Thursday, 21 October 2010

Ultra vires acts

One not infrequently hears of local authorities acting outside their powers nowadays, due primarily to ignorance as to the limits of those powers or of the steps required in order to exercise them lawfully, but in some cases there is more than an element of arrogance on the part of senior officers, even when third parties have pointed out that the Council cannot lawfully proceed in the manner proposed.

One such case reached the High Court earlier this year - R (Martin-Sklan) v. London Borough of Barnet [2010] EWHC 2482 (Admin) when Ouseley J granted an injunction ordering the removal of playground equipment installed by the London Borough of Barnet in creating a children's playground without the planning permission it needed and without the authority of the relevant committee or officers of the Council.

The Council accepted that the decision to create the children's play park was not taken by anyone with authority to take it and did not have the planning permission which it required, because its scale fell outside the scope of the permitted development rights for local authorities under Part 12 in the Second Schedule to the GPDO.

The Council whilst conceding that it had acted unlawfully sought to resist an injunction. However, Ouseley J noted that the claimant had been asking the Council to stop the development whilst various issues were resolved, but the Council had nonetheless proceeded to build out the playground. He accepted that the requirement that the equipment be removed and the ground be restored might lead to a waste of money, which would be regrettable, but he considered that that was the appropriate course. There would therefore be an order that the equipment be removed and the open space restored to its previous condition.

One hopes that this case will serve as a salutary reminder to local authorities and their officers not to act outside their powers. When I first started work in local government, over 30 years ago now, I had it drummed into me that I should always ask myself “What is my authority for doing this?” It is a question that local government officers should always have in the forefront of their minds.

Meanwhile, another case which has reached my ears concerns serious damage done by Monmouthshire Council to a Scheduled Ancient Monument – the Clawdd Du in Monmouth. The Council was repeatedly warned not to carry out the works to this ancient ditch which they proposed, but they carried on regardless. It took the intervention of CADW before work stopped, but not before significant damage had been done to the archaeological deposits . It remains to be seen whether the Council or its senior officers will be prosecuted for this serious offence. If it had been committed by a commercial developer, I have no doubt that they would have been arraigned before the Crown Court. There seems to me to be no reason why the Council and/or the officer or officers responsible for what has occurred should not be similarly dealt with.


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