R (on the application of Nick Brown) v Canal River Trust [2012] EWHC 3133 (Admin)
Short journeys along the same stretch of canal do not amount to “bona fide
navigation” within the meaning of s.17(3)(c)(ii) of the British Waterways Act 1995. If
the claimant has been provided with the material that forms the subject matter of the
challenge before formal publication, the limitation clock for judicial review
proceedings commences at this earlier point in time.
The claimant challenged guidance published by the British Waterways Board (the
predecessor to the defendant trust) concerning their interpretation of s.17(3)(c)(ii) of the
British Waterways Act 1995. The key issue was whether the claimant needed a home
mooring to lawfully keep his narrowboat (“Flossie”) on the defendant’s waterways. If the
claimant could show that Flossie was “used bona fide for navigation...without remaining
continuously in any one place for more than 14 days or such longer period as is reasonable
in the circumstances” within the meaning of s.17(3)(c)(ii), the claimant would not be required
to obtain and incur the costs of a home mooring. The defendant’s interpretation of the
relevant provision is that “short trips within the same neighbourhood, and shuttling
backwards and forwards along a small part of the network, do not meet the legal
requirement for navigation”. Since the phrase “bona fide for navigation” was not defined in
the 1995 Act, the judge was required to examine previous cases which have considered its
meaning. The judge was influenced to a large extent by the dicta of Lord Cameron in Crown
Estate Commissioners v Fairlie Yacht Slip Ltd [1979] SC 156 where he stated that “the basic
concept of the word ‘navigation’ is of passage or transit through navigable waters...in the
concept of the word ‘navigation’ is the essential notion or idea of passage, of movement in,
and communication, by sea or, I would add, in all navigable waters”. The court was also
aided by a recent decision of the Bristol County Court in the unreported case of British
Waterways Board v Davies where the movement of a vessel every 14 days on the same
approximate ten mile stretch of canal was not considered bona fide navigation. In the face
of these authorities, the judge concluded that “when a vessel is engaged in such short
journeys, the mooring of that vessel for up to 14 days is not a mooring in the course of
navigation...it is the termination of the relevant journey.” This finding was sufficient to
dispose of the application. The judge, however, considered whether the claimant should
have been time barred from bringing judicial review proceedings on the basis that he brought
his claim almost four months after being provided with the final form version of the guidance
(which he received because he was a member of the consultation group). The claimant
contended that the limitation clock started from the point in time that the guidance was
published formally.
Dismissing the claimant’s arguments, the judge held that, in
circumstances where the claimant was plainly aware of the content of the guidance before
wider publication, it was incumbent on the claimant to file his application promptly and in any
event no later than three months after the guidance was made available to him. In the
circumstances, the judge was prepared to consider the claimant’s challenge because the
delay was attributable to the extensive research and preparation that the claimant carried out
without legal assistance.
Moore v Secretary of State for Communities and Local Government and another
[2012] All ER (D) 219 (Nov)
Planning considerations can take on a comparatively heightened or diminished role in
the full and the temporary assessment and it is the role of the planning authorities to
make an appropriate adjustment where necessary.
The claimant, a disabled Romany Gypsy (“with an aversion to living in bricks and mortar”)
raising three children independently, brought a challenge1 against a decision refusing to
1
Pursuant to s.288 of the Town and Country Planning Act 1990.
grant her planning permission to change the use of a plot of land in Kent from equestrian to
a private Gypsy and Traveller caravan site (comprising one pitch). The claimant challenged
the decision on the grounds that there was a failure to make relevant findings and material
misdirections amounting to unreasonableness in the Wednesbury sense. The claimant
presented medical evidence that her disability would worsen if she was forced to move her
caravan to a roadside existence. In addition, evidence was accepted that the claimant could
not afford to buy a private site with planning permission, and that the two Council-run sites in
the borough were full with waiting lists. It was accepted that the development of the land into
a caravan site amounted to “inappropriate development” in the green belt contrary to
national planning policy and that it resulted in some loss of openness. The key question was
whether the identified harm was clearly outweighed by other considerations such as to
amount to “very special circumstances”. It is well established that a claimant who brings a
Wednesbury challenge to a planning decision faces a difficult task because “it is for the
planning inspector to assess the relative weight to be given to all the material
considerations”. Influenced by the Court of Appeal’s decision in Wychavon District Council v
Secretary of State for Communities and Local Government and Others [2009] PTSR 19
which is the leading modern authority on the planning approach to Gypsy and Traveller sites
in the context of green belt policy, the judge took the view that the claimant should have
been granted temporary planning permission. Whilst agreeing with the detailed reasons and
decision provided by the inspector in relation to his refusal to grant full planning permission,
the judge held that “the nature of that balancing exercise changed when the inspector
considered the grant of a temporary permission...the decision that the other material
considerations in this case were not sufficient to clearly outweigh the identified harm and to
justify the grant of temporary permission was, in my judgment, irrational”. This decision
demonstrates that certain planning considerations may take on a comparatively heightened
or diminished role in the temporary assessment than in the full assessment, and that
planning authorities should be vigilant to make an appropriate adjustment where necessary.
