Are you interested in joining the team?

Permanent Senior Planning Lawyer 

£41,732 – £46,474 (inclusive of a market supplement) + £2,856 per annum car allowance 

East Midlands 

Hybrid Working

About the Planning Lawyer role:

We have teamed up with Sellick Partnership who are assisting us to find our newest member of the NWL Legal team.

We are looking for enthusiastic individuals with initiative, a proactive approach to problem solving and a real commitment to the job. This is a great opportunity to join a tight- nit, friendly team.

The successful Planning Lawyer will be responsible for, but not limited to:

  • General planning and regional matters such as s106s, Tree Preservation Orders, Footpaths, Highways, Planning Enforcement
  • Attending planning committees in person which are around every 6-8 weeks
  • This role will also be a managerial role for the trainee solicitor, general line managing responsibilities.
  • To be part of the legal practice team and help them with governance and how they are as an authority.
  • Briefing of the chairman/portfolio holder/members as required
  • Liaise with a number of internal and external professionals

The role is predominantly remote working however the council host a number of team days and meetings where in-person attendance is a must. The committee meetings are ran on a cycle with other employees and take place every 6-8 weeks.

Benefits of the Planning Lawyer role include:

  • Competitive and advantageous salary
  • Generous annual leave with the opportunity to purchase extra
  • Local government pension
  • Hybrid working options
  • Flexible working patterns to suit other commitments
  • Vehicle allowances

Experience required for the Planning Lawyer role:

Prospective candidates need to be a qualified solicitor, legal executive, or barrister and to have previous experience of Planning Law, Advising Committees and Local Authority Law

How to apply for the Planning Lawyer role:

We encourage interested applicants to apply immediately to be considered for short listing.

Alternatively, should you require further information or wish to discuss your suitability before applying, please contact Ellie Warde in our Manchester office on 0161 834 1642 for a confidential discussion.

https://www.sellickpartnership.co.uk/job/permanent-senior-planning-lawyer-/

 

Common Sense Advice for Defending Disrepair Claims

by Kerryn Woollett, Senior Solicitor

Disrepair claims can be brought when part of a property has fallen into disrepair and the landlord has been put on notice of that disrepair but the landlord has failed to carry out the repair in a reasonable period of time. What is reasonable will depends on a number of factors, for example, the extent of the disrepair, the landlord’s ability to carry out the repairs and whether the landlord was able to gain access to the property.

When a landlord gets a claim for disrepair it should first check the tenancy agreement to determine whether the disrepair claimed is something the landlord has agreed to carry out.

The landlord should then consider s.11 of the Landlord and Tenant Act 1985. S.11 provides that there is a covenant implied into the lease that the landlord will:

  • keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes);
  • keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity); and
  • keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

Structure and exterior also includes plasterwork on internal walls and ceilings (Grand v Gill [2011] EWCA Civ 554)

However, a defective extractor fan is unlikely to be considered disrepair because it’s a fixture, fitting or appliance for making use of electricity (rather than an installation for the supply of electricity). However, if the extractor fan is assisting in reducing damp from condensation, this could affect the tenant’s health and therefore there could be a different avenue for bringing a claim against the landlord.

The landlord should also consider s.9A of the Landlord and Tenant Act 1985 which requires properties to be fit for human habitation. This only applies to tenancies granted on or after 20 March 2019, therefore, if this is included in the claim, check the start date of the tenancy.

As early as possible the landlord should keep records of the landlord’s view, not only on whether the disrepair exists, but on who is liable for that defect, for example, if there is a broken window, it’s easy to see that it’s broken, however, who broke the window? Was it the landlord when carrying out other repairs, was it the tenant by throwing something at it or was it someone else e.g. an attempted burglary.

The landlord should also record what work needs to be done to remedy the disrepair and the landlord should remember that this is not something the tenant’s expert can dictate. The landlord should provide its view on what needs to be done and how much it’s likely to cost, as the landlord may have ways of doing the repairs cheaper.

Something that is often overlooked is the impact the disrepair is having on the tenant. Again, the impact of a broken window is fairly obvious – e.g. wind and rain can blow in and the property cannot be secured.

However, the impact of dampness or crumbling brick work on the tenant is less apparent. The court will be assisted by comments about how this impacts the tenant’s way of life, e.g. the tenant may claim that they are ashamed to bring people to property. However, if the landlord has attended the property and noticed a large number of alcohol containers outside the property in the recycling, the landlord should record this, as this tends to show that the tenant has had people at the property, therefore, the disrepair is not affecting them as they are claiming.

In determining the standard of repair the landlord is required to reach, consideration must be given to the age, character and prospective life of the property and its location. Local authority houses can be as good as private sector houses, but there is no obligation to make a 50 year old house look like it was built yesterday.

When carrying out repairs, there is an obligation on the landlord to make good or redecorate after the works are complete. It is true that the tenant is obliged to do internal decorations, but when the landlord has carried out repairs, those repairs are not complete until the area repaired looks as good as it did before.

The landlord is not required to do repairs in the way the tenant demands. The landlord may perform repairs in whichever manner is the easiest and can choose the cheapest option if it wishes.

