtaining building regulations approval for guidance on when approval is required and how Building Regulations approval is secured. General power of local authorities to enforce Building Regulations and exemptions from enforcement BA 1984, s 91(2) states that enforcing the Building Regulations within their area is a function of local authorities. This is subject to situations where BA 1984, ss 91ZA or 91ZB provide that the Building Safety Regulator ( BSR) is the building control...
What is grant funding/public subsidy for affordable housing? Affordable housing grants have been around for many years, but a structured capital funding framework designed to underpin affordable housing delivery only truly took hold from the 1980s with the coming into force of the Housing Act 1988 ( HA 1988). Initially confined to housing associations, grant support described as ‘social housing assistance’ is now open to a broader category of beneficiaries (see Who can apply for grant funding/public subsidy for affordable housing? below), and responsibility for the regime’s operation is split between the Homes and Communities Agency (trading as Homes England) and the Greater London Authority (the GLA). Although other public bodies (such as local authorities and combined authorities) may exercise grant-awarding functions, this Practice Note concentrates on the grant regime administered by Homes England and the GLA and on the provision of social housing...
The presence of a town or village green ( TVG) can curtail, or even halt, development. Interfering with, or disturbing, the use or enjoyment of a TVG is a criminal offence. Accordingly, applying to register a TVG is a powerful tool for anyone seeking to stop a development. TVGs may, or may not, be subject to rights of common. They are areas of open land used by inhabitants of the town, village or parish for lawful sports and pastimes. There is no legal distinction between town greens and village greens; the terminology simply depends on location. See also Practice Notes: Town and village greens—making an application to register a TVG, Town and village greens—registration, rectification, correction and deregistration, and Town or village greens—property development. Legislative context The Commons Registration Act 1965 ( CRA 1965) introduced a new requirement to create a permanent,...
When weighing up whether, and in what way, to pursue a claim for judicial review, your opening task is to assess if that procedure is the suitable mechanism for resolving the issues presented by the matter before you. For additional help, see Practice Note: Judicial review—what it is and when it can be used. Time limits If judicial review is the route chosen, the next step will typically be to confirm there is still time to commence proceedings. Under CPR 54.5, claims for judicial review (apart from the three exceptions referred to below) must be issued promptly and, in any event, within three months of the date on which the grounds first arose. Promptness is an overriding requirement, and you should not assume a claim is in time merely because it is brought within three months. Accordingly, once the basis for the challenge has...
What is statutory blight? Statutory blight arises where the worth of a property is diminished due to proposed development or public works, leaving owners unable to achieve full market value because the property is expected to be required for, or affected by, public purposes, meaning a sale may have to proceed at a significantly reduced price. Under the Town and Country Planning Act 1990 ( TCPA 1990), an individual with a ‘qualifying interest’ who has taken reasonable endeavours to sell may be entitled to serve a ‘blight notice’ on the authority responsible for the scheme, compelling them to purchase the property at market value. When does statutory blight apply? The reach of the statutory blight regime—both the land that can be treated as blighted and the point at which blight arises—is prescribed by TCPA 1990, Schedule 13. Schedule 13 lists several triggers for statutory blight,...
Control of development Under section 57 of the Town and Country Planning Act 1990 ( TCPA 1990), planning permission is needed for the undertaking of any development of land. For these purposes, “land” in TCPA 1990, s 336(1) denotes any corporeal hereditament, including a building. The court has determined that, in coastal areas, the territorial reach of planning control under the TCPA 1990 goes only to the mean low water mark, so the sea bed beyond that mark does not come within planning control. “ Development” in TCPA 1990, s 55(1) covers: the carrying out of building, engineering, mining or other operations in, on, over or under land; or the making of any material change in the use of any buildings or other land. Accordingly, the TCPA 1990 governs two separate kinds of development: operational development and material changes of use. This Practice Note focuses on...
A projection is any structure of any kind positioned above or beneath a ‘highway’ or a ‘street’. The term ‘street’ covers most private streets as well as public highways. Sections 176–180 of the Highways Act 1980 ( Hi A 1980) set out which projections need licences. Projections above ground and those below it are treated differently under the legislation for regulatory purposes. Specified examples include bridges, buildings, rails, beams and the like over ‘highways’, and cellars beneath ‘streets’ (such as pavement lights and ventilators), which are expressly identified within the provisions. For projections over the highway, the chief concern is maintaining adequate headroom for traffic on public highways; for sub-surface structures, the critical matters are ensuring the soil above is safely supported and that there is enough soil depth (specifically 1.2 m) to accommodate service runs. New licences are issued only where the...
