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.

NWL Legal Virtual Work Experience Week 5 – 9 September

by Jodie Bradford, Legal Practice Manager

Week commencing 5 September saw our very first (and not last!) virtual work experience week. The programme was open to aspiring solicitors studying law at University and was well attended by a variety of students.

The team put on 10 sessions throughout the week on different aspects of working in a local government legal team. The sessions included Being a Local Government Lawyer, Running a Public Procurement Exercise, Drafting a Privacy Notice, Disrepair Claims, Dealing with a Right to Buy Transaction, Being a Trainee Solicitor in Local Government, Case Management Systems, the Admin Team and Compliance and Being a Local Government Monitoring Officer. We also held a session with some of our clients (huge thank you to Chris Elston, Clare Proudfoot and Barrie Walford for volunteering their time for this one!) and we also gave the students the opportunity to attend the Council meeting in the evening. The attendees were even treated to some homework to complete after some of the sessions!

We had some really great feedback on the week:

…I benefited greatly from the experience and connected with great professionals. I enjoyed learning something completely new”

“Thank you all very much for working to put this together, it is really refreshing and exciting to be able to gain relevant work experience that is not exclusionary or patronising.”

We also did a closing session on the Friday whereby we received general feedback from some of the attendees that said they enjoyed the variety of the sessions, they felt they were clearly structured and organised and they liked having time between the sessions to do research and tasks. The students also said they liked that you could book onto individual sessions, rather than having to commit to every session which made it easier for those that were working throughout the week and they generally enjoyed where we talked about the local area and the involvement we have in things that go on within the district as people don’t tend to appreciate the work that goes on in the background.

One of the attendees even took the time out of their day to send our Trainee Solicitor a personal message on LinkedIn about her session “Being a Trainee Solicitor in Local Government” and said that her session was “descriptive but not overwhelming”, that Lauren was “positive and upbeat” and that she seems like a “great person to learn from”.

Overall it was a really good week and we were really glad to hear that the students felt they had gained something out of it as a lot of work went into organising the week – we are already looking at running another session next year.

The Parish Fair

by Jodie Bradford, Legal Practice Manager

NWL Legal attended the Parish Fair on Tuesday, 27 September. The Parish Fair is an annual event organised by North West Leicestershire District Council attended by our local Parish/Town Councillors and Clerks. The fair provides an opportunity for the Clerks and Councillors to stop by and have a chat with different service areas of the district council and also attend some talks and demonstrations held by some of the teams. The last Parish Fair was in 2019 and has unfortunately been cancelled for the last 2 years so it was nice to have the event back up and running again.

Some of the workshops included a tour of the new Coalville and Whitwick Leisure Centre, a Waste Services vehicle demonstration in the car park and talks on anti-social behaviour, recruitment, resilience, enviro-crime and elections! Some of our Parish Council clients used the event as an opportunity to get an update on some of the matters they have instructed NWL Legal on.

Rebecca Elliott, Contracts Solicitor (pictured right) attended the fair on behalf of NWL Legal, having been on maternity leave. Laurent Flinders (pictured left), Information Governance Officer also attended alongside Rebecca, having been with the council since March, this was her first event on behalf of the team.

NWL Legal stall at the Parish Fair 2022

The Public Sector Equality Duty and the Councils housing function

Kerryn Woollett

by Kerryn Woollett, Senior Solicitor

Section 149 of the Equality Act 2010 (“the Act”) sets out the Public Sector Equality Duty (PSED). It requires public authorities, in the exercise of their functions, to have due regard to the need to:

  1. eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act;
  2. advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
  3. foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

“Public Authorities” are listed in Schedule 19 of the Act, and this list includes “A county council, district council or parish council in England”.

Therefore, the Council must have due regard to the PSED whenever it exercises its functions. This is particularly important when considering enforcement action. The Council has a range of enforcement functions from licensing (for example revoking a taxi driver’s licence), to environmental health/protection (for example issuing an abatement notice) to community safety (for example issuing a community protection notice). This note relates to the Council’s housing function (for example seeking possession) though the practical steps (see later) can be implemented when carrying out any enforcement function.

There are nine Protected Characteristics (s.4 of the Act), these are:

– age;

– disability;

– gender reassignment;

– marriage and civil partnership;

– pregnancy and maternity;

– race;

– religion or belief;

– sex; and

– sexual orientation.

The Protected Characteristic that arises most commonly for District Council’s in possession cases is disability.

S.149 does not dictate a certain result. Therefore, it is important to remember that the PSED is about processes not about outcomes. However, s.149 also doesn’t prescribe the process, therefore, what the Council needs to be able to do is shows that there has been rigorous consideration of the duty.

Turner J in London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB) provided a helpful summary of what the duty involves in possession proceedings:

Application of the PSED

(i)  When a public sector landlord is contemplating taking or enforcing possession proceedings in circumstances in which a disabled person is liable to be affected by such decision, it is subject to the PSED.