R (on the application of Long) v The Welsh Ministers and others [2012] EWHC 3131
(Admin)
A Victorian statutory requirement to hold a livestock market in a particular location in
the Abergavenny town centre could be repealed by the Welsh Ministers under
s.58(2)(d) of the Local Government (Wales) Act 1994 because it was obsolete,
unnecessary and substantively superseded.
The claimant, the founding member of the Keep Abergavenny Livestock Market opposition
group, challenged a decision to repeal provisions of the Abergavenny Improvement Act of
1854 which required Monmouthshire County Council to hold a livestock market on
designated land within the Abergavenny town centre. The livestock market had been held at
the same site since 1854. The Council decided to move the market some ten miles outside
the town and granted planning permission for the demolition of the existing market and its
replacement with a library and a supermarket. In order to do this, the Council required the
Welsh Ministers to make an order repealing the material provisions of the 1854 Act using its
powers under s.58(2)(d) of the Local Government (Wales) Act 1994, which can only be used
where the relevant provisions have “become spent, obsolete or unnecessary or...
substantially superseded”. The Council’s position was that more recent general powers had
been granted under s.50 of the Food Act 1984 and that they should no longer be restrained
by an early Victorian statutory requirement to hold the market in a particular location (a
requirement unique in Wales to Abergavenny). Following a consultation, the Welsh
Ministers sided with the Council. In dismissing the claimant’s challenge, the judge
commented that “it is a unique provision within Wales and one which restricts the decision
making ability of the Council...Abergavenny has not stood still since the nineteenth century”.
The judge held that s.58(2)(d) of the 1994 Act conferred a wide discretion upon the Welsh
Ministers and that it was the court’s role to “(i) to be satisfied that there has been no
misdirection as to the general meaning of the particular words; and (ii) to interfere with the
application of such words only in cases of irrationality or Wednesbury unreasonableness”. In
the circumstances, the judge had no difficulty upholding the decision of the Welsh Ministers
on the basis that the statutory requirement was obsolete, unnecessary and substantively
superseded.
Charles Terence Estates Limited v Cornwall Council [2012] EWCA 14392
There are limits to the application of the public law defence of ultra vires in private law
disputes, and public law principles should not without adjustment be applied to
private law disputes. Whilst decisions which are clearly outside the public body’s
capacity can be used to substantiate an ultra vires defence in private law, it does not
immediately follow that decisions which have been made improperly or unreasonably
can as well.
Although not a public law case, this important decision of the Court of Appeal examined the
limits of the defence of public law ultra vires to contractual claims. In this case, the
defendant unitary authority stopped paying rent under a number of leases that predecessor
local housing authorities had entered into with the claimant to provide a source of semipermanent housing for constituents in priority need. At first instance, the defendant
successfully raised the defence that the authorities had breached their fiduciary duties to
taxpayers and acted ultra vires by entering into the leases without considering market rents.
The Court of Appeal reversed this decision and granted the appeal. Although purely obiter,
the Court of Appeal considered what the private law effect would have been if there was a
finding of breach of fiduciary duty. This required the Court of Appeal to confront its earlier
decision in Credit Suisse v Allerdale Borough Council [1996] QB 306 where ultra vires was
successfully raised as a defence to a contractual claim. There were two substantive
judgments in Credit Suisse which were not entirely consistent with each other. Neil LJ’s
judgment (following an earlier public law decision in Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147) did not appear to recognise a distinction in a private law
dispute between a decision of a public body which was “narrowly” ultra vires (i.e. outside the
body’s capacity) and one which was “widely” ultra vires (i.e. where the particular power was
exercised for an improper purpose or its exercise was unreasonable in a Wednesbury
sense). Hobhouse LJ was less doctrinal than Neil LJ, and opined that public law principles
should not without adjustment be applied to the resolution of private law disputes. In
Cornwall, the Court of Appeal preferred the approach of Hobhouse LJ and held that “insofar
as [Neil LJ] indicated that any decision...which could be impugned in judicial review
proceedings is a nullity for all purposes, including the enforcement...of private law rights
under a commercial agreement...I respectfully do not agree with him”. It is clear that even if
there was a finding of breach of fiduciary duty, the Court of Appeal would have been
reluctant to characterise the leases as void. This decision narrows the scope for public law
concepts to be used as a defence to private law disputes. Private organisations that
contract with public bodies should also be aware of and seek the protection afforded by
certified contracts under s.2 of the Local Government (Contracts) Act 1997. If the claimant
had sought such protection, it is unlikely that the leases would have been challengeable in
the first place.
Jay Jagasia
Guildhall Chambers
2
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