Background to Crown’s immunity from development control In 1992, the government chose to phase out protections that had shielded departments and other Crown bodies from the ordinary procedures and obligations of planning control. The Planning and Compulsory Purchase Act 2004 later abolished the Crown’s historic immunity from planning control and, more broadly, from the planning regime. The Town and Country Planning Act 1990 ( TCPA 1990) and associated statutes now govern Crown development, albeit with certain special provisions. Government guidance In England, Planning Practice Guidance ( PPG) sets out government advice on planning matters concerning Crown land. The government has additionally issued a Collection of guidance on Crown Development and Urgent Crown Development applications and decisions, together with guidance on the terminology used when discussing Crown Development applications. In Wales, the Welsh government has produced a letter and a supporting memorandum on how the Planning Acts apply to the...
Following the Grenfell Tower tragedy in June 2017, Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety concluded that a profound change in mindset and practice was required across building safety. In her final report, issued in May 2018, she underlined that the entire system demands a radical overhaul and clarity about how it should operate; the challenge is far more than cladding specifications alone, pointing instead to a sector that has failed to self-scrutinise, learn for itself, or take guidance from other industries. The building safety enquiry culminated in the widely discussed and long-awaited Building Safety Act 2022 ( BSA 2022), which obtained Royal Assent on 28 April 2022. BSA 2022 embodies the step-change in how building safety is addressed and how higher-risk buildings ( HRBs) in England are regulated, answering the call Dame Judith Hackitt set out. At the centre of this...
Most planning outcomes can be challenged by way of an appeal. The process and time limits differ according to the appeal route. For guidance on contesting decisions on planning applications, see Practice Note: Planning appeals. Before launching an appeal, it is often sensible to speak to the relevant local planning authority ( LPA) about the concern, as matters may be settled more swiftly and simply than through formal steps. In England, the Planning Practice Guidance ( PPG) and material from the Planning Inspectorate ( PINS) outline how to appeal a range of planning decisions. In Wales, the Welsh government has published a series of guidance notes on the procedures for appeals against a variety of planning decisions. The governments in England and Wales also publish specific guidance for each appeal type, set out under the relevant categories...
Ability to vary a planning permission once granted Once planning permission is in place, any development it authorises must at all times be carried out strictly in accordance with the conditions attached, including compliance with any plans cited in those conditions, and with any linked legal agreements. See Practice Note: Planning conditions—key points for more information. Nevertheless, revisions to an approved development are commonly required after permission has been given. This can arise for many reasons—for example, unforeseen matters may surface following the grant, prompting a move away from what has been consented, or simply because the design process is protracted and tends to evolve even once consent exists, ultimately resulting in changes to the scheme over time in practice......
Can you amend a planning permission once granted? Once planning permission is in place, the development it authorises has to be carried out in line with the attached conditions, see Practice Note: Planning conditions—key points. Nevertheless, changes to a consented development are often required for a range of reasons after permission is granted. The Town and Country Planning Act 1990 ( TCPA 1990) therefore provides powers enabling local planning authorities ( LPAs) to permit amendments to planning permissions through the following routes: applications for non-material amendments under TCPA 1990, s 96A applications for variations of conditions attached to a planning permission under TCPA 1990, s 73 in England only, once section 110 of the Levelling-up and Regeneration Act 2023 comes into force, applications for material variations in planning permission under TCPA 1990, s 73B Where proposed changes cannot be dealt with via TCPA 1990, s...
Part I of the Countryside and Rights of Way Act 2000 ( CRWA 2000) Part I seeks to broaden the public’s freedom to explore open countryside. It creates a statutory right for people to be on foot—subject to exceptions (see ‘ Excepted land’ below)—across ‘access land’. Under CRWA 2000, s 1, ‘access land’ includes: mapped areas of ‘open country’, encompassing mountain, moor, heath and down virtually all registered common land (ie land registered as such under the Commons Registration Act 1965) ‘coastal margin’, as determined by the Secretary of State under CRWA 2000, s 3A ‘dedicated land’, meaning land whose owners have dedicated it for public access under CRWA 2000, s 16(1) Any land to which this public right of access applies is referred to as ‘access land’......
Under the Town and Country Planning Act 1990 ( TCPA 1990), a breach of planning control is subject to enforcement action TCPA 1990, s 171A explains what constitutes a breach of planning control: undertaking development without the necessary planning permission—this presumes that unauthorised operational works or a material change of use (each being ‘development’ under s 55) has occurred, that such development requires permission, and none has been secured. When deciding if a breach has arisen in this way, the guidance and case law on the meaning of ‘development’ must be applied—see Practice Notes: Operational development and Material change of use failing to comply with any condition or limitation attached to a planning permission—this also covers limits or conditions applied to individual permitted development rights in the Town and County Planning ( General Permitted Development) ( England) Order 2015, SI 2015/596 and the Town and Country...
