26/01/2021

LA Spotlight

A new year but life continues to throw many challenges to councils, residents, staff and businesses. As lockdown measures continue to affect everything, other changes are also being felt. The interpretation and consequences of the Spending Review as budgets are being set and, of course, Brexit.

One immediate area of advice that is impacting council plans is the new Subsidy Control regime. Set out in our article - State Aid to Subsidy Control - is a summary of the current position. The UK – EU trade agreement reached (subject to ratification) on 24 December sets out in some detail the interstate obligations for subsidy control between the parties, and gives UK bodies a rather clearer picture of the shape of subsidy control in the UK for the future. It is to operate on a set of principles which the parties must ensure that any subsidy respects, in order to ensure that subsidies which have or could have a material effect on trade or investment. With only some details provided as things stand one of the key effects of the agreement in this field is greater uncertainty, and potentially greater costs of legal and economic advice on the subject. If you wish to learn more on this area, please join us on 10 February for our Subsidy Control webinar.

On a lighter note, if you took part in our '12 Questions of Christmas' and wish to find out how many questions you got right, the answers can be located at the bottom of the newsletter.

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Delivering Value

Planning on Borrowing from PWLB in 2021? 

The Public Works Loan Board (PWLB) undertook a consultation in March 2020 in relation to the terms of its lending and proposed reform. A response was published immediately following the spending review by HM Treasury in November 2020, along with guidance on the new borrowing terms and a 1% rate drop. This was welcome news to many authorities, however a degree of uncertainty remains around whether authorities can still borrow at all. The reform of the PWLB borrowing requirements are in summary:

  1. Authorities wishing to borrow from PWLB must now as part of the application process submit a high-level description of all their capital spending and financing plans for the next three years
  2. The s151 officer must confirm that the Authority is not borrowing in advance of need and does not intend to buy investment assets primarily for yield, and
  3. Authorities that cannot comply with the terms or subsequently breach them risk being barred from borrowing from PWLB and/or being required to repay any of their PWLB borrowing.

In relation to common queries on the rule change/accompanying guidance; purchasing investment property within the authority’s area for long term strategic purposes, regeneration, housing or other functions is clearly within the powers of the authority. The purposes of any acquisition are key – if a purchase is out of area; all about yield and investment return and has no relevance to authority functions it is likely not to fall within the PWLB lending criteria.  With regards to queries around an Authority’s existing portfolio of investment property and whether this limits its ability to borrow from PWLB; it is logical to assume that authorities will need to submit plans for the current year dating back to March 2020 as part of a drawdown process in this financial year. It could be seen that if an investment property has been purchased after March 2020, this might restrict an Authority’s right to borrow from PWLB before the end of the current financial year and any loans drawn from PWLB from November onwards may be denied or at risk of clawback. Authorities should also be aware that changes have been put in place predominantly to limit perceived abuses of the existing wide powers to borrow. An authority that pursues alternative funding would need to be particularly careful around where it sourced its funding for such transaction. 

The reformed PWLB lending rules give new discretionary rights to deny/call in loans that don’t fall within the categories they classify as acceptable forms of debt, making access to PWLB more of a consideration. Authorities must decide in any one year whether they are going to act within the new limits of the PWLB lending regime or choose to invest in ways which may be potentially restricted by PWLB and therefore borrow elsewhere from the market. It may be preferable for local authorities to seek out PWLB confirmation in respect of matters that fall within any perceived grey area. Bevan Brittan has in the last year, worked with a number of investors and lenders who are extremely keen to lend to authorities and offering flexible terms, competitive rates and increasingly short turnaround times. Therefore there are an increasing number of alternative funding sources (in some cases which offer advantages to PWLB). Please get in touch if you would be interested in discussing the PWLB rule changes further or if you are consideration alternative finance sources.

Legislation

The Health Protection (Coronavirus, Restrictions) (Local Authority Enforcement Powers and Amendment) (England) Regulations 2020/1375
Part 2 of these Regulations enable local authority designated officers to issue notices to people who are contravening or have contravened various statutory provisions in place to minimise exposure to Coronavirus.
Part 3 of these Regulations make various amendments to existing Regulations made under the Public Health (Control of Disease) Act 1984, and related savings provisions.

Publications & Guidance

Support for care leavers
House of Commons Library | 31 December 2020
This briefing provides an overview of the UK Government’s policies to support care leavers in key areas. On leaving care, a local authority must appoint a Personal Adviser (PA) to help care leavers plan for their futures. PA support is available for all care leavers to age 25. Local authorities must also publish a “local offer” for care leavers, which sets out their legal entitlements, as well as any discretionary support that the authority provides. Authorities since 2014 have been required to provide financial support to enable young people in foster care to remain living with their former foster family to age 21 in a “Staying Put” arrangement. Authorities should also provide a £2,000 bursary to care leavers who attend university and are required to provide financial support to help care leavers engage in education, employment and training; and a leaving care grant (£2,000) to help the young person furnish their first home.  Full report.

Local government exit pay
Ministry of Housing, Communities & Local Government | 16 December 2020
A guide for local authorities for the interim period until MHCLG regulations come into force. The Restriction of Public Sector Exit Payments Regulations 2020 impose a cap of £95,000 on the payments which specified public sector bodies, including local authorities, can make in relation to employee exits. This document provides guidance on how the Ministry of Housing, Communities and Local Government will deal with applications for the relaxation of the restrictions from public sector employers in relation to employees who are eligible for membership of the Local Government Pension Scheme (LGPS) including LGPS employers who are also covered by the regulations.

Ombudsman urges councils to scrutinise services for children in care
Local Government & Social Care Ombudsman | 10 December 2020
The Local Government and Social Care Ombudsman is highlighting the experiences of children in the care system – and the difficulties they face when councils get things wrong. In a new report published today, the Ombudsman is sharing the cases of children who have been let down by the very authorities who should be looking after their interests. Children who cannot be cared for by their parents and become the responsibility of their local authority are some of the most vulnerable in society. The official term is ‘looked after children’ and they may live with foster parents, in group homes or with friends and family foster carers. The statistics around children in care are startling: they’re more likely to have a special educational need or mental health difficulty than their friends who live with parents. And their outcomes are just as concerning: formerly looked after children are more than three times as likely to be out of education, training or employment once they leave care. This is all set against a backdrop of increasing numbers of children being brought into the system; 28% more children were in care in 2019 than 2009.

Local authority powers to impose restrictions under coronavirus regulations. Supports the Health Protection (Coronavirus, Restrictions) (England) (No 3) Regulations 2020 that come into force on 18 July 2020. (Updated)
Department of Health and Social Care | 10 December 2020
The guidance has been revised to include new powers that enable all local authorities to take action against specific offences where premises are not operating in a COVID-secure manner, through issuing formal requests for rapid improvement. In addition, three template attachments have been added to the page.

CIPFA releases new public sector asset management guide
CIPFA | 2 December 2020
Guidance recently released by the Chartered Institute of Public Finance and Accountancy (CIPFA) provides practical support on asset management in local government. Focused on the management of public sector property, buildings and infrastructure-related assets, A Guide to Local Authority and Public Sector Asset Management is a comprehensive response to the previous absence of resources on the applied principles of asset management. While previous guides focused on specific areas of asset management, CIPFA’s new publication provides senior public sector managers with a guide to both strategic leadership and governance, as well as day-to-day practical matters. The guidance also responds to the changing objectives of UK local authorities, including the need to maximise property assets in addressing locally declared climate emergencies.

