local goverment lawyer issue 21

LOCALGOVERNMENTLAWYERISSUE 21

THIS ISSUE’S FEATURED ARTICLES:

BREACH OF A LEGITIMATE ExpECTATION: A LEGITIMATE GROUND FOR CHALLENGING pLANNING DECISIONS?

DUTY TO COOpERATE UNDER THE NppF

EMpLOYMENT CASE LAW UpDATE: pROCEDURES FOR RESTRUCTURES AND COST CUTTING

SWEET & MAXWELL

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LAWYERS. USE YOUR INSIGHT. INSIGHT.

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THE START OF A NEW INNOVATIVE ONLINE ENCYCLOPEDIA OF UK LAW

Westlaw UK Insight is the new, dynamic and ever-expanding online legal encyclopedia. Intuitively arranged by topic and with direct links to key related content, it enables you to quickly find solutions to your clients’ issues. With succinct, up-to-date and expert guidance on the law, Insight is the perfect starting point for your legal research.

USE YOUR INSIGHT FROM TODAY.

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E LOCAL GOVERNMENT LAWYERISSUE 21

IN THIS ISSUE:

4 LOCAL GOVERNMENT NEWS

6 ARTICLE: BREACH OF A LEGITIMATE ExpECTATION — A LEGITIMATE GROUND FOR CHALLENGING pLANNING DECISIONS?

9 ARTICLE: DUTY TO COOpERATE UNDER THE NppF

12 INTRODUCING WESTLAW UK INSIGHT

15 UpDATE FROM LAWTEL AND WESTLAW UK

18 ARTICLE: EMpLOYMENT CASE LAW UpDATE: pROCEDURES FOR RESTRUCTURES AND COST CUTTING

20 LOCAL GOVERNMENT BOOKSHOp

22 LOCAL GOVERNMENT LAW AT YOUR FINGER TIpS

24 pROFILE: DANIEL DOVAR

26 YOUR SWEET & MAxWELL SALES CONTACTS

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Online: sweetandmaxwell.co.uk

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Welcome to 2013’s fi rst issue of Local Government Magazine from Sweet & Maxwell. I hope the new year has started well for you.

In this issue Heather Emmerson and Jack Anderson from 4-5 Gray’s Inn Square have both written articles on planning. Heather considers two recent cases which challenged planning decisions where local planning authorities had failed to give effect to promises or previous practises. Jack considers the duty to cooperate under the National Planning Policy Framework. Finally, Richard Owen-Thomas from 4-5 Gray’s Inn Square provides an employment case law update focusing on procedures for restructures and cost cutting.

Also within the issue you’ll fi nd details on Westlaw UK Insight, a new online legal encyclopedia available to Westlaw UK users. We speak to general editor Daniel Greenberg and project manager Sally Turvey who have both been instrumental in developing this exciting new Westlaw UK feature. We also speak to Daniel Dovar, who is co-editor of Residential Possession Proceedings which is due to publish very soon. Plus you’ll fi nd all the latest local government and legal developments from Westlaw UK and Lawtel.

If you need any further information about the products and services referred to in this issue, you’ll fi nd a list of account managers with contact details on page 26.

Enjoy the issue.

Jonathan ChiltonEditor

[email protected] & Maxwell Ltd, 100 Avenue Road,London NW3 3PF

Designed by: Bonsai (Tel: 020 8334 2875)

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The last few months of 2012 saw a number of key developments and updates on Westlaw UK.

The Family Law Hub is a resource built with the busy family law practitioner in mind. Providing highly useful content covering a wide range of areas within the field, it ensures that you have the tools you need to get the job done. Written by the highly acclaimed family law team at Mills & Reeve LLP and supplemented by 29 Bedford Row Chambers, the content is both reliable and of the highest quality.

It’s now available to you online via Westlaw UK. What does this mean? Fast searching, quick and easy access to the content you need as a family law practitioner and of course, increased efficiency.

Localaw content migration to Westlaw UK was completed in November. From Compulsory Purchase to Road Traffic law and much more, Westlaw UK now provides you with online access to the expert authority of Sweet & Maxwell’s Local Government Law Library.

The Local Government Law Encyclopedias on Westlaw UK enable you to search for and pinpoint the exact materials you need easily and effectively.

• Theplatformisalmosttwiceasfastatretrieving materials as Localaw • WestlawUKoffersdirectlinkstoconsolidated primary law materials updated daily, so that your research is completely joined-up and you can be sure you’re always looking at the latest version of the law • Inaddition,WestlawUKprovidesamultitudeof different ways to access relevant paragraphs from the text and then print, email or download them for use • ThemovetoWestlawUKalsomeansthatwecan

provide you with even more useful functionality such as links from the Release Bulletin directly into the updated content, an Index which mirrors the print version and pop-up footnotes alongside the text

For a full list of titles see pages 22 & 23.

December saw the launch of Westlaw UK Insight a new, dynamic and ever-expanding online legal encyclopedia. Intuitively arranged by topic and with direct links to key related content, it enables you to quickly find solutions to your clients’ issues. With succinct, up-to-date and expert guidance on the law, Insight is the perfect starting point for your legal research. Westlaw UK Insight provides users with a more practical way to begin their research and find the content that is most important to them – offering an entirely new research experience.

You’ll find more information on Westlaw UK Insight on pages 12 - 14

Full Annotations for the following recently passed Acts are available on Westlaw UK: • EuropeanUnion(ApprovalofTreatyAmendment Decision) Act • Infrastructure(FinancialAssistance)Act • LocalGovernmentFinanceAct • MentalHealth(ApprovalFunctions)Act • ActsoftheWelshAssembly • NationalAssemblyforWales(OfficialLanguages)Act • LocalGovernmentByelaws(Wales)Act

The following legacy Acts have been fully annotated and are now available on Westlaw UK: • BudgetAct(NorthernIreland)2007 • CharitiesAct(NorthernIreland)2008

WESTLAW UK UpDATE

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4 LOCAL GOVERNMENT L AW YER

TWEET TWEET!Be sure to follow us at twitter.com/localgovlawyer and read daily updates about local government news of interest to you.

Also, check out our Sweet & Maxwell account which tweets news across all the practice areas in our portfolio as well as upcoming webinars and conferences. Follow us at twitter.com/sweetandmaxwell.

If you’re a Westlaw UK or Lawtel subscriber follow us at twitter.com/westlawuk or twitter.com/lawteluk for news on product enhancement and general legal happenings.

Thomson Reuters have recently completed the acquisition of Practical Law Company, a leading provider of practical legal know-how and workflow tools. Practical Law Company has operations in New York and London; terms of the deal were not disclosed.

Thomson Reuters announced on January 3 that it had reached a definitive agreement to acquire Practical Law Company. The acquisition, which was subject to regulatory

review in the U.S. and UK, has received Hart Scott Rodino clearance in the U.S. In the UK, where Thomson Reuters made a voluntary submission to the Office of Fair Trading (OFT), the review process is underway.

Mike Suchsland, president of the Legal business of Thomson Reuters, said, “The completion of the acquisition positions Thomson Reuters with a comprehensive portfolio of productivity

solutions that combine the best legal information, expert know-how resources and software tools and are geared to help in-house lawyers and outside counsel work more efficiently and effectively. We look forward to building upon each company’s innovation, editorial legacy and expertise to create even more powerful tools to support and improve the practice of law.”

THOMSON REUTERS TO ACQUIRE pRACTICAL LAW COMpANY


Bev Cullen, SLG Chair and International Officer

The current period is a very exciting time for solicitors working in local government which sounds rather strange given we are in what is considered to be a very challenging phase generally in respect of budget cuts and job losses.

