“They’re back…” Is possession really 9/10th’s of the Law?

Written by freethslocalgovernment on March 22, 2017

As a property litigator, when you get a message from a client you are not expecting to hear from asking you to call urgently at 7.30am on a Friday morning, you know that your day is not going to go the way you thought it was.  “They’re back” was the message.

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Our client had bought a 3.5ha site for development and in May last year, before putting a spade in the ground, a number of trespassers got onto the land and began fly tipping waste on it. It appeared that these individuals were collecting rubbish from people for a price and then dumping it on our client’s site. Our client asked the Police to get involved but they declined to do so.

We urgently commenced Court proceedings seeking an order for possession in the County Court.  By the time the order was granted and the trespassers left, they had dumped over 1000 tonnes of rubbish on the site which cost the client circa £150,000 to clear.  The photos show the state the trespassers left the site in.

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Fast forward to last Friday morning.  When our client told me “they’re back“, this of course referred to the return of the trespassers to the site.  Our client had previously secured the site with locked gates and erected concrete blocks to prevent access but the trespassers simply cut through the locks and broke through the concrete blockade and had begun dumping waste on the site.  Once again, the Police declined to act and directed our client to obtaining an order for possession in Court.

In view of the urgency of the situation, we decided to make an application for permission to issue a claim for possession in the High Court and shorten the time for the service of the claim. We wrote a letter advising the trespassers of what we were doing and asked them to attend the High Court in London at 2pm that afternoon.  We then quickly prepared all the paperwork and arranged for Counsel to go to Court.  Whilst the Judge took some persuading, he agreed that in view of the history of fly tipping and the potential for further damage to the site, it was appropriate for the claim to be issued in the High Court and for the time for service to be shortened. A key factor in this was that the trespassers had been given notice of our application. The Judge ordered that the trespassers give up possession immediately, that the claim documents be served at the same time as the order for possession and issued a writ authorising High Court Enforcement Officers to remove the trespassers from the site.

By 7pm on Friday evening, all of the trespassers had been removed and the site made secure. All in all, a fantastic turnaround for our client given the potential nightmare of having the trespassers on site dumping waste whilst the matter made its way through the County Court system.

So what lessons can be learnt from this?

1.  The vast majority of trespass cases still must be issued in the County Court.  This process can take a number of weeks for a trespass order to be granted and in the intervening period, the trespassers can cause extensive damage to the property they occupy without any real recourse for the owners on the basis the trespassers are “Persons Unknown“.  The Police rarely get involved leaving the site owner with potentially huge clean-up costs whilst the trespassers walk away scot- free. The law desperately needs reforming so that the cards are not stacked so much in the trespassers’ favour.

2.  The High Court issued a guidance note in September 2016 as to the types of trespass cases it considers would be appropriate for issue in the High Court.  One of the specific circumstances referred to is fly tipping of waste so if you can prove there is a real danger of extensive fly tipping by trespassers, it may well be possible to issue in the High Court. However, the Court will need persuading the matter is sufficiently serious to merit issue in the High Court.

3.  By moving quickly great results can be achieved.  Here this was possible due a collective team effort between our client, the High Court Enforcement Officers (Constant & Co), Counsel (Jamal Demachkie of Harwicke Chambers) and ourselves.

Paul Tomkins

Paul Tomkins

paul.tomkins@freeths.co.uk

Partner

Property Litigation…

Hope Living

Written by freethslocalgovernment on March 21, 2017

On Friday I attended the launch of Hope Living, and assisted with a presentation by Phil Woolas and Jason Highet at the Conservative Party Spring Conference at the SSE Swalec stadium, Cardiff.

‘Hope’ is an initiative to relieve ‘bed-blocking’ by making available accommodation on a long term basis to Local Authorities and Clinical Commissioning Groups (CCGs) at a rental linked to Local Housing Allowance (LHA) rates, the rent for which is met by Housing Benefit. The way in which the private funding is made available makes it possible for £15,000 to be applied to refurbish each unit of accommodation. Tenants are nominated by the Authority, who are then granted an assured shorthold tenancy.

 The Mirror online reported on this over the weekend but please also see Hope Living’s website for further information on the initiative.

Matthew Grocock
Partner
Real Estate Group

matthew.grocock@freeths.co.uk

Environmental Sentencing Guidelines: Consistently Packing A Punch

Written by freethslocalgovernment on February 16, 2017

Prosecution for an environmental offence can have serious consequences for any business organisation or individual, not only in terms of criminal sanction (as seen below) but also damage to the organisation’s/individual’s reputation and their future relationship with environmental regulators.