The obligation when replacing installations, is for a like for like replacement. There is no requirement to upgrade installations or bring these in line with current standards, unless the law requires this in order to comply with regulations.

S.11 does not mean:

  • that the landlord guarantees there will never be disrepair – s.11 is only breached if the landlord is given notice of disrepair and has failed to repair it within a reasonable time and the entitlement to damages only runs from the point in time the landlord is in breach;
  • the landlord will carry out improvements;
  • the landlord will carry out the tenant’s job to use the property in tenant like manner e.g. tenants are supposed to clean the chimney, change lightbulbs, bleed radiators – do the things an owner/occupier would do rather than get a repair person in.
  • the landlord will repair everything in the property e.g. window sills and skirting boards are not included.

Using the property in a tenant like manner means doing the little jobs around the property, not causing damage to the property, keeping the property ventilated and heated to avoid condensation dampness and to allow access.

How can a landlord prove the tenant is causing the disrepair? It must keep good records.

The landlord should make sure it has evidence:

  • of the disrepair;
  • of how the tenant lives in the property;
  • of all the things the tenant could do to avoid living in the property in the way they are;
  • to eliminate the possibility that the disrepair is being caused by other sources (e.g. if damp is alleged, get evidence to show it is not being caused by rising or penetrating damp); and
  • to show the disrepair could be avoided if certain steps where taken.

For example, if damp is alleged, take photos of the areas affected, however, also take photos of any closed ventilation strips in windows, of the tenant’s property up against walls, of washing being dried inside, of unvented tumble dryers being used etc.

The landlord should also keep records of:

  • the state of the property generally, not just the disrepair;
  • anything said by tenants in the course of inspections;
  • attempts to gain access that are not successful and what was done about them e.g. was a calling card or letter left, was contact made with the tenant to arrange another date. This will help show the court the landlord had done all it can to do its job.

Landlords will also need to keep records of any notice given about disrepair. These will often be computerised records and an explanation should be given of these records, for example, they will often contain abbreviations which require explanation, they may contain a number of dates which need to be explained – are these the date notice was given, the date of an inspection, the date works were carried out, the date works were completed or the date an invoice paid? The date of paying an invoice is of no use when trying to determine the date notice was given, but it could be useful to try to prove that works were carried out.

Landlords will also need evidence to show their records are accurate e.g. if a tenant says they reported some disrepair but it is not recorded on the landlord’s computer system, the landlord needs to be able to show that its records are complete and accurate. This would be supported if the landlord is able to provide evidence of how the system and its processes work i.e. there is a process in place whereby all telephone calls and emails received are logged on the computer system, therefore, it’s not possible or is highly unlikely that a report of disrepair could have been made and not be recorded on the computer system.

To protect its position a landlord should:

  • Comply with the Pre-Action Protocol for Housing Conditions Claims (England);
  • Carry out any repairs quickly and efficiently;
  • Flag any issues timeously e.g. has access been given, does the landlord need permission from another landlord or the owner or a neighbouring property to gain access to areas to carry out repairs;
  • Make appropriate offers of settlement but not excessive offers; and
  • Keep a record of what works are done.

Service Level Agreements

by Lauren Sturgess, Trainee Solicitor

Throughout my role working as a trainee solicitor, I have been able to undertake work within the Contract Law sector. As part of this work, I have had exposure to drafting and reviewing various types of agreements. One agreement I have had exposure to drafting is a Service Level Agreement (SLA).  An SLA can be very useful to multiple departments within North West Leicestershire District Council (NWLDC) where NWLDC are looking to provide a service to the public, but this service is being provided by another organisation in return for a specified payment.

What is a Service Level Agreement?

SLA’s are a commitment between a service provider and a customer. An SLA defines the level of service expected from a service provider and sets out clearly in one single document all of the agreed services and expectations between that service provider and the customer. SLA’s usually provide a framework for the provision, management and development of that specific service being provided.

What should a Service Level Agreement include?

An SLA should include details of two elements, the ‘Service Element’ and the ‘Management Element’.

Some examples of what should be included in an SLA are:

Service Element

  • Service specification

This should include the Service Aims and Objectives of the agreement, detailing the services that will be provided and the expectations of that service.

  • Duration

This should set out the duration that the agreement is set to last, specifying a clear start and end date of the agreement. It may be that the agreement includes  an option to extend the agreement if it is successful in the original agreement.

  • Financial arrangements

This should cover the financial arrangement that is in place between the service provider and the customer, i.e., the agreed amount of funding that the customer will provide the service provider for carrying out the services set out in the service specification.

This also may detail the terms of payment, i.e., whether payment will be made at the end of the duration of the agreement, or in specified intervals throughout the duration of the contract. For example agreeing that payment will be made on a set date each month, or after a set amount of days upon receipt of an invoice on a set date each month.

  • Data Protection

The agreement should also include a provision that the service provider will carry out its business in accordance with relevant legislation including but not limited to the Data Protection Act 2018. This ensures that in carrying out the service for NWLDC they are not to breach any data protection legislation.

