news from 2010

13.12.2010

Regional Strategies: In, Out, Shake it all about
Monday, December 13, 2010

Following the quashing of the revocation of Regional Strategies in Cala (No. 1) the High Court is to hear a 2nd challenge by Cala to the Secretary of State’s Statement of 10 November 2010 on 17 January 2011.

Cala initially secured a stay of this Statement (and the associated Chief Planner’s letter) but this was lifted on 3 December 2010 subject to a further statement being posted on the CLG and PINS websites. The planning dispute which underpins the Cala challenge is a housing appeal on land at Barton Farm, Winchester. That Inquiry is due to commence on 8 February 2011. Michael Bedford is acting for Winchester City Council.

13.12.2010

The Overhaul of the Licensing Act 2003
Monday, December 13, 2010

2-3 Grays Inn Square is pleased to announce a free webinar produced in partnership with Local Government Lawyer. http://www.localgovernmentlawyer.co.uk/

The webinar, written and presented by Philip Kolvin QC, deals with the overhaul of the Licensing Act 2003 proposed in the Police Reform and Social Responsibility Bill, together with other proposed changes affecting the night time economy.

Derek Bedlow, publisher of Local Government Lawyer said: "The immediacy of online communication and the intimacy of video mean that webinars are fast becoming the most effective method of providing incisive analysis of major developments as they happen. However, regardless of format, the presenters must be knowledgeable and engaging on their subject and Philip Kolvin has proved to be both, with the result that this webinar is a great example of what the medium can achieve. Local Government Lawyer will be producing regular webinars in the New Year and we look forward to working with 2-3 Gray's Inn Square again in the near future."

Philip Kolvin commented: “These changes, if implemented, will profoundly affect many aspects of the management of the alcohol economy. It is important that practitioners – whether in the public or private sector - are able to follow the debate as it happens. The webinar format is an ideal medium for the purpose, and so I am very pleased to have worked with Local Government Lawyer in this way.”

Click here to view the webinar

04.12.2010

The Licensing Act 2003: Evidence and Inference
Saturday, December 04, 2010

Since the decision of the High Court in Daniel Thwaites plc v Wirral Borough Magistrates’ Court it has become fashionable to seek to dissuade Licensing Sub-Committees from imposing restraints on licence applicants under the 2003 Act on the grounds that there is no “evidence” that a particular harm will occur.

In his article, Philip Kolvin QC aims to demonstrate that Thwaites created no rule of law that evidence of prospective harm of the type which would be admissible in a court of law is necessary before conditions or other curtailments are imposed. Further, if Thwaites had purported to invent such a rule of law, it would have been contrary to binding Court of Appeal authority.

Click here for the full text of the article

29.11.2010

Tiensia v Vision Enterprises Ltd (t/a Universal Estates)
Monday, November 29, 2010

Tiensia v Vision Enterprises Ltd (t/a Universal Estates) [2010] EWCA Civ 1224
Court of Appeal: Thorpe, Sedley and Rimer LJJ

This was a test case on the operation of the tenancy deposits scheme under Part 6 of the Housing Act 2004. Since April 2007 landlords have been required to protect a tenant’s deposit under one of the government’s authorised schemes and to serve prescribed information on the tenant about this. If they fail to do so, the tenant may bring an application in the county court under section 214 which, if the court is satisfied of non-compliance, will result in sanctions including an order to pay the tenant a sum equivalent to three times the deposit.

By a majority, the Court of Appeal decided that, despite the wording in section 213 of the Act requiring landlords to comply with the initial requirements of such a scheme within 14 days of receipt of the deposit, a landlord who failed to do so was not subject to the sanctions for non-compliance in section 214 if it had protected the deposit late.

The Court decided that the latest date by which the landlord could comply with the requirements to avoid the sanctions was the date of the hearing of the tenant’s application for those sanctions. Further, it was held that a provision in the relevant scheme itself requiring the deposit to be protected within 14 days after receipt would not affect the outcome.

Sedley LJ dissented, saying that the landlord’s interpretation would “eviscerate” the statute.

Matt Hutchings represented the successful landlord, Universal Estates.

24.11.2010

Government nuclear policy and Nuclear Inspectorate objections considered at Call In Inquiry
Wednesday, November 24, 2010

A call in planning inquiry, which opened in October, is considering an application to develop housing by Cala homes near to the MOD nuclear facility in Aldermaston in Hampshire. It is the first time that the Nuclear Installations Inspectorate (part of the HSE) has appeared at a planning inquiry in its 50 year existence.

The inquiry is considering a range of objections by the HSE which relate to the risk of radiation accidents, emergency preparedness and the implications of extant and emerging government nuclear policy on development proposals near nuclear licensed sites. The inquiry is set to continue in early December 2010 prior to the Secretary of State considering the report of his inspector in 2011. Tom Cosgrove is appearing for the planning authority. Russell Harris QC appears for the HSE and Robert Griffiths QC for the applicant.

19.11.2010

Adjourning licensing cases
Friday, November 19, 2010

In R (Inventive Leisure Services Limited) v Nottingham Justices (Administrative Court, 11th November 2010) Mr. Justice Irwin ruled as to how magistrates and licensing committees should behave when appeal decisions in other cases are pending which might affect the case before them.

The situation was that the police had applied to review the premises licence of the Revolution Vodka Bar in Nottingham City Centre, on the grounds of recurrent “glassing” incidents. The Council’s licensing sub-committee had imposed a 14 day suspension and attached a condition to the licence requiring the use of polycarbonates in place of glass vessels.

The Appellant appealed. Counsel for Nottingham City Council argued that the Justices should adopt the approach ruled upon by Burton J in R (Hope and Glory Public House Limited v City of Westminster Magistrates’ Court) [2009] EWHC 1996 (Admin), namely that they should only overturn the Council’s decision if they considered that it was wrong.