Since 1 July 2014, the courts have applied tough sentencing guidelines which were introduced with the aim of achieving greater consistency between courts in the imposition of sanctions.

Recent prosecutions in the last 12 months have resulted in the following sentences:

  • A waste operator sentenced to prison for a record 7½ years
  • An individual sentenced to 8 months in prison, suspended for 18 months with a 5 month electronic curfew between the hours of 7pm and 7am and an order to pay £1,500 in costs.
  • A Company and a Director were sentenced.  The Company was fined £20,000.  The Director was disqualified from acting as a Company Director for 5 years and ordered to pay £35,000 compensation to the landowner and carry out 250 hours of unpaid work.
  • An operator was given a 4 month custodial sentence suspended for 1 year and ordered to pay over £7,600 in costs and a remediation order was made.
  • A Company, a Director and another individual were sentenced.  The Company were fined a total of £50,000 and ordered to pay costs of £18,648. The Director was ordered to pay fines of £8,000 and costs of £18,648. The individual was fined £45,000 and ordered to pay costs of £30,789.
  • A company, a Director and another individual were sentenced.  The company will be sentenced after confiscation proceedings are concluded early this year.  The Director was given three 12 month prison sentences to run concurrently, suspended for two years.  The individual has been ordered to pay over £54,000 in fines and costs.
  • A waste company has been ordered to pay fines in the region of £1 million and costs of £243,955.35

In establishing consistency the Sentencing Guidelines provide “starting points” for the calculation of fines based on the degree of culpability of the defendant (i.e. whether the offence was committed deliberately, recklessly, negligently or whether there was low or no culpability), the extent of harm caused by the offence and for organisations, the size of the offending organisation.

Once the court has arrived at a starting point, and an appropriate range for a fine, the courts may then reduce or increase the fine with reference to various aggravating and mitigating features.

In November 2016, the Sentencing Council published a report on the impact of the sentencing guidelines on the levels of fines imposed by the courts. As expected, data collected by the Environment Agency shows that fines imposed have increased since the guidelines came into force.

The majority of cases sentenced in 2015 (67%) were for contravening environmental permitting requirements.

The most common aggravating factor cited (noted in 43% of cases) was “offending over an extended period of time (or repeated incidents)”.  Just under a third of cases (32%) cited “history of non-compliance” and a further 25% mentioned “offence committed for financial gain”.

“Evidence of steps taken to remedy problem” was the most prevalent mitigating factor, cited in 48% of cases, followed by “self-reporting, co-operation and acceptance of responsibility” (41%).

Across the board it appears that not only have the guidelines brought consistency in sentencing but also heavier sanctions both in fines, costs and other orders. In addition there appears to be an increased understanding by the courts of the gravity of the issues caused by environment offences, the impact it has on the environment and the impact on the resources of the organisations tasked with the clear up, regulation and enforcement.

Naturally, the best approach is to avoid an offence in the first place. However, the message is clear: when an offence is committed, the courts will expect to see a swift and positive response from the offender; ignoring a breach, or allowing it to continue, will only lead to greater sanction.

 

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EU General Data Protection Regulation – All Change!

Written by freethslocalgovernment on February 3, 2017

As many of you will be aware, the new EU General Data Protection Regulation (“GDPR”) comes into effect in May 2018.  Notwithstanding Brexit, the government have made it clear that this regulation will be required to be complied with within the UK.

The GDPR places new legal obligations on organisations to maintain detailed records of personal data and processing activities and enhances the role of designated individuals responsible for data management within corporate bodies. It also gives or codifies a range of rights to data subjects such as the “right to access”, the “right of erasure” and the “right to rectify” data held concerning them.

Non-compliances can lead to substantial penalties to be imposed, based on a proportion of an organisation’s turnover.

We are planning produce training materials on the GDPR iand offer an “assurance check” to clients who would like a second opinion on the compliance status of their policies and procedures – details of which will be made available in due course. If you would be interested in this please let us know.…

LGPS Employer Discretions Policy – Are you compliant?

Written by freethslocalgovernment on September 16, 2016

 

All employers who participate in the Local Government Pension Scheme are required to formulate a discretions policy in accordance with LGPS Regulations. Discretions come at a cost. An employer must be satisfied that the policy is workable, affordable and reasonable having regard to foreseeable costs.

