Authority Update

This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the two weeks up to21 February 2014. Items are set out by subject, with a link to where the full document can be found on the internet.

21/02/2014

Claire Booth

Claire Booth

Professional Support Lawyer

This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the previous two weeks. Items are set out by subject, with a link to where the full document can be found on the internet.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

All links are correct at the date of publication. The following topics are covered in this update:

   Adult Social Services    Finance
   Anti Social Behaviour    Land and Commons Registration
   Byelaws    Libraries
   Children's Services    Planning 
   Delivery of Services    Police
   Economic Development    Rating
   Education    Regulatory Services
   Elections    Traffic and Transport
   Emergency Planning    Welfare Reform
   Equality and Discrimination

Adult Social Services

Draft Contracting Out (Local Authorities Social Services Functions) (England) Order 2014: this draft Order, which is scheduled to come into force on 1 April 2014, allows the local authorities currently contracting out specified adult social care functions in the Social Work Practice (SWP) pilot scheme to continue such arrangements lawfully until the implementation of the Care Bill. It also extends such powers to other English local authorities. The Care Bill, once enacted, will give local authorities the power to delegate certain statutory functions along the same lines as the powers conferred on the SWP pilot sites. This Order therefore allows other local authorities to begin to make arrangements for delegation in a manner which is consistent with the powers that will be conferred on them by the Care Bill. (14 February 2014)

HC Health Committee:  Public expenditure on health and social care: this is the Select Committee's fourth annual review of the implications on the Government’s spending plans for health and care services, looking at the financial situation of the health and care system with commentary on how best to utilise resources to meet demand. It finds that while the straightforward savings have been achieved, there has not been the transformation of care on the scale which is needed to meet demand and improve care quality. The successful integration of high-quality health and care services represents a substantial and growing challenge, which is not helped by the current fragmented commissioning structures. As Health and Wellbeing Boards have been established to allow commissioners to look across a whole local health and care economy, their role should be developed to allow them to become effective commissioners of joined-up health and care services. It also recommends that the current level of real terms funding for social care should be ring-fenced. The Committee warns that without stronger commissioners and ring-fenced health and care funding, there is a serious risk to both the quality and availability of care services to vulnerable people in the years ahead. It also considers other issues, such as competition, pay restraint, and trusts and foundation trusts. (12 February 2014)

London Councils: London facing £17million Care Bill shortfall: London Councils, which represents all 32 London boroughs and the City of London, has issued figures that show boroughs need around £90m to prepare for the new adult social care system under the Care Bill, which comes into force in part from April 2015. Costs include delivering additional care user assessments, setting up and managing care accounts, providing information and advice and handling deferred payments. The new estimates by London Councils reveal the capital is likely to receive £72.75m in 2015/16, leaving each borough with a potential £500,000 shortfall as a minimum. (12 February 2014)

DH: Rescare's campaign on funding for social care services – DH's response: Rescare (Residential Care in Intentional Village Communities) recently undertook a campaign on social care services in intentional village communities asking for the for a change to government policy, which it perceives favours supported living arrangements over care in residential villages. This is DH's response to that campaign: it states that, when considering changes to residential care provided directly by them, local authorities must take into account the welfare and wishes of residents and staff of the relevant residential homes, and the needs and wishes of their local populations. Councils should develop a wide range of housing options in their areas; over time, this is likely to mean fewer residential care places and an increase in supported living options as people take up the new choices available to them. (14 February 2014)

R (Walford) v Worcestershire CC; Secretary of State for Health (Interested Party) [2014] EWHC 234 (Admin) (Admin Ct): W applied for judicial review of the Council's decision to uphold its reversal of a previous decision to disregard a property, owned by W's elderly mother (M), in calculating M's ability to pay care home charges. W contended that M's house was her home and so should be disregarded under the National Assistance (Assessment of Resources) Regulations 1992, which provided that property owned by care home residents was to be disregarded where it was occupied in whole or in part as their home by a relative of the resident who was aged 60 or over. W stated that she had grown up there; since she became an international theatre director, she had made temporary homes in many places in the UK and abroad but she had always regarded M's house as her home and many of her belongings were housed there. W also rented a flat in London and was registered there for council tax purposes. The Council, in its decision letter, stated that the house could not be disregarded as it was never inhabited by W as her main home, but more as a holiday home. It did not accept that W was permanently resident at the property at the time M entered long term care. W contended that the Council had incorrectly interpreted and applied the statutory test of whether the house was "occupied in whole or in part [by W] as [her] home" as it had equated it with the question of whether it was her sole or main residence. She also submitted that in reaching its decision, the Council had failed to have regard to relevant considerations and/or had regard to irrelevant considerations.
The court held, granting W's application and quashing the decision, that:

