Legal Q&A

The Academies Act 2010 ( Ac A 2010) The Academies Act 2010 ( Ac A 2010) and regulations made under it authorise and set out provisions for the transfer of land from the local authority to the Academy Trust. Although Schedule 1 to the Ac A 2010 permits an absolute transfer, guidance issued by the Department for Education in its Land Transfer Advice ( April 2013) indicates that, in the overwhelming majority of instances, the transfer should ordinarily proceed by means of a 125-year lease to the Academy Trust, thereby safeguarding public land......

This Q& A concerns a contract for land and vehicles―a mixed contract. Not every land transaction must follow a public procurement process publicised in the Official Journal of the European Union. Whether such a procedure is needed depends on the character of the arrangement and the contracting authority’s involvement, though land can still comprise a procurable component within a contract. The Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, do not apply where a contract contains inseparable mixed elements and the procurable aspects are not the contract’s principal object. The key point here is to determine whether the dominant element is the vehicles or the land. Under PCR 2015, SI 2015/102, reg 4(2), there are provisions guiding a contracting authority when dealing with a contract that includes some, but not exclusively, procurable elements......

A local authority holds a broad range of legal powers concerning the highway, most of which sit within the Highways Act 1980 ( Hi A 1980). Those powers cover action and interventions where land adjoining a street (defined, following Hi A 1980, s 329 and by virtue of section 48 of the New Roads and Street Works Act 1991, as any highway, road, lane, footway, alley or passage, any square or court, and any land laid out as a way, whether or not it is formed as a way, a bridge or a tunnel) presents a danger or annoyance......

Section 33 of the Local Government ( Miscellaneous Provisions) Act 1982 ( LG( MP) A 1982) This provision addresses how local authorities can enforce certain land-related covenants. It applies where a principal council and another person are parties to an instrument under seal that is executed for specific purposes relating to land in which that person has an interest. The section is engaged where the instrument is: executed to secure the carrying out of works on land within the council’s area in which the other party holds an interest; or executed to regulate the use of, or is otherwise connected with, land either within or outside the council’s area in which that party has an interest; and only where the instrument is neither executed to facilitate, nor otherwise connected with, the development of the relevant land. LG( MP) A 1982, s 33(2) sets out...

Under section 133 of the Highways Act 1980 ( Hi A 1980), a local highway authority may, where a footway forming part of a street that is a highway maintainable at public expense is harmed as a result of any excavation or other operations on land adjoining (as defined by Hi A 1980, s 186) the highway, carry out the necessary repairs and reclaim the expense thereby incurred from either the landowner or the person responsible for the damage. See Commentary: Damage to footway by excavation: Halsbury's Laws of England [378]. In addition, Hi A 1980, s 130 confers a broader power to assert, uphold and safeguard the rights of the public to use and enjoy the highway as such accordingly. See Commentary: General duty of highway authority: Halsbury's Laws of England [372]......

Ordinary residence Section 39(4) of the Care Act 2014 ( CA 2014) states that a person provided with accommodation under section 117 of the Mental Health Act 1983 ( Me HA 1983) is, for the purposes of the Act, to be treated as ordinarily resident in England or Wales, and the local authority accordingly has a duty to arrange the services required by Me HA 1983, s 117. That responsibility continues until the integrated care board or Local Health Board and the local social services authority are satisfied that the individual no longer needs aftercare... Although CA 2014 does not set out a definition of ordinary residence, the phrase bears its everyday meaning. In this context, ordinarily resident refers to a person’s home in a specific place or country which they have chosen voluntarily, and it involves matters of both fact and degree......

Neither the legislation— Part 4, Schedule 6 of the Education and Inspections Act 2006 ( EIA 2006)—nor the guidance— Governance handbook and Schools causing concern— Statutory guidance for local authorities—addresses whether a duty to consult persists where a local authority intends to exercise its EIA 2006, s 65 powers to appoint an Interim Executive Board ( IEB) after the entire governing body has stepped down. Warning notice As stated at page 14 of the guidance, a warning notice under Part 4 of the EIA 2006 must be provided in writing to the school’s governing body and must include: the matters on which the local authority’s concerns are based......

This Q& A concerns the ongoing statutory obligations owed by a local authority to former relevant children, as provided for in sections 23A–24B of the Children Act 1989 ( Ch A 1989). Local authority duties to a former relevant child A former relevant child means someone who previously qualified as a relevant child and has reached 18 years of age. For clarification on what counts as a relevant child in this context, consult the detailed section titled ‘ The relevant child’ within the Practice Note: Local authority duties for advice and assistance for certain children and young persons......

Section 164 of the Highways Act 1980 ( Hi A 1980) It provides that where land adjacent to a highway has a fence built with barbed wire, or bearing barbed wire on or within it, and the wire amounts to a nuisance to the highway, the highway authority may, by serving notice on the occupier of the land, require that the nuisance be abated within a period of between one and six months from the date of the notice......