News

Council snaps up former House of Fraser site
Public Finance | 8 January 2021
Wirral Council has spent £2m on purchasing the former Birkenhead House of Fraser store as part of its regeneration plans. The property was last purchased by overseas investors Autumn Properties for £5m in late 2014, but the building has lain vacant since March, and its sale was confirmed this week. The council said the acquisition will allow it to have more control over the large-scale regeneration of the town, which is expected to cost around £1bn.

Borrowing from PWLB jumps following rate cut
Public Finance | 5 January 2021
Local authorities borrowed £252m from the Public Works Loan Board in December, the highest sum borrowed since April, following November’s one percentage point drop in borrowing rate.

New local authority Covid enforcement powers
Local Government Lawyer | 22 December 2020
Gary Grant analyses the new enforcement tools that allow local authorities in England to take action against premises that do not comply with COVID-secure rules.

Local authority ordered to withdraw charging policy for council-provided care
Local Government Lawyer | 22 December 2020
A 24-year-old woman with Down Syndrome has won a judicial review claim over the decision by a county council to change the basis on which it calculated the charges made to her for council-provided care. SH claimed that the change, which substantially increased those charges, indirectly discriminated against her as a severely disabled person in breach of her rights under the Human Rights Act 1998, the European Convention on Human Rights and the Equality Act 2010

Council wins High Court private law claim against NHS clinical commissioning group over costs of care for young man with autism
Local Government Lawyer | 22 December 2020
A county council has successfully brought a private law claim in restitution against a clinical commissioning group, to recover sums paid by the local authority for the costs of accommodation and care of a young man with autism spectrum disorder.

High Court gives green light for judicial review over exit payment cap regulations
Local Government Lawyer | 22 December 2020
A High Court judge has given LLG (Lawyers in Local Government) and ALACE (the Association of Local Authority Chief Executives and Senior Managers) permission to bring a judicial review challenge over the Exit Payment Cap Regulation.

Court of Appeal allows appeal by city in dispute between three councils over designation in respect of care order
Local Government Lawyer | 18 December 2020
A city council has won an appeal over its designation as the local authority in respect of a care order for a 15-year-old girl (J) who was in need of secure accommodation. On 20 February 2020 HHJ Jordan at the Manchester Civil Justice Centre had ordered that Salford City Council be designated as the local authority in respect of the care order which was made the same day. This meant that Salford was not only subject to various statutory duties in relation to the child in question, but also bore the consequent financial responsibility for her.

Spelthorne commercial income set to rise despite Covid-19
Public Finance | 15 December 2020
Spelthorne Borough Council is budgeting for an increase in income from its commercial property portfolio during the current financial year, enabling it to underspend its budget by £1.5m. The council has faced severe criticism from a number of quarters for its commercial investment strategy, which has seen it acquiring £1bn of offices and shopping centres in recent years. However, the council is expecting to ride out a full year of Covid-19 with just over £53m of rental income, up from the £51m it received last year.

Councils face extra data burden on commercial property
Public Finance | 14 December 2020
Local authorities could be required to provide central government with extra details on their commercial property portfolios, according to a senior official. Last month, the Treasury announced new rules on borrowing from the Public Works Loan Board in order to prevent councils using money to invest purely to produce a profit. On top of these requirements, councils could be required to provide Whitehall with details of the make-up of their commercial property holdings, MPs at last week’s Public Accounts Committee heard.

West Sussex to keep control of children’s services for at least 12 months
LocalGov | 11 December 2020
West Sussex County Council will keep control of its children’s services for at least another year following improvements made, the Department for Education (DfE) has said. In 2019, the council was ordered to place its ‘inadequate’ children’s services into a separate trust following a damning Ofsted review. The DfE has now issued a new statutory direction saying this move will be ‘paused’ for at least a year after the council made enough progress in improving services.

Council defends High Court challenge over decentralised model of specialist educational support
Local Government Lawyer | 3 December 2020
The London Borough of Redbridge was entitled to operate a decentralised system of specialist support under which teaching assistants are employed directly by schools, the Court of Appeal has ruled. ZK is a 13-year-old girl who is blind and partially deaf and requires a high level of support at the mainstream school she attends. Her challenge was to Redbridge’s decision not to have a centralised model of specialist educational support teachers who would be seconded to help children with visual impairment in mainstream schools.

Local authority building acquisition halves
Public Finance | 3 December 2020
Local authorities’ spending on buying property has fallen more than half following the outbreak of Covid-19, according to statistics from the Ministry of Housing, Communities and Local Government.

Government issues regulations for new enforcement notices local authorities can issue in bid to reduce public health risk of Covid-19
Local Government Lawyer | 1 December 2020
The Government has published the regulations for three new notices local authorities in England will be able issue to reduce the public health risk posed by the coronavirus.

The Health Protection (Coronavirus, Restrictions) (Local Authority Enforcement Powers and Amendment) (England) Regulations 2020 (the enforcement regulations) have been issued under emergency procedures and come into force tomorrow (2 December). The main provisions of the statutory instrument introduce a Coronavirus Improvement Notice, a Coronavirus Restriction Notice and a Coronavirus Immediate Restriction Notice. These can be issued by local authority officers to any person who breaches specified requirements of named Coronavirus regulations.

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Place & Growth

Use Class C2 or C3? Proceed with Care

The Use Class debate for “Housing with Care” developments has been on-going for many years now and it is well-documented that various planning issues resulting in delay and costs to developers/investors are considered a disincentive and/or barrier to entry and growth into this undersupplied market.

The recent High Court ruling in Rectory Homes Limited v Secretary of State for Housing, Communities and Local Government [2020] provides some clarity on the interaction between Use Class C2 and the term “dwelling”.

The case considered whether a retirement living scheme was classified under Use Class C2 (residential institutions), and therefore exempt from contributing towards affordable housing, or the Use Class C3 (dwellings) which would trigger a financial contribution.

Rectory Homes appealed against South Oxfordshire District Council's decision to refuse consent for the development of 78 units in a “housing with care” scheme.  Although the Council agreed that the development fell within C2, it considered that the units were dwellings ancillary to the C3 use.  This meant that the Council’s Core Strategy Policy CSH3 (Policy) would apply which required 40% affordable housing.

The planning inspector’s view was that although the units were within C2, they were still dwellings for the purpose of the Policy.  The High Court agreed with the inspector and held that the use of the units was important to consider rather than what language was used to describe them. If the units can be used as independent dwellings, (in this case they each had their own front door and private facilities) then they can be considered as “dwellings”, irrespective of whether an element of care is provided.  Having established that the units were dwellings, the Site was subject to the Policy requirement of 40% affordable housing provision.

An important point was made by the court in relation to the definition of “dwellings” – the fact that dwellings fall within the C3 Use Class did not preclude them from being in other Use Classes e.g. dwellings used as HMO’s are in the C4 Use Class.  Therefore, how a property is used is the key element, rather than how it is described.  So in this instance, where there are residential units capable of being used as independent dwellings, then they can be regarded as “dwellings”, even with an element of care provided.

This judgment does not mean that affordable housing contributions will automatically apply to all later living developments; this case was determined largely on the specific wording of the Policy which did not restrict dwellings to the C3 Use Class.  The case may have had a different outcome had the Policy limited affordable housing contributions to a specific Use Class instead of “dwellings”. But the case has highlighted that developers need to check the relevant local policies carefully to assess whether their plans will trigger an affordable housing contribution.