Understand your policy, understand the strategy you wish to adopt and seek legal advice..read more

Freeths’ Pensions Law Team has vast amount of experience in drafting such employer discretion policies. If you would like to discuss this further, please contact either Parminder Latimer parminder.latimer@freeths.co.uk or Anne Taylor anne.taylor@freeths.co.uk for advice.

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Parminder Latimer
Partner & National Head of Pensions
0845 073 8559
parminder.latimer@freeths.co.uk

Anne Taylor 2016 H&S small (6)

 

 

 

 

 

Anne Taylor
Director
0845 128 6995
anne.taylor@freeths.co.uk

 

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Judicial review – which decision is the one I am being challenged upon or should challenge?

Written by freethslocalgovernment on August 23, 2016

 

In theory a simple, but not always easy, question to answer.   The decision in R (on the application of the London Borough of Southwark) -v- London Fire and Emergency Planning Authority [2016] EWHC 1701 (Admin) sheds a little more light on the topic.

The background was that in 2009 there was a fire at a block of Council flats in Southwark, leading to the death of six residents and the injury of others.  There followed a thorough investigation and inquest, the possible outcome of which was that the Council might face prosecution by the London Fire and Emergency Planning Authority (“Fire Authority”).  The Council argued that the bringing of any prosecution against the Council should not be considered by the Fire Authority, but instead passed to the Health and Safety Executive.  This was because the Fire Authority had a conflict of interests by virtue of a number of factors: its fire brigade had attended the fire; were criticised over their handling of the fire; and had provided training to Southwark Council’s officers on the carrying out fire risk assessments for Council housing blocks in the Borough.   The Council argued that the conflict would render any decision by the Fire Authority to prosecute tainted with bias.

The Fire Authority denied that in deciding whether to prosecute the Council it had a conflict of interests.  It wrote to the Council along those lines on 10 July 2015.  In then later made a decision not to alter its earlier decision.  The Council argued that this gave rise to two decisions that the Court had to consider, namely, the decision of 10 July 2015 and the later decision not to alter its earlier decision.  The Court rejected the Council’s argument and concluded that …”there is but one decision that requires to be assessed.  Thus, the original decision continues to operate until it is brought into effect or reversed.  In the absence of new facts which might justify a change of approach, a second decision is not made simply as a consequence of a refusal to change the first one.  Were it otherwise, the time limit for judicial review of any decision could be restarted following a refusal request to change it ”.

Incidentally, as to whether there was a conflict of interests, the Court found in favour of the Fire Authority holding that there was neither bias nor the appearance of bias in deciding whether not to prosecute the Council.

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Nathan Holden
Partner and Head of Local Government
nathan.holden@freeths.co.uk
+44(0)845 077 9646

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Brexit – Implications for the public sector

Written by freethslocalgovernment on June 24, 2016

 

We now know the outcome of the Brexit poll.

The long-term implications of the government leaving the EU, and timings, are still up in the air as we write this note. We are aware that a number of clients will have queries concerning the status of the EU Public Procurement Regime, State Aid Rules and the status of applications for funding supported by European Regional Development monies.

As soon as the timetable and implications of changes within these regimes become clear, we will be informing clients, but would be pleased to offer short-term guidance in terms of urgent issues such as ongoing applications for EU-funded financial support.

Stephen Pearson H&S small

 

 

 

 

Stephen Pearson
Partner 
stephen.pearson@freeths.co.uk
+44(0)845 274 6900

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Nathan Holden
Partner and Head of Local Government
nathan.holden@freeths.co.uk
+44(0)845 077 9646

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Amelia – coming to where you are soon!

Written by freethslocalgovernment on May 3, 2016

The stuff of science fiction is about to become science fact.  We are on the cusp of a technological tipping point.  Artificial Intelligence (AI) is just around the corner and the most likely early adopters will be local authorities.  One London local authority is currently piloting Amelia (click here), a desktop (computer) generated avatar that will act as your first point of contact providing answers to questions about council services.  The benefit of Amelia over her human equivalent is that she carries in her virtual head all of the up-to-date information about the organisation and what really makes the difference is that unlike existing on-line systems she (assuming it is possible to have a gender as an on-line avatar) is designed to respond to questions posed in natural speech or words, so that she mimics human responses.  The really clever thing though is that Amelia not only understands the questioner’s intent but if Amelia cannot answer a question when it is referred to a human operator Amelia has the capacity to learn from that interaction so that she can answer the question next time its asked.