Management Element

  • Penalties

This should state the consequences for the service provider if they are in breach of any of their obligations under the agreement. This would usually include the right for the customer to terminate the agreement upon service of a notice of termination in writing or to serve a notice on the service provider to remedy the breach on specified terms within a reasonable time stipulated in the notice.

  • Point of Contact

This should set out who the main points of contact are and their job title for both the service provider and the customer for the avoidance of doubt throughout the duration of the agreement.

  • Terms of Review

This should set out how the services will be reviewed to ensure that the service provided is complying with the terms of the agreement.  This should set out the frequency of the reviews (I.e. every month) and what the review will cover (i.e. all aspects of the operation). These reviews may then determine if the agreement is extended.

Right to Buy – after the purchase

Helen Lisney

by Helen Lisney, Legal Officer

When a property is on the open market the seller’s interest ceases upon completion of the sale.    However, when a property is sold under the right to buy scheme then the selling local authority will retain rights in relation to the property for a period of 10 years from the date of completion.

When a property is purchased under the right to buy scheme pursuant to Part V of the Housing Act 1985, the purchasing tenant is entitled to a percentage discount, dependant on the length of time spent as a public sector tenant.    If they have been in a public sector tenancy for 3-5 years they are entitled to a 35% discount, which increases by 1 % for every additional year after the first 5 up to a maximum discount of 70 %.        The maximum discount available is currently capped at £87,200 (£116,200 in London) and this increases on an annual basis.

Repayment of Discount

Section 155 of the Housing Act 1985 deals with the repayment of discount on early disposal of the property.

If the property is sold within 5 years of purchase there is a requirement that a proportion of the discount is repaid to the Council.   If the property is sold within a year of purchase then the full discount is repayable, and this reduces by one fifth for each complete year.

The amount of discount repayable is calculated as a percentage of the price the property is being sold for rather than the original purchase price.    The amount of discount repayable can be reduced to take into account any of the purchase price which is attributable to home improvements carried out by the owner since the date of purchase.  This amount can be agreed between the parties or determined by the district valuer.

The discount is only repayable on a relevant transfer and certain transfers are exempted.  For example,   a transfer from joint to sole ownership of one of the original purchasers; the vesting under a will or on intestacy, it is required under an order of the court in family proceedings.    If there is any such exempted disposal the requirement to repay the discount will remain until the end of the five year period.

When the property is purchased a charge is registered at the Land Registry to protect the Council’s interest.

Right of First Refusal

Section 156A of the Act deals with the right of first refusal.

Whilst the repayment of the discount only subsists for a period of 5 years, if the purchaser wishes to sell within 10 years of the original purchase they must first offer the Council the right to repurchase the property.

The owner must serve a notice on the Council advising them of the proposed sale and offering the right of first refusal.     The Council can then choose either to buy back the property, nominate another social housing provider to buy the property or allow the property to be sold on the open market.

The Council must acknowledge the receipt of such notice as soon as reasonable practical and must within 8 weeks notify the seller if it wishes to accept the offer for itself, or nominate another housing provider to accept the offer.  If it wants to reject the offer it must do so as soon as the decision has been made.

The property should be purchased at market value.  If the parties cannot agree the value then the district valuer can be appointed to determine the value of the property.

If the Council wishes to repurchase the property it must enter into a binding contract within 12 weeks of the acceptance notice being served, or within 4 weeks of the date of receipt of a notice from the owner that he is ready to complete, whichever is later.  (Any period waiting for the district valuer’s report is excluded from this calculation).

The Council’s right to first refusal is protected by a caution registered against the title to the property.

If the Council does not wish to purchase the property and the owner is permitted to sell on the open market then the Council will need to provide a certificate confirming that the provisions have been complied with to enable the transfer to be registered.

Anti-social Behaviour and the Equality Act 2010 – What can be learnt from Rosebery Housing Association Ltd v Williams & Anr [2021] 12 WLUK 464

by Kerryn Woollett, Senior Solicitor

What was the case about?

The Housing Association sought an injunction under s.1 of the Anti-social Behaviour, Crime and Policing Act 2014 relying on 123 allegations of anti-social behaviour (ASB), though this was reduced to 6 allegations. These were representative of three types of ASB complained of namely verbal abuse, taking photos and filming neighbours and noise nuisance.

The tenant brought a counter claim primarily under s.15 of the Equality Act 2010 (EA) that the Housing Association, in bringing and continuing the claim for an injunction, had unlawfully subjected the tenant to a detriment because of something arising in consequence of her disability.

Five out of the six allegations were not proven either because of a lack of evidence, because there was only hearsay evidence or because the evidence was unreliable.

The sixth allegation of noise nuisance was proven, though the court found that it was not just and convenient to grant an injunction as the noise nuisance was brief, historic and there were no ongoing issues.

The tenant suffered from severe obsessive compulsive disorder, which caused her obsessively to film her surroundings and drive up and down her own street. Therefore, the court found that the tenant had good reason for filming and photographing her neighbours.

The Housing Association accepted that the tenant had a disability.

