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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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ARCHIVED : This Practice Note has been archived and is not maintained From 31 January 2020 (exit day), the UK ceased to be an EU Member State and its relationship with the EU is governed by the Withdrawal Agreement, which took effect on 1 February 2020. Under the Withdrawal Agreement, on exit day the UK entered an implementation period, during which it continues to be regarded as a Member State for many purposes, including trade. As a third country, the UK can no longer take part in the EU’s political institutions, agencies, offices, bodies and governance structures (save to the limited extent agreed), but the UK must continue to comply with EU law and remain subject to the continuing jurisdiction of the Court of Justice of the European Union in line with the transitional arrangements in the Withdrawal...
This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...
This Tracker helps planning practitioners keep up to date with Brexit legislation that affects their areas of practice. A series of Brexit SIs have been made, exercising powers under the European Communities Act 1972 and the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), to fix failures of assimilated law (previously referred to as retained EU law) to function effectively after exit, and other deficiencies arising from the UK’s withdrawal from the EU. Items of particular relevance to planning lawyers are included in the table below. The table also outlines bills/ Acts of Parliament arising from Brexit which may interest planning practitioners. For further guidance see Practice Note: Brexit—the implications for English and Welsh planning law and practice. For a full list of Brexit legislation, see Practice Note: Brexit legislation...
Contents Context Viability in national planning policy and guidance Local planning policy and guidance RICS 2021 Guidance on viability Viability assessments in practice Decision-taking and section 106 agreements London Build to rent Transparency, viability and freedom of information Viability evidence and risk of third party challenges Glossary Context The planning framework in England and Wales is driven by plans. Every local planning authority ( LPA) is required to produce and keep up to date a development plan that identifies planning policies and land use priorities for its area. These plans indicate where development may come forward, and the nature, scale and form that will be allowed in specified places. They also typically include policies for securing planning obligations made under section 106 of the Town and Country Planning Act 1990 ( TCPA 1990), often called...
What are planning use swaps and how do they arise? There is no dedicated statute that regulates planning use swaps. The requirement for such arrangements emerges where a local planning authority ( LPA) adopts a policy curbing or banning the loss of residential space within its jurisdiction. When a planning proposal would result in dwellings being displaced, certain LPAs insist on a linked application delivering a proportionate ‘re-provision’ of homes elsewhere in the same district. In practice, a use swap involves two separate developers coordinating schemes to balance the reduction at one site with equivalent housing provided at another......
STOP PRESS: From 25 March 2026, the core provisions of the Levelling-up and Regeneration Act 2023 concerning plan-making have taken effect. This Practice Note is being updated to reflect these changes. Why is planning policy important? Planning policy: sets the types and locations of development in an area supports the key aims of local planning authorities ( LPAs) guides how planning applications are determined Applications that align with planning policy are more likely to secure permission than those that do not. Accordingly, developers should take relevant policy and guidance into account when preparing their proposals. Objectors can also rely on policy to reinforce their case, for example where a scheme conflicts with local policies. Furthermore, if an LPA disregards national policy, this can justify an objection in a local plan inquiry or a public inquiry into a particular development. In some instances, a failure to have proper regard to...
Contents of training materials These materials include slide decks and presenter notes, created to familiarise trainees, junior lawyers, practitioners from other specialisms, and clients with the essentials of the planning application process. They set out: who is eligible to apply for planning permission outline, full, or hybrid planning applications the procedures and criteria for pre-application advice and pre-application consultation the publicity that must be undertaken the requirements for the submission of full and......
What is a planning performance agreement? ( PPA) Planning performance agreements are voluntary memoranda of understanding or agreements between a planning applicant, the local planning authority ( LPA) and, in some instances, other interested parties such as key statutory consultees. A PPA records agreed commitments on timescales, tasks and the resources to be applied to a particular planning submission. Functioning as a project management framework, it sets out the pathway for reaching a determination on the application. PPAs are commonly put in place before an application is lodged and may span every stage of the process, including pre-application. Although the emphasis is usually on the pre-application and application phases, a PPA can also extend into the post-application period, for example to govern how reserved matters or approvals of details will be dealt with. They might be documented as a simple memorandum of...
Contents of training materials These materials include slides and presenter notes that help introduce trainees, junior lawyers, lawyers from different practice areas, and clients to the fundamentals of planning law. They cover: situations where planning permission is required permitted development rights the Building Regulations framework matters concerning listed buildings and conservation areas national and local planning policy the planning application process the planning system for nationally significant infrastructure projects planning conditions planning obligations and the Community Infrastructure Levy ( CIL) enforcement compulsory purchase They are intended for a......
This Power Point provides a set of slides with presenter notes designed to familiarise trainees, junior lawyers, lawyers from different practice areas, or clients to......
Reviewing 2017 Planning for nationally significant infrastructure What happened? Key developments in major infrastructure comprised: The National Infrastructure Commission ( NIC)’s interim National Infrastructure Assessment ( NIA) — the NIC is progressing towards releasing the first NIA in 2018, which will analyse the UK’s long-term infrastructure requirements, set a strategic vision through to 2050, and propose recommendations to bolster the nation’s infrastructure......
