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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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This Practice Note proceeds on the basis that: National Highways ( NH) is the competent authority and the proposals impact the strategic road network, and the developer controls the pertinent land and has transferred the requisite part to NH (formerly Highway England) so it can carry out the works It is written to reflect the viewpoints of both the developer and NH. See Precedent: Precedent s 278 agreement. Preparatory stages in agreeing a section 278 agreement At the outset, developers must convince NH that the section 278 works serve the public interest. NH must then be assured that measures have been identified to mitigate the development’s effects. For example, typical interventions include pedestrianised crossings, signal-controlled junctions to provide access onto the highway network, roundabouts and one-way systems. NH ordinarily issues the initial draft of the agreement. This promotes consistency across NH’s dealings with various developers and reduces the risk of...
Overview of enforcement time limits Section 171B of the Town and Country Planning Act 1990 sets the cut-off points after which enforcement for a breach of planning control cannot be taken, unless the breach was deliberately concealed. The relevant periods are: For operational development: four years from the date the works were substantially completed in Wales, and in England where completion occurred before 25 April 2024; ten years in England where substantial completion fell on or after 25 April 2024 (see Practice Note: Substantial completion and planning enforcement for further detail on the legal test for substantial completion) For breaches involving a change of use of any building to use as a single dwellinghouse: four years from the date of the breach in Wales and in England where the breach arose before 25 April 2024; and ten years in England where the breach took...
Introduction to section 215 notices Section 215 of the Town and Country Planning Act 1990 ( TCPA 1990) empowers a local planning authority ( LPA) to require land to be tidied where its condition harms the amenity of the area. It does so by allowing LPAs, at their discretion, to issue a ‘section 215 notice’. The governing provisions appear in TCPA 1990, ss 215–219. Key features of section 215 notices A simple power that LPAs can deploy rapidly Use is discretionary; each LPA decides if and when it is suitable A notice may set out whatever steps the LPA deems necessary to remedy harm to amenity ‘ Amenity’ is not defined in statute; case law treats it as a broad concept—see: Scope of power to issue section 215 notice below Failure to comply is an offence—see: Offences for non-compliance with section 215 notices below There is a right of appeal to the...
NPSs NPSs are statutory documents published in accordance with the Planning Act 2008 ( PA 2008). They set out the government’s policy for particular categories of nationally significant infrastructure projects ( NSIPs), notably explaining the national need for the type of infrastructure to which they relate. They are distinct from policy in the National Planning Policy Framework ( NPPF), which does not include NSIP‑specific policies. NPSs provide the framework within which the Secretary of State ( So S) makes its decisions on NSIP applications for development consent. Where an NPS has effect for development that is the subject of an application for an order granting development consent, the So S must determine the application in line with that NPS, unless one of the following applies: Doing so would be unlawful, for example because it would result in...
Scope for challenges to compulsory purchase orders Section 25 of the Acquisition of Land Act 1981 ( ALA 1981) bars any judicial review of a decision to confirm a compulsory purchase order ( CPO). It stipulates that a CPO may not be challenged in any form of legal proceedings, whether before or after it has been confirmed, made or given, save in accordance with ALA 1981, s 23. The prohibition likewise extends to a certificate issued under ALA 1981, Pt III or Sch 3: these are certificates to be granted by the Secretary of State confirming, first, that land obtained by statutory undertakers for the purposes of their undertaking can be brought within a CPO without causing serious detriment to that undertaking, and, secondly, that adequate exchange land will be provided where land forming part of a common, open space, or a fuel or field...
Local authorities are still required to secure planning permission before they develop land. The grant of planning permission by a local authority to itself has long been a source of criticism, particularly because granting approval to develop land can materially influence its value. Traditionally, development undertaken by local authorities was chiefly to advance their functions, for example in education or transport. It is, however, increasingly common for local authorities to participate in commercial development. Where the planning authority is both the landowner and/or proposes to undertake development within its area, a distinct planning regime comes into effect. Relevant statutory provisions Section 316 of the Town and Country Planning Act 1990 ( TCPA 1990) makes provision in relation to land of ‘interested planning authorities’ and to the development of that land by those authorities, setting the framework that applies when they themselves are involved in...
What is permission in principle ( Pi P)? The Housing and Planning Act 2016 ( HPA 2016) created permission in principle ( Pi P), an England-only alternative consent route for housing-led proposals that separates high-level acceptance from detailed technical matters. When Pi P is followed by a grant of technical details consent, the combination amounts to full planning permission. Section 58A of the Town and Country Planning Act 1990 ( TCPA 1990) permits Pi P to be conferred for housing-led development of land in England. Under TCPA 1990, s 58A(2), development involving the winning and working of minerals is expressly excluded from eligibility for Pi P at all. According to the explanatory notes to HPA 2016 and the Planning Practice Guidance ( PPG), the government intends that the elements capable of being agreed through Pi P are confined to the site’s location, the uses (which must be...