  • "home" in Sch.4 para.2(1)(b) to the Regulations was to be read as "only or main home". "Home" was a place to which a person had a degree of attachment both physical and emotional. Any determination of "home" required a qualitative and a quantitative assessment;
  • the Council appeared to have applied a test of actual occupation and/or permanent residence, which was an incorrect interpretation and application of the legal test; 
  • a decision as to whether or not to grant a disregard could be reviewed whenever there was a change of circumstances and the Council had erred in interpreting the Regulations as requiring it only to review the position that pertained at the time M went into long term care;
  • the Council had failed to take into account relevant matters by failing to consider W's evidence; however, it was not obliged to conduct any comparative analysis of the character of W's attachment to M's house as opposed to her London flat; and
  • it  did not take into account irrelevant matters when reaching the decision it did as to the position prior to M going into long term care.

The judge remitted the issue of whether M's house should be disregarded in calculating M's ability to pay care home charges to the Council for re-determination. (10 February 2014)

R (Cornwall Council) v Secretary of State for Health;  Wiltshire Council, South Gloucestershire Council & Somerset CC (Interested Parties) [2014] EWCA Civ 12 (CA): C Council appealed against the decision that PH was "ordinarily resident" in Cornwall for the purposes on the National Assistance Act 1948 so that C Council was under a duty to provide care and assistance to PH under that Act. PH was born with significant learning and physical disabilities. He lived in Wiltshire with his parents until 1991, when W Council placed him with foster carers in South Gloucestershire. His parents then moved to Cornwall but they remained closely involved in decisions affecting him and had regular contact with him. After PH reached 18, he moved to a care home in Somerset that was funded by W Council. He visited his parents in Cornwall and had no remaining close family ties with Wiltshire. W Council and C Council disagreed over responsibility for PH once he became 18 and they asked the Secretary of State (SoS) to determine his ordinary residence. The SoS found that PH was ordinarily resident in Cornwall, applying the test in R v Waltham Forest LBC, ex p. Vale (Times, 25 February 1985) that where a person was so severely handicapped as to be totally dependent upon a parent or guardian, that person was in the same position as a small child and their ordinary residence was that of her parents or guardian because that was their base. The High Court held, refusing the application, that the SoS's determination that PH had as his base his parents' home as at the date of his 18th birthday, and hence was ordinarily resident in Cornwall, was one that was properly open to him. C Council appealed, contending that the SoS had misdirected himself in law in wrongly applying the first test in Vale, and had reached a perverse conclusion not properly available to him on the facts.
The CA held, allowing the appeal, that the SoS did misdirect himself in law and his decision could not stand. On the facts of Vale, the decision was right in that case; however, the position was more complicated when the parents had delegated the care of the incapacitated child to others - the child may then acquire what the judge described as a "second ordinary residence". But for the purposes of attributing liability, there could only be one place of ordinary residence since only one authority was ultimately responsible for providing the relevant care and attention; and the SoS had to identify which area most satisfied the ordinary residence test. Here, he had applied the test in Vale without proper consideration of PH's actual residence. The words "ordinary residence" should, unless the context indicated otherwise, be given their ordinary and natural meaning. The effect of applying the Vale test without any real regard to the actual place of residence was that PH was found to be ordinarily resident in a house which had never been his residence and was not a suitable place for him to reside. The occasional visit to his parents for holidays did not begin to justify a conclusion that he resided with them, let alone that it was his place of ordinary residence. Where a vulnerable adult had as a matter of fact been living in one place and only one place for many years, that would almost inevitably compel the conclusion that it was his ordinary place of residence. It was not legitimate to avoid that common sense conclusion by the application of an artificial rule which effectively gave no weight to the fact of residence at all. (18 February 2014)

If you wish to discuss any of the items noted in this section please contact Olwen Dutton.