However, the Court of Appeal had by then given permission to appeal against Burton J’s ruling. Counsel for the Council argued that that made no difference, and that the doctrine of stare decisis demanded that the ruling of the High Court be followed unless and until it was overturned. The Justices duly dismissed the appeal, holding that not only did Hope and Glory bind them, but that in any case they were satisfied that the Council had been correct. In fact, they decided to increase the suspension to 28 days.

The Appellant continued its battle in the High Court, and having been refused permission to apply for judicial review on paper, it sought an oral hearing. Before Irwin J it argued that once permission to appeal had been given by the Court of Appeal in Hope and Glory, the Justices ought to have suspended consideration of the Nottingham case until after the Court of Appeal had finally ruled.

Irwin J rejected the argument. He held that it would have been wrong for the Justices to decline to follow binding precedent. They should continue to apply the law unless and until the law is changed. He considered entirely wrong the suggestion that the matter should be further delayed in a public interest case where intervention is required by way of a licence review.

The case serves to clarify what is an occasional matter of debate. In short, it is not for subordinate tribunals to second guess what might be the outcome of a legal challenge in another case. They must continue to apply binding precedent. If the precedent later turns out to be wrong, nobody will blame them.

Reflecting the importance of the decision to licensing practitioners, the Learned Judge certified that his ruling may be cited in future cases, notwithstanding that it arose on a permission hearing rather than on a full hearing of the application.

Philip Kolvin QC represented Nottingham City Council

11.11.2010

Premises within premises: a splitting headache
Thursday, November 11, 2010

In the latest turn in the split premises saga, a senior District Judge has taken the Gambling Commission’s common sense approach to the definition of premises under the Gambling Act 2005.

In Harpers Leisure International Limited v Guildford Borough Council (Guildford Magistrates Court, 17th October 2010) the appellant ran a first floor nightclub, into the bar and outside terrace of which he wished to introduce two “adult gaming centres” in the form of glass kiosks, measuring 8 sq. m. and 17 sq. m. respectively, with door security at the front and an exit turnstile at the rear of each.

Guildford Borough Council refused adult gaming centre premises licences on the grounds that the kiosks did not amount to premises, and that in any event the location of the kiosks was not conducive to the protection of the vulnerable.

The Appellant appealed, arguing that the kiosks did amount to premises and that there was no evidence that the proposals would cause harm to anyone.

The matter came before District Judge Workman, who took the question of whether these were premises as a preliminary point.

Followers of the history of this debate will know that after a public consultation on the issue of split premises, the Gambling Commission amended its Guidance, urging a common sense approach to the question. It stated: “the crux of the matter is whether the proposed premises are genuinely separate premises that merit their own licence with, for example, the machine entitlements that brings and are not an artificially created part of what is readily identifiable as a single premises.”

The Appellant argued that the Guidance was wrong, that section 353 of the Act provides that “premises” includes any place, and that the meaning of “place” in licensing case law is anything that can be marked in metes and bounds. Its Counsel argued against a common sense approach on the grounds that such an approach had to yield to the statutory definition.

For the Council it was argued that in the House of Lords case of Majorstake v Curtis [2008] 1 AC 287 it was held that “premises” is a chameleon word whose meaning takes its colour from its context, and must be purposively construed having regard to the objectives of the legislation. In the Gambling Act 2005, the purpose of licensing “premises” rather than space in general is to limit the proliferation of gaming machines, including high-stake machines in artificially created areas. Therefore, the Gambling Commission’s common sense approach was to be preferred. In this case, it was said, the “premises” were kiosks situated within the floor of the club, there was no separate rating and no separate facilities. They were part of the nightclub premises rather than premises in their own right.

District Judge Workman took the common sense approach. He said: “If one stood in the area that comprised the Casino Nightclub and observed the two proposed Adult Gaming Centres one would inevitably have reached the conclusion that they have formed part of the Casino Nightclub premises, just as the bar area or stage forms such a part.” In so saying he dismissed the appeal with costs.

While, of course, the learned District Judge’s decision does not bind other courts, it is consistent with findings by District Judges in other cases. For the time being at least, the Gambling Commission’s common sense guidance is holding.

Philip Kolvin QC appeared for Guildford Borough Council in the case.

08.11.2010

Linton Windfarm proposal dismissed on appeal
Monday, November 08, 2010

A proposed windfarm in Linton has been rejected in an Appeal Decision issued 27 October 2010 following a planning inquiry held during February and September 2010.
The proposal concerned the installation of eight wind turbines and associated infrastructure at Little Linton Farm, Cambridgeshire. The Council had refused to grant planning permission to Enertrag UK Ltd who appealed under s 78 of the Town and Country Planning Act 1990.

Jenny Oscroft was instructed by Uttlesford District Council in relation to one of the sites in the development, with Philip Kolvin QC instructed by the Stop Linton Wind Farm Action Group and Linton Parish Council.

Considering ‘Planning Policy Statement 22 – Renewable Energy’ the Inspector confirmed that the wider environmental and economic benefits of renewable energy proposals of any scale should be given significant weight in determining whether planning permission should be granted. It was also noted that, in relation to Uttlesford, there was no policy relevant to wind turbines on the overbearing scale proposed; the Inspector concluding that the proposal would conflict with Uttlesford District Council’s Local Plan policies ENV1 and ENV2. The proposed site for the turbine, “in a large tranquil area that is visually and acoustically remote from roads, farmsteads or habitable occupation, with a strong sense of isolation; of consequently high sensitivity and valued by many as such” would have a major adverse impact on this part of the Cam River Valley landscape character area. He also found that the site would have far-ranging effects on cultural heritage assets in the wider area.