‘Exciting’ refers of course to the merger of the representative organisations SLG (Solicitors in Local Government) and ACSeS (Association of Council Secretaries and Solicitors). SLG held an EGM of the membership in November and a motion in favour of the proposed merger was carried unanimously; the decision is still subject to ratification at the AGM in March 2013. Similarly ACSeS members voted for the merger at their AGM also held in November.

It is anticipated that the new organisation (Lawyers in Local Government) will be launched in April and planning is on-going to shape its structure, constitution and financial model. The proposals are that there will be 11 branches with Wales and London being sole branches in their own right. The composition of the Council will include lead representatives from specialist legal areas e.g. Children’s Services and Education, Monitoring Officers and Governance together with representatives from the branches, a junior lawyer plus trainee representative in addition to the officers’ holders.

There are various categories of membership proposed but in recognition of the changing legal landscape membership will be open to solicitors, barristers, chartered legal executives, monitoring officers and their deputies and others. The organisation will be funded by

SLG AND ACSES MERGER pLANS MOVE FORWARD

SWEET & MAxWELL 2013 CONFERENCE CALENDAR6 MaRCH 6th annual IDS & TUC Pay Forum Congress Centre, London

12 MaRCH Civil Costs Conference 2013 IET, London

19 MaRCH JUSTICE International Crime Conference The Hatton, London

14 May Landlord & Tenant Conference 2013 IET, London

4 JUnE Trade Mark and Passing Off Conference Holborn Bars, London

5 SEPTEMBER Competition Law Conference London

11 SEPTEMBER Employment Law Conference London

All of our conferences are accredited by The Solicitors’ Regulation Authority and the Bar Standards Board. Attendance at any of these events could count towards your CIPD CPD record. More conferences will be announced throughout the year.

For further information or to register, VISIT: legalpd.com/conferences CALL: 0845 600 9355 EMAIL: [email protected]

subscription from local authorities which is similar to the funding model ACSeS has currently. SLG membership has historically been free as the Law Society grant funded the organisation however this will cease on 28 February 2013 when SLG will no longer be a recognised group* of the Law Society.

The new organisation, in addition to providing a single voice on local authority law and governance will build upon SLGs strength in providing networking and training activities which inform and support the membership. Many SLG branches for example the Northern, North West and North Wales Branches hold regular free training days which provide free CPD points for solicitors as well as saving the Councils’ budget.

*The Association of Women Solicitors, the Black Solicitors Network, the Sole Practitioners Group and the Commerce & Industry Group are also recognised groups of the Law Society whose grant funding will cease.

R (ON THE AppLICATION OF GODFREY) V SOUTHWARK LBC In R (on the application of Godfrey) v Southwark LBC2 the Appellant sought to challenge a grant of planning permission by the local planning authority on the basis that the Council had failed to give effect to previous promises made to the local community as to how the site would be redeveloped. The High Court had declined to grant permission to bring a claim for judicial review of the decision, and the Court of Appeal considered an appeal against this decision.

The site in question was a former district centre providing community services, including a free-standing community hall of some 400 square metres. In 2002 the Council recognised that the site was ripe for redevelopment and prepared a planning brief relating to the project which set out that any developer would be expected to improve the site in terms of its community facilities or create new infrastructure if the existing facilities were to be redeveloped. In 2007 the Council adopted a UDP which stated that the uses required for the site were as a community centre and a health centre. In 2010 the Council received an application for permission to redevelop the site, including permission to provide a community centre of some 124 square metres within the health centre building, rather than as a free-standing entity. Planning permission was granted by the Council.

Local residents challenged the grant of permission on four main grounds, including that the Council had: (i) failed to give effect to an understanding between it and community members that there would be a free-standing community hall; (ii) failed to take into account the planning brief which was a material planning consideration; (iii) failed to implement the UDP and (iv) failed to give effect to a substantive legitimate expectation that better and larger facilities in terms of the community hall would be provided when the site was redeveloped. It was the last of these arguments which formed the focus on the Court of Appeal’s judgment. The case for the Appellant focused on the fact that the planning permission lacked appropriate provision for a community centre in circumstances where previous dialogue between the Council and the local community and the terms of the planning brief had given rise to a substantive legitimate expectation that any grant of planning permission would require a free-standing community hall at least as large as the existing hall on site.

The Court of Appeal reviewed the relevant authorities on the issue of substantive legitimate expectations, in particular quoting extensively from the decision of the Court of Appeal in R (on the application of Murphy & Others) v The Independent Assessor and R (on the application of Niaza & Others) v The Secretary of State.3 In Niaza Laws L.J. described a substantive legitimate

BREACH OF A LEGITIMATE ExpECTATION — A LEGITIMATE GROUND FOR CHALLENGING pLANNING DECISIONS?HEATHER EMMERSON 4-5 GRAY’S INN SqUARE

The public law doctrine of legitimate expectation may require a decision-maker to honour a promise or practice as to process (for example the opportunity to make representations or be consulted), or as to outcome (for example granting a substantive benefit or determining a particular result).The circumstances in which the courts will give effect to a legitimate expectation are not easy to identify and the principles which are regularly invoked to justify holding a decision-maker to previous representations are framed in broad terms, namely “unfairness” or conduct that amounts to “an abuse of process”.1 This article considers two recent cases in which planning decisions were challenged on the basis that the local planning authority had failed to give effect to promises or previous practices, thus breaching a legitimate expectation of either a substantive outcome (Godfrey) or a particular procedure being followed (Vieira).



expectation as “a promise or practice of present and future substantive policy”4 and identified the central question as “…what are the conditions under which a prior representation, promise or practice by a public decision-maker will give rise to an enforceable expectation of a substantive benefit?” In answering this question in general terms, Laws L.J. held5 “Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest…. but the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker’s proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself.”

With these points in mind, the Court of Appeal in Godfrey held6 that a rigorous standard is to be applied when a substantive legitimate expectation is claimed on the basis of a representation or promise by a public authority. The duty of public authorities to exercise powers in the public interest must be kept in mind. Only when, in the court’s view, to fail to give effect to the promise would be so unfair as to amount to an abuse of power, should it override other considerations.

Significant weight was placed on the Council’s statutory duty under s.70(2) of the Town and Country Planning Act 1990 and s.38(6) of the Planning and Compulsory Purchase Act 2004 to determine an application in accordance with the development plan unless other material considerations indicate otherwise, and whilst the UDP Policy made reference to a community centre as a part of a development, the Court noted that the policy did not include a specific requirement as to size and in deciding what provision to make, the council was required to assess current needs. This had been conducted by having regard to other community facilities in the area and a consultation having taken place. The Court emphasised that an earlier approach of a local planning authority to an issue, even if amounting to a planning policy, cannot have primacy over the statutory duty of the council to assess the current situation.7

Critically, the Court of Appeal held that even on the assumption that there was an intention in 2002 on the part of the Council, that was made known to community representatives, that a large and separate community centre be included in the development, this fell well below constituting a substantive legitimate expectation. The reasons for this included that: (i) there was a delay of many years before the relevant planning application was considered; (ii) the council was obliged to consider the planning application in line with the current development plan which required an assessment of current needs; (iii) the council was under a duty to act in the interest of the community as a whole and it would have been wrong for the council to have been deflected from performing that duty because a different assessment of community needs had been made and communicated in 2002. The case on substantive legitimate expectations therefore failed.