There is likely to be more uncertainty in respect of the planning costs associated with retirement living schemes following this case – with higher build costs than traditional developments, the threat of paying affordable housing contribution only adds to the well-documented concerns that the planning process is currently a barrier to entry and/or growth in this under supplied sector.

Legislation

The Non-Domestic Rating (Compilation and Alteration of Lists) (England) Regulations 2020/1403
This instrument requires those local authorities in England who are responsible for charging business rates to provide information relating to persons liable to pay business rates to the Valuation Office Agency (VOA) on a quarterly basis. This information will help the VOA compile and maintain accurate non-domestic rating lists.  Coming into force on 1st January 2021.

The Clean Air Zones Central Services (Fees) (England) Regulations 2020/1444
This instrument enables the Secretary of State to charge local authorities in England for using the Clean Air Zones Central Services (“CAZ Central Services”). The Government is creating the Services to support the practical implementation of Clean Air Zones (“CAZs”). A CAZ is an area where targeted action is taken to improve air quality. The CAZ Central Services are national infrastructure services that include a digital service (including the ability to make payments online) and technical and customer contact support.

Publications & Guidance

Coronavirus: Support for landlords and tenants
House of Commons Library | 10 January 2021
This briefing paper explains measures taken by the Government during the coronavirus outbreak to assist households in the rented sector to retain their homes. The paper covers the introduction of extended notice periods and the end of the ban on evictions in England and Wales from 20 September 2020. It has been updated in light of the extended ban on enforcing eviction orders after 11 January 2021. Full report.

Government reforms make it easier and cheaper for leaseholders to buy  their homes 
Ministry of Housing, Communities & Local Government | 7 January 2021
Millions of leaseholders will be given the right to extend their lease by a maximum term of 990 years at zero ground rent, the Housing Secretary Robert Jenrick has announced today (7 January 2021). Today’s measures come as part of the biggest reforms to English property law for 40 years, fundamentally making home ownership fairer and more secure.

Remediation of non-ACM buildings
Ministry of Housing, Communities & Local Government | 6 January 2021
Information relating to the Building Safety Fund for the remediation of unsafe non-ACM cladding systems. Updated: Social sector guidance amended.

A voluntary Right to Buy for housing association tenants
House of Commons Library | 6 January 2021
Most assured tenants of housing associations don’t have a statutory Right to Buy. Some assured tenants may have a ‘preserved Right to Buy’ if they were secure tenants of the local authority when ownership of their homes transferred to a housing association. Assured tenants who don’t have a statutory Right to Buy might have a statutory Right to Acquire if their home was built after April 1997 with public funding. There are exemptions to the Right to Acquire, e.g. where the property is in a designated rural area. The National Housing Federation (NHF) and the 2015 Coalition Government entered into an agreement to extend the Right to Buy to assured tenants of housing associations on a voluntary, rather than a statutory, basis (PDF 337 KB). Five housing associations piloted the voluntary Right to Buy (VRTB) – these schemes closed in October 2016.  The Autumn Statement 2016 announced Government funding for a large-scale regional pilot of the VRTB for housing association tenants. After some delay, the Autumn Budget 2017 announced the pilot would go ahead in the Midlands with £200m of Government funding.

Social housing allocations guidance
Ministry of Housing, Communities & Local Government | 31 December 2020
Statutory guidance on social housing allocations for local housing authorities in England. Statutory guidance issued by the Secretary of State for Housing, Communities and Local Government. Local housing authorities are required to have regard to this guidance in exercising their functions under Part 6 of the Housing Act 1996.

Homelessness code of guidance for local authorities (updated)
Ministry of Housing, Communities & Local Government | 31 December 2020
Chapter 7: Eligibility for assistance updated. Guidance on the provisions relating to an applicant’s eligibility for homelessness services.

£830m funding boost for high streets
Ministry of Housing, Communities & Local Government | 26 December 2020
Funding from the Future High Streets Fund to help 72 areas in England to recover from the pandemic and deliver ambitious regeneration plans. Up to £830m from the Future High Streets Fund will be invested in 72 areas across England, Communities Secretary Robert Jenrick announced.

COVID-19 and renting: guidance for landlords, tenants and local authorities (updated)
Ministry of Housing, Communities & Local Government | 21 December 2020
Non-statutory guidance for landlords, tenants and local authorities in the private and social rented sectors in the context of Coronavirus (COVID-19). This guidance provides advice to landlords and tenants on the provisions in the Coronavirus Act 2020, and further advice for landlords, tenants and local authorities more broadly about their rights and responsibilities during the COVID-19 outbreak. Updated to reflect changes to the tier system and the introduction of a 4th tier from 20 December.

Understanding the possession action process: guidance for landlords and tenants (updated)
Ministry of Housing, Communities & Local Government | 21 December 2020
Guidance for landlords and tenants in the private and social rented sectors to explain the possession action process in the county courts in England and Wales. Updated to reflect changes to the tier system and the introduction of a 4th tier from 20 December.

Authorities with increased business rates retention arrangements: provisional local government finance settlement 2021 to 2022
Ministry of Housing, Communities & Local Government | 17 December 2020
Key information and explanatory note for authorities with increased business rates retention arrangements for the 2021 to 2022 financial year.

Plan to regenerate England's cities with new homes
Ministry of Housing, Communities & Local Government | 16 December 2020 

  • New measures to level up England’s cities and provide much-needed new homes.
  • New measures to help cities and their high streets recover from the pandemic
  • More homes in urban areas - tackling unaffordability and making the most of brownfield land with £1000m of funding
  • Revision of ‘80/20’ funding rule to help level up all parts of England.

Specialised supported housing: guidance for local government and NHS commissioners
Local Government Association | 15 December 2020
This is guidance for local government and NHS commissioners about a category of supported housing referred to as ‘Specialised Supported Housing’ (SSH), particularly lease-based models of SSH. This follows guidance on specialised supported housing providers issued to commissioners in 2019 by NHS England and NHS Improvement, the Local Government Association (LGA) and the Association of Directors of Adult Social Services (ADASS).

Re-thinking homelessness prevention
Local Government Association | 15 December 2020
At the heart of this research was a recognition that the way we talk about homelessness prevention needs to change, recognising the vital importance of upstream cross-service prevention work in local homelessness systems, and the role of councils, their partners and central government policy in delivering this work.

Climate-related incidents affecting eight in ten councils
Local Government Association | 11 December 2020
The LGA's latest research on the effects of climate change on local authorities shows that eight in ten councils have suffered climate-related incidents in the last five years - including over 23,000 properties in England being affected by flooding during this period.

MHCLG should ditch the false promises instead of serially ditched housing policies
Public Accounts Committee | 9 December 2020
The Public Accounts Committee condemns as “deplorable” the “cycle of policy invention, abandonment and reinvention, stringing expectant young people along for years”, “wasting time and resources” on housing policies that “come to nothing as ministers come and go with alarming frequency”. The Ministry of Housing, Communities & Local Government (MHCLG) has failed to deliver the 200,000 discounted Starter Homes it promised first-time buyers in 2015. Despite setting out the legislative framework for Starter Homes in 2016, the Department has never put in place the necessary laws to make the affordable homes initiative a reality. The PAC has reported regularly on housing delivery since 2015, and not one of the promised housing programmes has delivered its objectives. By 2017, Starter Homes as a distinct policy had been abandoned, although it was not until 2020 that the Department formally announced the end of the policy. Some 85,000 people had registered their interest in Starter Homes since 2015, only to hear in 2020 that they had been waiting in vain. MHCLG is now introducing a new policy with similar aims – First Homes – but is unable to say when they will be available for first-time buyers to purchase. Its reliance on developer contributions to fund First Homes is part of an opaque, complex mechanism which risks less money being available to local authorities for housing and infrastructure. Full report Starter Homes: thirty first report of Session 2019-21

Business evictions ban extended until March
Ministry of Housing, Communities & Local Government | 9 December 2020
Business owners affected by the pandemic will be protected from eviction until the end of March 2021. This final extension to protections from the threat of eviction will give landlords and tenants three months to come to an agreement on unpaid rent. The government is clear that where businesses can pay any or all of their rent, they should do so. Further guidance to support negotiations between landlords and tenants will also be published shortly.