For the residents, Philip Kolvin also successfully urged the position of Linton Zoo, an important breeding facility for rare species. Although there was no evidence of whether a wind farm either would or would not have detrimental consequences for the animals, Philip argued that a precautionary approach ought to be taken, particularly since, unlike the zoo, the development was footloose and did not need to be sited there, a position with which the Inspector agreed.

The Inspector also dismissed the appeals on grounds of aviation and bats.

In reaching his decision, the Inspector took account of the revised guidance ‘Planning Policy Statement 5 - Planning for the Historic Environment’ and the accompanying ‘Historic Environment Practice Guide’ which replaced ‘Planning Policy Guidance 15’ and ‘Planning Policy Guidance 16’ whilst the Inquiry was adjourned.

Costs were awarded against Enertrag UK Limited in favour of Uttlesford District Council.

Click here for the decision letter

Click here for the costs decision

01.11.2010

Chambers and Partners 2011
Monday, November 01, 2010

This year’s edition of the Chambers and Partners guide was launched on Thursday 28 October. Chambers has increased its ranking this year to 39th out of the top 50 sets.

Admin and Public Law

Silk: Mark Lowe QC

Consumer

Chambers
Silk: Anthony Scrivener QC
Juniors: Peter Miller, Geoffrey Stephenson

Environment

Silk: James Findlay QC

Health & Safety

Junior: Gerard Forlin QC

Licensing

Chambers
Silks: James Findlay QC, Philip Kolvin QC, David Matthias QC

Local Government

Chambers
Silks: Morag Ellis QC, James Findlay QC, Mark Lowe QC, Bryan McGuire QC, Anthony Porten QC
Juniors: Wayne Beglan, Ranjit Bhose, Mary Cook, Robin Green, Matthew Hutchings, Melissa Murphy, Damien Welfare

Planning

Chambers
Silks: Simon Bird QC, Anthony Dinkin QC, Morag Ellis QC, Mark Lowe QC, Anthony Porten QC
Juniors: Michael Bedford, Celina Colquhoun, Mary Cook, Thomas Cosgrove, Michael Druce, Richard Ground, Paul Shadarevian, Adrian Trevelyan Thomas

Real Estate Litigation

Silk: Anthony Porten QC

Social Housing

Chambers
Silk: Bryan McGuire QC
Juniors: Wayne Beglan, Ranjit Bhose, Sian Davies, Peggy Etiebet, Ryan Kohli, Jon Holbrook, Matthew Hutchings, Kelvin Rutledge

Click here for further information

28.10.2010

Catherine Rowlands
Thursday, October 28, 2010

We are pleased to announce that Catherine Rowlands has been appointed as a Recorder dealing with civil matters, assigned to the Royal Courts of Justice.

30.09.2010

Lap dancing establishment closed
Thursday, September 30, 2010

A lap dancing club in the centre of Newquay has lost its licence to provide adult entertainment due to poor management, following two years of litigation and two separate appeals.

In 2005 Red Square nightclub started to offer lap dancing. Because adult entertainment was neither prohibited nor regulated by its premises licence, it was able to do so without any licence conditions regulating such entertainment. The commercial offer at the venue was full nude dancing, with full body contact between the performer and the customer.

In 2008, two local residents applied to review the licence so as to secure licence conditions dealing with the adult nature of the venue. The premises licence holder unsuccessfully challenged the status of the residents as interested parties and also failed in a contention that their application was frivolous. The Licensing Sub-Committee of Restormel Borough Council added 13 conditions, including a condition that performers should remain 3 feet from the customer while performing. The premises licence holder appealed against the conditions, and in particular the “3 foot rule”. However, in September 2009, East Cornwall Magistrates upheld the rule, saying that it was necessary for the protection of the performers themselves, and also for the protection of the public by lessening the sexual charge of the venue in an area visited by many young, vulnerable women. (The decision of the magistrates was challenged by way of case stated, although the licensee has indicated that this further appeal is to be withdrawn.)

Within two days of the magistrates’ decision to uphold the 3 foot rule, police visiting the property found nude women sitting on customers’ laps and stroking them in a provocative manner. The management produced an advice from Queen’s Counsel stating that this was not a breach of the condition imposed by the magistrates, because the condition related to the performance, and sitting on someone’s lap was not a performance.

The Police, however, considered that this was a flagrant breach of the licensing objectives, and an attempt to circumvent the ruling of the magistrates, and so brought a further review. Cornwall Council, which was now the licensing authority, decided to modify the licence so as to excise adult entertainment from it altogether. The licensee appealed again.

Before the case reached appeal, the licensee went into administration but a new company took over the premises, the licence and the appeal, with senior directorship and management in common. The police relied on further incidents at the premises including an allegation that an underage dancer had been employed, and poor record keeping and management.

After a 2 day hearing, East Cornwall dismissed the appeal and ordered the payment of £12,000 costs. It held that management had been unsatisfactory, stating that the management team “lacks and real sense or appreciation of the need to promote the licensing objectives”. It considered that permitting dancers to sit naked on customers’ laps just after the first appeal hearing “demonstrates that their priority is determined by commercial and other factors rather than proper and full regard to the licensing objectives.” Although the licensee offered conditions to prevent nude contact altogether, the Court was not persuaded that this would achieve a reversal of the management attitude.

Philip Kolvin QC, who appeared for the Council, stated: “This demonstrates a willingness by the Court to look beyond the legalities of conditions to a consideration of whether the management team can be trusted to run the particular operation in the particular location. Where the operation or the location is sensitive, or as in this case, both, the licensing authority and the Court is well within its rights to consider the track record, ability and attitude of the management team.” This is because the ultimate goal is not simply compliance with the licence but promotion of the licensing objectives.

