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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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Highways not maintainable There exist a handful of highways for which no party bears any duty to maintain them at all in law. This arises only in very unusual cases where a landowner has dedicated a route as a highway, yet it has neither been adopted nor had responsibility for upkeep defined. In such a case, many wrongly assume the maker or dedicator of the highway becomes liable for maintenance and repair. That assumption is false. Where a way has been dedicated as a highway but not adopted, no one is responsible for its maintenance, as the dedicator is under no duty to maintain or repair it. Every other highway is maintained either at public expense, by a private company, or by one or more private individuals who, in most instances, prove to be frontagers or owners of the...
The Freedom of Information Act 2000 ( FIA 2000) grants a public right to access information held by public authorities, including government departments, local institutions, educational institutions, publicly owned companies and other public organisations across England, Wales and Northern Ireland. Anyone—individuals, companies and foreign nationals—can request disclosure of any information held by such authorities. This Practice Note outlines common procedural pitfalls and issues that public authorities may encounter when dealing with freedom of information requests ( FOI requests). Requirements for a valid FOI request How much information needs to be included in an FOI request? Under FIA 2000, s 8, an information request must: be in writing provide the requester’s name and a contact address set out or describe the information sought The Information Commissioner’s Office ( ICO) interprets the written requirement broadly. In ICO decision FS50530703 it was determined that FOI requests made online or via social media...
Background to environmental outcomes reports Part 6 of the Levelling-up and Regeneration Act 2023 ( LURA 2023) establishes a system of environmental outcomes reports ( EORs), set to replace the existing processes of environmental impact assessment ( EIA) and strategic environmental assessment ( SEA) once the necessary regulations are in place. The government proposes a more outcomes-focused approach than EIA and SEA, under which environmental outcomes will be set and particular plans or projects must be assessed against them before any adoption or approval. This is intended to enable decision-makers and local communities to see clearly whether a plan or project meets those outcomes, and to identify the steps being taken to avoid, mitigate or compensate harm to the environment. Although Part 6 of LURA 2023 is in force from 26 December 2023, the substantive duties to carry out EORs for specified plans or...
STOP PRESS: From 25 March 2026, the principal elements of the Levelling-up and Regeneration Act 2023 that relate to plan-making have taken effect. This Practice Note is in the process of being revised to reflect this. Be aware that further sections of the Levelling-up and Regeneration Act 2023 ( LURA 2023), still awaiting commencement, remove the duty to cooperate, with regulations anticipated to implement that repeal during 2026. For more information, refer to: Abolition of the duty to cooperate in the Levelling-up and Regeneration Act 2023. What is the duty to cooperate? The duty to cooperate originated in the Localism Act 2011. It imposes a statutory obligation on local planning authorities ( LPAs), county councils and public bodies in England to work together constructively, proactively and continuously, so as to optimise the preparation of local (and marine) plans on strategic issues that cross...
What are deemed marine licences? The Planning Inspectorate ( PINS) is responsible for examining and considering applications for nationally significant infrastructure projects ( NSIPs) under the Planning Act 2008 ( PA 2008). See Practice Note: Examination of nationally significant infrastructure projects—general. Where proposals fall within specified locations—principally the English inshore and offshore zones (see: Geographical scope of DMLs below)—section 149A of the PA 2008 allows development consent orders ( DCOs) for NSIPs to include provisions which deem a marine licence to have been granted under sections 65–115 of the Marine and Coastal Access Act 2009 ( MCAA 2009). Nonetheless, in practice, some promoters may prefer to lodge a standalone application for a marine licence with the Marine Management Organisation ( MMO) instead of asking for it to be deemed through a DCO, as in certain situations that pathway can prove more...
Cycle track A ‘cycle track’ is a route that forms part of a highway, giving the public a right of way on pedal cycles (excluding pedal cycles that are motor vehicles), with or without a corresponding right on foot. Cyclists may use existing: all-purpose highways bridleways restricted byways byways open to all traffic ( BOATS) However, to offer cyclists an area free from motor vehicles yet suitably surfaced, it is necessary to create a cycle track through the appropriate legal procedure. Cycle tracks can be established by converting an existing right of way (by downgrading or upgrading highway rights), or by creating a new cycle right. The Department for Transport ( Df T) has published guidance on the legal procedures for creating cycle tracks......
The Regulations The Regulations took effect on 6 April 2015. They aim to embed health and safety as a core, everyday factor in the planning and oversight of construction schemes, and to clarify the responsibilities of all parties. Their policy aims are to preserve or enhance worker protection, streamline regulatory practice, curb unnecessary bureaucracy and align with better regulation principles (they gave effect to the EU Temporary or Mobile Construction Sites Directive (the ' TMCS')). The Regulations should be considered alongside detailed guidance from the Health and Safety Executive ( HSE Guidance on the ). It provides practical context and illustrative clarification. That guidance, whilst not legally binding, adds substance to the bare framework of the Regulations for everyday application in practice. They apply to all 'construction work' (as defined in regulation 2). To meet the TMCS, which placed obligations on domestic clients,...