If the local authority obtains an Interim Management Order ( IMO), the authority: is entitled to take possession of the property, as necessary, (subject to the rights of current occupiers) may carry out, where appropriate, and authorise a manager or another person to carry out, in connection with the property anything that a person with an estate or interest would, but for the order, be entitled to do Comparable powers also apply equally where a Final Management Order ( FMO) has been made (see section 116(3) of the Housing Act 2004 ( HA 2004))......

Part 5 of the Localism Act 2011 ( LA 2011) introduced a range of measures concerning community empowerment. Among these, chapter 3 specifically obliges a local authority to keep a register of land within its area regarded as land of community value ( LA 2011, s 87)......

For this Q& A, our review is confined to how lotteries, competitions and prize draws differ. Our analysis has focused specifically on distinguishing among these three mechanisms. Definitions The meaning of 'prize competition' Under the Gambling Act 2005 ( GA 2005), a ‘prize competition’ means any contest or arrangement in which a participant may secure a prize, so long as it does not fall within the statutory concept of gambling. The meaning of 'gambling' English law recognises three principal forms of gambling: betting, gaming and lotteries. While the statutory tests are intricate, they can be outlined in broad terms as follows: Betting involves making or accepting a wager on the result of a race, competition or other event or process, on the likelihood of something occurring or not occurring, or on whether a proposition is true or false (even where one party knows the facts). Although ‘bet’ is not...

Private rights stand apart from the public rights vis-à-vis the highway. Consequently, the said private rights endure...

Proportional representation of political groups Authorities and committees must apportion seats to mirror the proportional make-up of political groups. The issue is whether an independent member, meaning one not belonging to any party group, can be placed on the planning committee. The position depends in part on the facts and the authority’s constitution, but where the authority is organised into political groups and no statutory exceptions apply, an independent would need to form a group with at least one other member to gain representation and thus a seat on the planning committee. In some authorities, several independents join to create an independent group, sometimes called ‘the independents’, and are therefore entitled to representation on the planning committee. This rule does not extend to area committees, and authorities may disapply it if unanimously approved alternative arrangements are adopted. This all proceeds on the basis that the...

Brexit— Commercial For help with your query, please refer to the following: Brexit—contract clauses and resources—checklist [ Archived] Clause: Brexit—warranty for commercial contracts clause [ Archived] Clause: Territory definition For additional guidance, see: Brexit collection......

The straightforward answer to this question is no, provided the security barrier is deemed safe for those on foot. A security barrier is generally a gate, featuring either a rising arm or a horizontal swing from a fixed hinge. Although it can be feasible for a barrier to be safe for both vehicles and pedestrians, they are commonly designed to suit only one of these two uses. A barrier intended to stop vehicles is not well suited to preventing pedestrians from passing through. Because cars and people differ markedly in scale and movement, it is usually simpler to install two different gate types. From a security standpoint, a basic vehicular gate will not exclude pedestrians. More importantly, a gate meant for vehicles can pose a significant risk to pedestrians......

Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, reg 33(2) defines a framework agreement as: Regulation 33(2) of the Public Contracts Regulations 2015 ( SI 2015/102) describes a framework agreement as an arrangement between one or more contracting authorities and one or more economic operators, intended to set the terms that will govern contracts awarded over a specified period, notably concerning price and, where appropriate, the quantities anticipated. The Crown Commercial Service ( CCS) guidance interprets a framework agreement as a broad term for arrangements with providers that lay down the terms and conditions under which agreements for specific purchases—referred to as call-off contracts—can be put in place throughout the life of the agreement......

For this Q& A, it is assumed that the lighting apparatus is intended to illuminate the highway, and that the local council is, in addition, the highway authority as well for these purposes......

The powers of a parish council Our research has focused on authority to take decisions. Nonetheless, particular issues arise for a public authority deploying ANPR cameras, and these must be weighed, alongside the public procurement ramifications of any contractual arrangement. A parish council is limited to acts expressly or implicitly permitted by statute or by subordinate legislation. More broadly, local authorities are generally empowered by statute to do anything calculated to facilitate, or conducive or incidental to, the carrying out of their functions, as set out in section 111 of the Local Government Act 1972 ( LGA 1972). These limits and enabling powers frame any such decision-making process......

This Q& A focuses on public procurement under the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102 As a general principle, the PCR 2015, SI 2015/102 affords bidders considerable latitude to shape bid partnerships and supply chain models to suit their approach. Under PCR 2015, SI 2015/102, reg 63(1), tenderers can draw upon the resources of other organisations to satisfy selection requirements covering economic and financial standing, along with technical and professional capability. A limited carve-out appears at PCR 2015, SI 2015/102, reg 63(7), which permits contracting authorities to stipulate that specified ‘critical tasks’ in a public services or public works contract must be carried out by the prime contractor, or by one from a consortium of primes. Put differently, suppliers are, in most cases, free to deploy their chosen subcontractors when delivering a public contract. That said, this is subject to any...