This is a rare if not unique example of closure of a licensed lap dancing establishment, although the conditions on the licence would enable continuation of the venue as a nightclub, bar or restaurant.

29.09.2010

Planning Clerks Football Tournament
Wednesday, September 29, 2010

2-3 Gray’s Inn Square were victorious in winning the ‘Planning’ Clerks Football Tournament at London Bridge on 28th September 2010.

The tournament consisted of 2-3 Gray’s Inn Square, 4-5 Gray’s Inn Square, Francis Taylor Buildings and Landmark Chambers.

The 2-3 Gray's Inn Square team included Phil Desmondez, Paul Cray, Greg Goodman, James Tidman and Joe Shepherd (and our mascot for the evening Alex Hill).

1. 2-3 GIS v F.T.B (6-3)
2. 2-3 GIS v 4-5 GIS (6-1)
3. 2-3 GIS v Landmark (4-3) in the group stage to progress to the final where 2-3 GIS beat 4-5 GIS (2-1)

Winning goal scorer Phil Desmondez said “Very proud of the boys, we had the smallest squad of all the teams but we kept fighting, especially in the last game when we were really struggling in the legs and 4-5 Gray’s Inn Square went a goal up but we dug deep and got the result, it was a real team effort from everyone – the tournament was played in good spirits and we hope to defend the title in the future”.

Click here for a photo of the victorious team

22.09.2010

Cases that changed our lives
Wednesday, September 22, 2010

Gerard Forlin QC is a contributor to this collection of essays examining interesting aspects of key cases that have shaped the legal landscape.

The book sets out the facts of each case and examines its impact, with emphasis on the human angle of the story, including:

• Who were the people involved?
• What was actually decided in the case?
• What happened later and how what was decided on the facts changed our lives?
• What were the later implications for that area of law and/or other areas of law?
• What legacy has the case left?

Click here for further details and to order a copy

18.09.2010

Legal 500 2010
Saturday, September 18, 2010

The 23rd edition of the Legal 500 has just been launched.

We remain delighted that the range and quality of the work we have been doing over the last year has been recognised: we continue to have more members mentioned in the various categories where we work. The rankings continue to demonstrate our expertise across our areas of practice in Chambers and we are pleased to be ranked as a first tier firm in Planning and Licensing.

Category:

1. Administrative and Public Law
Chambers
Leading Silks - Mark Lowe QC, James Findlay QC, David Matthias QC
New Silk: Bryan McGuire QC
Leading Juniors; Ranjit Bhose Jon Holbrook, Ian Albutt, Wayne Beglan, Damien Welfare

2. Consumer
Chambers
Leading Silk; Anthony Scrivener QC
New Silk: Gerard Forlin QC
Leading Juniors; Geoffrey Stephenson, Peter Miller

3. Health and Safety and Environment (combined category this year)
Chambers
Leading Silk; Anthony Scrivener QC, James Findlay QC, Mark Lowe QC
New Silk: Gerard Forlin QC
Leading Junior: Harriet Townsend

4. Planning and Licensing (combined category this year)
Chambers.
Leading Silks; Mark Lowe QC, Anthony Dinkin QC, Morag Ellis QC, James Findlay QC, Anthony Porten QC, Stephen Sauvain QC
Leading Juniors; Mary Cook, Ranjit Bhose, Michael Druce, Robin Green, Richard Ground , Melissa Murphy, Asitha Ranatunga, Adrian Trevelyan Thomas, Ian Albutt, Michael Bedford, Johanna Boyd, Josef Cannon, Jonathan Clay, Thomas Cosgrove, Paul Shadarevian and Graham Stoker.

5. Property Litigation (including agriculture and housing)
Leading Juniors: Ranjit Bhose, Kelvin Rutledge

17.09.2010

Age Assessments - where are we now?
Friday, September 17, 2010

We were pleased to host this half-day workshop dealing with housing or community care law.

Speakers included Bryan McGuire QC as chair with Sian Davies, Peggy Etiebet and Rob Williams.

The session covered:

• History – the conventional JR approach - Rob Williams (Click here for presentation slides)
• A v Croydon & F v Lewisham – the new approach - Peggy Etiebet (Click here for presentation slides)
• Issues in age assessment disputes – including expert evidence - Bryan McGuire QC
• Tips for age assessments & practical advice workshop - Sian Davies (Click here for presentation slides)
• The education context - Kelvin Rutledge (Click here for presentation slides)
• Q & A session

10.08.2010

Sex Licensing and Gambling for Local Authorities
Tuesday, August 10, 2010

From April of this year, lap-dancing clubs and other sexual entertainment venues were removed from the same category as pubs and cafes, and re-classed as sex establishments allowing residents to oppose venues for being "inappropriate" to the area.

In his latest publication Sex Licensing, Philip Kolvin QC sets out to inform all involved in the licensing of the commercial sex industry how policy, the application process and the decision-making can all be geared to achieving a pattern and quantum of sex establishments that meets the local authority’s aspirations for its area. Published to coincide with the implementation of the new laws on lap-dancing and other sexual entertainment venues, Sex Licensing provides an examination of the definitions of sex establishment, the application process, the grounds for refusal and the use of conditions.