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Anti Social Behaviour

Home Office: Local alcohol action areas: gives details of the 20 areas across England and Wales that have been established as local alcohol action areas, in which local licensing authorities, health bodies and the police will come together with businesses and other organisations to address problems being caused by alcohol in their area. They will also look at promoting diverse night time economies. (13 February 2014)

If you wish to discuss any of the items noted in this section please contact Adam Kendall

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Byelaws

Welsh Government: Local Government Byelaws (Wales) Act 2012 – Implementation: the 2012 Act reforms the procedures for making byelaws in Wales, removing a requirement for the Welsh Ministers to confirm byelaws and enabling certain byelaws to be enforced by fixed penalty notices. This consultation seeks views on regulations and guidance for local authorities under the Act. The consultation closes on 11 February 2014. (17 February 2014)

If you wish to discuss any of the items noted in this section please contact Olwen Dutton.

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Children's Services

DfE: Court orders on family law: seeks views on changes to the statutory guidance on the Children Act 1989 relating to public and private family law orders, which is being updated in light of the Children and Families Bill. The Bill, once enacted, simplifies the court system so that the majority of family cases are heard by a single Family Court. (12 February 2014)

DfE: The regulation of childcare consultation – Government response: summarises the responses to the July 2013 consultation and explains the Government’s decisions on the proposals to simplify the childcare registration system and strengthen the safeguarding and welfare requirements. The Government intends to amend the necessary regulations in April 2014 with a view to them coming into force in September 2014 so as to expand the supply of flexible and affordable childcare provision to meets the needs of working parents, while promoting quality. (13 February 2014)

DfE: Making the education of social workers consistently effective: Sir Martin Narey was asked to review the initial education of children’s social workers, focusing on the extent to which reforms from recent years had impacted on basic training and whether there were improvements that still needed to be made. This report finds that social work training can be dominated by an emphasis on inequality, empowerment and anti-oppressive practice. He concludes that entry demands are not high enough, the system of endorsement of courses is insufficiently rigorous, and the content of those courses too generic. The result is a failure to protect the most vulnerable children in our society. The DfE accepts accept Sir Martin’s recommendation to set out, in one place, what a newly qualified children’s social worker needs to understand, based first on a definition of what a children’s social worker is. (13 February 2014)

Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) (Fam D): in care proceedings regarding the removal of a newborn child from its mother, the court held that it was unacceptable for an 'independent' expert to be instructed to conduct a scant inquiry in preparation for a hearing which was to have such wide ranging consequences for the child. The clinical psychologist in this case had been asked, and was prepared, to provide a report during the course of a single working day, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother. The court could not understand how the expert's apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her. In the frenzy of activity which preceded the first hearing, there was too much local authority emphasis upon securing an expert opinion to support removal from the mother and too little focus upon ensuring a just and fair assessment process. Justice must never be sacrificed upon the altar of speed.
Furthermore, the court was alarmed by the manner in which the justices' Findings of Fact and Reasons were compiled. It seemed to have become the norm for the local authority to provide draft 'Facts and Reasons' for every public law hearing, with such documents being sent electronically, but the Family Proceedings Court did not expect or require that such draft documents were circulated to the parties in advance of the hearing. Just because there might be tacit acceptance on the part of many professionals within the family justice system that this practice existed, that did not mean it was right. It was patently wrong, must stop at once and never happen again. In public law proceedings the local authority was the applicant; it was not and should never be seen as the decision maker – that was the role of the court. There was no scope for any dilution of that most fundamental concept. (13 February 2014)

If you wish to discuss any of the items noted in this section please contact Clare Taylor.

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Delivery of Services

IPPR: Many to many – How the relational state will transform public services: this report  argues that although public services have improved substantially in the last two decades, the use of either centralised targets or market mechanisms is unlikely to deliver the kinds of reforms needed to secure further real efficiencies in the future or tackle the more complex problems public services now have to deal with. It proposes a new ‘relational state’ agenda for public service reform that would address complex problems holistically, provide more intensive and personalised engagement at the frontline of service delivery, and empower and engage citizens. To be effective, this will require a decentralisation of budgets to local authorities and city regions to unlock innovation, improve responsiveness and break down silos, greater pooling of funding so services can take a ‘whole person’ or ‘whole area’ view and more effectively tackle complex problems, greater integration of professionals from across different sectors in multi-disciplinary teams and the expansion of new collaborative arrangements, such as school chains so that providers can share knowledge and learn from innovation. (12 February 2014) 