For those worried about AI taking over the world, including Stephen Hawkins, and who wouldn’t be, there are plenty of fictional examples of what happens when you let the machines run amok – Terminator and going further back Stanley Kubrick’s HAL 9000 from 2001: A Space Odyssey, the designers say that Amelia is only capable of learning something she is taught by a human operator and is not capable of learning on her own……..let’s hope they’re right!

In terms of more practical issues, reminding myself that this is supposed to be a legal article, what happens if Amelia gets it wrong – who is to blame: the person that licences the software or the programmers?

In terms of where this is headed, it seems the days of conventional call centres may be numbered.  In the way that manufacturing has become increasingly dominated by the use of robots, AI will dominate banking, finance and possibly even the delivery of health care.

Even where Amelia is not deployed on the front line, there is clearly a role for her now in providing support to professionals as a font of up-to-date knowledge and expertise, a sort of very sophisticated internet browser.  However, it would be naive to think it will stop there.  Amelia potentially sounds the death knell for the privilege of expertise and presents a threat to the professions everywhere… may be the Luddites were right after all!

Nathan Holden H&S small

Nathan Holden
Partner
nathan.holden@freeths.co.uk
+44(0)845 077 9646
Head of Local Government

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Public Procurement: bidders supported by other entities

Written by freethslocalgovernment on January 22, 2016

 

Can a contracting authority require a bidder that wants to rely on another entity’s expertise in making its bid enter into a contract with that other entity? 

It is not unusual for smaller bidders that do not possess all the requisite skills and experience to perform a contract, to seek to rely on another entity to fill the gap or bolster their bid so as to improve their chances.

This creates a tension, on the one hand it is healthy in a competitive market, especially one that wants to encourage small and medium-sized enterprises to bid for public contracts, to make the process easier for these smaller operators to bid by allowing them to join up with other entities so that they can compete with the bigger players in the market; on the other hand, from a contracting authority’s perspective, it needs to be confident that there is strong relationships between the bidder and the other entity, to give confidence that the bidder will deliver on the promises it makes if it is awarded the contract.  Public procurement is a tortuous and slow process and the last thing that a contracting authority wants is to award the contract to a bidder that lets them down.

This issue was considered in a recent decision of the European Court of Justice (ECJ) involving a Latvian local authority.  Under the terms of the procurement process, and quite reasonably you might think, the local authority required that a bidder, who wanted to rely on another entity in performing the contract, enter into a binding contract, or form a partnership, with that other entity before the contract could be awarded.

The Public Contracts Directive (2014/18) provides, in the context of “technical and/or professional ability”, a bidder may rely on another entity as part of its bid if the bidder can prove that they will have at their disposal the entity’s resources by, for example, producing an undertaking from that entity.

The Public Contracts Regulations 2015, in transposing the Directive, uses slightly different language, i.e. refers to a “commitment” rather than an “undertaking” but is broadly the same.

The ECJ held that the key issue is evidence and there can be no prescribed form that evidence may take.  By specifically providing that the bidder must either contract or form a partnership with the other entity the contracting authority had gone too far and beyond the scope of the Directive.  Had it simply identified a contract or partnership as a means of demonstrating a strong connection between the bidder and the other entity, leaving open the possibility of other means of proof or evidence being provided, then presumably that would have been okay.

This is a helpful steer from the ECJ on the correct interpretation of the law although, from a contracting authority’s perspective, they would no doubt prefer to be able to prescribe the legal form that any cooperation between a bidder and another entity takes.

A copy of the ECJ’s judgment can be viewed here .…

THE NEW CONCESSION CONTRACTS REGIME

Written by freethslocalgovernment on January 15, 2016

 

The new Concession Contracts Regulations are due to come into force in April this year.  The new Regulation will apply to all concession contracts with a value (measured by turnover) of more than € 5,225,000 (£4,104,394).  Concession contracts typically involve the granting by one party to another of a right for a fixed period to exploit for commercial purposes works or the provision of a service.  For example, in the local government context, the right to run and operate a car park in return for retaining the income generated. 

The draft Regulations were consulted upon in August/September 2015 and the Government has yet to publish the outcome of that process.  The approach taken in drafting the Regulations was to follow the lead taken in the context of the Public Contracts Regulation 2015, that is, is to follow the drafting of the parent Directive as closely as possible.  On this basis it seems likely that the draft Regulations will largely remain as drafted between now and when they come into force.

An area that was not addressed by the draft Regulations, is what will happen with respect to procurement processes that have already started at the time the new Regulations come into force – see Part 7.  The drafting of that section of the drafting has yet to be completed.

If you are interested in how the Regulations will apply in practice please click here for our flow diagram and other helpful standard documents.…