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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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A certificate of lawfulness for proposed works under section 26H of the Planning ( Listed Buildings and Conservation Areas) Act 1990 ( P( LBCA) A 1990) provides formal confirmation that intended works of alteration or extension—though not demolition—affecting a listed building in England do not need listed building consent, because they do not impact the character of the listed building as a building of special architectural or historic interest. As a result, such works are not liable to enforcement action under P( LBCA) A 1990, s 38. Refer to the Practice Notes: Listed building regime and listed building consent in England, and Listed buildings enforcement and criminal liability regime in England. Certificates are available only for works that have not yet been carried out—they cannot be secured retrospectively. Is there an obligation to obtain a...
FORTHCOMING CHANGE : The Renters’ Rights Act 2025 gained Royal Assent on 27 October 2025. For advice on how the Act affects residential tenancies in England, consult Practice Note: Renters’ Rights Act 2025—key provisions. STOP PRESS: A revised edition of the National Planning Policy Framework ( NPPF) was issued on 12 December 2024......
On 23 June 2016, the UK held a referendum on its EU membership, and a majority voted for the UK to leave the EU, a process commonly known as Brexit. On 29 March 2017, the UK government issued formal notification under Article 50 of the Treaty on European Union ( TEU) to bring the UK’s EU membership to an end. Negotiations between the UK and the EU concerning the UK’s withdrawal started in June 2017 and ultimately concluded in the Withdrawal Agreement being formally reached, an international treaty given effect in domestic law by the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020). Under the terms of that Agreement, from Exit Day (11 pm on 31 January 2020) the UK then ceased to be an EU Member State. However, in accordance with the transitional...
What is biodiversity net gain? Biodiversity net gain ( BNG) is an approach designed to ensure the natural environment is left in a demonstrably improved condition following development, compared with its state beforehand. The compulsory statutory rules requiring developments to deliver net gain apply to planning permissions issued from 12 February 2024 for schemes brought forward under the Town and Country Planning Act 1990 ( TCPA 1990), save where an exemption applies. Beyond the legal duty, biodiversity gain is promoted by policy in the National Planning Policy Framework ( NPPF) and can also be mandated by local planning policy. Certain local planning authorities ( LPAs) may have embedded BNG policies within their local plans, so it is prudent to confirm this before lodging a planning application, as both legal and policy-led BNG could be engaged. The BNG Planning Practice Guidance ( PPG) was...
What is the community right to bid? Introduced by sections 87–108 of the Localism Act 2011 ( LA 2011), the community right to bid allows local community groups to put forward buildings or land for inclusion on a local authority list of assets of community value. When a listed building or piece of land is proposed for sale or its ownership is to change, a moratorium on the transaction of up to six months can be triggered, creating a period in which local groups may bid to purchase the asset on the open market. Crucially, the community is not granted a right to buy the asset, nor any right of first refusal over a sale. Rather, the community’s entitlement is limited to making a bid, with the moratorium providing time to assemble and refine a proposal for the asset. The owner of the...
What is the community right to bid? The community right to bid was set out in sections 87–108 of the Localism Act 2011 ( LA 2011). It enables local community groups to nominate buildings or land so that the local authority can list them as assets of community value. When a listed building or piece of land is put up for sale, or is due to change hands, a moratorium on the sale of up to six months can be applied, creating a window for local community groups to bid to purchase the asset on the open market. Importantly, the community does not gain a right to buy the asset, and there is no right of first refusal on sale. Rather, the community is only entitled to submit a bid for the asset, and it is afforded time, during the...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note records recent updates concerning certain high-profile UK infrastructure and energy projects. Crossrail (the Elizabeth line) Railway linking Reading/ Heathrow with Shenfield/ Abbey Wood via central London. 28 September 2022 — Elizabeth line Bond Street station to open on 24 October 2022. See: LNB News 28/09/2022 77 24 May 2022 — Elizabeth line opens. See: LNB News 24/05/2022 26 4 May 2022 — Tf L announces the Elizabeth line will open on 24 May 2022. See: LNB News 04/05/2022 60 24 August 2021 — Whitechapel Elizabeth line station handed over to Tf L. See: LNB News 24/08/2021 26 12 May 2021 — Trial running begins and Tottenham Court Road Elizabeth line station handed over to Tf L. See: LNB News 12/05/2021 106 5 March 2021 —...
