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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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Why is it important to establish the planning unit? Under 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. ‘ Development’ is set out in TCPA 1990, s 55(1), as meaning: the execution of building, engineering, mining or other operations in, on, over or under land, or the undertaking of any material change in the use of any buildings or other land Accordingly, the TCPA 1990 governs two separate forms of development by requiring planning permission for both operational development and material changes of use. See Practice Notes: Operational development and Material change of use. In determining whether a proposal amounts to a material change of use, the courts apply the planning unit concept in order to identify the relevant area of land for assessing the primary use (and any...
This Practice Note explains the powers, processes and procedures for stopping up and diverting footpaths under sections 118 and 119 of the Highways Act 1980 ( Hi A 1980). Please note that there are alternative mechanisms for stopping up/extinguishing and re-routing rights of way. For an overview and comparison of the tools available to stop up or divert rights of way, see Practice Note: Powers to stop up and divert highways and footpaths. Stopping up of footpaths, bridleways and restricted byways under Hi A 1980, s 118 Section 118 of the Hi A 1980 confers a discretion on highway authorities to extinguish a footpath, bridleway or restricted byway where the route is unnecessary for public use. Orders made under section 118 are termed 'public path extinguishment orders'. Although a public path extinguishment order under section 118 must be made by the highway...
Planning permission is required for the development of land Consent is required for development of land. “ Development”, as set out in section 55 of the Town and Country Planning Act 1990 ( TCPA 1990), comprises: operations affecting land, and changes of use of land Operational development includes building, engineering and mining operations, and other works (see Practice Note: Operational development). A change of use needs permission only where the change is material (see Practice Note: Material change of use). The Town and Country Planning ( General Permitted Development) Order 1995 ( GDPO 1995), SI 1995/418 allows certain development without applying for permission. GPDO 1995, SI 1995/418, Sch 2 grants permission for “permitted development”, such as: development within the curtilage of a dwelling house minor operations changes of use temporary buildings and uses (see below Temporary buildings and uses) certain caravan sites agricultural and forestry buildings and...
This Practice Note sets out the offences that may arise under the Town and Country Planning Act 1990 ( TCPA 1990) or the Planning ( Listed Buildings and Conservation Areas) Act 1990 ( P( LBCA) A 1990) in relation to unauthorised development within a conservation area in England, the statutory defences available, and the penalties that may follow on conviction. It also outlines how a local planning authority ( LPA) can pursue enforcement against such unauthorised works. Issues of conservation area offences and enforcement most commonly result from the unauthorised demolition of buildings within these areas. From 4 November 2024, the legislative framework in Wales became distinct from that in England—see: Conservation area regime in Wales. Offences Undertaking (or causing or allowing) ‘relevant demolition’ without planning permission is an offence under TCPA 1990, s 196D(1). Breaching any condition or restriction attached to a...
This archived Practice Note offers a summary of the presumption in favour of sustainable development as contained in the 2012 edition of the National Planning Policy Framework (2012 NPPF). On 24 July 2018, the government issued a revised NPPF (the 2018 NPPF), which replaced the 2012 NPPF and, with it, the policy text on the presumption in favour of sustainable development set out in the 2012 NPPF. The 2012 NPPF was archived and the presumption it contained will therefore only continue to have effect in certain situations, as outlined below. For details of the presumption currently in force, see Practice Note: Presumption in favour of sustainable development. Note that the NPPF was revised again in 2019, 2021, September 2023 and December 2023, but those later updates are not addressed in this archived Practice Note. Policy context The 2012 NPPF was published on 27 March 2012 and came into...
Introduction This archived Practice Note reviews the obligation within the National Planning Policy Framework first issued in 2012 (the 2012 NPPF) to undertake housing assessments. On 24 July 2018, the government released a revised version of the NPPF (the 2018 NPPF), which from that date onwards replaced the 2012 NPPF. It altered the policy approach to establishing housing need and demonstrating housing land supply. Transitional provisions in Annex 1 to the 2018 NPPF provide that: from 24 July 2018, the policies in the 2018 NPPF should be taken into account as material considerations in the determination of planning applications development plans ‘may’ also need to be revised to reflect policy changes brought about by the 2018 NPPF The 2018 NPPF further advises that any such revisions should be progressed as quickly as possible; however, existing development policies should not be treated as out of date...