Cabinet Office: Mutuals Support Programme – 2 years on: highlights how the Programme is helping more public servants to form mutuals and the new ‘rights to provide’ that have been put in place so that public servants who want to form mutuals can do so. The press release gives examples of successful public service mutuals that are changing the way in which public services are delivered. (19 February 2014)

Welsh Government: Report of the Welsh Co-operative and Mutuals Commission: this  report sets out 25 recommendations on creating a culture and environment in which cooperative ways of doing business are the norm, not the exception. It states that Wales needs to embrace the cooperative and mutual business model to achieve a real improvement in social and economic wellbeing. The report’s recommendations cover: how to integrate co-operatives and mutuals into education; government business advice and support; investment finance; planning; and public procurement. It also makes a number of recommendations on how the Welsh Government can encourage innovation amongst cooperative enterprises and how the cooperative and mutual movement can increase its voice, influence and capacity. (21 February 2014)

If you wish to discuss any of the items noted in this section please contact Olwen Dutton.

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Economic Development

DCLG: Draft Combined Authorities Orders: DCLG has laid three draft Orders under Part 6 of the Local Democracy, Economic Development and Construction Act 2009, that establish a Combined Authority to exercise transport, economic development and regeneration functions across each of the areas concerned: 

The draft Combined Authorities (Consequential Amendments) Order 2014 amends Part 2 of the Transport Act 1968 as a result of the making of these Orders establishing combined authorities. The Orders are all scheduled to come into force on 1 April 2014. (14 February 2014)

R (Rotherham MBC and Liverpool City Council) v Secretary of State for Business, Innovation and Skills [2014] EWHC 232 (Admin) (Admin Ct): the claimants were local authorities within the Sheffield City Region LEP and within the Liverpool City Region LEP. They applied for judicial review of the Secretary of State's (SoS) decisions relating to the regional allocation of EU Structural Funds for the period 2014 – 2020 as between the four countries of the UK and as between the regions. They contended that the decisions were irrational, unfair and disproportionate as the methodology did not protect them from the effects of sudden and significant cut backs while similarly placed based regions in Scotland and Northern Ireland had been so protected. They also claimed that the SoS had failed to comply with the Public Sector Equality Duty (PSED) prior to making either of the two decisions.
The court held, granting the application in part, that the first decision regarding allocation between the four UK countries was a socio-economic decision which, given the margin of discretion, was rational and permissible. The SoS was entitled not to take into account the EU average GDP per capita measure, and was entitled to adopt the approach he did. Regarding the second decision concerning allocation between the regions, this was not irrational nor a breach of principle because there was no material difference of treatment. The SoS’s decision to treat the claimants and the other transition regions the same in 2014-2020, despite the fact that their 2013 funding allocations had been arrived at via a different route, was entirely justified. The SoS was entitled to adopt a single rule - the fact that this resulted in hard cases such as the claimants did not mean that a single criterion was not permissible .
Regarding the PSED, the SoS's decisions fixed the individual allocation for each region and were in no sense preliminary or provisional. The fact that the individual regions would themselves have to consider the PSED when deciding how to use the funds allocated to them could not absolve the SoS from the PSED; nor could an equality impact assessment carried out by DBIS after the event save the decision making. (7 February 2014)

If you wish to discuss any of the items noted in this section please contact Mark Calverley.

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Education

DCMS: Funding for primary school sports: gives details of the Primary PE and Sport Premium, and a fund for primary schools to improve outdoor spaces for PE and sport activities. The Prime Minister has also announced an additional £11m investment for the School Games to help continue to inspire more young people to take up competitive sport. (7 February 2014)

DfE: Key stage 2 monitoring visits 2014 – Guide for local authorities: explains how local authorities should carry out monitoring visits to schools administering the Key Stage 2 English reading test, English grammar, punctuation and spelling test and mathematics tests. Local authorities will not monitor the science sampling tests. (11 February 2014)