ARCHIVED This Practice Note is archived and is no longer being maintained. The planning case tracker provides a catalogue of significant 2020 judgments regarded as pertinent to planning lawyers, with entries presented in reverse chronological sequence. See also: Planning case tracker—2021. Judgment date Case Topic Summary Judgment date: 23 December 2020 Case: R (on the application of Day) v Shropshire Council [2020] EWCA Civ 1751 Topic: Appropriating land and overriding rights Summary: A public-benefit trust over open land does not persist where that land is disposed of in breach of the statutory regime governing disposals ( R ( Day) v Shropshire Council). The Court of Appeal concluded that the statutory trust affecting the open land came to an end upon sale, notwithstanding that the transaction failed to comply with the statutory notice requirements and was consequently unlawful, and despite both the local authority and the purchaser being unaware of the trust’s...
Trespass Trespass describes the unauthorised presence of a person upon land in another’s possession. Ownership of land extends to the airspace above it, so any incursion into that airspace will, in principle, amount to a trespass. In Baron Bernstein, an aeroplane passing overhead to take photographs was held not to trespass, on the footing that the landowner’s rights over airspace reach only the height needed for the ordinary use and enjoyment of the land and its structures. However, in Kelsen, a sign projecting just eight inches into the airspace above the land was found to be a trespass. In Anchor Brewhouse, the High Court confirmed that the problems created by aircraft, etc., are wholly distinct from an invasion of airspace by a structure erected on adjoining land, where the legal position is more certain and settled. The latter is a trespass in...
Both central government and local authorities treat air quality as a priority. EU Directive 2008/50/ EC of the European Parliament and of the Council of 21 May 2008, on ambient air quality and cleaner air for Europe (the Directive) — in the form it had immediately before 11pm on 31 December 2020 — set legally binding limits on concentrations of key air pollutants that affect public health, habitats and biodiversity. The Air Quality Standards Regulations 2010 and the Air Quality Standards ( Wales) Regulations 2010 (together, the Air Quality Regulations) transpose the requirements of the Directive into English and Welsh law respectively and, post- Brexit, still oblige the Secretary of State/ Welsh Ministers to assess air quality, ensure that specified limit values are not exceeded, and that specified target values are achieved. In addition, under Part IV of the...
Affordable housing Affordable housing refers to homes offered to people struggling with housing costs whose needs are not satisfied by the open market. It can take a range of forms, but whatever the model, it is always made available at below market price and delivered either by local planning authorities ( LPAs) or approved registered providers. The government funds part of new affordable supply mainly through its delivery agency, Homes England (see: Role of Homes England below). However, a substantial share is secured through the planning system from private developers. LPAs are obliged to ensure their local plans address requirements for both market and affordable homes. When an LPA identifies an affordable housing need, it should set policies that require market-led schemes to include a defined proportion of affordable homes—policy commonly starts at around 30%—which will usually be sold to, and managed by,...
Statutory framework for advertisement control In England and Wales, advertisement control forms an integral element of the wider development control regime. The system is governed by the Town and Country Planning Act 1990 ( TCPA 1990). In England, this is supplemented by the Town and Country Planning ( Control of Advertisements) ( England) Regulations 2007, SI 2007/783 (the English Regulations), and in Wales by the Town and Country Planning ( Control of Advertisements) Regulations 1992, SI 1992/666 (the Welsh Regulations). What is an 'advertisement'? The system applies to a very wide spectrum of advertising material. Under TCPA 1990, s 336, an advertisement includes any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, that is in the nature of, and used wholly or partly for the purposes of, advertisement, announcement or direction. It further includes any hoarding or similar...
This Practice Note sets out guidance on putting forward fresh evidence when challenging a court’s decision under CPR 52. It explains when the appellate court may accept new material, how the Ladd v Marshall criteria apply when deciding whether to admit evidence on appeal, and the court’s discretion under CPR 52.21(2), including whether the material could have been secured for trial, whether it would have had a significant bearing, and its reliability. A note on CPR 52.21 and older cases The rules on admitting fresh evidence on appeal are found in CPR 52.21(1)–(2). Until October 2016, the equivalent provisions were in former CPR rule 52.11. Some judgments still cite the old rule, but the same principles apply to CPR 52.21 because the wording is identical. For further detail, see Practice Note: Amendments to Part 52 on 3 October 2016—table of...
Prepared in collaboration with Landmark Chambers. The reason for special costs protection measures in environmental law The rationale for special costs protection in environmental law lies in internationally agreed principles. Such measures in environmental matters stem from international environmental law, for example Principle 10 of the 1992 Rio Declaration on Environment and Development. The Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters, concluded at Aarhus, Denmark, on 25 June 1998 (the Aarhus Convention), sets out in Article 1 that its purpose is to help safeguard the right of every person, both now and in the future, to live in an environment sufficient for his or her health and well-being. To that end, each Party must guarantee the rights of access to information, public participation in decision-making, and access to justice in...