What clearly emerges from this decision is that a local authority had a statutory duty to take into account all material consideration and existing circumstances at the time of the decision and that the statutory duty will not be discharged lawfully if one consideration could in law prevail over the duty to have regard to other considerations. Whilst local residents may have an expectation that consideration will be given to matters raised in response to the planning application, the expectation does not extend to requiring the >

REUTERS / Jason Reed


BREACh Of A LEGiTiMATE ExpECTATiON

> authority to give primacy to that expectation. The robust test for establishing a substantive legitimate expectation set out by the Court of Appeal renders it unlikely, save in exceptional circumstances, that a substantive legitimate expectation of a particular outcome (i.e. the scope of a planning permission, conditions to be attached to a planning permission, or whether permission will in principle be granted for a particular type of redevelopment) will be established based on previous planning briefs, planning policies, or discussions with the planning authority.

R (ON THE AppLICATION OF VIEIRA) V CAMDEN LBC In contrast with the failed claim to a substantive legitimate expectation in Godfrey, the case of R (oao Vieira) v Camden LBC8 is an example of how a planning authority’s failure to give effect to a promise or practice of a particular procedure may be a more fruitful area of challenge for those aggrieved by planning decisions.

The case of Vieira arose from a dispute between two neighbours residing in Primrose Hill. The claimants’ neighbours had constructed a conservatory without planning permission and erected a large trellis as an attempt to reduce overlooking into the claimants’ garden, however the size of the trellis was obstructive and objected to by the claimants.

The neighbours made an application for retrospective planning permission and the claimants were consulted by the planning authority in relation to the application and objected to the retrospective grant of permission. Thereafter the neighbours submitted an amended drawing to the planning authority showing a trellis of reduced size and an officer’s briefing note commented favourably on the amended drawing. Neither the drawing nor the officer’s briefing note were placed on the local authority’s website or referred to the claimants for comment. A meeting of planning officers subsequently granted planning permission.

The claimants challenged the grant of planning permission on the basis that the local authority was in breach of a legitimate expectation as to what procedure would be adopted by the authority. The expectation as to process was founded on

the terms of a Statement of Community Involvement, planning portal documents and statements made on the Council’s website. The claimants submitted that they had a legitimate expectation that the authority would: (i) consult them in respect of any revised drawings or plans; (ii) make the application documents and reports available on its website for comment; and (iii) consult a members’ briefing panel on whether the application should be referred to committee before determining the application.

The grant of permission was quashed by the High Court on the basis that the Council had breached the claimants’ legitimate expectation as to procedure. The Court held that the claimants had a legitimate expectation that the local authority would send them the revised drawing because it was only upon seeing it that they would know precisely what was proposed, and because the Statement of Community Involvement required re-consultation following the submission of the revision of the planning application. The Court noted that it had been practicable to consult on the amendment, and the local authority had made no attempt to do so and therefore had breached the claimants’ legitimate expectation.9

In respect of the failure to publish documents on the website, whilst there was no evidence of a sufficiently clear representation that amended plans would be put on the website to give rise to a legitimate expectation, the planning protocol and the website included clear representations that officers’ reports would be available online in advance of members briefing meetings. The local authority had breached the legitimate expectation that officers reports would be online and had given no good reason for its failure to ensure this had taken place.10 Further, there was a legitimate expectation that the panel would be consulted over whether the planning application would be decided by officers or referred to committee.

The Court then turned to the question of prejudice and held that the claimants had been prejudiced as they had been unable to make representations on the amended drawing and the report, and the matter had been considered only by officers, without input from members and quashed the grant of planning permission.

CONCLUSION These two decisions are useful examples of how the courts may approach a challenge to the grant of planning permission on the basis of a breach of a legitimate expectation. The difficulties in persuading a court that a decision-maker should be bound to reach a particular decision when considering a planning application by reason of previous promises or policies are illustrated by the case of Godfrey. By contrast, the case of Vieira demonstrates that a legitimate expectation of a particular procedure being followed may be more straightforward to establish, and this could be founded on an express assurance from the authority that a particular process will be followed, or founded in a settled policy or practice. n

1 See for example Council of Civil Service Unions v Minister of Civil Service [1985] AC 374, 415C–G per Lord Roskill, R v Secretary of State for Education ex p Begbie [2000] 1 WLR 1115, 1129. R (on the application of Murphy & Others) v The Independent Assessor and R (on the application of Niaza & Others) v The Secretary of State [2008] EWCA Civ. 755.

2 [2012] EWCA Civ. 500.

3 [2008] EWCA Civ. 755.

4 [2008] EWCA Civ. 755 at [33].

5 [2008] EWCA Civ. 755 at [41]–[42].

6 [2008] EWCA Civ. 755 at [51].

7 [2008] EWCA Civ. 755 at [52].

8 [2012] EWHC 287 (Admin).

9 [2012] EWHC 287 (Admin) at [71]–[77].

10 at [80], [83–84].


DUTY TO COOpERATE UNDER THE NppF

The Localism Act 2011 therefore introduced a new duty on local planning authorities, county councils and other prescribed bodies to cooperate in relation to strategic planning issues, in particular in relation to the production of the development plan. The duty to cooperate is found in s.33A of the Planning and Compulsory Purchase Act 2004; and the National Planning Policy Framework (NPPF) provides some policy guidance on how it should operate. While the duty is relatively new, in practice many local development plans will already have been prepared in a manner that would constitute compliance with the duty. The duty does not apply retrospectively but only in relation to development plans submitted from November 15, 2011.

The duty applies to local planning authorities, county councils and a variety of bodies now prescribed in the Town and Country Planning (Local Planning) (England) Regulations 2012, including the Environment Agency, English Heritage, Natural England, the Civil Aviation Authority, Homes and Communities Agency, Primary Care Trusts, Highways Agency, Integrated Transport Authorities, Highway Authorities, Marine Management Organisation, Transport for London and the Mayor of London. Local Enterprise Partnerships are not subject to the duty to cooperate; but they are prescribed as bodies to whom those covered by the duty should have regard when preparing local plans and related activities.

The duty is expressed in strong terms. Section 33A(2)(a) requires a relevant body to “engage constructively, actively and on an ongoing basis in any process by means of which” specified activities are undertaken.

Section 33A(2)(b) further requires a relevant body to “have regard to the activities of” the prescribed bodies so far as they relate to the specified activities and so far as those activities relate to a strategic matter.

The specified activities include in particular the preparation of development plan documents, the preparation of other local development documents, and the preparation of marine plans.

However, the duty to cooperate goes far beyond a duty to cooperate only at the stage of preparing the development plan documents themselves: it extends to cooperation in “activities that can reasonably be considered to prepare the way for those planning activities that are, or could be, contemplated” or activities “that support” the planning activities.

That is, potentially, a very wide ranging duty indeed. A duty to cooperate in relation to “activities that could reasonably be considered to prepare the way” for the preparation of the development plan on its face applies to any activity that might “reasonably be considered” to prepare the way for those documents, whether or not it in fact did so. Broader still, the duty is said to apply to preparatory activities that “could” >

JACK ANDERSON 4-5 GRAY’S INN SqUARE

While regional spatial strategies are to be abolished, planning policy and decision making cannot sensibly take place without a recognition that the authorities for different planning areas will need to cooperate in order to achieve the aims of the planning system. Recent decisions of the planning inspectorate have had to confront what the duty to cooperate entails and, recognising the potential significance of the new duty, the planning inspectorate has indicated the approach it will take administratively.


DUTY TO COOpERATE UNDER ThE Nppf

> be contemplated, as well as those that are in fact contemplated. The question might well be asked, contemplated by whom? The language of s.33A is perhaps unhelpfully broad.