DfE: Health and safety – Advice for schools: updated guidance on the existing health and safety law relevant to schools, explaining how it affects local authorities, governing bodies, headteachers and other school staff. It covers activities that take place on or off school premises, including school trips. Advice on driving school minibuses is now provided separately. The advice replaces a number of guidance documents on health, safety and security in schools, including Health and Safety: Responsibilities and Powers (2001) and Health and Safety of Pupils on Educational Visits (HASPEV 1998). (13 February 2014)

DfE: Searching, screening and confiscation – Advice for schools: advice for school leaders, school staff, governing bodies and local authorities on schools’ powers of screening and searching pupils. In particular, it explains the use of the power to search pupils without consent and the powers that schools have to seize and then confiscate items found during a search. It includes statutory guidance to which schools must have regard. (14 February 2014)

DfE: 16 to 19 Bursary Fund audit guide for the 2013 to 2014 academic year: updated guidance from the Education Funding Agency outlines 16 to 19 bursary funding during the 2013 to 2014 academic year and sets out audit approach to provide local authorities with assurance that an appropriate system of funding administration controls is in place. (18 February 2014) 

If you wish to discuss any of the items noted in this section please contact Clare Taylor.

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Elections

Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2014 (SI 2014/370): these regulations amend SI 2007/1024 regarding the procedure for mayoral elections. They come into force on 6 April 2014 but only apply to elections that are held after 21 May 2014. (13 February 2014)

If you wish to discuss any of the items noted in this section please contact Olwen Dutton.

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Emergency Planning

DCLG: UK floods 2014 – Government response: this web page links to advice and information about the winter storms causing extensive flooding in parts of the UK. It includes details of the package of new measures to help homes, businesses and farmers hit by the floods, and support for local authorities for  repair and maintenance of transport networks. (20 February 2014)

The Communities Secretary has announced changes to the Bellwin scheme: the Government will now pay 100% of the costs incurred above the threshold, rather than the usual 85%, and the threshold has been reduced for all county councils and unitary authorities to make it easier for them to claim Bellwin support. A large proportion of these Bellwin payments are to be made available now, rather than waiting until the situation has cleared up. There is a new claim form for local authorities and guidance on the draft terms under which the Secretary of State is prepared to make available emergency financial assistance under s.155 of the Local Government and Housing Act 1989, in relation to dealing with the flooding in local authorities' areas from 5 December 2013 to 13 February 2014. (13 February 2014)

Public Health England has published guidance for the public on how to clean up their homes safely if they have been flooded. (14 February 2014)

If you wish to discuss any of the items noted in this section please contact Olwen Dutton.

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Equality and Discrimination

Hamnett v Essex CC [2014] EWHC 246 (Admin) (Admin Ct): H applied for judicial review of two experimental Traffic Regulation Orders (TROs) made by the Council under the Road Traffic Regulation Act 1984. The effect of the TROs was to prevent private cars from driving in to park on the High Street in Colchester and also a neighbouring street. As a result, parking spaces for Blue Badge holders were removed from those streets and the Council sought to provide an additional 32 parking spaces for disabled people in other parts of the town. The TROs were introduced in March 2013 but were suspended a month later, although some elements were still in force. H, who had a number of disabilities and who was unable to walk any significant distance without aid, contended that the TROs were ultra vires as they breached s.29 of the Equality Act 2010 (non-discrimination in provision of services) and also the Public Sector Equality Duty under s.149. She stated that the proposed new parking spaces did not provide equivalent access to the High Street  and related services as far as possible by comparison with those lost as they were significantly further away from banks, shops and other services, with some also entailing steep gradients.
The court held, dismissing H's application, that it did not have jurisdiction to entertain the claim under s.29 of the Equality Act 2010 as it was clear that claims under s.29 must be brought in the county court. Regarding the Public Sector Equality Duty claim, the Council had discharged its legal duty to have due regard to the relevant matters under s.149. It had carried out two equality impact assessments, had commissioned a review by consultants and had consulted with affected individuals and groups, including the campaigning group that H belonged to. The decision that the Council had to take was a difficult one, raising a number of competing interests which had to be balanced. Section 149 did not require any particular outcome to be achieved by a public authority, but imposed an important procedural duty on an
 authority to have due regard to various matters in the process by which an outcome was reached. The Council had complied with this duty and its decision was not irrational. (13 February 2014)

If you wish to discuss any of the items noted in this section please contact Olwen Dutton.