This archived Practice Note provides an introduction to the 2012 version of the National Planning Policy Framework (2012 NPPF) This archived Practice Note outlines the 2012 National Planning Policy Framework, explaining sustainable development, the presumption in favour of it, and the core planning principles set out in that edition. On 24 July 2018 the government issued a revised NPPF that replaced the 2012 framework; the earlier text was archived and now applies only in specified circumstances described below. Further revisions to the 2018 NPPF followed in: 2019 2021 2023 For information on the 2023 NPPF now in force, see Practice Note: The National Planning Policy Framework. The 2012 NPPF took effect in England on 27 March 2012, immediately replacing all Planning Policy Statements and Planning Policy Guidance Notes, except PPS10 ( Planning for Sustainable Waste Management). It sought to make the planning system simpler and more...
Guidance Advice on enforcing breaches of planning control is contained in: Planning Practice Guidance ( PPG) in England Development Management Manual ( DMM) in Wales Time limits for issuing an enforcement notice All enforcement action for breaches of planning control is constrained by statutory time limits. Action taken beyond these periods is not authorised, save in limited situations; see Practice Note: Deliberate concealment of planning breaches. The time limits for taking enforcement action in England are: Operational development: ten years from the date the operations were ‘substantially completed’ (or four years where substantially completed before 25 April 2024) Change of use of any building to ‘use as a single dwellinghouse’: ten years from the date of the breach (or four years where the breach occurred before 25 April 2024) Any other breach of planning control: ten years from the date of the...
Purpose Highways can be stopped up when a section is no longer required, or where the land is needed to enable a development. When a road is ‘stopped up’, the public’s right to use it is removed. Legislation Powers to stop up and to divert highways are set out in: sections 247, 248, 249, 253 and 257 of the Town and Country Planning Act 1990 ( TCPA 1990) sections 116, 118 and 119 of the Highways Act 1980 ( Hi A 1980) Guidance The Rights of Way Circular (1/09) offers direction to local authorities on recording, managing and maintaining, protecting and amending public rights of way. The government has produced guidance for applicants in England on applying for a stopping up order to close or divert a highway. The Welsh government has issued guidance and services for applicants on the requirements and procedures for stopping up and diversion of...
Undertakers’ powers to lay pipes The powers available to a sewerage undertaker to install sewers, lateral drains and disposal mains are set out in sections 158 and 159 of the Water Industry Act 1991 ( WIA 1991). An undertaker may invoke these powers both within, and beyond, its own area of operation. Those powers apply both inside and outside its area. For the purposes of the WIA 1991, any mention of a pipe—including a main, drain or sewer—also covers a tunnel or conduit that serves, or is intended to serve, as that pipe, together with any fittings or accessories for it. References to laying a pipe extend to building such a tunnel or conduit, to constructing or installing those fittings or accessories, and to forming a connection from one pipe to another. This expressly includes the making of a connection between one pipe and...
Agreements entered into under section 106 of the Town and Country Planning Act 1990 ( TCPA 1990) (previously section 52 agreements), often called ‘planning obligations’ or ‘s 106 agreements’, are pacts between developers/landowners and local planning authorities ( LPAs) requiring developers to contribute to a range of infrastructure and services, such as community facilities, public open space, transport improvements and/or affordable housing, to mitigate the impacts of their development. They run with land and are enforceable against successors in title. See Practice Note: Planning obligations—key points and Checklist for drafting a section 106 agreement. Standard form planning obligations/section 106 agreement LPAs usually provide the first draft of the s 106 agreement, based on their standard agreements or model clauses. The developer then amends it and negotiations are undertaken to come to an agreed form. Although each s 106 agreement will be unique and respond to the...
Introduction In simple terms, a drain serves a single premises, while a sewer serves multiple properties. In the context of development, there are two distinct drainage systems to consider: Foul water: pipework that removes used foul water from buildings. Above ground this is known as sanitary pipework; below ground the pipes are called foul drains and foul sewers. Surface water: arrangements that convey rainwater from hard surfaces. The below-ground conduits are termed surface water drains and surface water sewers. Public sewers are in the ownership of the sewerage undertaker. Private sewers—now relatively rare due to legislative change—belong to the properties they serve. Any building operations on or near a sewer require the owner’s approval. Constructing over, or within 3 metres of, a public sewer demands written consent from the relevant sewerage undertaker. A sewer may need to be diverted, relocated, or...
Powers to impose planning conditions General enabling powers for local planning authorities ( LPAs) to attach conditions to the grant of planning permission are contained in the provisions of sections 70 and 72 of the Town and Country Planning Act 1990 ( TCPA 1990), while express powers to condition are also found in TCPA 1990, ss 73, 73A, 96A and Sch 5 Pt 1. The Secretary of State ( So S) likewise holds powers to impose conditions on appeal in TCPA 1990, ss 77, 79, 177 and Sch 6. Under TCPA 1990, s 70, where an application is lodged with the LPA for planning permission, the LPA may grant planning permission, either outright or subject to such conditions as they consider appropriate, or alternatively refuse planning permission......