The future of the high street, House of Commons briefing, 10 December 2020
Local Government Association | 7 December 2020
The COVID-19 pandemic has led to an acceleration of changes to the reasons people visit and use high streets. Data for November 2020 shows that footfall is at 45% compared to the same period last year. Before the pandemic, footfall had dropped over 10% in the last seven years. Internet sales had risen to 21% of all retail sales at the end of 2019 compared to 7% a decade earlier, and during the height of the national lockdown period in May this had jumped to nearly 33% of all retail sales. As leaders of place, councils have already been working hard to repurpose their town centres and respond to longer-term trends in how our high streets are used. They recognise that the pace of change and intervention will need to quicken as a result of the pandemic.

Fast track for public services: new planning reforms to speed up delivery of schools and hospitals
Ministry of Housing, Communities & Local Government | 3 December 2020

  • Public service buildings will be delivered more quickly through the planning system with a faster, more streamlined planning process
  • New schools and hospitals to be delivered quicker through a faster, simpler planning process
  • New, simpler process for business premises to become new homes to boost town centres through brownfield development
  • The measures build on last week’s Spending Review, confirming nearly £20bn of investment in new housing and a £4bn Levelling Up Fund to boost local economies

Councils will need to make decisions on these important buildings as a priority and have a legal duty to decide major public service development applications within 10 weeks. Currently, some planning applications are left for many months without a decision.

News

Council chiefs welcome £4.6bn in lockdown grants to support businesses
LocalGov | 5 January 2021
Businesses in the retail, hospitality and leisure sectors in England are to receive a one-off grant worth up to £9,000 to support them during the lockdown, the chancellor has announced. The funding commitment follows the Prime Minister’s announcement last night that these businesses will be closed until at least February half-term in order to help control the virus. The Local Government Association (LGA) welcomed the announcement of more funding and said that emergency grants such as this one have been a ‘vital lifeline’ during the course of the pandemic. The £4.6bn grant is expected to benefit over 600,000 business properties, worth £4bn in total across all nations of the UK.

West Midlands Combined Authority wins £51m to transform brownfield sites
LocalGov | 21 December 2020
The West Midlands Combined Authority (WMCA) has won £51m to transform derelict industrial sites into new communities. A total of £24m from the Government’s £40m National Brownfield Housing Fund has been won by the WMCA as part of a competition involving eight combined authorities.

Thousands of councillors call for rethink on planning reforms
LocalGov | 10 December 2020
Over 2,000 councillors have called on the Government to rethink its planning proposals, warning the changes will lead to an ‘unacceptable loss’ of local democracy and scrutiny. In an open letter to housing minister Robert Jenrick, the councillors warn the proposed changes will undermine the trust the public has in the planning system.

Government scrapping affordable starter homes ‘deplorable’, say MPs
The Guardian | 9 December 2020
A government plan to deliver discounted starter homes has left 85,000 young people waiting in vain for an affordable place to live, in a policy branded “deplorable” by a cross-party committee of MPs. The 2015 initiative to build 200,000 homes and sell them at a 20% discount was formally scrapped this year without a single home being built. But £173m was spent buying land, a damning report by the Commons public accounts committee said. It is now on course to deliver only 6,600 homes and is being replaced by a new scheme. The influential committee highlighted the abandoned scheme as a waste of time and resources as part of a broadside against government housing policy, which it said has been “stringing expectant young people along for years” with housing policies that “come to nothing as ministers come and go with alarming frequency” – there have been 19 since 1997.

The government needs to devolve infrastructure decision making and spending
Institute for Government | 7 December 2020
While the long-delayed National Infrastructure Strategy contains valuable ‘levelling up’ funding for regions outside London, Alistair Baldwin says the government has made a mistake by continuing with competitive funds and by failing to engage with devolved authorities and sub-national bodies.

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Governance & Reorganisation

Monitoring officers pour cold water on LGA Model Code of Conduct

Just before Christmas (23 December 2020) the Local Government Association (LGA) issued their Model Code of Conduct together with a joint statement saying it had been ‘designed to protect our democratic role, encourage good conduct and safeguard the public’s trust in local government’.

However, Lawyers in Local Government (LLG) have reported that the model code is receiving a ‘lukewarm response’, with a number of Monitoring Officers saying that they will not be looking to implement it in their local authorities. Concerns have been expressed that the LGA Code is not as robust as the code many Council’s currently have in force and that it is not clear enough with respect to councillors acting in a private capacity.

It does not help that two years since the Committee on Standards in Public Life (CSPL) produced their report on ethical standards in local government there is still no official response from the government with regards to statutory protection or sanctions. Among other things the CSPL report found that the current sanctions available to local authorities were insufficient, recommending powers to suspend councillors without allowances for up to six months and seeking clarity on the barring of councillors from council premises or withdrawal of facilities as sanctions. With continued silence from the Ministry of Housing, Communities and Local Government, it's not surprising that the LGA model code is also silent on these matters.

As Monitoring Officers across the country look to take the LGA code to their Standards committees for consideration, we may see a reluctance to adopt it as is, in favour of locally determined amendments to bolster the model code where it is said to be lacking.   

Croydon’s Brick by Brick may require further Council borrowing

The London Borough of Croydon may lend more money to its housing company, Brick by Brick, following consideration of the Council’s capital programme by the Cabinet on 18 January 2020. The report stated that, ‘Further borrowing is likely to be required and this will be in line with value for money criteria and will be detailed and approved in future cabinet reports.’

The report comes as the Council issued a second s114 notice in December 2020.  As sole shareholder, it is for the Council to determine the future arrangements for BBB including future funding of the company, a programme of work that will take some time and which will require the Council to protect itself from exposure to additional risk in the meantime. This includes, as highlighted in the PwC report of November 2020, assisting BBB with its financial planning and resilience.

Legislation

The West Yorkshire Combined Authority (Election of Mayor and Functions) Order 2021 – Draft
This Draft Order provides for the establishment of a directly elected Mayor for the West Yorkshire Combined Authority (the “WYCA”) with the first election to be held on 6 May 2021 and amends certain governance arrangements of the WYCA. It also provides for certain functions of local and public authorities to be exercised by the WYCA, and for certain specified functions of the WYCA to be exercisable only by the Mayor.

The Parish and Community Meetings (Coronavirus) (Polls) (Amendment) (England) Rules 2020/1355
To postpone until 6 May 2021, or such date within 25 working days of that date as the returning officer chooses, all parish polls scheduled to be held from the day which the Rules come into force or that would otherwise be required before 6 May 2021. Coming into force on 31 December 2020.