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Finance

Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) (Amendment) Regulations 2014 (SI 2014/231): this Order, which comes into force on 10 March 2014, amends SI 2012/444 in line with changes made by the Local Audit and Accountability Act 2014 to the legislation on council tax referendums so that the information published by local authorities who are required to hold such referendums is based on an updated definition of the ‘relevant basic amount’ of council tax (an average amount of council tax which is used as a basis of measurement for council tax calculations) which now includes levies. (12 February 2014)

DCLG: Local government finance – Rural services: the Local Government Minister Brandon Lewis has given a Written Ministerial Statement following concerns over the fairness of the funding that rural councils receive in the Local Government Finance Settlement 2014 to 2015. He states that the Government is porviding a further £2m to the most rural councils through a Section 31 grant, which will be distributed on the same basis as that used to allocate the Rural Services Delivery funding. (12 February 2014)

If you wish to discuss any of the items noted in this section please contact Jon Coane.

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Housing

DCLG: Promoting mobility through mutual exchange – Realising the potential: a mutual exchange is when two social housing tenants,of the same or different landlords living anywhere in the UK, agree to swap properties with each other. This guide sets out seven key steps that local authorities and social landlords can take to help promote mobility through mutual exchange. It draws on the experience of 12 mobility pilots that tested innovative and cost-effective ways of supporting mobility through mutual exchange. (10 February 2014)
See also the research report Promoting mobility through mutual exchange: learning lessons from the housing mobility demonstration projects, which sets out findings from an evaluation of the 12 local authority-led demonstration projects. It explores the effectiveness of different approaches taken by the demonstration projects and identifies transferable lessons for other social landlords.

HCA: Charging fees for social housing regulation – A discussion paper: seeks views from registered providers, tenants, lenders and others on introducing a fee charging scheme for social housing regulation. The fees system could comprise two distinct elements: a one-off fee for registration with the Regulator, and an annual fee to providers to cover the costs of on-going regulation. The closing date for comments is 21 March 2014. (10 February 2014) 

If you wish to discuss any of the items noted in this section please contact David Isaacson.

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Land and Commons Registration

DBIS: Introduction of a land registry service delivery company: seeks views on proposals to create a new company to take on service delivery functions from HM Land Registry. The consultation closes on 20 March 2014. (23 January 2014)
The Land Registry has issued as separate consultation Wider powers and Local Land Charges, in which it proposes to seek authority to take over the statutory function for holding and maintaining a composite Local Land Charges Register for England and Wales, including the provision of Local Land Charges searches, so as to enable it to provide a more consistent, standardised Local Land Charges searches system. This would required changes to the Local Land Charges Act 1975. The consultation closes on 9 March 2014. (16 January 2014)

Welsh Government: Working smarter – Electronic Register of Common Land for Wales: announces that the Welsh Government is to introduce Electronic Registers of Common Land with an investment of some £5m over eight years. The electronic system will replace the current large paper ledgers and maps held by local authorities, making the records easily accessible online and providing a significantly improved basis of which to record updates to the area of common land and the rights over common land. (12 February 2014)

Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2014 (SI 2014/257): this Order, which comes into force on 12 February 2014, amends Sch.1A to the Commons Act 2006, which sets out events which will exclude the right to apply for the designation of a town and village green under s.15(1) of that Act (“trigger events”) and corresponding events which will cause the exclusion to subsequently lift (“terminating events”). It sets out a time limit, in respect of draft plans, after which the right to apply for town or village green registration will resume. The Order also extends the protection from town or village green registration to development proposed or permitted by Local Development Orders, Neighbourhood Development Orders and orders under the Transport and Works Act 1992. (11 February 2014)
DEFRA has published updated Guidance to Commons Registration Authorities in England on Sections 15A to 15C of the Commons Act 2006 that  takes account of the amended list of trigger and terminating events introduced by this Order.

Commons (Severance of Rights) (Wales) Order 2014 (SI 2014/219 (W.29)): this Order, which comes into force on 1 March 2014, permits the temporary severance of a right of common to graze animals from the land to which the right is attached by enabling the leasing or licensing of the right to a third party for no more than five years. Any temporary severance agreement made under this Order must contain a clause ensuring that the agreement is notified to the relevant Commons Registration Authority and various other organisations and individuals, within 28 days. (6 February 2014)

If you wish to discuss any of the items noted in this section please contact Sandy Munroe.