In Gambling for Local Authorities (2nd edition), Kolvin and his team chart the terrain of gambling law simply and succinctly. The book is written in a clear, accessible style and is an invaluable reference tool for anyone involved in the new legislation on gambling. This second edition of Gambling for Local Authorities includes important new material:

• Commentary on major issues, including split premises, skills with prize machines and house prize competitions
• New regulatory material, including up-dated regulations, Guidance and Licence Conditions and Codes of Practice
• New case law, including on provisional statements, appeals, costs and bias
• New text on Planning Policy Statement 4 and the Community Infrastructure Levy
• A new chapter on problem gambling by Professor Mark Griffiths
• New tables and figures to explain and simplify the law

Click here to order both copies taking advantage of a 10% discount from the Institute of Licensing

02.08.2010

Licensing Authority can demand answers
Monday, August 02, 2010

R (Murco Petroleum Limited) v Bristol City Council [2010] EWHC 1992 (Admin)

In a key judgment for licensing practitioners, Cranston J has held that it is open to a licensing authority to compel applicants for licences under the Licensing Act 2003 to answer its questions concerning the application, and defer consideration of the application until answers have been received.

The facts were that Murco Petroleum Limited applied for a premises licence to sell alcohol from its petrol station in Bristol. Residential objections included the link between sale of alcohol and drink driving. At the consequent hearing, the Licensing Sub-Committee decided to investigate whether the premises were excluded premises within the meaning of section 176 of the Act by virtue of being used primarily as a garage. The Claimant had submitted a pie chart showing a percentage split between those visiting for the purposes of buying petrol and other purposes. However, the Sub-Committee wanted also to see relative turnover figures. The Claimant resisted this on the grounds that turnover was irrelevant and that in any event it was up to an applicant to decide what information to present, and that the licensing authority had no right to compel the production of information: if it was dissatisfied with the material proffered, its solution was to refuse the licence and leave the applicant to its rights to appeal. This moved rapidly to a stand-off in which the Claimant refused to provide information and the Defendant refused to determine the application. Following the Claimant’s unsuccessful attempt to appeal to the Magistrates – who refused to entertain the appeal on the grounds that no decision had been made by the Defendant – the Claimant brought judicial review proceedings to compel the Defendant to determine its application.

Cranston J held that, contrary to the submission of the Claimant, relative fuel and non-fuel turnover was relevant to the analysis of whether the premises were primary a garage. He went on to hold that the Defendant Council had the right to seek the information, and was also entitled to adjourn the hearing of the application for a satisfactory answer. The learned Judge held:

Any other construction of the powers of a licensing authority would turn it into a cipher. It would be forced to make a decision on less information than necessary to promote the licensing objectives. A licensing authority must be able to pursue issues of public safety, the protection of children from harm and other objectives of the 2003 Act. The example proffered by Mr Kolvin QC, for the Council, is apposite:

“Imagine a rock festival. A temporary spectator stand is proposed. A question is raised whether it will be safe or a death trap. On the claimant’s showing, the applicant can simply refuse to tell the authority anything about the means of construction, the expertise of the designer or the safety certification process, defying the authority to refuse the application and risk having to respond to an appeal, with all the unnecessary cost and time that that would entail”.

The claimant’s interpretation of the provisions of the 2003 Act and attendant regulations would make a mockery of the standing of the Council as the licensing authority and its function as the primary decision-maker. It would also be inimical to the aim of the legislation to promote the licensing objectives. Perhaps as important it would frustrate the role which local residents have in making representations under the 2003 Act and would downgrade the role of democratically elected decision-makers.

While the case concerns garages, the judgment is of general application. In short, the licensing authority’s role is not merely adjudicatory: it can take a more inquisitorial stance and compel answers from the applicant, on pain of deferral should answers not be forthcoming. While plainly co-operation by the parties mean that deferral is likely to be a remedy of last resort, it is a useful reserve power which underlines that the licensing authority is the local regulator and not merely a staging post on the way to determination by the magistrates’ court.

Bristol City Council, was represented by Philip Kolvin QC

Murco Petroleum Limited was represented by Roy Light

Click here for the full judgment

01.08.2010

Morag Ellis QC recently acted in a Town and Village Green decision of HHJ Behrens sitting as a Deputy Judge of the Chancery Division. It concerns the issues of Neighbourhood and Locality under S.15 Commons Act 2006, although it was in fact tried as a S.14 Commons Act 1965 application.

Judge Behrens upheld the recommendation of Alun Alesbury, who had sat as a non statutory Inspector into the application to register land at Yeadon Banks in Leeds as a TVG, that it was possible to register land on the basis of evidence of user from 2 neighbourhoods, although he disagreed with Alun Alesbury on the question of whether or not the areas in question constituted a single neighbourhood. There was also discussion of the relationship of a claimed neighbourhood to a locality and the 'predominance' rule in relation to the evidence which applicants must produce to justify registration.

Morag Ellis QC represented the Council in the High Court proceedings who won with costs. Both the substantive and costs decisions are now subject to appeal to the Court of Appeal.

31.07.2010

Succession to a secure tenancy of a house under Pt 5 Housing Act 1985
Saturday, July 31, 2010

Solihull Metropolitan Borough Council v Hickin [2010] EWCA Civ 868

Solihull Metropolitan Borough Council recovered possession of a valuable three bedroomed property which had been claimed by the daughter of the former joint tenants. Her parents had split up and her father moved out of the property, but failed to tell the local authority so remained the joint tenant but did not live at the property. On the death of the Defendant’s mother, the Council argued that the father was the sole tenant by right of survivorship. As he was not residing at the property, he was not a secure tenant so his tenancy could be terminated by service of a Notice to Quit.
The Defendant defended the subsequent possession proceedings by claiming that she was entitled to succeed to her late mother’s tenancy, and that the statutory rules on succession overrode the common law rule of survivorship.

At first instance, the Council were granted a possession order, but this was overturned by the Circuit Judge on the Defendant’s appeal. The Court of Appeal has now granted the Council’s appeal and restored the possession order.