What is twin-tracking? Tactical, or ‘twin‑tracked’, planning applications involve lodging two or more applications with the local planning authority ( LPA) at the same time, or in quick succession, for the same site and for identical or closely related proposals. Developers have long used this approach to improve the likelihood of securing a prompt planning permission, especially where a scheme is complex or contentious. See Practice Note: Applying for planning permission—procedure... Rationale for twin-tracking Possible delay or refusal of first application Where the initial submission looks set to be refused or significantly delayed, applicants may file a further application to the LPA while reserving the right to appeal the first refusal or non‑determination to the Secretary of State. The prospect of an appeal—decided by an independent inspector and requiring the LPA to commit time and resources to defend its stance—is often thought to...
What is a Site of Special Scientific Interest? Sites in England and Wales that are recognised for their special interest, by reason of their flora, fauna, geological or physiological features, are given statutory protection under the Wildlife and Countryside Act 1981 ( WCA 1981). Natural England or Natural Resources Wales are responsible for designating these areas under WCA 1981, s 28. SSSIs can include a range of places, such as: Wetlands Rivers Meadows Beaches Peat bogs Owners of SSSIs are restricted in what they may undertake to and on the land and must manage it so as not to cause any damage to it. Public bodies are also under a duty to take reasonable steps to further the conservation and enhancement of the special features of SSSIs. Legislation and guidance Legislation The provisions relevant to the designation and management of SSSIs are found in WCA 1981, ss 28–28S, 32 and...
This Practice Note examines when a failure to follow a pre-action protocol or the Practice Direction Pre- Action Conduct and Protocols may lead to a party being penalised, as well as the types of sanctions that could be imposed. For broader guidance on the potential recovery of costs incurred before proceedings, see Practice Note: Pre-action—costs recovery. Compliance with pre-action protocols The Practice Direction Pre- Action Conduct and Protocols (the Practice Direction) outlines the behaviour ordinarily expected of parties prior to commencing proceedings. Its provisions apply in every case, and are expressly stated to govern where none of the more detailed, subject-specific protocols are applicable to your claim (see Practice Direction Pre- Action Conduct and Protocols, para 2). For further detail, consult Practice Note: Pre-action behaviour in non-protocol cases— Practice Direction Pre- Action Conduct and Protocols. If your claim is caught by one of the dispute...
Under the Town and Country Planning Act 1990 ( TCPA 1990), a breach of planning control is subject to enforcement action. For these purposes, a breach of planning control refers to the following: undertaking development without obtaining the necessary planning permission—this entails that unauthorised works or a material change of use amounting to development within the meaning of TCPA 1990, s 55 have taken place, and that such development requires planning permission which has not been secured not adhering to any condition or restriction attached to a grant of planning permission—this covers any of the limitations or conditions applied to individual permitted development rights in the Town and Country Planning ( General Permitted Development) ( England) Order 2015, SI 2015/596 in England and the Town and Country Planning ( General Permitted Development) Order 1995, SI 1995/418 in Wales See Practice Note:...
What are planning conditions? Planning conditions are attached to planning permissions to govern how development proceeds. They can raise the standard of schemes or allow proposals that might otherwise fail in planning terms to go ahead, by offsetting, limiting or managing harmful impacts. Conditions may likewise feature in a local development order or a neighbourhood development order. Their use is circumscribed by legislation, case law and policy, as outlined below. Powers to impose planning conditions Local planning authorities ( LPAs) hold broad powers to attach conditions when granting permission under the Town and Country Planning Act 1990 ( TCPA 1990), notably sections 70 and 72, with further statutory powers in sections 73, 73A, 96A and Schedule 5. The Secretary of State ( So S) can also impose conditions on appeal by virtue of sections 77, 79, 177 and Schedule 6. Section 70 TCPA 1990 provides that, upon...
Introduction Planning applications must be decided in line with the development plan, unless other material factors point otherwise. From a date still to be set, in England, applications will be determined by reference to the development plan together with any national development management policies, taken as a whole, unless material considerations strongly point to a different outcome. See Practice Notes: Determining planning applications—priority of the development plan and Determining planning applications—material considerations. Environmental matters can amount to material considerations when deciding applications, and they also inform the making of development plans. In England, the Environment Agency ( EA) may participate as a statutory consultee on specified forms of development, offering information and guidance where local planning authority ( LPA) decisions support the EA’s functions. The EA advises on proposed development in England and on matters within its remit, including: flooding waste land...