However, the remaining terms of s.33A do narrow the scope of the duty somewhat. First, the duty to cooperate applies to the planning and preparatory activities only insofar as they relate to strategic matters. The definition of “strategic matter” is tied to the impact that development or use of land would have. Section 33A(4) defines a strategic matter as follows:

“For the purposes of subsection (3), each of the following is a “strategic matter”—

(a) sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, and

(b) sustainable development or use of land in a two-tier area if the development or use— (i) is a county matter, or (ii) has or would have a significant impact on a county matter.”

In the North London Waste Plan Examination1 the Inspector held that the duty applied to a waste plan that would result in a significant amount of waste being exported from the seven authorities who proposed the plan into at least two other authorities. The exporting authorities had a duty to cooperate with the receiving authorities. While no particular development in the receiving authorities could be identified that would be affected, the Inspector was satisfied that the export of waste in the quantities involved would have significant impact both in relation to storage or disposal of the waste but also potentially in terms of transporting the waste.

Second, subs.(6) provides: “(6) The engagement required of a person by subsection (2)(a) includes, in particular— (a) considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3), and (b) if the person is a local planning authority, considering whether to agree under section 28 to prepare joint local development documents.”

The duty could in an appropriate case be satisfied by considering whether to consult on agreements on joint approaches to the preparation of the development plan documents and supporting activities or the preparation of joint local development documents and deciding not to. How cooperation is to be achieved and demonstrated in a particular case will therefore be content specific. The duty is a duty to cooperate: it is not a duty to agree.

In considering the duty to cooperate, relevant bodies must have regard to any guidance issued by the Secretary of State.

The NPPF states that the duty on planning authorities to cooperate applies particularly in respect of the following strategic priorities (para.178 read with para.156):

“…strategic policies to deliver: • thehomesandjobsneededinthearea; • theprovisionofretail,leisureandothercommercialdevelopment; • theprovisionofinfrastructurefortransport,telecommunications,waste management, water supply, wastewater, flood risk and coastal change management, and the provision of minerals and energy (including heat);

• theprovisionofhealth,security,communityand cultural infrastructure and other local facilities; and climate change mitigation and adaptation, conservation and enhancement of the natural and historic environment, including landscape.”

Neither the Planning and Compensation Act nor the NPPF provide any precise definition of cooperation. However, in the North London Waste Plan Examination it was held that cooperation requires more than mere consultation. The Planning Inspector, Andrew Mead, in response to the North London Councils, regarding their compliance with the duty to cooperate, said on August 31, 2012:

“23. I agree that the 2004 Act gives no definition of what constitutes “engagement”. However, a starting point in assessing what is involved in the duty to co-operate is the Concise Oxford Dictionary definition of co-operate “… work together..; concur in producing an effect…”. Moreover, the NPPF includes phrases such as “…joint working on areas of common interest…” (para 178); “…work collaboratively with other bodies…” (para 179). Finally, NPPF para 181 states that “Co-operation should be a continuous process of engagement from initial thinking through to implementation, resulting in a final position where plans are in place to provide the land and infrastructure necessary to support current and future levels of development.”

24. There is also a consideration of what might be perceived as falling short of co-operation. The Act and the NPPF use the term “co-operation” and not “consultation”. If the duty had been merely to consult, the Act and subsequent advice would have said so. It is a familiar term in planning practice. Consultation has been defined by the Court of Appeal in the following terms:

`Whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.’2

25. It is reasonable to conclude that engagement as part of co-operation is more than the process of consultation outlined above and, as described in the Act, co-operation should be constructive and

1 1LOCALGOVL AW YER.CO.UK

have active engagement which is ongoing. The Councils submit that advice in the NPPF about what constitutes “engagement” should not be given any weight. However, the Introduction to the NPPF states that it must be taken into account in the preparation of local plans (para 2).”

Planning authorities will be required to submit evidence of how they have fulfilled the duty to cooperate when the development plan is submitted for examination. Paragraph 181 of the NPPF states:

“Local planning authorities will be expected to demonstrate evidence of having effectively cooperated to plan for issues with cross-boundary impacts when their Local Plans are submitted for examination. This could be by way of plans or policies prepared as part of a joint committee, a memorandum of understanding or a jointly prepared strategy which is presented as evidence of an agreed position. Cooperation should be a continuous process of engagement from initial thinking through to implementation, resulting in a final position where plans are in place to provide the land and infrastructure necessary to support current and projected future levels of development.”

Guidance from the planning advisory service indicates that the question whether the duty to cooperate has been fulfilled will be the first thing considered by the planning inspectorate before examination of the development plan. If the duty has not been complied with, modification of the development plan will not be considered: the only option will be for the planning inspectorate to recommend that the plan not be adopted.

It is suggested that merely producing copies of correspondence will not be enough: the planning authority will be called upon to justify how it has fulfilled its duty. It is suggested that the evidence presented should be:

• succinct; • flowfromtheissuesthathavebeenaddressedjointly; • highlightthepracticalpolicyoutcomesthathaveresulted.

Crucially, the planning inspectorate has indicated that if it identifies difficulties

in relation to the duty to cooperate once the development plan has been submitted, it will not be in a position to assist local authorities in resolving the matter. The duty to cooperate is a duty that applies to the preparation of the development plan documents: once they have been submitted, the preparation phase is over and it appears that the planning inspectorate takes the view that any deficiency in relation to the duty to cooperate cannot be cured after submission of the documents for examination. If an inspector concludes that the duty has not been fulfilled the only options are to recommend non-adoption or for the plan to be withdrawn.

Equally, however, it has been held that the duty to cooperate does not apply in relation to work carried out once an inspector has suspended an examination because of concerns that the development plan may be found to be unsound: see the Selby District Core Strategy Examination Ruling of April 27, 2012.3 Such work is not an aspect of plan preparation but is part of the examination phase and the duty to cooperate does not therefore apply.

It will doubtless take some time before the precise scope of the duty to cooperate has been defined; but the importance of ensuring that the duty has been complied with before a plan is submitted is underscored by both the North London Waste Plan and the Selby decisions. n1 Decision available at http://www.nlwp.net/examination/examination.html.

2 R. v North and East Devon Health Authority Ex p. Pamela Coughlan [2001] q.B. 213.

3 http://www.selby.gov.uk/upload/Ruling_on_Duty_to_Cooperate_27_April_2012.pdf

REUTERS / Carlos Barria

REUTERS / Alex Domanski

INTRODUCINGWESTLAWINSIGHT

Last month saw an exciting new feature added to Westlaw UK with the launch of Westlaw UK Insight. We caught up with

general editor Daniel Greenberg and project manager Sally Turvey to find out more about Westlaw UK Insight and how it can help local government legal professionals.

LGL: WHAT IS WESTLAW UK INSIGHT AND WHAT SOLUTIONS DOES IT OFFER LEGAL pROFESSIONALS?

DG: Westlaw UK Insight is an online encyclopaedia of the law of the United Kingdom, which gives people a rapid overview of the law, links to core materials for further research and contains cutting-edge analysis of areas of particular complexity or fluidity.

ST: It provides legal professionals with answers to real-world research questions. Topical articles aim to provide succinct, up-to-date guidance on the law. Westlaw UK Insight enables you to find the solution to a particular issue quickly, rather than doing the analysis yourself.

LGL: WHAT ARE THE KEY BENEFITS WESTLAW UK INSIGHT HAS TO LOCAL GOVERNMENT LAWYERS?