Pursuing proceedings for an injunction were found to amount to detriment and this was due to something arising from the tenant’s disability i.e. filming neighbours was more than a trivial part of the reason the Housing Association was seeking the injunction. Whilst it was accepted the Housing Association’s aims were legitimate, bringing proceedings were not proportionate for the following reasons:

  • the allegations of ASB were not put to the tenant in a timely fashion;
  • the Housing Association did not seek medical advice in order to understand the tenant’s disability;
  • the Housing Association did not seek to foster understanding between the tenant and neighbours;
  • the tenant had offered to move and the Housing Association did not explore this offer; and
  • the Housing Association received compelling evidence from the tenant yet still continued to pursue the claim all the way to trial.

The tenant was awarded £27,500 in damages for injury to feelings as the Housing Association had  wrongly treated her as the perpetrator rather than the victim of anti-social behaviour and abuse from her neighbours.

What can be learnt?

The most common protected characteristic engaged in relation to ASB is disability.

Either the landlord or a local authority (if the local authority is not also the landlord) could take action in relation to ASB.

S.15 of the Equality Act 2010 states:

  • A person (A) discriminates against a disabled person (B) if—
    1. A treats B unfavourably because of something arising in consequence of B’s disability, and
    2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
  • Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

Unfavourable treatment

Almost any significant intervention by the landlord or a local authority is likely to be considered unfavourable treatment. This includes formal warnings, issuing a notice of seeking possession, issuing a community protection notice or brining proceedings.

Therefore, before taking any action, a landlord or a local authority, should ask three questions:

  1. Does the landlord or local authority know or can they reasonably be expected to know that alleged perpetrator has a disability?
  2. Is the ASB “something arising in consequence of” the disability?
  3. Are the landlord’s or local authority’s actions a proportionate means of achieving a legitimate aim?

Assessing disability

Disability is defined in s.6 of the Equality Act 2010 (EA):

A person (P) has a disability if:

  1. P has a physical or mental impairment, and
  2. the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities

“Substantial” is defined in s.212(1) as more than minor or trivial and “long-term” is defined in paragraph 2 of schedule 1 as having lasted or likely to last at least 12 months.

The Equality Act (Disability) Regulations 2010 prescribes disabilities and special cases.

Special cases include corrective measures and progressive conditions. That is, if someone would have a disability but it is being treated (i.e. a corrective measure is being used) then it is a disability nonetheless. Also, if a person has a condition which is not currently having a substantial and long term adverse effect on day to day activities, though it will do as the condition progresses, then this is also considered a disability.

The Equality Act (Disability) Regulations 2010 also sets out impairments that are not disabilities, these include:

  • Addiction to alcohol/nicotine/any other substance
  • Setting fires
  • Stealing
  • Physical and sexual abuse
  • Exhibitionism
  • Voyeurism
  • Seasonal allergic rhinitis
  • Severe disfigurements by way of non-medical tattoos or piercings

In assessing disability, the landlord or local authority, should consider four questions:

  1. Is the alleged perpetrator suffering an impairment?
  2. Does the impairment have a substantial and long term adverse effect on the alleged perpetrator’s ability to carry out everyday life?
  3. Is the ASB something arising as a consequence of the disability?
  4. Whether and how the ASB can be addressed?

When is the Landlord/Local Authority reasonably expected to know of the disability?

This will depend on the circumstances. The Public Sector Equality Duty imposes a duty to make reasonable enquiries.

However, “The public sector landlord is not required in every case to take active steps to inquire into whether the person subject to its decision is disabled and, if so, is disabled in a way relevant to the decision. Where, however, some feature or features of the information available to the decision maker raises a real possibility that this might be the case then a duty to make further enquiry arises” London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB)

Therefore, if there is nothing in the facts of the case to suggest that the alleged perpetrator could have a disability, then the landlord or local authority does not, as matter of routine, have to make further enquiries. But, if there is something that leads you to think that there could be a disability then you have to make some enquiries. This could be writing to the alleged perpetrator seeking further information, contacting other agencies (e.g. social services or the police) or contacting GPs.

Something arising in consequence of

The disability need only be an effective not the sole cause of the unfavourable treatment – “…a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor.” (Nagarajan v London Regional Transport [2000] 1 A.C. 501)

It can be complicated though if the alleged perpetrator has a disability though also has an addiction which is not a disability. Which of these is then causing the ASB? To determine this you will need to look at each separately and how they feed into the ASB. If the disability is forming an effective reason for the ASB then that is sufficient to bring it within s.15 of the EA, even if the addiction is also a significant factor in the ASB as well.

Does a lack of information or an uncooperative alleged perpetrator preclude assessing disability?

There must be some evidence of disability provided to the landlord or the local authority for the EA to be engaged. If the alleged perpetrator says they have a mental health condition but doesn’t provide any further evidence and won’t cooperate then, in those circumstances, the landlord or local authority would be entitled to operate on the basis that there isn’t a disability until something further leads them to conclude otherwise.

If the landlord or local authority has some existing knowledge but this is unsatisfactory to make an assessment, then landlord or local authority has to make further enquiries before making an assessment. For example, an officer has seen some evidence of a diagnosis of a mental health condition but does not have any information on how it manifests or what treatment can help. In this situation the officer should make further enquiries.