Context 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. The term ‘development’ is set out in TCPA 1990, s 55(1) as: the undertaking of building, engineering, mining or other operations in, on, over or under land, or any material change to the use of buildings or other land Accordingly, consent is necessary for operational development and for material changes of use. See Practice Notes: Operational development and Material change of use. Who can apply for planning permission? Any person may submit a planning application for the development of land; the applicant need not own the land to which the application relates. However, the applicant must notify freehold and leasehold owners of the land concerned prior to submission of the planning application, see: Publicity of planning...
Costs in planning appeals do not follow the event Inspectors, the Secretary of State and the Welsh Ministers enjoy a broad statutory discretion to award costs against any party to an appeal. The Secretary of State and Welsh Ministers have also issued policy on costs awards, which is applied when appeal decisions are made... Government guidance on costs awards in planning appeals England In England, the applicable guidance is set out in Planning Practice Guidance: Appeals ( PPG)... Wales In Wales, the relevant guidance is contained in the Development Management Manual—section 12 Annex: Award of Costs (the DMM)... Purpose of costs awards in planning appeals An award of costs is an order requiring one party to pay another party’s costs, in whole or in part, incurred during the process by which the Secretary of State/ Welsh Ministers/inspector’s decision is reached. The order defines, in broad terms, the scope of the...
Introduction Section 203 of the Housing and Planning Act 2016 ( HPA 2016) grants authority to override easements and other rights benefitting neighbouring land where this is connected with development. HPA 2016, s 203 commenced on 13 July 2016 and superseded and extended the former powers in section 237 of the Town and Country Planning Act 1990 ( TCPA 1990). The provision applies across England and Wales. HPA 2016, s 203 (and previously TCPA 1990, s 237) has been invoked on prominent schemes to address rights of light and comparable easements or restrictive covenants that might otherwise halt progress. In practice, when a particular development programme is jeopardised because agreement cannot be reached to release specified rights, developers have sought local authority intervention, asking it to use its powers to appropriate or acquire the development site (or a portion of it), thereby...
Pre-application—finding out about proposals Before a planning application is lodged, an objector can learn more about a proposed development by: Reviewing the relevant local planning authority’s ( LPA) online planning register. Most registers can be searched by property address, and many LPAs include records of pre-application discussions with developers. These entries may set out what is planned for the site, the current stage of the proposal, and details of the developer. The register might also show previous applications for the site—which can sometimes provide helpful reasons why earlier development was judged acceptable or unacceptable. Submitting a request under the Freedom of Information Act 2000 and/or the Environmental Information Regulations 2004, SI 2004/3391 in relation to the proposal. This can reveal pre-application discussions and correspondence that could support the preparation of an objection. See: Freedom of...
Duty to achieve best consideration on disposal of land held by principal councils General duty Under section 123(1) of the Local Government Act 1972 ( LGA 1972), principal councils have broad freedom to dispose of land as they see fit. This covers, for example, selling the freehold, granting or assigning leasehold interests, and creating easements. In England, principal councils are those elected for a non-metropolitan county, a district or a London borough; in Wales, they are a county or county borough. In this note they are collectively described as local authorities ( LAs). That general power is curtailed by section 123(2), which requires LAs to secure the best consideration reasonably obtainable on a disposal, unless approval has been given by the Secretary of State for Communities and Local Government/ Ministers. Disposals by way of a short tenancy are excluded from this duty; a short tenancy means...
Interested parties In the context of judicial review, an interested party refers to any person—other than the claimant and defendant—who is directly affected by the claim. Where a judicial review claim is connected to proceedings in a court or a tribunal, every other party to those proceedings will qualify as an interested party in the review; eg if a defendant in a criminal case in the Magistrates or Crown Court brings a judicial review of a decision in that case, the prosecution must always be named as an interested party in the judicial review claim. A person is regarded as directly affected if they are affected without the intervention of any intermediate agency, that is, without the involvement of any intervening body. For example, in R v Rent Officer Service, ex parte Muldoon, a local housing authority’s decision not to pay a housing benefit was...
In judicial review, noting that a document exists or once existed is usually achieved by the duty of candour, not by a formal disclosure process. Default lack of formal disclosure and inspection exercise By default there is no formal disclosure; it is not required unless the court directs otherwise. This is because judicial review turns on the legal consequences of mostly agreed facts; the court does not resolve factual disputes; and all sides owe a duty of candour to the court, so separate “disclosure” is unnecessary (though in practice the outcome is often similar). The same approach applies to judicial review, statutory reviews and appeals in the Administrative Court. The court retains a broad discretion to order disclosure, but that power will be exercised sparingly. General duty of candour All parties to judicial review are under a general duty of candour requiring them to reveal the...
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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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