Costs of judicial review proceedings The issue of who bears the expense of court proceedings, and the potential size of that liability, will inevitably be central when deciding whether to issue a claim and, likewise, whether and in what manner to resist one. As a starting point, the costs of judicial review are within the court’s discretion, pursuant to section 51(1)–(3) of the Senior Courts Act 1981 ( SCA 1981). That overarching position is shaped by the Civil Procedure Rules, relevant authority, and the specific facts and circumstances of the case at hand. Customarily (though not invariably) costs follow the event; in other words, the successful party will ordinarily recover its costs from the unsuccessful party. The costs in question are those ‘of and incidental to’ the proceedings. In most judicial review claims, the defendant is the public authority whose decision, act, or...
Introduction The adoption of sewers is the mechanism by which sewers are vested in the sewerage undertaker or an appointed sewerage company, after which the undertaker meets the cost of maintenance. A sewer adoption agreement (described in this Practice Note as a ‘section 104 agreement’) is the contract that developers or, in Ofwat’s terminology, ‘self-lay providers’ ( SLPs) enter into with the undertaker when the developer wishes the undertaker to assume responsibility for sewerage infrastructure they have built so that it becomes a public sewer. A sewer adoption agreement can likewise be used where a section 160 Water Industry Act 1991 ( WIA 1991) arrangement exists under which the undertaker agrees to carry out works connected with constructing sewerage infrastructure at the relevant person’s expense. The statutory basis for undertakers to enter such agreements is WIA 1991, s 104. The approach to adopting new...
Powers of the local authority The local authority may take action regarding dangerous buildings under several statutes: section 77 of the Building Act 1984 ( BA 1984)—court order BA 1984, s 78—emergency measures BA 1984, s 76—defective premises BA 1984, s 79—ruinous and dilapidated buildings and neglected sites section 80 of the Environmental Protection Act 1990 ( EPA 1990)—statutory nuisance sections 21 and 22 of the Health and Safety at Work etc Act 1974 ( HSWA 1974)—improvement and prohibition notice Meaning of 'dangerous building or structure' The term ‘dangerous structure’ embraces any building, part of a building, or other structure that presents a serious risk to the public. Illustrations include loose slates/tiles, vehicle damage or collapsing walls, loose chimneys, leaning garden walls, broken hoarding, etc. Such hazards may arise from poor maintenance, fire, storm, vehicle impact or...
Utilities Water, gas, electricity, communications and wider energy sectors have statutory permission to enter onto private land to install pipes, lines, cables and related service infrastructure. Where landowners lack private service rights, they may compel a provider to invoke compulsory acquisition powers to meet its duty to connect and enable a development project. Compulsory powers Each utility’s powers stem from sector-specific legislation. Although the general approach is comparable, compensation frameworks differ by utility. Those statutory schemes are industry-specific yet broadly aligned in their overall approach. Each contains its own compensation basis. In some cases, schemes cap compensation at the land’s diminution in value where rights are exercised, rather than the open market value. Electricity Under the Electricity Act 1989 ( EA 1989), persons licensed to generate, transport or supply electricity may obtain a wayleave to place an electric line on, under or over private land, with...
This Practice Note This Practice Note sets out guidance on the provisions found in CPR 52 and CPR PD 52A. These overarching provisions extend to the following: appeals to the County Court appeals to the High Court appeals to the civil division of the Court of Appeal applications in the High Court for permission to appeal to the Supreme Court in contempt proceedings, and applications in the Court of Appeal for permission to appeal to the Supreme Court ( CPR 52.1(1)) For further details on the scope of this content, see: Civil appeals: general and preliminary considerations—overview. For guidance on appeals to the UK Supreme Court ( UKSC), see: Appeals to the Supreme Court—overview. Alongside the relevant CPR provisions, practitioners must also follow and have regard to any applicable court guide for the division in which the case is proceeding; see Practice Note: Civil appeals—court specific guidance, which includes links to the Court of...
Context Community Infrastructure Levy The Community Infrastructure Levy ( CIL) is a development charge that local planning authorities—appointed as charging authorities under Part 11 of the Planning Act 2008—may impose on development within their jurisdiction. Once an authority opts to levy CIL, it must put in place a charging schedule specifying the rates to be applied. Any planning permission issued, or treated as granted via general permitted development rights, after the charging schedule is adopted becomes subject to CIL, save where one of several exemptions or reliefs is available. This Practice Note focuses solely on the CIL exemptions for minor development, residential annexes and extensions, and self-build housing. For other forms of relief and exemption, see Practice Notes: Community Infrastructure Levy ( CIL)—exemptions and relief for charities; Community Infrastructure Levy ( CIL)—exceptional circumstances relief; and Community Infrastructure Levy ( CIL)—social housing relief. The CIL...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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