Control of development Pursuant to section 57 of the Town and Country Planning Act 1990 ( TCPA 1990), planning permission is needed for the carrying out of any development of land. Under the TCPA 1990, section 336(1), “land” means any corporeal hereditament, including a building. The courts have determined that, in coastal locations, the ambit of planning control under the TCPA 1990 reaches only to the mean low-water mark, so the sea bed beyond that line is outside planning control and thus not regulated. “ Development” is defined in TCPA 1990, s 55(1) as: the execution of building, engineering, mining or other operations in, on, over or beneath land, or the undertaking of any material change in the use of any buildings or other land Accordingly, the TCPA 1990 regulates two separate categories of development: operational development and material changes of use in...
What is a Local Development Order? A local development order ( LDO) provides planning permission for particular types or classes of development within a specified area. These orders are prepared by the local planning authority ( LPA) at the local authority level. Comparable to nationally applied permitted development rights, an LDO removes the need for developers to submit a planning application to the LPA for the developments it identifies, as permission is treated as already granted. In England, the National Planning Policy Framework ( NPPF) encourages LPAs to deploy LDOs to establish the planning approach for certain places or categories of development, where impacts are acceptable, especially where this would deliver economic, social or environmental benefits for the area. In Wales, Planning Policy Wales ( PPW) likewise advises that, when seeking to promote economic development, LPAs should consider all policy tools, including LDOs, to...
Planning permission—does demolition constitute 'development'? Under section 57(1) of the Town and Country Planning Act 1990 ( TCPA 1990), any works amounting to development on land require planning permission. Development is widely cast to include building, engineering or mining operations, as well as any material change of use. By virtue of TCPA 1990, s 55(1A)(a), demolishing a building is specifically identified as a building operation and therefore comes within the statutory concept of development. Accordingly, planning permission is generally needed for most demolitions. See Practice Note: Operational development. For these purposes, ‘building’ in TCPA 1990, s 336 covers any structure or erection and any part of a building, but excludes plant or machinery contained within a building. However, TCPA 1990, s 55(2)(g) permits certain categories of demolition to be removed from the definition of development where the Secretary of State issues a...
Introduction Since the development consent regime was introduced by the Planning Act 2008 ( PA 2008), the requirement to obtain consent under section 36 of the Electricity Act 1989 ( EA 1989) has been greatly reduced. Nevertheless, s 36 still has application to: onshore and offshore generating stations in Scotland; and offshore wind (or water) generators with a capacity between 1 MW and 100 MW (excluding any within Scottish waters or a Renewable Energy Zone for which the Scottish Ministers have functions) When is s 36 consent required? EA 1989, s 36(1) bars the construction (at a ‘relevant place’), extension, or operation of a generating station without the consent of the ‘appropriate authority’. For these purposes, a ‘relevant place’ is a location in Great Britain, in the territorial sea adjacent to Great Britain, or within a Renewable Energy Zone ( EA 1989, ss 36(1) and (4)). ‘...
What are compulsory purchase powers? Compulsory purchase powers permit certain bodies, termed acquiring authorities, to obtain land without the owner’s consent where Parliament has authorised this to enable the authority to undertake specified functions that must serve the public interest. Anyone whose land is taken compulsorily is generally entitled to compensation. These powers are considered draconian and constitute an exception to the ordinary protection against interference enjoyed by private property. They can only be used where the public interest in the scheme behind the compulsory purchase demonstrably outweighs the landowner’s interest. As set out in Prest v Secretary of State for Wales, there is a constitutional principle that no citizen should be deprived of land by a public authority against his will unless Parliament expressly authorises it and the public interest decisively requires it, and then only on the basis that proper...
What is BREEAM? The Building Research Establishment’s Environmental Assessment Methodology ( BREEAM) provides a framework for assessing and certifying the environmental performance of a building’s design, construction and operation. Certified buildings are given a BREEAM score and rating, allowing the environmental impacts of their design and construction to be measured and benchmarked against other certified buildings. BREEAM is owned, maintained and managed by BRE Global Ltd. BRE Global Ltd issues licences to independent, trained and qualified BREEAM Assessors who carry out assessments. Completed BREEAM assessments are then submitted to BRE for independent review and certification. Drivers of BREEAM While BREEAM is a voluntary standard, there are several drivers for undertaking a BREEAM assessment, including: Local development frameworks, via planning authorities, specify BREEAM ratings to be achieved to demonstrate the sustainability of developments. For example, in Wales, all new non-residential developments (over 250m 2) promoted or...
Local authorities that have obtained land for a statutory aim must retain it for that same statutory aim. They cannot use that land for another aim unless authorised by statute, and may alter its holding purpose only via statutory appropriation powers. In this setting, the ability to appropriate land for planning purposes is simply the formal administrative act of switching the purpose for which the land is held, so that it is retained for a planning objective. Authorities have relied on this for many years, and it is often a straightforward administrative step undertaken within local authorities. Yet, following Heaney ( HRUK II ( CHC) Limited v Heaney), there has been heightened recognition by both authorities and developers of the advantages of appropriating land to planning purposes and then disposing of it for development free of private rights affecting that land. This is...
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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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