DG: Few professionals have to be competent in as many areas of the law as local government lawyers. In fact, it is difficult to imagine any area of law - commercial, regulatory, public or environmental - that they may not be called upon to deal with, often at short notice having to become familiar with a new area or issue. Insight is designed precisely for that kind of research task, to orientate the unfamiliar reader and set her or him on the right track as quickly and efficiently as possible. So I hope local government lawyers will find Insight really useful. It also has a developing set of articles on local government law written by Cornerstone Chambers - although local government lawyers will know a lot about these areas already, I hope some of the analysis in the articles will be of interest.

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ST: There are three notable benefits.

1) It Increases understanding of the law by including authoritative articles, helps legal professionals stay up-to-date and ensures lawyers are made aware of evolving changes in the law.

2) Improves productivity so rather than reviewing all primary sources and developing a brief statement of the law on a particular issue, Westlaw UK Insight does this for you. It’s also a time saver so there’s no more wading through hundreds of search results or huge textbooks.

3) Increases responsiveness by allowing you to respond to enquiries quickly and to focus on high-value, or core aspects of a case. It also enables you to get up to speed with a point of law quickly.

LGL: DANIEL, HOW DID YOU BECOME INVOLVED WITH WESTLAW UK INSIGHT?

DG: I approached Sweet & Maxwell a couple of years ago with a suggestion for a product that would pull together the disparate strands of material on Westlaw UK and provide coherence to the database overall. Sally Turvey and others in the business had already been thinking along similar lines, and we designed the product together.

ST: We were thinking about how to make legal research easier and more efficient. After conducting a series of market research studies, we concluded that there were two key elements to solving this problem – successfully deconstructing legal research aims and techniques - and then creating an intuitive interface that reflects the way lawyers think and act.

Westlaw UK was organised around content type, rather than by topic and it was missing “the content glue” to hang everything together in a meaningful way. Daniel and our team spent hours brainstorming ideas – then turning these into diagrams, storyboards… and eventually into working prototypes, which we turned over to our customers to play with and feedback. It really was a collaborative effort. Our main focus was to remain open-minded and listen to what customers were saying.

LGL: WHO CONTRIBUTES THE CONTENT?

DG: We have more than a hundred leading barristers, solicitors and academics who are writing on their own areas of expertise, and the list is growing all the team. Contributors range from Silks and senior partners to pupils and trainees, and cover the entire range of the academic spectrum. I write personally on topics where I drafted the principal Acts or where I have been involved in advising clients recently; and I also write some of the overview articles designed to pull the expert contributions together.

LGL: HOW OFTEN IS IT UpDATED?

DG: We encourage authors to consider continually whether a legal development has given rise to a need for an update. Cases and new primary or secondary legislation can be reflected in articles by way of daily update, if necessary. Any material that comes in by way of update can be processed and put online the next day.

ST: When authors deem a revision of an article is necessary they do so, there is no delay or publishing cycle with which we are tied to, so we can reflect the update on Westlaw UK Insight on the day that an event or change occurs. We also alert our customers to updated topics using Twitter and LinkedIn, alongside other legal news updates. Lawyers can also “watch” or follow topics that are of particular interest to them – these appear as bookmarks on their Insight homepage – when a watched topic is updated an alert icon is displayed.

LGL: ARE USERS ABLE TO SHARE CONTENT WITH THEIR COLLEAGUES?

ST: Yes, users can share articles they like with colleagues using Twitter or LinkedIn, or simply email it to them!

LGL: IS THE INFORMATION RELEVANT FOR THE WHOLE OF THE UK?

DG: Yes, the launch package includes a lot of UK-wide material. One of the key priorities for 2013 is to build up the specific Wales, Scotland and Northern Ireland material, including our exciting partnership with the Welsh Government to produce the official Encyclopaedia of Welsh Law.

LGL: HOW IS IT INSTALLED ONTO AN ExISTING WESTLAW UK ACCOUNT?

ST: Customers do not need to install anything. We have already enabled access to our customers. Just look out for the new heading “Insight” on the main navigation bar on Westlaw UK. You can also expect to find Insight articles in amongst your search results if you are using the global search on Westlaw UK. For example, if you enter the term “mines and quarries”, you will find the first result is an Insight article on this topic.

LGL: HOW MUCH DOES IT COST?

DG: Nothing. It’s included as part of the Westlaw UK subscription.

ST: Exactly. We felt this enhancement to Westlaw UK was so fundamental to the service that everyone should have access to it as part of their existing subscription. >

TAKE THE WESTLAW UK INSIGHT VIDEO TOUR AT WESTLAW.CO.UK/INSIGHT


WESTLAW UK iNSiGhT

WESTLAW UK INSIGHT A logical structure allows efficient and intuitive navigation of the law across a broad range of topics. Created specifically for online, content is relevant, comprehensive yet concise, and updated as the law changes.

THE ARTICLES Facilitating easy and intuitive navigation was at the forefront of requirements when creating Westlaw UK Insight, so each article follows a clean, fresh structure across topics and jurisdictions. A logical hierarchy of topics and subjects ensures that users of the encyclopedia find what they are looking for quickly. Articles range from 2,000 to 5,000 words in length, each with links to any relevant content on Westlaw UK that is referenced by the author, from primary case law and legislation to other journal articles and books.

pROFILING WESTLAW UK INSIGHT AUTHORS We want every contributor to Westlaw UK Insight to benefit from the contribution they make. That is why we have included detailed author profiles, in which contributors can promote their practice, highlight their areas of expertise, and link to their own websites. Subscribers who use Westlaw UK Insight do so when they have a legal or client query – and by highlighting your expertise right alongside your article, the opportunity for referral of new work is optimised.

TAKE THE WESTLAW UK INSIGHT VIDEO TOUR AT WESTLAW.CO.UK/INSIGHT

>

UpDATE FROM LAWTEL AND WESTLAW UK

The teams at Lawtel and Westlaw UK monitor legislation, news and journal sources, as well as judicial decisions at all levels, in order to deliver up-to-date information to local government legal professionals. Included here are recent case law and legislation updates taken from Lawtel and Westlaw UK.


CASE SUMMARY 1DURHaM COUnTy COUnCIL -V- D (2012) [2012] EWCa Civ 1654

In Durham, the appellant local authority appealed a decision to allow disclosure of unredacted documents in proceedings brought by the respondent (D) in respect of assaults allegedly committed by staff at a young people’s centre for which the local authority was responsible. D had written to the local authority intimating a claim and requesting sight of documents including personnel files of staff members against whom the allegations had been made. The letter referred to the Data Protection Act 1998, but no fee was included and it resembled a Pre-Action Protocol letter of claim. The local authority objected to disclosure of the files. During the proceedings, redacted disclosure of the files was ordered. That order was successfully appealed and unredacted disclosure ordered.

