Public Sector Update - July 2010

Planning

Revocation of Regional Spatial Strategies

On 6 July 2010 all Regional Spatial Strategies (RSS) (except the one for the London Plan) were formally revoked with immediate effect by Section 79 (6) of The Local Democracy, Economic Development and Construction Act 2009. Further, the layer of regional planning embodied in a RSS will be abolished by the Localism Bill that is to be introduced in the current parliamentary session. The Coalition's aim in doing away with the RSS is to make the planning system simpler, more efficient and easier for people to understand.

In the current transitional period between the revocation of individual RSSs and legal abolishment of RSS, guidance has been provided to Local Planning Authorities by Chief Planning Officer Steve Quarterman. Some key points to note from the guidance provided to Local Planning Authorities include:

• Planning Policy Statements (PPS) continue to apply until they are replaced by the National Planning Framework ;
• In determining planning applications, LPAs must continue to have regard to the development plan consisting of adopted Development Planning Documents (DPD), saved policies and any old style plans that have not lapsed. LPAs should also have regard to other material considerations including national policy. The revocation of the Regional Strategy may also be a material consideration;
• LPAs should continue to develop LDF core strategies and other DPDs. It is recommended that any reviews of these documents are undertaken as quickly as possible;
• In the absence of regional strategy targets, local planning authorities will be responsible for establishing the right level of local housing provision in their area, and identifying a long term supply of housing land without the burden of regional housing targets;
• LPAs may base revised housing targets on the level of provision submitted to the original Regional Spatial Strategy examination (known as Option 1 targets), supplemented by more recent information as appropriate;
• LPAs should continue to identify viable land for housing growth in their DPDs, and should continue to use plans to identify sufficient sites and broad areas of development to deliver their housing ambitions for at least 15 years from the date the plan is adopted. LPAs should also have a five year land supply of deliverable sites for housing; and
• Regarding Travellers' sites, LPAs will be responsible for determining the right level of site provision reflecting local need and historic demand.

All those involved in the planning process are advised to consult the full guidance available at www.communities.gov.uk or contact the Planning Team for further advice.

Construction

Can Fraud Be Used As a Defence In Adjudication?

The case of SG South Ltd v King's Head Cirencester LLP sets out the considerations to be taken into account by the court in determining whether, and in what circumstances, fraud might be a defence in adjudication proceedings and in court proceedings for the enforcement of an adjudicator's decision.

The dispute arose from the determination of the construction and refurbishment contracts entered into between the parties for two sites. The contractor issued two notices of adjudication. In the first adjudication, the adjudicator found that all monies due had been paid to the contractor and works contractors, and that only a small amount of interest was due to the contractor. On the second notice the adjudicator awarded a substantial amount plus interest to the contractor, who issued enforcement proceedings to enforce both decisions of the adjudicators.  The employer sought to resist the summary judgment on the basis that the contractor had acted fraudulently by inflating claims, altering records and charging for items that were not due pursuant to the contracts.

When will fraud be a successful defence? The court decided that in adjudication fraud can be successfully used as a defence e.g. to assert that the certificate relied on was obtained by fraud; that works and materials claimed for were not in fact supplied or that the contract had been induced by fraudulent representations etc.  In defending an enforcement action, allegations of fraud may be successful if they can be supported by clear and credible evidence.

As in the case in SG South Ltd v King's Head Cirencester LLP, where the defence of fraud failed, it would be inadvisable to claim fraudulent actions unless you have solid evidence to support this. The Courts do not take a finding of fraud lightly. Further, if you are the party claiming fraud it would be advisable to argue the point  during the adjudication process itself rather than waiting to do it during Court enforcement procedures.

If you have any queries arising from the above, please contact Stephen Homer via s.homer@ashfords.co.uk

Employment

Vetting and Barring Scheme Halted

The government has announced that registration with the Vetting and Barring Scheme (VBS) will be halted to allow remodelling of the scheme. The scheme will be changed to "proportionate, common sense levels".

The aim of the VBS is to protect children and vulnerable adults by preventing those who pose a known risk from working with them.

Voluntary registration with the VBS for new employees working or volunteering with children and vulnerable adults was due to start on 26 July 2010, but has now been halted.

The government has said that it recognises that many businesses, community groups and individuals see the VBS as disproportionate and overly burdensome, and that it unduly infringes on civil liberties.

The extent of the remodelling is currently being finalised and will be announced shortly. In the meantime, the following aspects of the VBS, which came into effect in October last year, remain in place:

• It is a criminal offence for barred individuals to apply to work or volunteer with children or vulnerable adults in a wider range of posts than previously. Employers also face criminal sanctions for knowingly employing a barred individual across a wider range of work roles and areas;
• The three previous barring lists (POVA, POCA and List 99) are replaced by the creation of two new barred lists administered by the Independent Safeguarding Authority (ISA) rather than several government departments. Checks of these two lists can be made as part of an Enhanced CRB check;
• Additional jobs and voluntary positions are covered by the barring arrangements, including moderators of children's internet chat rooms and a large number of NHS staff; and
• Employers, local authorities, professional regulators and inspection bodies have a duty to refer information to the ISA on an individual working with the vulnerable where they consider them to have caused harm or pose a risk.

Existing requirements concerning Criminal Records Bureau checks will also remain in place.

Housing

Human Rights and Termination of Joint Tenancies

Those who work with housing tenancies are familiar with the basic concept that one tenant under a joint tenancy can bring that tenancy to an end by serving a notice to quit, without the agreement of the other joint tenants. There are exceptions; for example, when tenancy agreements provide otherwise, or where there are requirements to check the validity of the notice etc. However the fundamental principle is well established.

Soon after the European Convention on Human Rights was integrated into domestic law, a number of cases looked at whether the granting of a possession order pursuant to a notice to quit served by one joint tenant could be reconciled with Art 8 of the Convention, which guarantees the right to respect for the home. The argument has been rejected by the Courts, and the right to end a joint tenancy unilaterally has been upheld.

However, a recent case may be signalling a change. The decision has recently been handed down by the High Court in Lana Wilson (by her litigation friend, the Official Solicitor) v LB Harrow.  Ms Wilson had been a secure tenant of the respondent since 1992.  When she subsequently married, her husband became a joint tenant at her request.  He left in 2006 and was advised that he would continue to be liable for rent arrears unless he ended the tenancy by serving a notice to quit, which he eventually did.  Ms Wilson applied for a sole tenancy but was unsuccessful.

The circuit judge initially granted a possession order, rejecting Ms Wilson's argument that the principle of unilateral termination of a joint tenancy was incompatible with Article 8.  On appeal to the High Court, it was held that it was not open to them to find that previous decisions were incompatible with the Convention, and that any argument as to incompatibility would be unsustainable until the Supreme Court overruled those decisions.

This decision may well be challenged before the Supreme Court, and landlords should be alert to rulings that may be forthcoming and could significantly change the circumstances under which a joint tenancy can be brought to an end.

Ashfords LLP is regulated by the Solicitors Regulation Authority.  The information in this note is intended to be general information about English law only and not comprehensive.  It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.  Links to other sites and resources provided by third parties are included for your information only.  We have no control over the content and accept no responsibility for them.