Lastly, remember to keep the assessment under review e.g. the alleged perpetrator is initially uncooperative, though as the matter progresses, more information about a disability is disclosed. If this occurs, further enquiries should be made and the assessment reviewed.

Proportionality

The landlord or the local authority’s aim will usually be legitimate, therefore, the important consideration is then proportionality.

“The structured approach to proportionality asks whether there is any lesser measure which might achieve the landlord’s aims. It also requires a balance to be struck between the seriousness of the impact on the tenant and the importance of the landlord’s aims.” Lewisham London Borough Council v Malcolm [2008] AC 1399.

Whilst this decision was in relation to tenancies, it applies equally to ASB cases e.g. injunctions or community protection notices.

Proportionality needs to be considered as early as possible. Therefore, if you are considering an injunction, proportionality needs to be considered before sending the first warning letter.

It is also essential to have good record keeping.

Mummery LJ set out three questions in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213:

  1. Is the objective sufficiently important to justify limiting a fundamental right?
  2. Is the measure rationally connected to the objective?
  3. Are the means chosen no more than is necessary to accomplish the objective?

In practice this means are there other things you could try first, e.g. if considering seeking possession of a tenant’s property, could you instead try an ABC, a CPN or even an injunction first.

The investigation needs to be carried out swiftly and the onus should not be put on residents to gather evidence. To avoid putting the onus on residents, consideration should be given to whether other agencies can provide support or if other measures can be used (e.g. CCTV).

Attempts should be made to understand the disability e.g. seeking medical advice or contacting charitable organisations e.g. Mind. These organisations might be able to help you understand a disability, its impact on behaviour and how persons with that disability may react in certain situations.

Attempts should also be made to foster understanding between neighbours. This could be difficult because some people don’t want their private information disseminated. But you should try to explain that if others know about their disability, the impacts it has on them and how it manifests, this will help neighbours understand what they are going through and to be more tolerant. This can be achieved through multi agency meetings or round tables.

Explore other avenues and anything the alleged perpetrator has suggested – e.g. in Rosebery the tenant said she could try to move.

Lesser measures could include support referrals, ABCs, CPNs, abatement notices, injunctions or a move for either the alleged perpetrator or the victim(s) depending on the case.

It is also important to adhere to policies. Policies will usually set out the approach to be taken (for example using a graduated approach), how complaints will be handled, how investigations will be carried, what options will be considered and when. Following policies will help to ensure the correct process if followed.

Carrying out an Equality Impact Assessment will also ensure any action taken is proportionate.

Recent application to enter premises under s.22 of the Prevention of Damage by Pests Act 1949

by Lauren Sturgess, Trainee Solicitor

At the beginning of August 2022, I attended Leicester Magistrates’ Court to apply for a warrant to enter premises on behalf of North West Leicestershire District Council (NWLDC). The application was made under s.22 of the Prevention of Damage by Pests Act 1949 by virtue of s.25 of the Leicestershire Act 1985.

Legal basis

Under the Prevention of Damage by Pests Act (the Act) it is the duty of every local authority to take such steps as may be necessary to secure so far as practicable that their district is kept free from rats and mice. Section 22 of the Act allows any person duly authorised in writing by a local authority to enter upon land for any of the following purposes:

(a)for the purpose of carrying out any inspection required by the Act

(b)for the purpose of ascertaining whether there is or has been, on or in connection with the land, any failure to comply with any requirement of the Act or of any notice served thereunder;

(c)for the purpose of taking any steps authorised by section five or section six of this Act to be taken by the local authority on or in relation to the land.

In this particular case, the application to enter onto premises under the Act was being made for the purposes of taking steps authorised by section 5 or 6 of the Act, specifically section 5. Section 5 applies where any person, on whom a notice is served by the local authority, is required by the notice to take certain steps within the period prescribed in the notice, and the person has failed to do so. In these circumstances, the local authority may themselves take those steps and recover from the person on whom the notice was served any expenses reasonably incurred in doing so.

In September 2021 a notice under the Act was served on the owner of premises by NWLDC’s environmental protection team. This followed a complaint that was received in regards to an accumulation of waste in the front and rear gardens of the premises and attempts to get in contact with the owner to discuss with issue had been unsuccessful.

The notice required the owner to remove, and properly dispose of all waste, including but not limited to wood, from the land, as this was providing harbourage for vermin. The notice further required the owner to check for the presence of vermin, and treat if found, the land including the premises.

Following several letters, phone calls, and visits, no contact had been made with the owner of the premises in regards to the issue at the property, nor had any of the required steps been carried out as set out in the notice.

A final letter was sent to the owner notifying them of the intention to apply for a warrant. This letter gave the owner the opportunity to contact the Council to allow access without the need for a warrant, however no contact was made.

As no contact was successfully made with the owner, this was considered refusal of entry onto the land, and so it was at this stage that legal were instructed to make the application to the Court to issue a warrant, to allow entry onto the premises, to carry out the steps in the notice as the waste was providing harbourage for vermin.

Outcome

The application was successful and the Court issued the Council with a warrant to enter premises for the purposes of carrying out the steps identified in the notice.