Practice Note: Planning—enforcement When it appears to a local planning authority ( LPA) that planning control has been breached, it may, at its discretion, take enforcement action under Part VII of the Town and Country Planning Act 1990 ( TCPA 1990). For these purposes, section 171A of the TCPA 1990 defines a breach of planning control as: undertaking development without the necessary planning permission, or not complying with any condition or limitation attached to a planning permission This Practice Note explains in detail how a breach of planning control is established, when development acquires immunity from enforcement, and the factors an LPA should weigh when deciding whether to proceed with formal measures. Its focus is on the range of steps available to an LPA in response to a breach of planning control. The Practice Note does not address enforcement concerning listed buildings. For that, see Practice Note: Listed...
Breach of planning control and enforcement action Under the Town and Country Planning Act 1990 ( TCPA 1990), any breach of planning control can be met with enforcement measures. For these purposes, a breach of planning control is understood to mean: undertaking development without the requisite planning permission — this presumes that an unauthorised operation or a material change of use has occurred which amounts to development within TCPA 1990, s 55, that such development requires planning permission, and that no permission has been secured When determining whether a breach of planning control has arisen in this context, the applicable guidance and case law on the meaning of ‘development’ must be applied; see Overview: Is planning permission required?......
Do I need a local authority search? For nearly all transfers of property—whether commercial or residential—and for the acquisition of any new interest, a local authority search will be required. This search supplies vital, authoritative information about the land in which the interest is being obtained, enabling the purchaser to make an informed decision about whether to proceed with acquiring that interest in the land. This Practice Note focuses specifically on planning-related issues disclosed by local authority searches and by related search enquiries. For more guidance on property searches, see the Practice Notes: Pre-contract searches and Chancel repair liability. Identifying the correct authority Ensure that the application for a local authority search is submitted to the correct local authority, as local government boundaries are sometimes changed or re-drawn. Gov.uk provides a postcode search tool to ascertain which local authority is responsible for a...
Contents of training materials These training resources include decks and presenter notes to familiarise trainees, junior solicitors, professionals from other practice areas, or clients with the fundamentals of planning conditions, obligations, and the community infrastructure levy ( CIL)......
Within this Practice Note, references to the ‘ Secretary of State’ are to be read as including the Welsh Ministers, and any distinctions in policy or legislation are highlighted. What is a 'called-in application'? Ordinarily, planning applications and applications for listed building consent are decided locally by the relevant local planning authority ( LPA). The Secretary of State, however, retains a reserve ability to require the LPA to submit an application for a decision by the Secretary of State rather than leaving the matter to the LPA; this is the ‘call-in’ power. Only a small proportion of planning applications are called in. There is no statutory obligation on the Secretary of State to exercise the call-in power. Legal basis for call-in The call-in power has its origin in: section 77 of the Town and Country Planning Act 1990 ( TCPA 1990), covering...
Statutory duty to consider heritage impacts in determining planning applications Until 4 November 2024, the framework for heritage assets in Wales—including conservation areas and listed buildings—was contained in the Planning ( Listed Buildings and Conservation Areas) Act 1990 ( P( LBCA) A 1990). The Historic Environment ( Wales) Act 2023 ( HE( W) A 2023), which gained Royal Assent on 14 June 2023, consolidated and replaced legislation concerning Wales’s historic environment from 4 November 2024 onwards. Statutory duty in England Section 66 of the P( LBCA) A 1990 provides that, when determining whether to grant planning permission for development affecting a listed building or its setting, the local planning authority ( LPA)—which, for these purposes, includes the Mayor of London where planning permission is granted by Mayoral development order—or the Secretary of State must give special regard to the desirability of preserving or enhancing the...
Planning-related fees are levied so that developers, rather than the wider taxpayer, cover the costs borne by local planning authorities ( LPAs) when deciding planning applications. This ensures the burden of processing sits with those proposing development, not the general public. At present, fees are fixed nationally by government; LPAs cannot vary the prescribed amounts. Charges for each type of development generally mirror the effort an LPA must expend to handle an application. In England, however, the Planning and Infrastructure Act 2025 ( PIA 2025) includes provisions (not yet commenced) enabling regulations to permit or oblige LPAs to set fee or charge levels, and to ringfence income from certain planning fees or charges for named planning functions. Guidance on fees England: guidance is set out in Planning Practice Guidance and on the Planning Portal. Wales: guidance is provided by the Welsh...
When are written representations used? Written representations are suitable for a planning appeal when: the appeal grounds and key issues are readily understood from the submitted documents along with a site visit; and/or the inspector does not need to test the evidence by questioning or to clarify any further matters; and/or an environmental impact assessment ( EIA) is not needed, or any EIA is not contested They are generally the easiest, quickest and most straightforward way to pursue an appeal, and most planning appeals proceed by the written route. See Practice Notes: Planning appeals—key points and Planning appeals—which procedure? Legislation The written representations process is set out in: Town and Country Planning ( Appeals) ( Written Representations Procedure) ( England) Regulations 2009 (the English Appeal Regulations), SI 2009/452, in England; and Town and Country Planning ( Referred...
Most decisions made by a local planning authority ( LPA) on planning and related applications can be appealed. For advice on when an appeal is available, who may appeal, and how the process works, see Practice Note: Planning appeals—key points. In England, section 319A of the Town and Country Planning Act 1990 ( TCPA 1990) empowers the Secretary of State to set the procedure for handling a range of planning appeals and applications. In Wales, an equivalent power is conferred on the Welsh Ministers by TCPA 1990, section 319B. These powers apply to appeals generally, including cases requiring re-determination after a quashed appeal decision. A determination under TCPA 1990, sections 319A and 319B must provide for proceedings to be considered in one or more of the following ways, as the Secretary of State or Welsh Ministers consider appropriate: a local inquiry 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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