What is an agricultural occupancy condition/agricultural tie? A stand-alone dwelling in the countryside is only permitted in narrowly defined situations. These include instances where it can be shown there is an essential requirement for a rural worker, including someone taking majority control of a farm business, to reside permanently at or close to their place of work in the countryside. Planning consent for such a property will often carry an agricultural occupancy condition ( AOC), limiting occupation to a person employed (or last employed) locally in agriculture or forestry. These restrictions are also known as agricultural ties. The scope of AOCs has been the subject of extensive case law—see: Establishing breach of an AOC below for a summary of key case law on the subject. Why remove an AOC? An AOC significantly restricts the potential market for a dwelling and so suppresses its value. In...
Scope of planning judicial review Within the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, Part 54, a claim for judicial review is described as a claim to assess the lawfulness of an enactment, or any decision, act, or omission made in connection with the exercise of a public function. Decisions, actions, or failures to act pertaining to the performance of a public function are, as a matter of principle, subject to judicial review......
Purpose An environmental impact assessment ( EIA) evaluates a project’s likely significant environmental effects. It ensures the environmental implications of a development proposal are given appropriate weight, alongside economic and social considerations, when planning applications are determined, and creates opportunities to lessen those impacts. It also allows the public and other consultees to participate in the decision-making procedures. Legislation and guidance In relation to town and country planning, EIA is governed by: The Town and Country Planning ( Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the English EIA Regulations) in England; and The Town and Country Planning ( Environmental Impact Assessment) ( Wales) Regulations 2017, SI 2017/567 (the Welsh EIA Regulations) in Wales Together, the ‘ EIA Regulations’. The EIA Regulations transpose into English and Welsh law the changes introduced by Archived Directive 2014/52/ EU to Archived Directive 2011/92/ EU on assessing the effects of certain public and private...
Where a developer, for whatever reason, does not fulfil its duties under an agreement made or binding on it pursuant to section 106 of the Town and Country Planning Act 1990 ( TCPA 1990) (a planning obligation/section 106 agreement), the relevant local planning authority ( LPA) may take steps to secure performance of the obligations contained in the section 106 agreement and to ensure compliance with its terms and requirements. On recognising that it cannot meet an obligation in a section 106 agreement, the developer should promptly engage with the LPA and seek to discharge or vary the obligation. For instance, it could propose a reduced or otherwise amended contribution, or negotiate a later trigger date for payment, delivery or compliance. See Practice Note: Renegotiating planning obligations/section 106 agreements. If that is not achievable, and the developer fails to comply with an...
FORTHCOMING CHANGE : The Product Security and Telecommunications Infrastructure Act 2022 ( PSTIA 2022) is in partial effect. Additional provisions will commence on dates to be fixed by regulations. PSTIA 2022 alters elements of the Code and the Landlord and Tenant Act 1954, chiefly relating to the sharing of apparatus, valuation on renewal under the LTA 1954, and dealing with unresponsive occupiers. Both the current position and anticipated amendments are highlighted in the Practice Note below. For further detail about the Code, see Practice Note: The Electronic Communications Code—code rights. The Code The Electronic Communications Code (the ‘ Code’) appears in sections 106–119A and Schedule 3A of the Communications Act 2003 ( CA 2003). It superseded the earlier Electronic Communications Code, which had been located in Schedule 2 to the Telecommunications Act 1984 ( TA 1984) (the ‘previous Code’). This Practice Note explains whether an...
Similarities between Freedom of Information Act and Environmental Information Regulations At their core, the Freedom of Information Act 2000 ( FIA 2000) and the Environmental Information Regulations 2004 ( EIR 2004), SI 2004/3391, share a common purpose: enabling access to information kept by public authorities. For further detail, see Practice Notes: Environmental Information Regulations 2004—what is environmental information? and Introduction to freedom of information. More specific similarities include: time limits—under each framework, where the information is held and no exemption applies, public authorities must respond within 20 working days duty to advise and assist—both FIA 2000 and EIR 2004 set expectations for handling requests, requiring authorities to offer a reasonable level of advice and assistance to requestors and potential requestors appeals—identical appeal routes are available For more information, see Practice Notes: Environmental Information Regulations...