The Council argued that nothing in the statutory provisions on survivorship overruled the common law characteristics of a secure tenancy. Indeed, earlier case law, particularly Birmingham City Council v Walker [2007] UKHL 22, had ruled that the common law was maintained by the statute and “a secure tenancy can in principle pass in any way permissible at common law” [per Lord Hoffman at paragraph 5].
The Defendant argued that the words of section 85 were very clear:

1. This section applies where a secure tenant dies and the tenancy is a periodic tenancy.
2. Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, …

She argued that a secure tenant had died, and she was qualified to succeed, so the plain words of the statute were fulfilled. Accordingly, the tenancy was vested in the Defendant under s.89(2) ‘by virtue of this section’, depriving her father, the former secure tenant, of his interest in the tenancy.

The Master of the Rolls found that although this did seem to follow from those two terms of s.89 alone, and would produce a satisfactory result in the facts of this case, one had to consider the wider statutory context and whether the construction contended for resulted in a sensible outcome when considered more widely. He noted that where one of two joint tenants was not entitled to succeed (for example if they were not family members),

“the interpretation put forward by [the Defendant] … could produce a quite extraordinary result in other circumstances. Consider a case where two women, each of whom has a child, are granted a joint tenancy of a property in which both of them live together with their respective children. On the death of one of the women, Mr Nicol’s argument, as he accepts, would result in the tenancy vesting in her child, and the surviving secure tenant being divested of her interest under the tenancy, and without any right to stay in her home, in which, until the death of her co-tenant, she was a secure tenant. This seems to me to be a rather absurd, or at least capricious, result, amounting almost to a sort of reverse tontine, which is most unlikely to have been intended by the legislature”. [para 12]

Further, “the tenant” in the section, where there is a joint tenancy, is to be read as meaning 'the joint tenants or any one or more of them': Lloyd v Sadler [1978] 774.

Catherine Rowlands represented Solihull Metropolitan Borough Council.

Click here for full text of the judgment

29.07.2010

No free standing right to reside under Article 18 EC
Thursday, July 29, 2010

Lekpo-Bozua v London Borough of Hackney & Ors [2010] EWCA Civ 909

The Court of Appeal has held that there is no free standing right to reside under Article 18 EC. It held that the permanent right of residence is subject to the limitations and conditions contained in the measures adopted to give the EC Treaty effect.

In its review decision the local authority decided that the Appellant was owed a limited housing duty by virtue of the fact that her niece (upon whom she relied for priority need) was not a qualified person under regulations 4 and 6 of the Immigration (European Economic Area) Regulations 2006. The niece did not meet the requirements for being a student because she did not have comprehensive sickness insurance and had not made a declaration that she had sufficient means.

On appeal the Appellant sought to rely on Article 18 of the EC Treaty (now Article 21 TEU) in establishing a free standing permanent right of residence. Article 18 provides for a permanent right of residence for an EU national who has ‘resided legally’ in another member state for a period of five years.

Sir Anthony May President of the Queen’s Bench Division said that the appellant’s niece did not have a permanent right to reside in the UK under Article 18 EC in circumstances where the limitations and conditions laid down by Directive 2004/28 and the 2006 Regulations were not met.

In addition, the Court held that there was no Baumbast lacuna.

At paragraph 18 May LJ said:

‘It is, in our view plain that residing ‘legally’ in Article 16 of the Directive means ‘in compliance with the conditions laid down in this Directive’…The lawful residence contemplated by Article 16 of the Directive is residence which complies with Community law requirements specified in the Directive and does not cover residence lawful under domestic law by reason of United Kingdom nationality’

The Court considered the cases of Abdirahman v SSWP [2008] 1 WLR 254, Baumbast v SSHD [2002] ECR 1-701, McCarthy v SSHD [2008] EWCA Civ 641, Trojani v Centre Public d’aide social de Bruxelles [2004] ALL ER (EC) 1065 and R (Bidar) v Ealing LBC [2005] QB 812 amongst others.

Kelvin Rutledge and Kuljit Bhogal were instructed by Hackney LBC.

Click here for full text of the judgment

23.07.2010

Southwark student accommodation, regeneration and affordable housing objectives
Friday, July 23, 2010

An appeal has recently been allowed at 120 - 138 Walworth Road against the London Borough of Southwark into a scheme promoted by Morag Ellis QC on behalf of Goldcrest plc for a mixed use development comprising 232 student accommodation units, commercial and retail floorspace at a site in the Elephant and Castle Regeneration Area. The inspector (Zoe Hill) considered questions of need for student accommodation, both London wide and in relation to Southwark, as well as whether or not the development would harm the Council's regeneration and affordable housing objectives. She also found that the Borough's SPD requiring a letter of support from a local educational institution was not a reason for rejecting the proposal which would meet needs and accord with development plan policy. This is an important and interesting decision given current market interest in student schemes.

23.07.2010

Requirements of Circular 05/05: Planning Obligations
Friday, July 23, 2010

The Secretary of State has recently issued his decision on the planning appeal last year into major redevelopment proposals for Brighton Marina. The appeal was dismissed on the ground that the unilateral S.106 obligation was defective in several respects including the failure by the developers to bind in all parties interested in the land. In particular, although the Council is the freeholder of the site on Brighton's coast, it was not made a party to the undertaking, nor were the two most significant tenants on the redevelopment site, Asda and McDonald's. The Secretary of State was not prepared to offer the appellants the chance of more time to try and perfect the obligation, to which Morag Ellis QC and Rob Williams had objected on behalf of Brighton and Hove City Council at the inquiry. It was held that the undertaking failed to meet the requirements of Circular 05/05 and presented unacceptable risks to the public interest. The scheme had originally been rejected by members against officers' recommendation and, although the inspector and Secretary of State regarded elements of it as less than ideal, the decision did not ultimately turn on points of design or adequacy of public open space provision. The decision is also notable for its consideration of the CLG/CABE sponsored Building for Life evaluation method. Overall, the decision follows the line taken by the Secretary of State under the previous Government in respect of parties to s.106 obligations, for example at the TRL site in Bracknell in 2009, where Morag Ellis QC and Tom Cosgrove successfully resisted development on, amongst other bases, the inadequate s.106.