Nature and scope of the PSED

(ii)  The PSED is not a duty to achieve a result but a duty to have due regard to the need to achieve the results identified in section 149. Thus when considering what is due regard, the public sector landlord must weigh the factors relevant to promoting the objects of the section against any material countervailing factors. In housing cases, such countervailing factors may include, for example, the impact which the disabled person’s behaviour, in so far as is material to the decision in question, is having upon others (e.g. through drug dealing or other anti-social behaviour). The PSED is “designed to secure the brighter illumination of a person’s disability so that, to the extent that it bears upon his rights under other laws it attracts a full appraisal”.

Making inquires

(iii)  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.

The importance of substance over form

(iv)  The PSED must be exercised in substance, with rigour and with an open mind and should not be reduced to no more than a “tick-box” exercise.

Continuing nature of the duty

(v)  The PSED is a continuing one and is thus not discharged once and for all at any particular stage of the decision making process. Thus the requirement to fulfil the PSED does not elapse even after a possession order (whether on mandatory or discretionary grounds) is granted and before it has been enforced. However, the PSED consequences of enforcing an order ought already to have been adequately considered by the decision maker before the order is sought and, in most cases, in the absence of any material change in circumstances (which circumstances may include the decision maker’s state of knowledge of the disability), the continuing nature of the duty will not mandate further explicit reconsideration.

The timing of formal consideration of the PSED

(vi)  Generally, the public sector landlord must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before seeking and enforcing possession and not merely as a “rear-guard action” following a concluded decision. However, cases will arise in which the landlord initially neither knew nor ought reasonably to have known of any relevant disability. The duty to “have due regard” will then only take on any substance when the disability becomes or ought to have become apparent. In such cases, the lateness of the knowledge may impact on the discharge of the PSED. For example, cases may arise in which countervailing interests justify a less formal PSED assessment than would otherwise have been appropriate. Thus a tenant whose anti-social conduct has already been adversely affecting his neighbours for a considerable time but whose disability is raised at the eleventh hour may well find that the discharge of the PSED does not necessarily mandate a postponement of the date or enforcement of a possession order. Of course, the obligation to have “due regard” still arises but the result of the discharge of that obligation may well be less favourable to the person affected where, through delay, the landlord’s options have been limited and the rights and reasonable expectations of others have assumed a more pressing character. Each case will, of course, depend on its own facts.

Recording the discharge of the duty

(vii)  An important evidential element in the demonstration of the discharge of the PSED is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements. Although there is no duty to make express written reference to the regard paid to the relevant duty, recording the existence of the duty and the considerations taken into account in discharging it serves to reduce the scope for later argument. Nevertheless, cases may arise in which a conscientious decision maker focussing on the impact of disability may comply with the PSED even where he is unaware of its existence as a separate duty or of the terms of section 149.

The court must not simply substitute its own views for that of the landlord

(viii)  The court must be satisfied that the public sector landlord has carried out a sufficiently rigorous consideration of the PSED but, once thus satisfied, is not entitled to substitute its own views of the relative weight to be afforded to the various competing factors informing its decision. It is not the court’s function to review the substantive merits of the result of the relevant balancing act. The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.

Practical steps to follow to show due regard to the PSED:

  1. Be aware of an individual’s issues/difficulties;
  2. Consider alternative action – is there alternative action available and if not why not.
  3. Liaise with relevant bodies – this could be other sections within the Council or third parties for example GPs, police, social services;
  4. Apply polices – the Council should have policies which consider the circumstances of the district, set out issues which may arise and the process to follow. This will help to ensure consistency in decision-making. However, be aware that policies cannot address every circumstance.
  5. Keep a proper paper trail – there must be rigorous consideration of the PSED but this also needs to be evidenced. Equality Impact Assessments (EIA) are valuable tools for evidencing that rigorous consideration.
  6. Be aware of changing circumstances/information and review the PSED – if necessary carry out a further EIA. This is particularly so, if there are subsequent decisions to be made, for example, an initial EIA should be carried out when the initial decision is made (for example serving a notice of seeking possession). As a result of receiving this notice, the tenant might get in touch and disclose information relevant to a Protected Characteristic. When it comes to making any further decisions (for example applying for possession), this new information needs to be taken into account and the EAI amended – it is not appropriate to rely on the initial EIA, as this has not considered all the information available at the time of making the further decision.

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.

We are looking for a Planning Lawyer…

Senior Planning Solicitor

Band G plus 4 market supplements, £38,553 – £43,570 per annum

36.25 hrs per week, £2,856 per annum car allowance and £3,000 per annum ‘Golden Hello’ (payable annually for the first 3 years subject to satisfactory performance)

Full time permanent contract

Are you a Qualified Solicitor or Barrister (Supreme Court of England and Wales/English Bar) or Fellow of the Institute of Legal Executives or do you have equivalent relevant experience?