Publications & Guidance

Liverpool City Council: Best Value Inspection (Updated)
Ministry of Housing, Communities & Local Government | 8 January 2021
Documents relating to the Secretary of State’s announcement of an inspection of Liverpool City Council’s compliance with its Best Value Duty. Updated to include letters of appointment to Mervyn Greer and Vivienne Geary (appointed as assistant inspectors on 7 January).

Complying with the UK’s international obligations on subsidy control: guidance for public authorities
Department for Business, energy & Industrial Strategy | 31 December 2020
Guidance for public authorities explaining the subsidies chapter of the Trade and Cooperation Agreement between the UK and the EU, World Trade Organisation rules on subsidies, and other international commitments.

Local Government Association Model Councillor Code of Conduct 2020
Local Government Association | 23 December 2020
This Code has been designed to protect our democratic role, encourage good conduct and safeguard the public’s trust in local government.

Assessing England’s 2021-22 Local Government Finance Settlement
Institute for Fiscal Studies | 21 December 2020
In this briefing note we examine plans for both core funding and top-ups for ongoing COVID-19 related costs, and look at some of the issues looming beyond next year. Of the £2.2bn (4.5%) increase in core funding projected for next year, less than £0.3bn is from the government. The other £1.9 billion is from increases in council tax bills of up to 5%, and assumes councils make full use of the allowable increases. Full report.

Government publishes response to audit review
Ministry of Housing, Communities & Local Government | 18 December 2020
The government has published its response to the independent review into the effectiveness of local audit which was carried out by Sir Tony Redmond earlier this year. The review, launched in July 2019, examined whether the reporting regimes are robust enough to spot early warning signs, such as risks from commercial investments, to protect public funds and better serve taxpayers. The response sets out how we will implement many of the recommendations made by Sir Tony Redmond, including swift action to ensure the ongoing effectiveness of the local audit system and improvements to make financial information more transparent.

Local authority financial reporting and external audit: government response to the Redmond review

Liverpool City Council: Best Value Inspection
Ministry of Housing, Communities & Local Government | 18 December 2020
Documents relating to the Secretary of State’s announcement of an inspection of Liverpool City Council’s compliance with its Best Value Duty.

Landmark devolution deal for West Yorkshire laid in Parliament
Ministry of Housing, Communities & Local Government | 17 December 2020
West Yorkshire reaches key milestone on the way to becoming a Mayoral Combined Authority as the Order for its multi-million-pound devolution deal was laid in Parliament. Subject to parliamentary approval, the region’s first ever Mayoral elections will go ahead on 6 May 2021. The newly elected Mayor and Mayoral Combined Authority will have control over an annual £38m investment fund as well as new powers over transport, education and housing and planning. The Mayor of West Yorkshire will also become the region’s Police and Crime Commissioner. The deal comprises control of a new, flexible single pot of funding for economic growth of £38m per year for 30 years, meaning that the Mayoral Combined Authority will have access to over £1.1bn in total to be invested into the region.

Provisional local government finance settlement: England, 2021 to 2022
Ministry of Housing, Communities & Local Government | 17 December 2020
This collection brings together all documents relating to the provisional local government finance settlement, 2021 to 2022. The local government finance settlement is the annual determination of funding to local government. It needs to be approved by the House of Commons. This collection covers the provisional local government finance settlement for 2021 to 2022. The final 2021 to 2022 settlement will be laid before the House of Commons in early 2021. This year has clearly been defined by the COVID-19 pandemic, and this year’s settlement should be seen alongside the Covid support we are providing local government.

LGA responds to provisional 2021/22 Local Government Finance Settlement
Local Government Association | 17 December 2020
Responding to the provisional Local Government Finance Settlement for 2021/22, Cllr James Jamieson, Chairman of the Local Government Association, said: “It is good to see that today’s provisional settlement provides extra money to meet COVID-19 costs, new funding for adult and children’s social care and for councils with responsibility for services such as homelessness, planning, recycling and refuse collection which will help meet cost and demand pressures next year. There is also the potential to increase council core spending power by up to 4.5% in 2021/22 to support vital local services. “However, more than 85% of the potential core funding increase next year is dependent on councils increasing council tax by up to 5% next year. This leaves councils facing the tough choice about whether to increase bills to bring in desperately needed funding to protect services at a time when we are acutely aware of the significant burden that could place on some households.

Nottingham City Council: rapid review
Ministry of Housing, Communities & Local Government | 17 December 2020
​The report details the findings of the rapid, non-statutory review into Nottingham City Council, which was led by Max Caller CBE. The Local Government Secretary’s response sets out how he will act on the recommendations in this report.

Unitary authorities: The role of parish and town councils
House of Commons Library | 16 December 2020
An overview of the responsibilities, locations and budgets of English parish and town councils. The Government recently invited local authorities in Somerset, North Yorkshire and Cumbria to submit proposals for restructuring. Restructuring can lead to the creation of larger local authorities, causing concerns they will be remote from the communities they serve. One route to allaying this fear is to strengthen the role of parish and town councils, which cover much smaller areas. Previous restructuring processes, such as in Durham, Wiltshire and Cornwall in 2008-09, stressed the importance of working with parish and town councils to strengthen their role and their community voice. But information about parish and town councils is not easy to find. This Insight gives an overview of where English parish and town councils are, their responsibilities and budgets.

Local government exit pay
Ministry of Housing, Communities & Local Government | 16 December 2020
A guide for local authorities for the interim period until MHCLG regulations come into force. The Restriction of Public Sector Exit Payments Regulations 2020 impose a cap of £95,000 on the payments which specified public sector bodies, including local authorities, can make in relation to employee exits. This document provides guidance on how the Ministry of Housing, Communities and Local Government will deal with applications for the relaxation of the restrictions from public sector employers in relation to employees who are eligible for membership of the Local Government Pension Scheme (LGPS) including LGPS employers who are also covered by the regulations.

Misconduct in Public Office
Law Commission | 4 December 2020
The final recommendations were published on 4 December 2020. The problems we identified throughout the consultation process led us to the view that the common law offence should not be retained in its current form. However, we also found that there was an ongoing need for offences that specifically target serious misconduct by public office holders. In our final report we recommend that the current offence should be repealed and replaced with two statutory offences:

  • An offence of corruption in public office: which would apply where a public office holder knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a “reasonable person”. A defendant to this offence will have a defence if they can demonstrate that their conduct was, in all the circumstances, in the public interest.
  • An offence of breach of duty in public office: which would apply where a public office holder is subject to and aware of a duty to prevent death or serious injury that arises only by virtue of the functions of the public office, they breach that duty, and in doing so are reckless as to the risk of death or serious injury.
    Full report and summary. Plus comment from Local Government Lawyer

Local authority financial sustainability and the Section 114 regime inquiry launched
Housing, Communities and Local Government Committee | 3 December 2020
The Housing, Communities and Local Government Committee has launched a new inquiry to examine the financial health of local authorities in England and the Section 114 regime. This inquiry will consider the scale and depth of financial sustainability issues within local authorities with the potential to lead to the issuing of s114 notices, including the effect of commercial investments and the impact of Covid-19, and the role of central government in helping councils avoid this outcome. The committee wants to hear your views. We welcome submissions from anyone with answers to the questions in the call for evidence. You can submit evidence until Friday 22 January 2021.