What is section 247 and when may it be used? Section 247(1) of the Town and Country Planning Act 1990 ( TCPA 1990) gives the Secretary of State a discretionary power to authorise the stopping up or diversion of any highway outside Greater London, where he is satisfied that this is required to enable development to take place, either: in accordance with planning permission granted under TCPA 1990, Pt III, or by a government department Thus, an order will only be made where halting up or diverting the highway is necessary to allow the authorised development to proceed. There must be a direct clash between the planning permission and an existing right of way which typically, though not solely, occurs where the permitted scheme would obstruct the highway. Within Greater London, the same powers are held by the council of the relevant London borough under TCPA 1990, s...
Practice Note This Practice Note explains the steps a respondent should take when served with an appellant’s notice of appeal in the County Court, the High Court or the Court of Appeal under CPR Part 52. It addresses preparing and filing a written statement answering an application for permission to appeal ( PTA) under paragraph 19 of Practice Direction 52C, identifies when a respondent’s notice is required, what it ought to include, whether amendments are permitted, and the deadlines for filing and service. It also reviews the circumstances in which an appeal notice may properly be struck out under Rule 52.9, alongside treatment of skeleton arguments and PTA issues. The Practice Note directs readers to the provisions contained in CPR 52 and CPR PD 52A, and indicates that those general provisions are stated to apply to: appeals to the Civil Division of the Court of...
Role of material considerations in planning decisions In determining an application for planning permission, or for permission in principle, section 70(2) of the Town and Country Planning Act 1990 ( TCPA 1990) requires the decision-maker to take into account: the development plan’s provisions, in so far as they are relevant to the proposal a neighbourhood development plan in post-examination draft form, where pertinent to the application in England, from a date yet to be set, any national development management policies, to the extent they are material considerations concerning the use of the Welsh language, where material any local finance considerations, where relevant all other material considerations Each item is to be considered only so far as it is material to the application in question, together with any material considerations arising. Section 38(6) of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004) states that, if a...
Context When an acquiring authority intends, as part of a compulsory purchase order ( CPO) to which the Acquisition of Land Act 1981 ( ALA 1981) applies, to obtain any land or interests, or to create new rights over land that benefits from special protection, additional procedures and/or safeguards come into play. The protected land categories, and the processes that must be observed for each, are prescribed in ALA 1981, Pt III (for the acquisition of land or interests) and ALA 1981, Sch 3, Pt I (for securing rights by creating new rights) and are discussed below. In England, the Compulsory purchase process: guidance, and in Wales, the Compulsory Purchase in Wales and ‘ The Crichel Down Rules ( Wales Version 2020)’ ( Circular 003/2019) (together, the CPO Guidance), provide advice on how those provisions should be applied in practice. It is crucial that land with...
This Practice Note addresses the regime for permitted development in England. For guidance specific to Wales, see the Practice Note: Permitted development in Wales. Legal basis of permitted development rights Under section 57 of the Town and Country Planning Act 1990 ( TCPA 1990), planning permission is necessary for ‘the carrying out of any development of land’. TCPA 1990, s 55(1) defines ‘development’ as comprising, for these purposes: the undertaking of building, engineering, mining, or any other operations in, on, over, or beneath land (see Practice Note: Operational development), or the making of any material change in the use of any buildings or any other land (see Practice Note: Material change of use) Section 58(1)(a) TCPA 1990 states that planning permission may be conferred by means of a ‘development order’. For these purposes, the Town and Country Planning ( General Permitted...
This Practice Note sets out guidance on seeking permission to appeal ( PTA) under CPR Part 52 in both the lower court and the appellate court ( CPR 52.3(2)). It explains how to challenge decisions of lower courts and the steps for making PTA applications in the court below. It also addresses the need to apply at the conclusion of the hearing in the lower court, together with the deadlines for requesting PTA from the appellate court where no application was made below or where the lower court has refused PTA. The Note specifically considers applications for permission to the Court of Appeal where no oral hearing is directed, the respondent’s role (and potential costs) and the actions open to a respondent, as well as the procedure and particular provisions for the County Court, High Court and Court of Appeal, and how (and by whom) a PTA...
This Practice Note outlines highway nuisance law, and records that section 333 of the Highways Act 1980 ( Hi A 1980) expressly preserves common law. It considers when activities on or over the road may constitute a nuisance, with reference to statute and the common law, including: builders’ works, scaffolding and skips; racing and unsuitable traffic; stationary traffic; and bridges and beams spanning the highway. It also surveys likely nuisances arising from neighbouring land, such as: domestic or farm animals; pigeons; smoke and fumes; and trees. Common law and statute law Regarding highways, nuisance at common law substantially overlaps with statutory provisions (principally within the Hi A 1980), yet Hi A 1980, s 333 specifically preserves the common law. Pratt and Mackenzie’s Law of Highways (21st edition, 1967) describes a highway nuisance as any wrongful act or omission on or near a...
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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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