06.07.2010

The Plastic Revolution
Tuesday, July 06, 2010

Nottingham City Council successfully defended an appeal of its Licensing Sub-Committee review of the premises licence for Revolution Vodka Bar in Nottingham, the review having been brought by Nottinghamshire Police as a result of a number of injuries caused by bottles and glasses on the premises.

The magistrates, sitting in their appellant capacity, upheld the decision of the Licensing Authority to require the use of polycarbonate drinking vessels rather than toughened glass, and increased the suspension of the premises licence from 14 to 28 days. Revolution sought to challenge the magistrates’ decision by way of judicial review: permission and interim relief were refused; a renewal of the application is awaiting a hearing date.

The decision is an important one to authorities seeking to achieve a safer night time economy by encouraging the use of polycarbonate drinking vessels in high-risk venues. It is significant here that the appellant’s argument that the use of toughened glass was adequate protection did not succeed.

Philip Kolvin QC represented Nottingham City Council and Rory Clarke represented Chief Constable of Nottinghamshire Police.

22.06.2010

Planning Magazine's Guide to Planning Lawyers 2010
Tuesday, June 22, 2010

Planning Magazine’s Guide to Planning Lawyers 2010 appears in the latest edition of Planning Magazine with commentary from Morag Ellis QC, Paul Shadarevian and Tom Cosgrove.

We are delighted that Mary Cook has again been so highly rated as the top Planning junior for the third year running.

Fourteen members of our Planning Group are highly rated by the survey, both by the overall rankings and specific planning activities:

Top-rated planning silks

Mark Lowe QC (9 – Infrastructure; 10 – Retail and town centres)
Stephen Sauvain QC (7 – Retail and town centres)
Morag Ellis QC (4 – Development plans; 6 – Environment)
Simon Bird QC (1 – Development plans; 7 – Housing and mixed use)
Vincent Fraser QC (9 - Infrastructure)
Anthony Porten QC

Top-rated planning juniors

Mary Cook (1 – Housing and mixed use, Infrastructure, Development plans; 2 – Retail and town centres; 7 – Environment)
Richard Ground (2 – Development plans; 6 – Housing and mixed use; 7 – Environment; 8 – Infrastructure)
Melissa Murphy
Paul Shadarevian (3 – Development plans)
Michael Bedford (9 – Development plans)
Thomas Cosgrove
Michael Druce (11 – Housing and mixed use)
Robin Green

Click here to read the full report

21.06.2010

Jowitt's Dictionary of English Law
Monday, June 21, 2010

We are pleased to announce the new edition of Jowitt’s Dictionary of English Law published by Sweet and Maxwell.

The new edition presents a concise definition of each expression which forms part of the fabric of English law, showing the historical context wherever helpful. The new edition includes European terms which are now of key importance for English law.

Harriet Townsend and Damien Welfare are both specialist contributing editors for the local government section.

Click here for further details

12.06.2010

PPS5 - "Planning for the Historic Environment"
Saturday, June 12, 2010

On Wednesday 9th June, 2-3 Gray's Inn Square and CgMs Consulting held a joint breakfast briefing on PPS5 - "Planning for the Historic Environment" - published in March 2010 - and how this new guidance will affect property owners, investors and occupiers.

The briefing was well attended with an audience of around 60 people from a diverse range of property interests to hear Paul Chadwick – Director of Archaeology, CgMs , Tom Cosgrove – Barrister, 2-3 Gray’s Inn Square, Nick Doggett – Director, Historic Buildings, CgMs and Morag Ellis QC – Barrister, 2-3 Gray’s Inn Square, explain the changes over previous guidance and the implications of the new PPS, that is now arranged as a series of development plan and development management policies.
It is still early days for the implementation of the new guidance in future planning decisions and appeals - it will be interesting to see how Councils and Inspectors deal with the issues in their decisions, particularly in respect of non-designated heritage assets.

Click here to view the slides presented at our seminar presented by our panel of speakers

14.05.2010

Gambling for Local Authorities: Licensing, Planning and Regeneration, second edition
Friday, May 14, 2010

We are pleased to announce the second edition of Gambling for Local Authorities: Licensing, Planning and Regeneration, which is being published next month.

This edition has been updated to take account of a number of important developments in law and policy over the last 3 years.

The book goes out as an Institute of Licensing publication and is an important part of the Institute’s financing. No writer takes a fee, so the entire proceeds, less printing and mailing costs, go straight to the charity.

A 10% pre-publication discount is being offered, to help us gauge more accurately the number to be printed and so save costs.

The book can be ordered through the Institute’s web-site here or using the flyer here.

Feedback and reviews from the first edition were very good, details of which can be found in our previous article here.

07.05.2010

London Legal Sponsored Walk
Friday, May 07, 2010

On Monday 17th May, the 6th London Legal Sponsored Walk will be taking place – members from across the legal professions will walk 10km across London, starting at the RCJ and finishing at the Law Society. Walk leaders include The Lord Chief Justice, The Master of the Rolls, the Presidents of the Law Society and ILEX and the Chair of the Bar Council.

Members of Chambers will be walking to raise money towards the work of the London Legal Support Trust. Last year we raised around £1,500 and we hope to exceed that this year.