Public sector pay
House of Commons Library | 2 December 2020
This Commons Library Briefing Paper discusses public sector pay policy and the pay freeze announced in Spending Review 2020. It also looks at past public sector pay policy and trends in public sector pay. Full report

Northamptonshire County Council: seventh commissioners' report
Ministry of Housing, Communities & Local Government | 1 December 2020
Commissioners’ seventh report to the Secretary of State setting out the work they continue to carry out to ensure that the council is prepared for the restructure planned for 1 April 2021. The seventh commissioners’ report sets out the good progress made so far to put the council in good shape pending the restructure. The report acknowledges the need to meet the 1 November deadline for the establishment of a Children’s Trust, but notes the support of key players. Subsequently, the Trust was established on timetable. Subject to that concern, the commissioners take the view that the council is on track for its restructure which will coincide with the end of the intervention.

Unitary local government: An explainer
House of Commons Library | 24 November 2020
Unitary local authorities would replace multiple local authorities with a single local government in a given area.
In October 2020, Robert Jenrick, the Secretary of State for Communities and Local Government, invited councils in Cumbria, North Yorkshire and Somerset to submit proposals to create unitary authorities in those areas. Unitary local authorities would replace multiple local authorities with a single local government in a given area. This Insight explains the background to these invitations.

Rethinking governance for the 20s
Centre for Governance and Scrutiny | 24 November 2020
An update to the CfPS/LGA publication “Rethinking governance” (2014). A separate appendix is available which provides more details on the experience of individual councils embarking on governance change. Rethinking council governance for the 20s: learning from councils changing their formal governance option.

News

Monitoring officers give lukewarm response to LGA Model Code of Conduct, unlikely to recommend implementation: LLG
Local Government Lawyer | 8 January 2021
Monitoring officers have given a lukewarm response to the Model Code of Conduct issued by the Local Government Association last month, LLG (Lawyers in Local Government) has said. However, Quentin Baker LLG President, said: “It’s early days, but the model code is receiving a lukewarm response, with a number of monitoring officers saying that they will not be looking to implement it in their local authorities, firstly on the grounds that it is not as robust as the code they currently have in force, and secondly, there are concerns over whether it clearly and correctly mirrors the law with respect to councillors acting in a private capacity.

Councils call for clarity on whether 6 May 2021 elections will proceed
Local Government Lawyer | 7 January 2021
The latest lockdown has raised the possibility of elections due on 6 May being postponed, some of which are already delayed from May 2020. Voting is due for the Scottish Parliament, Welsh Senedd, the mayor of London, English county councils and various other English local elections and elected mayoralties. Local Government Minister Luke Hall is understood to have told councillors in an online briefing this week that there are no plans to postpone the May 2021 elections. He said guidance would be developed on delivering elections in pandemic conditions. The County Councils Network has demanded clarity on whether the elections will proceed.

The Brexit deal: financial implications for local government
Public Finance | 7 January 2021
Jonathan Carr-West, chief executive of the Local Government Information Unit, examines the potential financial impacts for councils of the post-Brexit agreement between the UK and European Union.

No third section 114 for Croydon this year
Public Finance | 5 January 2021
Cash-strapped London Borough of Croydon will not need to issue a third section 114 notice this financial year, after advice from CIPFA.

Councils’ core funding per resident set to drop below 2015-16 levels
LocalGov | 21 December 2020
Local authorities’ core funding per resident will be lower next year than 2015-16 despite real-term council tax increases of 16%, financial experts have calculated. The provisional Local Government Finance Settlement, announced on Thursday, set out an increase in core funding for English councils of up to £2.2bn (4.5%) next year, and highlighted £3bn of additional support for COVID-19 costs. However, according to the Institute of Fiscal Studies’ report Assessing England’s 2021-22 Local Government Finance Settlement the £2.2bn increase in core funding projected for next year, less than £0.3bn is from the Government. The remaining £1.9bn is from increases in council tax bills of up to 5%.

Secretary of State to send in governance and finance experts to Nottingham City Council
Local Government Lawyer | 18 December 2020
The Local Government Secretary has said the Government will appoint experts in governance and finance to a new Improvement and Assurance Board at Nottingham City Council. Robert Jenrick said the board would help the council deliver on the recommendations on governance and company ownership contained in a non-statutory review carried out by Max Caller. The council will be required to put forward its three-year recovery plan by the end of January 2021, setting out how it will improve its financial position and review its investments. The council must also submit progress reports to the Ministry of Housing, Communities and Local Government (MHCLG) on a quarterly basis.

Borough council calls in leading local government lawyer to review actions over £250m stadium loan
Local Government Lawyer | 10 December 2020
Woking Borough Council has appointed prominent local government lawyer Gifty Edila to conduct an independent review of its actions over a controversial stadium development in which it offered a developer a £250m loan. This followed a scrutiny report in the summer and the release this month of a 40-page redacted document that described the roles of individuals.

Croydon issues second Section 114 notice
LocalGov | 2 December 2020
Croydon LBC has issued a second Section 114 notice, having failed to balance its budget without assistance from the Government. Councillors were told in a meeting last night that Croydon still faced a shortfall of £66m at the end of the financial year, 21 days on from the chief finance officer Lisa Taylor issuing the a s114 notice for the first time. It means another notice must be issued, banning non-essential spending for a further 21 days. The council has pinned its hopes on agreeing a capitalisation direction with the Ministry of Housing, Communities and Local Government (MHCLG), as a report to the council stated it ‘does not have the required level of savings options or remedies available to it in order to balance its budget in 2020/21’.

Croydon council's bankruptcy is a warning for the UK government 
Institute for Government | 26 November 2020
Croydon’s bankruptcy shows the problems of delaying decisions on local government funding, says Graham Atkins, who warns that councils will be searching for savings when they should be focusing on responding to the pandemic.

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Contract Management

What is the practical impact on day-today procurement processes?

We have been asked what the practical impact is on day-to-day procurement processes following the expiry of the Brexit transition period on 31 December 2020 and the EU-UK Trade and Cooperation Agreement (TCA).

The short answer is that the single biggest change is the requirement on contracting authorities to use the UK’s Find a Tender Service (FTS) to publish notices which would previously have been sent to and published in the Official Journal of the European Union (OJEU). The circumstances when such notices need to be despatched and published and the types of notices remain the same, with some minor tweaks in content.

There are other changes to the procurement legal framework as a consequence of the end of the transition period and the TCA deal, but most are likely to be of far less immediate impact on the conduct of procurement. The aim has been to maintain a “steady state”, with minimal changes to the procurement legal framework, at least in the short term. This is because in the medium to long term there will be a potentially radical overhaul of the procurement framework, in both practical and legal terms. The proposed changes are currently the subject of public consultation on the procurement Green Paper, “Transforming Public Procurement” (see article below).

Changes to the Public Contracts Regulations 2015

The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 SI 1319 (“PP Amendment Regulations 2020”) amend the Public Contracts Regulations 2015 (“PCR”), Concession Contracts Regulations 2016 and Utilities Contracts Regulations 2016, as well as other legislation requiring incidental changes, including the Public Services (Social Value) Act 2012. The focus of this note is on the PCR.