Their Lordships held that it was misleading to refer to a duty to protect data as if it were a category of exemption from disclosure or inspection. The court was enabled under CPR Pt 31 to excuse disclosure or inspection on public interest grounds. In a case such as the instant, it might be misleading to describe the issue as public interest immunity. The requisite balancing exercise was between a party’s right to a fair trial under common law and the European Convention on Human Rights 1950 art.6, and the rights of his opponent or a non-party to privacy or confidentiality, most conveniently protected by art.8. It was a distraction to start with the Act. A data controller was exempt, under s.35 of the Act, from the non-disclosure provisions where disclosure was required in litigation. Effectively, the court was left to determine the issue by applying the balancing exercise under the CPR, whereupon the court’s decision affected disclosure under the Act. Public interest immunity would arise in some contexts. However, it was wrong to treat all

cases where public authorities sought exemption from disclosure or inspection obligations on public interest grounds as being cases of public interest immunity in the strict sense. In the instant case, the disputed documents were not social work records, but were not dissimilar in nature and should attract the same approach. The approach required that (a) disclosure and inspection obligations arose only when the “relevance” test was satisfied. Relevance could include “train of enquiry” points; (b) if relevance was satisfied, it was for the party in possession of the document, or who would be adversely affected by disclosure or inspection, to assert exemption from disclosure or inspection; (c) ensuing disputes fell to be determined by a balancing exercise involving the fair trial rights and the privacy or confidentiality rights of the parties. Consideration of competing Convention rights would generally be involved; denial of disclosure or inspection was limited to circumstances where denial was strictly necessary; (d) in some cases the balance might need to be struck by a limited order which respected a protected interest by such things as redaction; such limitation had to satisfy the strict necessity test. The judge should not have been distracted by the Act as if it imposed additional requirements. However, his approach had addressed relevance and concluded with the balancing of “the prejudice to the applying party of being deprived of information against the prejudice to the third party as a result of disclosure”. He had applied the strict necessity test, although on the basis that D had satisfied the test, whereas it had been for the local authority to establish that it was strictly necessary not to disclose. Notwithstanding those issues, his approach was substantially correct and his conclusion unassailable. >

CASE SUMMARY 2SUFFOLK COUnTy COUnCIL -V- nOTTInGHaMSHIRE COUnTy COUnCIL (2012) [2012] EWCa Civ 1640

In Suffolk, the appellant local authority (S) appealed against a special guardianship order declaring that it was responsible for financial assistance and other services for two boys (B1 and B2) who were the subjects of an out-of-area placement from the respondent local authority (N). The boys’ parents had become unable to care for them. With their consent, B1 became a looked-after child within the Children Act 1989 s.20(1)(c) and was placed in foster care; B2 remained with his mother. She subsequently agreed that he should join B1. The parents lived in N’s area and the foster parents lived in S’s area. By the time B2 joined B1, there was a general recognition that the foster carers would care for both boys under a special guardianship order, although no application for such an order was made. The foster carers acquired parental responsibility for both boys and cared for them under an interim residence order. A dispute developed between the local authorities as to who was responsible for exercising the duties and powers under the special guardianship provisions. N made an assessment pursuant to s.14F and a plan for services and financial support; it considered that the plan should be implemented by S. S was unconvinced that, under its own criteria, the foster parents would qualify for financial support. A judge found S responsible and that N had been entitled to make its assessments and plans. S denied responsibility for implementing N’s plan, but maintained that if it was responsible, it was entitled to prepare its own plan.

Their Lordships held that the law regarding special guardianship was quite settled, despite powerful criticisms that could be made of it. The key question in determining which local authority was responsible was whether a child was “looked after” by one of the local authorities within s.22(1); if so, that authority was responsible. If the child was not looked after, the responsible authority was the one in whose area the child lived. Crucially, a child ceased to be looked after as soon as parental responsibility became vested in another by, for example, the making of a residence order or special guardianship order. Local authorities were then bound by the Special Guardianship Regulations 2005 reg.5 to co-operate in the discharge of functions. N had been the responsible authority for B1 while he was a looked-after child, but its responsibility ceased when parental responsibility passed to the foster carers, at which point S inherited the responsibility. B2 had never been a looked-after child, so N had been the responsible authority while he lived with his mother, responsibility passing to S when he went to live with B1. N ought, however, to have involved S in the assessments and plans at an earlier stage. S was entitled to make its own assessment and plan; the judge had erred in her understanding of the statutory procedure. There was a risk that S’s assessments might be less generous to the foster parents than N’s plan, but both authorities had to work together to sustain placements conducive to the children’s welfare. It was of critical importance, when a child was placed, to have regard to whether they should remain looked after under an interim care order, or whether a residence order should be made. It was also crucial that local authorities co-operated about who would execute and fund the statutory duties. Although the court could make a valuable contribution, its powers to regulate were limited.


UPDATE FROM LAWTEL AND WESTLAW UK

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REUTERS / Athar Hussain

LEGISLATION UpDATELOCaL GOVERnMEnT, SOCIaL WELFaRE, SCOTLanD

Social Care (Self-directed Support) (Scotland) act 2013 asp.1

Royal assent January 10, 2013

An Act of the Scottish Parliament to enable local authorities to provide support to certain carers; to make provision about the way in which certain social care services are provided by local authorities; and for connected purposes.

SI 2012 no.3094

HEaLTH, LOCaL aUTHORITIES, EnGLanD

The nHS Bodies and Local authorities (Partnership arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012

In Force: november 30, 2012

Enabled by Housing Act 1987, s.32B, National Health Service Act 2006 ss 73A(1)(f) , 73B(2)(e), 73C(1) (2), 75(1) (4), 76(1), 77(1)(1A)(1B)(5A)(5B)(5C)(8), 111(1), 272(7)(8), Health and Social Care (Community Health and Standards Act 2003 s.115(1)(2)(4)(5)(6) Local Government and Public Involvement in Health Act 2006, s.222(2)(b)(8)(b)(9)(10), s.223, s.224(1), s.226(6), s.229(2), s.240(10)

These Regulations make provision in relation to the designation of certain NHS bodies as Care Trusts, the public health functions of local authorities and Local Healthwatch organisations.

REUTERS/Beawiharta Beawiharta

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EMpLOYMENT CASE LAW UpDATE: pROCEDURES FOR RESTRUCTURES AND COST CUTTINGRICHARD OWEN-THOMAS 4-5 GRAY’S INN SqUARE

Guidance in dismissals over pay cutsThe Employment Appeal Tribunal (“EAT”) in deciding the case of Garside & Laycock Ltd v Booth Appeal No. UKEAT/0003/11/CEA reiterated the considerations that apply in cases concerning dismissal for a failure to accept a pay cut.

In 2009 Garside & Laycock, a company providing building and maintenance services to public sector clients began to experience trading difficulties. The consequence being that the company asked their employees if they would accept a wage cut of 5%. A vote was held for the employees to consider changing their contracts to reflect these new proposals, and the Applicant was one of two members of staff who refused to accept these terms. The Applicant was subsequently dismissed, and by the time he was dismissed he was the only one out of seventy seven employees that refused to accept these terms. The Applicant than appealed the dismissal and during this appeal he was offered a review of his pay levels after six months, but he rejected this and his dismissal was maintained and he took the matter to the Employment Tribunal. They found that the employer here had to establish “some other substantial reason” as a ground for dismissal, and in this case they had. Accordingly, the Tribunal then went on to determine whether in fact the dismissal had been unreasonable. The Tribunal then decided that the dismissal had been unfair; referring to Catamaran Cruisers Ltd v Williams

and Others [1994] IRLR 386 they asked of the present case whether the employer was in a situation so desperate that the only way of saving the business was to introduce those pay cuts. The Tribunal in deciding whether the decision was a reasonable one assessed if it was reasonable for the employee to have rejected the pay cut or not.

The EAT decided that the Tribunal had erred in its decision and that the case needed to be reheard by a fresh tribunal. It came to this decision for two reasons. Firstly, that the ET took the wrong approach in deciding the reasonableness of the decision, and secondly, that the test that had been lifted from Catamaran had been wrongly chosen, in fact they had used the very test that was rejected by that Tribunal. Concerning the assessment of reasonableness it was decided by the EAT that the Tribunal was wrong when they assessed the reasonableness of the employee’s decision to reject the pay cut. Instead what they should have done was to assess whether the employer was reasonable to have dismissed the employee for not accepting that pay reduction. This is clearly stated in s.98 of the Employment Rights Act 1996 and is whether: “[…] the employer acted

reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee.”