Do you enjoy, and have experience in, the areas of planning and regional development?

Are you ready to step into a management role or do you have existing management experience that you would like to develop further?

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

What are we looking for?

As our new Senior Planning Solicitor, you will lead on all planning legal matters for the Council, as well as 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 assist 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.

What can we offer to you? 

This is a fantastic opportunity for a specialist planning lawyer to take a step up into a senior role, taking on new challenges and management responsibilities.  Your development is important to us, so we will support you throughout as you take this next step in your legal career.

We have put together a generous salary package including a car allowance (with cash equivalent) and a ‘golden hello’ payable for your 3 years, plus the following additional benefits:

  • Agile working scheme with a combination of home and office working
  • 33 days holiday (including bank holidays) increasing to 38 days after 5 years
  • Attractive Local Government Pension Scheme with at least 20% employer’s contribution
  • Employee benefits programme’ including payback on medical, dental and optical expenses
  • Continued training and development opportunities

Are we right for you? 

We are a solution-focussed council.  Through listening and fair and balanced decision-making, we strive 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 Lexcel accredited team of specialist lawyers, each with their own areas of expertise, including contracts and procurement, 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 flexible working, acknowledging that the old days of 9-5 at the office do not need to be the norm.  This job is classed as a hybrid role, recognising that there may be times when you need to attend the offices (for example, to attend a committee meeting) 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 through a combination of home and office based working.

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 areas of planning and regional development; S106 agreements; planning enforcement; permitted development; and compulsory purchase orders.  You will also need to be comfortable acting as an advisor of or to the Council’s planning committee and as an advocate at public/planning enquiries and in courts.

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 will develop over time.

To fit in well with the team you need to be proactive, a quick learner, able to work flexibly and someone who can bring enthusiasm to the role both working individually and as part of the team.

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 21 August 2022

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.

Procurement Bill

Kate Hiller Team Manager

by Kate Hiller, Team Manager

What can we expect from the upcoming Procurement Bill?

Ever since the UK left the EU, there has been talk of new procurement rules and in December 2020 the Government set out in a green paper its proposals for bringing in procurement reform.  A consultation between 15 December 2020 and 10 March 2021 gathered feedback from over 500 stakeholders and organisations and at the end of last year the Government published its response.

So what has the green paper and consultation told us about the upcoming reforms?  Some of the changes local authorities can expect to see are:

  • A mixture of principles, objectives and obligations – the government proposed a number of principles that would be included, however, following the consultation feedback it is now proposed that some principles will be objectives instead. The government has also made it clear that there will be obligations at each stage of the process that will be separate from the principles and objectives.  The terms used are all likely to be familiar to procurement lawyers (value for money, transparency, non-discrimination, etc.) but the key will be getting to grips with which category they fall under and the extent to which they become legal requirements of the process.
  • A simpler regulatory framework – it is being proposed that a single, uniform framework replaces the various procurement regulations we have in place currently, covering public contracts, concession contracts, utilities contracts and defence and security contracts. This is unlikely to impact local authorities significantly as in most cases the procurements they are conducting are most likely to be under the Public Contract Regulations 2015, however, when local authorities do need to procure other types of contracts, it may help to not have to get to grips with a new set of regulations.  It is also positive that the government is looking to secure integration between local authorities and the NHS in relation to joint commissioning.
  • New procedures – the current set of procurement procedures under the various regulations are set to be replaced by 3 ‘modern’ procedures, including the open procedure, a flexible competitive procedure and a limited tendering procedure. Local authorities are likely to be most used to the open procedure as this tends to be the most commonly used procedure, which it seems is set to remain.  If local authorities are looking to do something different though, it seems that the new flexible competitive procedure is intended to make it easier to negotiate and innovate.  The government was intending to remove the light touch regime, on the basis that the flexible competitive procedure would provide enough flexibility without the need for a separate regime for certain contracts, however, following the consultation it has accepted that it will remain in some form, with a review of which contracts it applies to.
  • MAT instead of MEAT – local authorities will be used to awarding contracts on the basis of the ‘most economically advantageous tender’ but the proposal is to remove the economic aspect and award on the basis of the ‘most advantageous tender’. This goes some way to address the inherent conflict between social value objectives and the need to secure an economically advantageous deal.  This will hopefully help local authorities with aspirations to award to more local suppliers for the benefit of their community.

The above are just a few of the proposed changes, which are likely to be of most interest to local authorities in their day-to-day procurement activities.  In addition to the above, the government is introducing a new Procurement Review Unit (PRU), different grounds for exclusion of bidders, a central debarment list, provisions to be able to take account of bidder past performance and a new DPS+ procedure, as well as court reforms in relation to how procurement challenges are made.

If you are interested to find out more, then the government green paper can be accessed here and the consultation responses here. If you need any specialist advice on any procurement related matters, feel free to contact us on legal@nwleicestershire.gov.uk.