Most of the provisions in the PCR remain the same. The PP Amendment Regulations 2020 bring the PCR into line with the legal position following expiry of the Brexit transition period and the agreement of the TCA[1]. We note a few examples below, to give you a flavour of many of the changes:

  • there has been a partial purge of EU-specific references and provisions; with references to advertising in the OJEU removed and replaced with references to the “UK e-notification service” – Find a Tender Service – and renaming of the European Single Procurement Document (ESPD) as the Single Procurement Document (SPD)
  • requirements to submit reports to the European Commission on request now refer to submission to the Cabinet Office (where relevant)
  • the ground for mandatory exclusion for fraud relating to EU funds (PCR 57(1)(e)) has been deleted
  • references to professional or trade registers in Member States have been removed (for example, PCR 58(5))
  • grounds for rejection of Abnormally Low Tenders in the case of unlawful State Aid have been removed (PCR 69(6)(7)) to reflect the repeal of EU State Aid law and replacement with a new subsidy control regime in the UK.
Amendments will not apply to procurements already under way

The PP Amendment Regulations 2020 include provisions (“saving provisions”) covering situations where procurements were already under way, but not yet finalised, on Implementation Period (IP) completion day (11pm on 31 December 2020).

Put simply, where a procurement procedure was launched but not finalised at IP completion day, the PCR will apply as if unamended by the PP Amendment Regulations 2020 or by subsequent amendments to the PCR.  The award of contracts/call-offs under framework agreements already in place on IP completion day are also unaffected by the amending provisions.

We have provided more detail on these saving provisions in an earlier article.

Legislation

The Public Procurement (Amendment etc.) (EU Exit) Regulations 1319/2020
These Regulations revoke and replace the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/560 – “the first exit SI”) and the Public Procurement (Amendment etc.) (EU Exit) (No. 2) Regulation 2019 (S.I. 2019/623 – “the second exit SI”) which amended the first exit SI. As a result, the revoked Regulations will not come into force. These Regulations are made partly in exercise of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018 (c. 16) (“the 2018 Act”) in order to address failures of retained EU law to operate effectively and other deficiencies (in particular under paragraphs (a), (b), (d), (e), (f) and (g) of section 8(2)) arising from the withdrawal of the UK from the European Union. Many of the provisions in these Regulations are unchanged from the first exit SI (as amended by the second exit SI), but additional deficiencies are addressed and some of the original provisions are changed. Except for regulations 2, 7, 9, 11 and 26, these Regulations come into force on IP completion day. Regulation 2 comes into force on the day after the day on which these Regulations are made. Regulations 7, 9, 11 and 26 come into force 12 months after the day on which IP completion day falls.

Publications & Guidance

Law society publishes Q&A on electronic signatures
Law Society | 6 January 2021
The Law Society has published a Q&A on the use of electronic signatures in commercial law matters.  The session covers questions in relation to witnessing, methods of electronic signature, company board minutes and articles of association.

Complying with the UK’s international obligations on subsidy control: guidance for public authorities
Department for Business, Energy & Industrial Strategy | 31 December 2020
Guidance for public authorities explaining the subsidies chapter of the Trade and Cooperation Agreement between the UK and the EU, World Trade Organisation rules on subsidies, and other international commitments.

Minor Update to PPN02/20 webpage
Cabinet Office | 12 January 2021
The Cabinet Office has updated the webpage hosting “Procurement Policy Note 02/20: supplier relief due to coronavirus (COVID-19) to remind contracting authorities to refer to “Procurement Policy Note 04/20: Recovery and Transition from COVID-19”.  PPN04/20 had built on the provisions of PPN02/20 but, whilst transition/exit plans entered into under that guidance may still be ongoing, the PPN itself had expired on 31 October.

Green Paper: Transforming public procurement
Cabinet Office | 15 December 2020
The proposals in this Green Paper are intended to shape the future of public procurement in this country for many years to come. The government’s goal is to speed up and simplify our procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery. This consultation closes at 11:45pm on 10 March 2021. And Cabinet Office announcement New plans set out to transform procurement, providing more value for money and benefitting small business

Procurement Policy Note 11/20: Reserving below threshold procurements
Cabinet Office | 15 December 2020
This procurement policy note set out the options that may be considered by Contracting Authorities when procuring contracts for goods, services and works with a value below the applicable thresholds.

Procurement Policy Note 10/20: Public Procurement after the Transition Period ends on 31 December 2020
Cabinet Office | 10 December 2020
This Procurement Policy Note (PPN) provides information on how the public procurement regulations will be affected after the end of the Transition Period on 31 December 2020.

Procurement Policy Note 09/20: The Construction Playbook
Cabinet Office | 8 December 2020
This Procurement Policy Note sets out guidance on the Construction Playbook, which sets out 14 key policies for how the government should assess, procure and deliver public works projects and programmes. It outlines the government’s expectations in how contracting authorities and suppliers, including the supply chain, should engage with each other. The Construction Playbook will be assured through existing governance arrangements including Cabinet Office controls for in-scope projects and programmes.

Public-sector procurement from 1 January 2021
Cabinet Office | 27 November 2020
Information for public authorities, businesses and other organisations on the outcome for public procurement policy from 1 January 2021. Guidance updated with information about the Find a Tender (FTS) service. From 1 January 2021 this will be used to post and view public sector procurement notices.

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Disputes & Regulatory Support

Inspecting the “soft estate”

On 18 December 2013, a 17m tall lime tree collapsed from the central verge of the A45 into the path of a car, injuring the Claimant motorist and passenger. The Court found that Highways England was liable, because an inadequate system of tree inspection had failed to identify the foreseeable risk of the tree’s failure.

At the trial the Court rejected the argument the statutory duty to maintain the highway under s41 of the Highways Act 1980 applied to inspections of the tree. The tree was not an extension, integration or simulation of the fabric of a highway.  Instead it was part of the soft estate of the highway. The court accepted that if s41 had engaged, then the burden of proof would have been on Highways England to establish the s58 statutory defence, and the Claimant would not have needed to prove causation.

The common law duty in negligence and nuisance in relation to trees is detailed in the cases of Cavenagh v Witley Parish and Stagecoach South Western Trains v Hind. There is a duty to carry out regular visual inspections of trees to identity, and then make safe, observable dangers. In some cases, depending on the risk and available resources, a fuller inspection by an arboriculturalist would be required.

Comparisons were drawn in the current claim with Witley Parish Council, where a large mature tree had collapsed onto a bus, causing severe injuries to the driver.  The tree was in a high-risk zone and presented a significant potential hazard. The Court concluded that the Council should have conducted inspections every two years, not three years as was their practice. 

In the current case the court found that Highways England was in breach of its common law duty. The three-year inspection interval was insufficient. A driven inspection by a qualified arboriculturalist, which took place on 19 February 2013, was not carried out in a manner which was either competent or adequate. The tree was old, in a dangerous position, susceptible to infection, liable to become unstable, and likely to cause significant damage if it failed. 

Low-level shoots should have been cleared as part of a walked inspection. Fruiting bodies of a fungus would have been identified, which rendered the offending tree unstable.  The danger would have been removed, probably by having the tree felled.

The court also drew adverse inferences from the fact the contractor who undertook the inspection on 19 February 2013 was not available as a witness.  

The court recognised the compelling biodiversity and aesthetic reasons to have our main carriageways lined with trees, although they can also present a hazard to road users.

The case of Calor and Singh v Highways England acts as a reminder to public authorities of the need to implement, and document in detail, a system of inspection of their trees, which properly takes into account the risks posed by reference to the size, location and particular characteristics of the trees.  Public authorities may have to consider conducting more frequent and detailed inspections of large roadside trees. This is no doubt challenging, given the competing demands on resources.

News

Judicial review over exit pay cap regulations to be heard in second half of March
Local Government Lawyer | 8 January 2021
The High Court is to hear the judicial review challenge being brought by LLG (Lawyers in Local Government) and ALACE (the Association of Local Authority Chief Executives and Senior Managers) over the Exit Payment Cap Regulations in the second half of March. LLG confirmed that a two-day hearing had been listed for the week commencing 18 March or the week after. Last month a High Court judge gave the two organisations permission to bring their challenge.