The second point that the EAT took issue with was the Tribunal’s use of the Catamaran case to find that an employer may only offer less favourable terms if the very survival of the business depended on it. The Appeal Tribunal found that the Tribunal had misunderstood the rationale of that case, that test actually having been rejected rather than supported. It followed that the same test ought to be rejected in the present case. They found that this test went too far, and it would be enough to show a good sound business reason behind the decision of the employers. It was for these two reasons that the EAT sent the case back to be reheard by a fresh Tribunal, and in doing so they gave guidance on the correct way in which Tribunals should deal with dismissals. The guidance deals with the assessment of reasonableness itself, particularly whether in all the circumstances it was reasonable. Under s.98(4)(a), circumstances would include such factors as the size and resources of the employer’s undertakings. It was also considered that reasonableness

REUTERS / Yannis Behrakis


will also depend a great deal upon the procedural aspects of a decision, and in assessing this it will often be necessary to examine the nature of the proceedings, and how appropriate they were. They considered that this might go so far as to involve issues as to the extent to which the workforce were persuaded or not by the reasoning of the proposed cuts, however dubious that reasoning may be.

Importantly, it was also reminded that under s.98(4)(b) the Tribunal must consider whether the dismissal was “in accordance with equity”. Speaking theoretically, they noted that this may include the assessment of how the management had suffered in these pay cuts, noting that in an economic downturn a business would wish to reduce costs across the board, not necessarily just in one sector. It may be a considerable factor if management, for example, had proposed heavy pay cuts to the workforce, but none to itself. This decision stands as a reminder that in deciding whether a dismissal due to refusal to accept a pay cut is fair or not, a tribunal must consider all the factors, viewing the pay cuts as part of the grand scheme of an overall costs saving package. It will also be important to keep in mind whether the dismissal was in accordance with equity in coming to a decision. It seems that this is part of the recent case law which is curtailing the use of a wide interpretation of “some other substantial reason” (SOSR) as a defence. It reminds practitioners that SOSR is not a “get out of jail free” ticket and a comprehensive justification must be put in evidence, in no less a way as one would with a redundancy dismissal, and also a flawless procedure will be of significant assistance.

NO RIGHT TO LEGAL REpRESENTATION AT DISCIpLINARY HEARING FOR TEACHING ASSISTANT In a significant recent decision for employment law, (R (on the application of G) v Governors of X School and Y City Council [2011] UKSC 30 SC) the Supreme Court ruled that employees at disciplinary hearings do not have an automatic right to legal representation. The case concerned the dismissal of a teaching assistant after allegations of sexual misconduct involving a boy of 15. Proceedings were not brought by the CPS, but the school took the matter to a disciplinary hearing. The employee asked

to be represented by a solicitor, but this was refused. The employee was dismissed and the governors were obliged to report this to the Independent Safeguarding Authority (ISA) where he would be considered for inclusion on the list of those unsuitable to work with children under the Safeguarding Vulnerable Groups Act 2006. The Claimant issued judicial review proceedings, arguing that denial of legal representation at the initial disciplinary proceedings breached his rights under art.6 of the European Convention on Human Rights. He succeeded before the High Court and Court of Appeal, but in a decision which appears to have bucked the recent trend, these decisions were reversed by a majority decision (4:1). The Supreme Court found that art.6 rights were not engaged at the initial disciplinary stage, as the school was not concerned with his civil rights, merely his employment. The majority found that the hearing result would not have had a substantial influence on the later decision to place him on the list of people barred from working with children. The key question in disciplinary proceedings is what actually constitutes the determination of civil rights, and following the case of Ringeisen v Austria [No. 1] [1971] 1 EHRR 455 this was held to mean “proceedings the result of which is decisive for private rights and obligation.” The ECtHR also noted proceedings which are “directly decisive” of the right in question, in which case art.6 would apply, and in direct contrast those which only have a “tenuous” or “remote” consequence, to which art.6 will not apply. Lord Dyson in his lead judgment applied the approach of the ECtHR to the facts of the case, finding that the civil right in question was the Claimant’s ability to continue in his profession which involved working with children. Therefore a decision by the ISA to bar him would affect his civil rights and art.6 would apply to those ISA proceedings. In determining whether his civil rights had been breached the question was raised as to the level of proximity needed between the initial proceedings and the proceedings by the ISA in order to breach art.6. The Supreme Court followed the “substantial influence or effect” test proposed by Laws L.J. in the Court of Appeal but decided that the Court of Appeal had erred in the application of that test.

In Lord Dyson’s opinion, it was not the school’s function to determine later

proceedings concerning the Claimant’s civil rights. The only function of the tribunal was to determine whether the Claimant should continue to be employed and those proceedings did not have substantial influence over the ISA proceedings. In their view, the ISA was deemed to be simply that, independent. In making the decision whether to place an individual on the barred list, the ISA must assess fully the facts using its independent discretion. Lord Hope also recognised the risks surrounding a decision to require legal representation at disciplinary hearings, commenting that anything other than a majority decision would have “very unattractive consequences” and consequences which Parliament wished to avoid. In the past they had achieved this through the limitation under s.10 of the Employment Relations Act 1999, of who could accompany an employee to a disciplinary hearing. Lord Kerr notably dissented, finding that the ISA decision would be substantially affected by that of the school.

The effect of this ruling is that employees who are subject to ISA approval are no longer able to argue that they have a right to legal representation at disciplinary hearings due possible subsequent influence on later proceedings. This decision also has scope to affect employees regulated by other external authorities. The test to be employed will be that of “substantial influence or effect” on subsequent proceedings. Therefore if there is any risk of substantial influence or effect on subsequent proceedings it seems that art.6 will be engaged, meaning there may well be a right to legal representation at the earlier stage. While this leaves the door ajar, it is not hard to see that these situations will be commonplace.

Practitioners may wish to consider the remedies available following Mezey v SouthWest London and St George’s Mental Health NHS Trust [2010] EWCA Civ. 293 and seek to prevent disciplinary action if at all possible. Further, practitioners will wish to ensure that their clients have the best possible advice before the employee starts the disciplinary process — something akin to a “police caution” might be necessary to ensure the client knows the significance of any comments he made. n

BOOKSHOp


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FILE DANIEL

DOVARDaniel Dovar is a barrister at Tanfield Chambers and a Chairman of the Residential Property Tribunal Service. Called in 1997, he specialises in property litigation of all types including landlord and tenant. He regularly writes articles and lectures on property law, is an editor of the Landlord and Tenant Review and a member of the Chancery Bar and Property Bar Association. Daniel is co-author of the 9th edition of Residential Possession Proceedings.


COULD YOU TELL US ABOUT YOUR pROFESSIONAL BACKGROUND AND HOW YOU CAME TO BE A BARRISTER WITH TANFIELD CHAMBERS? I took the plain vanilla route to the bar, reading law at Bristol University, then bar school and then straight into pupillage. I obtained a tenancy in my second set of chambers on Bedford Row and spent many happy years there developing a landlord and tenant and real property law practice in a common law set. I moved to Tanfield a few years ago because I was attracted to its growing reputation for Landlord and Tenant work. It seemed (and as it turned out, it was) a really good fit with a team of experienced, knowledgeable and friendly barristers working in the same areas of law and on cases of increasing complexity. WHY DID YOU CHOOSE TO SpECIALISE IN LANDLORD AND TENANT AND REAL pROpERTY LAW? I think I was in a minority at university in finding Land Law an interesting topic and that interest has followed through to practice. Of all areas of law in practice these most resemble a pragmatic puzzle. Sometimes it takes a lot of research and consideration, but there is immense satisfaction when you find the answer (or at least think you have found the answer).