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Libraries

DCMS: Proposed abolition of the Advisory Council on Libraries: seeks views on proposal to use s.1 of  the Public Bodies Act 2011 to abolish the Advisory Council on Libraries (ACL). The ACL is a stutory body whose function is to advise the Secretary of State on matters connected with the provision or use of library facilities. The Government's preferred option is to abolish the ACL as it considers that it unnecessarily duplicates the work of other statutory and non-statutory organisations and DCMS; it also looks at other options, e.g. transferring the ACL’s advisory function to another body, and retaining the ACL and appointing new members. The consultation closes on 9 May 2014. (17 February 2014)

DCMS: Consultation on the extension of the Public Lending Right to rights holders of books in non-print formats: the Digital Economy Act 2010 amended the Public Lending Right Act 1979 so that the term ‘book’ includes audio and e-book. This consultation seeks views on the practical detail of the changes that will need to be made to the Public Lending Right Scheme so that it extends the existing arrangements to audio-books and on-site e-books in public library loans.The consultation closes on 13 March 2014. (13 February 2014)

If you wish to discuss any of the items noted in this section please contact Clare Taylor.

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Planning

Neighbourhood Planning (Referendums) (Amendment) Regulations 2014 (SI 2014/333): these regulations, which come into force on 14 February 2014, amend SI 2012/2031 so as to apply, for the purposes of neighbourhood planning referendums, changes that have been or are to be made to the legislation relating to the administration of parliamentary and local government elections. (13 February 2014)

North Norfolk DC v Secretary of State for Communities & Local Government [2014] EWHC 279 (Admin) (Admin Ct): the Council applied for judicial review of the planning inspector's decision to overturn its refusal of planning permission for a wind turbine. The 60m high turbine was to be sited on one of the highest points in North Norfolk, with several listed buildings nearby. The Council refused permission on the grounds of the turbine's impact on landscape and heritage assets. The inspector concluded that the renewable energy benefits outweighed the harm to the character and appearance of the countryside and that proposal accorded with the aims of the development plan and national policy overall.
The court held, granting the application, that the inspector had conducted a simple balancing exercise under the National Planning Policy Framework but had not had special regard to the desirability of preservation in accordance with s.66 of the Planning (Listed Buildings and Conservation Areas) Act 1990. The decision maker could not treat the desirability of preserving the setting of a listed building as a mere material consideration to which he could simply attach the weight he saw fit in his judgement. The statutory language went beyond that and treated the preservation of the setting of a listed building as presumptively desirable, so if a development would harm the setting of a listed building, there had to be something of sufficient strength in the merits of the development to outweigh that harm. (14 February 2014)

If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.

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Police

Centre for Public Scrutiny: Police and crime panels – The first year: review of how effective Police and Crime Panels (PCPs) have been in fulfilling their statutory duties, and the challenges they face in successfully delivering their objectives of scrutinising and supporting Police and Crime Commissioners (PCCs). The findings show that PCPs need more support and commitment, from local authority officers and members, from PCCs and their officers, and from Government, to work effectively. Flaws or shortcomings in the relationship between the PCP and the PCC, together with a lack of information sharing, make it significantly more difficult for the PCP to carry out its duties and impact on the Panel’s effectiveness. (4 February 2013)

If you wish to discuss any of the items noted in this section please contact Olwen Dutton.

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Rating

DCLG: Business rates administration review – Terms of reference: the Government announced in the Autumn Statement 2013 that it will discuss options with business for longer-term administrative reform of business rates post-2017. This paper sets out the terms of reference for this review. The Government will publish a discussion paper in Spring 2014, setting out options for longer-term reforms to the system, which maintain the aggregate tax yield. (13 February 2014)

If you wish to discuss any of the items noted in this section please contact Jon Coane.