Deputy High Court judge criticises council over handling of judicial review challenge to housing allocation scheme
Local Government Lawyer | 5 January 2021
A recent judicial review case over decisions made by a council in relation to the allocation of rented housing was “an object lesson in how a public body should not respond to public law proceedings”, a Deputy High Court judge has said. In Nur & Anor, R (On the Application Of) v Birmingham City Council [2020] EWHC 3526 (Admin) David Lock QC said: “The council have failed properly to engage in the proceedings, appear to have misunderstood the nature of public law proceedings and, when it finally started to engage with the issues at a very late date, completely misunderstood the duties on it as a public body.

Local authority ordered to withdraw charging policy for council-provided care
Local Government Lawyer | 22 December 2020
A 24-year-old woman with Down Syndrome has won a judicial review claim over the decision by a county council to change the basis on which it calculated the charges made to her for council-provided care. SH claimed that the change, which substantially increased those charges, indirectly discriminated against her as a severely disabled person in breach of her rights under the Human Rights Act 1998, the European Convention on Human Rights and the Equality Act 2010.

County facing legal challenge over decision to respond as statutory consultee - in capacity as highways authority - to application for planning permission
Local Government Lawyer | 22 December 2020
The High Court has granted permission to judicially review the decision of Norfolk County Council to formally respond as statutory consultee, in its capacity as highways authority, to an application for planning permission, it has been reported. The application was submitted by Ben Burgess Ltd to South Norfolk District Council for the development of a new operational headquarters.

High Court gives green light for judicial review over exit payment cap regulations
Local Government Lawyer | 22 December 2020
A High Court judge has given LLG (Lawyers in Local Government) and ALACE (the Association of Local Authority Chief Executives and Senior Managers) permission to bring a judicial review challenge over the Exit Payment Cap Regulation.

Council wins High Court private law claim against NHS clinical commissioning group over costs of care for young man with autism
Local Government Lawyer | 22 December 2020
A county council has successfully brought a private law claim in restitution against a clinical commissioning group ("CCG"), to recover sums paid by the local authority for the costs of accommodation and care of a young man with autism spectrum disorder.

London borough criticised for not saying sorry
Local Government & Social Care Ombudsman | 15 December 2020
The London Borough of Harrow has been criticised by the Local Government and Social Care Ombudsman for failing to properly remedy a complaint by apologising to a resident. And comment from Local Government Lawyer.

Housing association and phone masts businesses ordered to pay own way in dispute where legal costs reached £450k
Local Government Lawyer | 10 December 2020
Social landlord London & Quadrant Housing Trust and phone masts firm Cornerstone Telecommunications Infrastructure have each been ordered to pay their own costs after a lengthy dispute that ran up a total bill of £450,000. The Upper Tribunal (Lands Chamber) said in Cornerstone Telecommunications Infrastructure Ltd v London & Quadrant Housing Trust (ELECTRONIC COMMUNICATIONS CODE - COSTS) [2020] UKUT 341 that neither side could be considered more successful than the other. L&Q incurred £150,000 in costs and Cornerstone £300,000.

Keeping accountability: judicial review and the Independent Review of Administrative Law
The Law Society | 18 November 2020
Hazel Blake, our policy adviser for domestic human rights, constitutional and administrative law, takes an in-depth look at the Independent Review of Administrative Law.

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Resource Library

All Bevan Brittan articles and news
Bevan Brittan COVID-19 Insight Information Hub


WEBcasts

ON DEMAND - New year, new immigration system…an overview of the UK’s point based immigration system
ON DEMAND - Legal Review Series - Data Protection
ON DEMAND - Legal Review Series - Property and Construction
ON DEMAND - Legal Review Series - Commercial, Projects and Contracts
ON DEMAND - Legal Review Series - Corporate, Insolvency and Finance
ON DEMAND - Legal Review Series - Disruptive factors in 2020 (and beyond)

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Events

Webinars

All forthcoming webinars

The Essential Housing Update
Monday 8 February: 14.00 - 15.00
REGISTER

State aid to subsidy control
Wednesday 10 February: 10.00 - 11.00
REGISTER

Mental Health Law Update: The Government’s Response
Friday 12 February: 10.00 - 11.00
REGISTER

A landscape of change: Planning for the Future - planning policy changes in England and future reforms
Thursday 18 February 2021: 10.00 - 11.00
REGISTER

LLG Talking Procurement series - Procurement & Frameworks
Tuesday 23 February: 14:00 - 15:00
REGISTER

The practical guide to ESG
Wednesday 24 February: 11.00 - 12.00
REGISTER

Immigration update for higher education employers
Thursday 11 March: 11.00 - 11.45
REGISTER

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12 Questions of Christmas

How many answers did you get right in our Christmas Quiz?  Find out below:

  1. Can you name the current Permanent Secretary at MHCLG?
    • Jeremy Pocklington
  2. Can you name three of Solace’s Policy Board themes?
    • Heath and Social Care
    • Children and Families
    • Civil Resilience & Community Safety
    • Elections & Democratic Renewal
    • Digital Leadership
    • Leadership & Learning
    • Finance
    • Economic Prosperity
    • Infrastructure & Planning
    • Housing
    • Environment & Climate Change
  3. Who is the Chief Executive of Lawyers in Local Government?  
    • Deborah Evans
  4. Can you name any three locations of the seven Nightingale Hospitals set up in England? 
    • ExCeL London
    • National Exhibition Centre, Birmingham
    • Manchester Central Convention Complex, Manchester
    • UWE Bristol Exhibition and Conference Centre, Bristol
    • Harrogate Convention Centre, North Yorkshire
    • Centre of Excellence for Sustainable Advanced Manufacturing, Sunderland
    • Former Homebase store, Exeter
  5. How many of the ten themes in the Prime Minister’s ‘Ten Point Plan’ for the Green Industrial Revolution can you name?
    • Point 1: Advancing offshore wind
    • Point 2: Driving the growth of low carbon hydrogen
    • Point 3: Delivering new and advanced nuclear power
    • Point 4: Accelerating the shift to zero emission vehicles
    • Point 5: Green public transport, cycling and walking
    • Point 6: Jet zero and green ships
    • Point 7: Greener buildings
    • Point 8: Investing in carbon capture, usage and storage
    • Point 9: Protecting our natural environment
    • Point 10: Green finance and innovation
  6. Which three areas were invited to submit proposals for local government reorganisation this year?
    • Cumbria
    • Somerset
    • North Yorkshire
  7. Which two councils were unfortunately the subject to cybercrime hacking this year?
    • Hackney
    • Redcar & Cleveland Borough Council
  8. What are the names of the two unitary councils to be created to replace Northamptonshire County Council?
    • West Northamptonshire unitary council (serving the areas of Daventry District, Northampton and South Northants)
    • North Northamptonshire unitary authority (serving Wellingborough, Kettering, Corby and East Northants)
  9. Which council officially launched its Children’s Trust in November 2020? 
    • Northamptonshire
  10. What was the name of the review carried out on local authority financial reporting and external audit that reported in September and recommended an overhaul including a new regulatory body?
    • Redmond review
  11. The Spending Review introduced the Levelling Up Fund; how much can be bid for an individual project?  
    • £20m
  12. Which local authority recently won ‘Smart City of the Year 2020’?
    • Sunderland

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