Although the course of action has the potential to interfere with the human rights of the owner of the premises, the Court deemed it necessary and a proportionate interference with these rights, as entry was required in the interests of public health.

Section 25 of the Leicestershire Act 1985 allows for other persons to be taken when the warrant is executed. This allowed for a locksmith to attend when the warrant was executed for the purpose of facilitating access to the property and to replace any locks when leaving the premises.

The warrant continues in force until the purpose for which the entry was required is satisfied. The Council have now been able to enter onto the premises and remove, and properly dispose of all waste, including but not limited to wood, from the land and check for the presence of vermin, and carry out any treatment. The Act also allows the Council to recover the costs of carrying out these steps.

We are recruiting a part-time Property Lawyer…

Senior Property Solicitor

Band G plus up to 6 market supplements

£21,201 – £27,388 per annum (annual equivalent salary £35,336 – £45,648 per annum) plus annual car allowance of £2,856

Part-time permanent contract, 21¾ hours per week

Are you ready to step into your first management role, or do you have existing management experience that you would like to develop more?

Do you enjoy and have significant experience in the areas of residential and commercial property?

Would you like to have the opportunity to further develop your skills by gaining experience in large regeneration projects?

If you have answered yes to these questions, our Senior Property Solicitor vacancy might be the role for you!

What are we looking for?

As our new senior property lawyer you will lead on all complex property legal matters for the Council and for external clients as required.  You will have line management responsibility for one team member, so previous line management experience, or an eagerness to step into a management role, is required.  As a senior member of the legal team, you will help and support the Legal Services Team Manager and Head of Legal and Commercial Services in areas of corporate governance, as well as building strong and lasting internal and external relationships.

Are we right for you? 

We are a solution-focussed council.  Through listening and fair and balanced decision-making, we aim to do the best we possibly can for our community.

Legal Services play a vital role in ensuring good governance and helping officers find solutions to problems with a ‘can do’ approach.  The Legal Services team has an existing external client base of 32 clients, with plans to grow it even further.

You will be joining a team of specialist lawyers, each with their own areas of expertise, including contracts and procurement, planning, property, regulatory and enforcement.  Our structure enables everybody to focus on their own specialisms whilst also being exposed to other areas of law through close working relationships with colleagues.

You will be supported by a first-class administration and practice management team, as well as working closely with information governance colleagues as needed.

As a Council we are embracing agile working, acknowledging that the old days of 9-5 in the office do not need to be the norm.  Your role will be classed as a hybrid role, recognising that there may be times when you need to attend the offices (for example, to complete transaction documents) but outside of that, as long as it works for us and our customers too, we are happy for you to take a flexible approach to your working arrangements.

Are you right for us? 

We want you to succeed in this role.  To do so, you will need to be able to undertake work in the areas of commercial and residential property; due diligence; property transactions; regeneration projects; and compulsory purchase orders.

You will need to be able to advise in the context of local government law and therefore experience of this is desirable but not essential, as we would hope that this develops over time.

To fit in well with the team, you will be proactive, a quick learner, able to work flexibly and someone who can bring enthusiasm to the role.

If you would like to know more about the job feel free to contact Kate Hiller, Legal Services Team Manager on 01530 454379 or by email to kate.hiller@nwleicestershire.gov.uk

You can apply for any of our posts online at https://www.nwleics.gov.uk/pages/jobs_and_careers

Applications must be made using the on-line application process.

Disabled applicants who meet the essential criteria for the job will be guaranteed an interview.

We welcome applications from all sections of the community.

Closing Date: Sunday 11 September 2022

A Framework is the Quickest and Easiest way to Procure – isn’t it?

Kate Hiller, Legal Services Team Manager

by Kate Hiller, Legal Services Team Manager

With ever-pushed local authorities struggling for resources, frameworks continue to become more and more popular as the preferred choice to procure goods and services.  It is seen as the quickest and easiest way to get the goods and services you need with what is expected to be minimum effort but is that really the case?

A framework arrangement establishes relationships between contracting authorities and suppliers that enable contracts to be ‘called off’ when certain goods and service are required.  The framework agreement will set out the terms on which contracts will be awarded and will set certain parameters around quantity and price.  If a contracting authority wants to procure goods and/or services from a framework it will enter into a ‘call-off contract’ directly with a supplier, either under a direct award or by running a mini competition.

Provided that a framework has been established in compliance with the Public Contract Regulations 2015 (the “Regulations”), local authorities can access the framework without running their own procurement exercise in accordance with the Regulations.  The framework agreement will specify if direct awards are permitted and on what basis a contract can be awarded without competition.  Similarly, it will set out how mini competitions should be run, with requirements typically less onerous than the Regulations.  There are numerous well-established frameworks that local authorities can go to e.g. CCS, g-cloud, SCAPE, ESPO, etc.

So why are they so popular?  Often clients can have a supplier in mind (particularly when they have used someone before and have found them to be good) and if you can find them on a framework that is seen as a good way to secure that particular supplier.  Alternatively, a client may not be too sure what they want and a framework is seen as an easier starting point because somebody has thought of most of it for you.  Time can be a big factor – it is common to be told that we don’t have time to do our own procurement so we have to use a framework because it is quicker.