What is a section 106 agreement? Section 106 agreements under the Town and Country Planning Act 1990 ( TCPA 1990) (formerly section 52 agreements), often called ‘planning obligations’, are legal agreements between landowners/developers and local planning authorities ( LPAs). They secure contributions towards infrastructure and services—community facilities, public open space, transport upgrades and/or affordable housing—to mitigate a scheme’s effects. They are typically, though not invariably, linked to a planning application. Because they bind the land, they are enforceable against successors in title. See Practice Note: Planning obligations—key points and Checklist for drafting a section 106 agreement... Are standard form section 106 agreements available? LPAs, or their solicitors, usually issue the first draft based on standard agreements or model clauses. The landowner/developer’s lawyers then amend it and negotiations follow to settle an agreed form. In some instances, the LPA may accept a first draft prepared by the...
Time limits for bringing a judicial review claim On receipt of a judicial review claim form, a public body should first carefully assess whether it has in fact been brought within time. For more detailed guidance, see Practice Note: Judicial review—time limits and the pre-action protocol. Different time limits apply for particular categories of judicial review claim: Challenges to an Upper Tribunal decision must be filed within 16 days of the Tribunal’s decision notice being sent Public procurement claims must be issued within 30 days of when a claimant knew, or ought to have known, of the alleged breach of the public procurement rules The Administrative Court Judicial Review Guide, para 6.4.3.3, states: ‘ Where the claim concerns a decision under [ PA 2023], it must be commenced within the period specified by [ PA 2023, s 106]: 30 days from the date when the claimant first knew or ought to...
General rule on costs in judicial review The default position on costs in judicial review, as in other litigation, is that costs follow the event. That said, parties may apply for pre-emptive costs orders. The costs of, and incidental to, all proceedings in the High Court are within the court’s discretion. By statute, the High Court has discretion to award costs on a judicial review application. Taking into account every relevant circumstance, including the overriding objective, the court may make a costs decision that departs from the default rule. The scope of the court’s discretion includes: whether one party must pay another’s costs the quantum of those costs the timing of payment Ordinarily, costs follow the event unless, on the particular facts, the court considers that a different order on costs, such as a pre-emptive costs order, should be made, for example to enable the claimant to continue the case. An...
Ways to change a DCO Development consent orders ( DCOs) authorise nationally significant infrastructure projects under the Planning Act 2008 ( PA 2008). After a DCO has been made, changes to the order, or to the underlying project, can be progressed by means of a: correction order non-material change order material change order new application Different procedures apply to applications for each form of change. The government has published guidance that sets out the powers available and the procedures for making a change to a DCO. In addition, there is scope to amend an application for a DCO after it has been accepted for examination but before it is determined. The Planning Inspectorate ( PINS) has issued separate advice notes on the process for handling changes at the pre-examination and at the examination stage......
Nature of the condition It is standard for commercial property sale contracts to state that completion depends on one party—most often the purchaser—securing planning consent. The price is generally calculated on the assumption that the property will benefit from the consent that party intends to seek. The agreement must identify who bears the duty to discharge the condition, specify precisely what is required (eg outline or full consent for a defined use or scheme), and set out the level of efforts (ie ‘endeavours’) to be employed to achieve it (see Endeavours obligations below). This Practice Note proceeds on the basis that the purchaser has that duty. Planning-conditional contracts frequently stipulate that the planning consent must be ‘satisfactory’ to the purchaser, as they will not proceed to complete if the permission will not enable development of their proposed scheme on the property. ‘...
Article 4 directions can be employed by local planning authorities ( LPAs) to remove permitted development rights that would otherwise apply by virtue of the Town and Country Planning ( General Permitted Development) Order 2015, SI 2015/596 in England (the England GPDO), or by virtue of the Town and Country Planning ( General Permitted Development) Order 1995, SI 1995/418 in Wales (the Wales GPDO). An article 4 direction does not halt the development to which it relates; rather, it means planning permission must first be secured from the LPA for that proposal. For further detail, see Practice Notes: Permitted development in England, Permitted development rights and the prior approval system, and Permitted development in Wales. When article 4 directions should be used Statutory requirements The LPA must be satisfied that it is ‘expedient’ for development that would ordinarily enjoy permitted development rights not to proceed unless...
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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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