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Regulatory Services

Home Office: Covert surveillance and covert human intelligence sources codes of practice: seeks views on proposals to update the two Codes of Practice so as to include changes to the Regulation of Investigatory Powers Act 2000 made by the Protection of Freedoms Act 2012. Both Codes of Practice have greatly improved control and oversight of the way in which public authorities use covert investigatory techniques, in order to protect the right to privacy. The consultation closes on 27 March 2014. (13 February 2014)

DCLG: Building Act 1984 and the Building (Local Authority Charges) Regulations 2010: this divisional circular letter reminds local authorities carrying out functions under the Building Act 1984 of the provisions where charges for the performance of their functions are payable and where charges are not payable. The letter applies to local authorities in England carrying out building control functions and to local authorities in Wales in respect of excepted energy buildings, buildings of statutory undertakers and Crown buildings in Wales. (14 February 2014)

Surveillance Camera Commissioner: Surveillance camera code of practice: this revised CoP code sets out 12 guiding principles which strike a balance between protecting the public and upholding civil liberties. The principles are designed to provide a framework for operators and users of surveillance camera systems so that there is proportionality and transparency in their use of surveillance, and systems are capable of providing good quality images and other information which are fit for purpose. An authority has a duty to have regard to the guidance in this CoP when, in exercising any of its functions, it considers that the future deployment or continued deployment of surveillance camera systems to observe public places may be appropriate. (19 February 2014)

R (Thompson) v Oxford City Council; Spearmint Rhino Ventures (UK) Ltd (Intervener) [2014] EWCA Civ 94 (CA): T appealed against the the dismissal of his claim for judicial review of the Council's refusal to renew a licence for a sexual entertainment venue (SEV). T had been granted a licence to operate premises as a lap dancing club; however, the Council's licensing sub-committee refused his application to renew the licence on the grounds that renewal would be inappropriate having regard to the character of the relevant locality or use to which premises in the vicinity were put. In reaching this decision, it took into account the increasing concentration of student accommodation in the area, including development of student housing. The judge dismissed T's application, holding that the sub-committee was entitled to take into account both the present and future character of the area; the fact that an area was developing and in a continued state of change was a relevant consideration as to why renewal might be appropriate.
The court held, dismissing T's appeal, that Sch.3 to the Local Government (Miscellaneous Provisions) Act 1982 gave a council a wide discretion when assessing whether the grant or renewal of a licence would be appropriate having regard to the character of the relevant locality. In making that assessment, the Council could have regard to an imminent development of which it was aware, even if there could be no certainty that it would be completed and operational within the period of the licence. However, the ability to take account forthcoming developments was not open-ended: an SEV licence could not be granted for longer than 12 months and so it was not open to a council, when refusing to grant an SEV licence, to rely on a Development Plan which contemplated development some five years in the future. But in this case the sub-committee was not saying that new student accommodation in the vicinity would per se make the presence of the club inappropriate; rather, it was referring to an increased use of the locality by young and possibly vulnerable students as a route to and from their accommodation. It had not, therefore, taken account of an irrelevant consideration. (11 February 2014)

If you wish to discuss any of the items noted in this section please contact Adam Kendall.

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Traffic and Transport

LGIU: Councils in the driving seat? Local authorities and traffic enforcement: this research shows that research shows that councils take their responsibility to deliver appropriate, local strategies which protect the law-abiding majority seriously. Councils have come in for criticism that their strategies are cynical and revenue-raising, but the findings show that over 80% of councils reported either breaking even or losing money on enforcement. Moreover, the research finds that the negative rhetoric from DCLG is impeding local authorities’ ability to deliver on their statutory duties around traffic enforcement. It challenges recent claims by the Government that authorities are using traffic strategies to raise revenue and calls on Government to give local authorities greater freedom to deliver on their traffic enforcement duties. (10 February 2014)

If you wish to discuss any of the items noted in this section please contact Clare Taylor.

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Welfare Reform

London Councils: Tracking welfare reform – Universal Credit and local support services: this briefing highlights some outstanding questions relating to the implementation of Universal Credit in London. It finds that he new system fails to recognise the signficant pressures placed on London and so could disincentivise work for those the scheme is trying to help. In addition, many of the proposed changes, such as paying housing benefits to tenants, have cost implications for London boroughs. This report shows how the Local Support Services Framework could be integrated with employment and skills programmes to develop a single ‘wrap-around’ system of local welfare that is tailored to the individual and delivers sustained positive outcomes. (6 February 2014)

If you wish to discuss any of the items noted in this section please contact Olwen Dutton.

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