Notwithstanding their popularity, there do appear to be some myths with frameworks that not many people realise including the following:

  • MYTH: A framework is in place of doing a procurement – securing goods and/or services from a framework is doing a procurement. You are procuring them through the framework and are therefore still subject to certain rules, if not those that require you to do your own tender exercise.  Your contract is still one that falls under the Regulations if it meets the relevant threshold.
  • MYTH: I don’t need to check the terms and conditions because somebody did that when they set up the framework – before entering into any contract it is always advisable to get legal advice on the terms, unless it is a standard contract that you are already familiar with. Yes, the terms should be legally correct but do you know what they say and what they mean?  Advice on the terms will help you understand whether the framework is right for you so it is always advisable to get it checked before you start your award process rather than just before you are about to sign on the dotted line!
  • MYTH: My preferred supplier is on the framework so it must cover what I need – suppliers can often provide a variety of services and not every framework they are on will necessarily cover all those services. Sometimes they may be on a framework for just some of the services they provide, so you need to be sure that those are the services you want before you use the framework.  It is always important to check what services the framework covers as well as who the suppliers are.
  • MYTH: The supplier has to use their own terms – a properly procured framework should set out the terms on which call-off contracts can be awarded. They may not be bespoke terms (e.g. they could be standard contracts like JCT or NEC in the case of construction contracts) and they may not always be included within the framework agreement itself but it should be clear what terms the call off contract can be let under and whether that includes the supplier’s standard terms or not.  So if a supplier tries to persuade you to enter into the contract on their terms, make sure you check the framework agreement first.

So given the above, it might not always be as easy as it seems to use a framework but is it still the quickest way to procure?  Possibly but perhaps not as much as people may think.  It’s worth thinking about what you still need to do with a framework:

– You still have to draft a scope of works/specification for your specific contract. Some of the general technical requirements may have been covered for you but you still have to draft something that covers what you need and how it is to be delivered to your local authority.

– You still need legal support to draft a contract (and possibly review the framework agreement as well). There may be template call-off contracts but they will still need reviewing and populating.

– If you run a mini competition, you will still need to evaluate submissions, so you will need to prepare documents for that and set aside time to assess the responses.

– You still need to arrange your internal authorities to award and sign the contract.

Using a framework is in fact still quite similar to running your own tender exercise, if you use it properly.  It is perhaps more the case that each stage perhaps has a little less time to it that overall provides the sense of a bigger time saving.

It is curious that often price is not given as a reason to use a framework (especially given the duty on local authorities to secure best value).  It should be the case that it is more cost effective to use a framework because it is effectively bulk buying but often suppliers will come and say that they can offer a better price outside of the framework.  Sometimes that’s due to a moment in time, sometimes it’s about new client relationships and sometimes it’s about the scope of the services being sought.  It is worth bearing in mind whether running your own tender exercise may get you better rates in some circumstances.

Generally, frameworks have quite an appeal and to some extent probably are quicker and easier but the key to success is to make sure you still procure properly under them.  It is not a ready-made solution, it is a partly-made solution that you need to finish off and tailor to your authority’s needs, so think carefully about whether a framework is the right choice and consider testing the market first if you need to.

Dangerous Walls

Kerryn Woollett, Senior Solicitor

by Kerryn Woollett, Senior Solicitor

There are a number of rock/brick walls across North West Leicestershire, which are over one hundred years old. These walls may look nice and be part of the area’s history, though due to their age, they are falling into disrepair and have the potential to become dangerous.

When a structure becomes dangerous, the Council may apply, under s.77 of the Building Act 1984, to the Magistrates’ Court for an order requiring the owner to carry out works to remove the danger or, if the owner choses to do so, to demolish the structure. If the works are not carried out, then the Council can carry out the works themselves and recover the costs of doing so from the owner.

However, due to the age of these walls, often time no one knows who the owner is and furthermore, naturally the wall often forms the boundary between private and public land, making it further difficult to identify the owner. What then can and should the Council do?

As mentioned above, s.77 allows the Magistrates’ Court to make an order requiring the owner to carry our certain works or demolish the structure. Therefore, if the owner cannot be identified, an order under s.77 cannot be made. Furthermore, if such an order were to be made and the Council were to carry out the works, the Council would not be able to recover the costs of the works as the owner is unknown, and this would mean the public purse has to cover these costs.

Therefore, what can and should the Council do when a wall with an unknown owner becomes dangerous?

Under s.78 of the Building Act 1984 if a structure is in such a state as to be dangerous such that immediate action is necessary to remove the danger, the Council may take such steps as may be necessary to remove the danger. This then enables the Council to carry out the works without the need to apply to the Court. Though, if the owner is unknown, the Council will not be able to recover the costs of the works and instead, the burden will fall on council tax paying residents. In situations where the wall forms the boundary between public and private land, many might be of the view that it isn’t a good use of public funds to pay to repair a wall which is clearly benefiting a private individual, even if it’s not completely clear that that individual actually owns the wall. Others might be of the view that because the wall forms a boundary between public and private land, there is a clear public benefit in the wall being repaired and consequently the Council should cover the costs of repair. Furthermore, some might also argue that the risk of injury to members of the public should the wall collapse, is a further reason for the Council to undertake the repairs, even if there is no possibility of recovering costs.