WHAT ARE THE KEY RECENT DEVELOpMENTS THAT HAVE AFFECTED THE CONTENTS OF THE 9TH EDITION OF RESIDENTIAL pOSSESSION pROCEEDINGS? Human Rights and public law issues are slowly starting to bed down into a workable framework. At the time we wrote the last edition these areas were still a source of confusion amongst practitioners. Hopefully we are now seeing the issues worked out in court and in a manner that the parties know what it is that has to be established to succeed. There is also, particularly in the sphere of social housing, increasing legislation dealing with new tenancies and regulating existing ones. This highlights the interplay between landlord and tenant law and the political aspects of housing (in particular, limited resources and anti social behaviour). HOW DO YOU THINK THE NEW EDITION WILL HELp ITS READERS IN THEIR WORK? We have tried to maintain the ‘busy practitioner’ approach to the text so that answers are easy to find, clearly given with sufficient statutory extracts.


WHAT DO YOU THINK ARE THE KEY CHALLENGES FACING pRACTITIONERS TODAY? In residential landlord and tenant funding is probably a key issue. With the increasing limits on funding, less cases will be fought for so long, but more will probably get to court or at least take longer at first hearing whilst litigants in person attempt more and more to deal with cases on their own.

There are also funding implication in disrepair cases where tenants are having to turn to CFA’s to fund litigation with the natural corollary of an increase in costs payable by landlords should they succeed (although this structure is soon to be the subject of further change with the advent of contingent fee arrangements). DO YOU HAVE ANY OTHER WRITING pROJECTS ON THE HORIzON? Along with a few colleagues in chambers we are putting together a proposal for an update of a well-known land law text - watch this space. HOW DO YOU AppROACH A WRITING pROJECT? IS THE pROCESS DIFFERENT WHEN WORKING WITH ANOTHER CO-AUTHOR? I was very lucky with RPP in that Gary had already done the hard work in writing the first 6 editions before I came on board. The bulk of the updating is done in the periods between editions when we note any new cases, statutes etc and then file them away for the next edition. I think I prefer working with a co-author as there is greater opportunity for discussion and feedback with someone who is equally involved. HOW DO YOU MANAGE TO JUGGLE YOUR WRITING AND YOUR DAY TO DAY WORK? In order to simply get the book done, I block out a period from chambers and go away. Last year Gary and I spent some time down in Devon where there was limited internet and mobile communication. It helped a great deal to just be able to get on with writing the new text without the day to day distractions of work (or family life) although I do think a number of colleagues thought I was just off on holiday. CAN YOU TELL US ABOUT THE MOST INTERESTING CASE YOU HAVE WORKED ON? There are a couple of cases that I am currently working on that I can’t say too much about, but which present very interesting legal points of principle both in contractual / lease interpretation as well as the scope of a solicitors retainer in conveyancing transactions.

There are a few cases that stand out in the past: resisting a business lease renewal of an airport which started in the county court, took a side wind to the magistrates courts (when the occupier was alleged to have assaulted the ground staff) and ended up in the court of appeal;

seeking possession of a residential property in North London, where the occupier, a Chinese citizen, had been employed by a Chinese quasi-governmental organisation to run their liaison office in London. He purchased a house on their behalf and lived in it. Then he attempted to buy it off them at an undervalue relying on a power of attorney given to him to sell the property. He resisted the possession claim on the basis he owned the house and counterclaimed £200,000 said to be owed in wages. HOW DO YOU RELAx IN YOUR SpARE TIME? Spare time? With a young family (1½ and 9) there is little spare time. When I do manage to escape, reading, cycling, swimming and bird watching.

RESIDENTIAL pOSSESSION pROCEEDINGS 9TH EDITION Gary Webber & Daniel Dovar

Explains how a landlord or mortgage can effect possession of a property or how an occupant can prevent an order for possession being made.

• RevisedchapteronHumanRights,PublicLawand Possession following the cases of Manchester City Council v Pinnock and London Borough of Hounslow v Powell

• ImpactoftheEqualityAct2010ondiscrimination related possession proceedings

• Anewchapteronordersforsaledealingwithboth substantive law (Jones v Kernott and Stack v Dowden) and procedure

• ChangestotheTenancyDepositSchemebrought about by the Localism Act 2010

February 2013 £105

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Bedfordshire Mark Langsbury

Berkshire nick Dosanjh

Buckinghamshire Mark Langsbury

Cambridgeshire Mark Langsbury

Cheshire anne Lawson

Cleveland anne Lawson

Cornwall Philippa Pritchet-Brown

Cumbria anne Lawson

Derbyshire Lance Thompson

Devon Philippa Pritchet-Brown

Dorset Philippa Pritchet-Brown

Durham anne Lawson

East Sussex nick Dosanjh

East Yorkshire Lance Thompson

Essex Mark Langsbury

Gloucestershire Mark Langsbury

Greater Manchester anne Lawson

Hampshire Philippa Pritchet-Brown

Herefordshire Lance Thompson

Hertfordshire Mark Langsbury

Kent nick Dosanjh

Lancashire anne Lawson

Leicestershire Lance Thompson

Lincolnshire Lance Thompson

Merseyside anne Lawson

Norfolk Lance Thompson

Northamptonshire Lance Thompson

Northumberland anne Lawson

North Wales anne Lawson

North Yorkshire anne Lawson

Nottinghamshire Lance Thompson

Oxfordshire Mark Langsbury

Shropshire anne Lawson

Somerset Philippa Pritchet-Brown

South & Mid Wales nick Dosanjh

South Yorkshire anne Lawson

Staffordshire Lance Thompson

Suffolk Mark Langsbury

Surrey nick Dosanjh

Tyne & Wear anne Lawson

Warwickshire Lance Thompson

West Midlands nick Dosanjh

West Sussex nick Dosanjh

West Yorkshire nick Dosanjh

Wiltshire Philippa Pritchet-Brown

Worcestershire Lance Thompson

LONDON

Barking & Dagenham Mark Langsbury

Barnet Mark Langsbury

Bexley nick Dosanjh

Brent Mark Langsbury

Bromley nick Dosanjh

Camden Lance Thompson

City of London Philippa Pritchet-Brown

Croydon Lance Thompson

Ealing nick Dosanjh

Enfield Mark Langsbury

Greenwich nick Dosanjh

Hackney Lance Thompson

Hammersmith & Fulham Lance Thompson

Haringey Mark Langsbury

Harrow Lance Thompson

Havering Mark Langsbury

Hillingdon Lance Thompson

Hounslow nick Dosanjh

Islington Mark Langsbury

Kensington & Chelsea Lance Thompson

Kingston upon Thames nick Dosanjh

Lambeth Philippa Pritchet-Brown

Lewisham Mark Langsbury

Merton Lance Thompson

Newham nick Dosanjh

Redbridge Mark Langsbury

Richmond upon Thames Lance Thompson

Southwark Lance Thompson

Sutton Lance Thompson

Tower Hamlets Mark Langsbury

Waltham Forest Mark Langsbury

Wandsworth nick Dosanjh

Westminster Philippa Pritchet-Brown

OUR TEAM OF LOCAL GOVERNMENT ACCOUNT MANAGERS CAN BE CONTACTED BY TELEpHONE OR EMAIL AS LISTED BELOW.

nick Dosanjh 07885 389 135 [email protected]

Mark Langsbury 07827 662 262 [email protected]

anne Lawson 07825 430 288 [email protected]

Philippa Pritchett-Brown 07702 319 730 [email protected]

Lance Thompson 07825 725 008 [email protected]

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