The Trust supports law centres in London and the Home Counties.

Click here for a link to our donation page

15.03.2010

Challenge to an emerging Local Development Plan
Monday, March 15, 2010

Persimmon Homes Ltd & Anor, R (on the application of) v Vale of Glamorgan Council [2010] EWHC 535 (Admin)

Mr Justice Beatson has dismissed a challenge to the Vale of Glamorgan's Local Development Plan preferred strategy brought by two developers that wished to see their own site included in the draft plan as a strategic housing allocation. The claimants had argued that the decision of the Council to endorse the preferred strategy, which excluded the claimants' site, was flawed by reason of a defective officers' report and by predetermination and a conflict of interest at officer level. The claimants had also argued that the Council had unlawfully failed to re-consult on the
options that had emerged at the pre-deposit stage. The Judge rejected all the grounds of challenge.

Morag Ellis QC and Robin Green appeared for the Vale of Glamorgan Council.

Click here for full text of the judgment

04.03.2010

Bedford Windfarm proposal dismissed on appeal
Thursday, March 04, 2010

A proposed windfarm in Bedford has been rejected in an Appeal Decision issued in late February 2010 (ref: APP/K0235/A/09/2108506/NWF) following a planning inquiry.

Tom Cosgrove was instructed by Bedford Borough Council at the inquiry held during January 2010. The Council had refused to grant planning permission on a number of grounds. The proposal and inquiry caused a great deal of local controversy and was featured on BBC Look East.

The Appeal Decision is of particular note as the Inspector considered that the approach to assessing noise impact promoted by the developer was not supported by current government policy. The appellant had relied upon a published article by a number of noise consultants and had claimed that the approach was compliant with ETSU-R-97. Such an approach has been argued at a number of planning inquiries. In this case, the inspector agreed with the council that the approach adopted by the developer appellant to noise assessment was not robust.

The Decision also provides an increasingly rare example of a windfarm proposal being dismissed on the basis of creating an unacceptable diminution in the living conditions of nearby residents by virtue of the scale and massing of the turbines proposed. A copy of the appeal decision can be found on the planning inspectorate website here.

26.02.2010

New Silks 2010
Friday, February 26, 2010

Chambers is proud to announce that Bryan McGuire and Gerard Forlin have been notified of their appointment as Queen’s Counsel and will take up their roles on 22 March after the formal ceremony in Westminster Hall.

25.02.2010

Late challenge to a planning permission; discontinuance and compensation
Thursday, February 25, 2010

R (Usk Valley Conservation Group) v Brecon Beacons National Park Authority and Thomas [2010] EWHC (Admin) 71

A significant case involving two challenges: one to the grant of planning permission in 2005 for a caravan and camping site; the other to decisions taken by the defendant authority in 2008 concerning enforcement and discontinuance. Notwithstanding the lapse of some 3 ½ years between the grant of permission and the issue of proceedings, the court quashed the permission on a variety of grounds arising from differences between the application and the permission. The court departed from an earlier decision, Alnwick DC v Secretary of State for the Environment, Transport and the Regions (1999) 79 P&CR 130, in holding that an authority’s liability to pay compensation was material to its consideration of a discontinuance order.

On 18 February 2010 the court dealt with relief and costs, making important observation on the need for selectivity in public law challenges. The judgment on costs has not yet been published.

Morag Ellis QC and Robin Green appeared for the Brecon Beacons National Park Authority

Anthony Porten QC and Ian Albutt appeared for the interested parties

Click here for full text of the decision

01.02.2010

Cardiff office
Monday, February 01, 2010

Chambers is delighted to announce that we now have office space, and conference facilities, in Cardiff. This has been arranged to allow us to provide improved support arrangements for our many clients in Wales, the South West and the West Midlands. We look forward to seeing many of you in these offices.

The contact details are:

2-3 GIS
One Caspian Point
Pierhead Street
Cardiff Bay
CF10 4DQ

Phone: 02920 444022
Fax: 02920 444023.
clerks@cornerstonebarristers.com

DX: We will provide this when details finalised. If you wish to use this facility currently, please liaise with the clerks on clerks@cornerstonebarristers.com, phone as above or 020 7242 4986

Regards

Lynne Orsborn
Chambers Director

17.01.2010

Corporate Liability: Work Related Deaths and Criminal Prosecutions,(2nd edition)
Sunday, January 17, 2010

General Editor: Gerard Forlin
Editor: Louise Smail, Ortalan

"Like its predecessor it contains valuable material and commentary presented in an accessible way. It will continue to be a valuable resource for practitioners." Mr Justice Burnett

The Corporate Manslaughter and Corporate Homicide Act 2007, has created a new offence of corporate manslaughter. This new edition of Corporate Liability: Work Related Deaths and Criminal Prosecutions is the only book to provide, in a single source, an expert guide to general procedure and practice surrounding this topic.

The 2nd edition covers crucial recent high profile cases and contains invaluable new commentary on international and European perspectives as well as new chapters covering Local Authorities, Scotland and Ireland.

Click here for further details

04.01.2010

BarMark award
Monday, January 04, 2010

Chambers is delighted that our commitment to providing the best possible quality of service to clients has been recognised with BarMark accreditation awarded by the Bar Council. The voluntary scheme is independently assessed by the British Standards Institution, with the final decision on awards taken by the Bar Council's BarMark panel.

01.01.2010

VAT Changes from 1 January 2010
Friday, January 01, 2010

Chambers would like to confirm that it will continue to charge VAT at the rate which prevailed at the date the work was one. This was the policy we adopted from 1 December 2008 when the rate decreased: we will do the same now that the rate will revert to 17.5%.

Click here for further information and Bar Council Guidance

Regards
Lynne Orsborn