It is therefore important to consider the wording of the statute. Both s.77 and s.78 of the Building Act 1984 create powers instead of imposing a duty. That is, these sections allow the Council to carry out works or to apply to the Magistrates’ Court for an order in relation to a dangerous structure, but they do not require the Council to do so. This is because both sections use the word ‘may’, that is, the Council may apply to the Court or the Council may carry out works. Neither s.77 nor s.78 state that the Council shall or must apply to the Court or carry out works.

It is further interesting to know that public authorities do not owe a duty of care, at common law, simply because they have statutory powers or duties, even if, were they to exercise their statutory functions, they could prevent a person from being injured (see Poole BC v GN [2019] UKSC 25). Public authorities, like private individuals, are generally not under a duty of care to prevent the occurrence of harm (see DFX (A Protected Party) v Coventry City Council [2021] EWHC 1382 (QB)).

Therefore, as the Building Act 1984 does not require the Council to take any action in respect of dangerous walls, and as case law had found that public authorities do not owe a duty of care simply because they have statutory powers or duties, even if, were they to exercise their statutory functions, they could prevent a person from being injured, in situations were the owner of a dangerous wall cannot be identified the Council is not required to take any action.

The Council could choose to exercise its powers, though equally, the Council, could take no action at all. In situations where the owner of a dangerous structure is not known, s.94 of the Building Act 1984 provides that a notice can be served by addressing it to the owner of the structure and attaching it to a conspicuous part of the structure.

Attaching said notice to any dangerous walls in the Council’s area, may then help to identify the owner so that the necessary works can be carried out.

Taxi and Private Hire Vehicle Licencing

Lauren Sturgess, Trainee Solicitor

by Lauren Sturgess, Trainee Solicitor

Whilst working as a trainee solicitor at North West Leicestershire District Council (NWLDC) I have been able to experience the law, regulations and requirements around Taxi and Private Hire Vehicle Licencing for Local Authorities, whilst working alongside our litigation, regulatory and enforcement solicitor.

So far this experience has included attending a Taxi and Private Hire sub-committee meeting and an appeal hearing at the Magistrates’ Court, and experiencing the preparation required by both the licencing team and the legal team ahead of these meeting and hearings.

Legal Framework

As NWLDC is a licencing authority, we have the responsibility of ensuring the public travel in ‘safe, well maintained vehicles driven by competent drivers’.

Section 51 of the Local Government (Miscellaneous Provisions) Act 1976 (the Act) sets out that a district council shall not grant a licence unless they are satisfied that the applicant is a fit and proper person to hold a driver’s licence. Therefore, in order to qualify to hold a licence, you must be deemed ‘fit and proper’.

This applies where a person applies for a taxi licence, and where the decision is being made to suspend or revoke an existing licence.

Section 61 of the Act deals with the suspension and revocation of driver’s licences and allows a district council to suspend or revoke or refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle on any of the following grounds:

(a) That he has since the grant of the licence-

  1. been convicted of an offence involving dishonesty, indecency or violence; or
  2. been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Part of this Act;

(aa) that he has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty; or

(b) any other reasonable cause.

Any “other reasonable cause” therefore includes where the driver is no longer considered to be fit and proper to hold a driver’s licence.

This test is applied to each individual case and a decision is made by the individual district council’s regulatory/licencing sub-committee.

How is a decision made?

The Department for Transport has issued statutory guidance on the ‘fit and proper person test’ as follows:

“Without any prejudice, and based on the information before you, would you allow a person for whom you care, regardless of their condition, to travel alone in a vehicle driven by this person at any time of day or night? If, on the balance of probabilities, the answer to the question is ‘no’, the individual should not hold a licence.”

The local government association have also issued a handbook which sets out guidance for Local Authorities in making taxi licencing decisions and have summarised the above guidance with a reasonable rule of thumb to ask when considering a taxi licencing decision ‘would I be happy letting my wife/husband/daughter/son be driven by this driver?’. If we cannot be confident that the answer is ‘yes’, then a licence should be refused.

Decision and Appeal

If it is found that an existing licence holder is no longer deemed to be a ‘fit and proper’ person, the licencing authority can suspend the licence or revoke the licence. Where a district council suspend, revoke or refuse to renew any licence they shall give to the operator notice of the grounds on which the licence has been suspended or revoked or on which they have refused to renew the licence within 14 days of such suspension, revocation or refusal.

Under section 61(3) of the Act, the licenced driver has the right to lodge an appeal with the Magistrates’ Court. If an appeal is lodged, a licenced driver can continue to work until the outcome of the appeal has been decided.

A licence can however be suspended or revoked with immediate effect. The effect of this is that the licence holder must stop working immediately, and will therefore not be able to of continue to work whilst any appeal is determined. Immediate suspension or revocation is reserved for matters where such action is in the interest of public safety.