Category: Uncategorized

Uncategorized

Cornwall Council’s Car Park Outsourcing: Legal Concerns Explained

bruceandholly
Photo by Jens Mahnke on Pexels.com

I have to query the legality of the proposal by Cornwall Council to outsource the management of up to 22 of its car parks, to take them out of statutory control under the Road Traffic Regulation Act 1984. Isn’t that precisely what Robert Goodwill MP, Parliamentary Under Secretary of State, warned against in his open letter to local authority parking managers of 16th September 2014? Well not quite! Goodwill’s letter was aimed at some councils who thought it okay to opt themselves out of the statutory local authority parking regime and instead manage their car parks under Schedule 4 of the Protections of Freedoms Act 2012, which now governs the management of private car parks. It was the 2012 Act which abolished unregulated wheel clamping on private land and instead introduced a regulated process to enable the owners of private car parks to manage their operations. Though why any local authority could have thought it lawful to opt out of statutory regulation is beyond me. But Cornwall’s case is different because the Minister’s 2014 letter makes no mention of leasing arrangements, which is what Cornwall Council is proposing in this case. Hang on!

The prospective lessee of Cornwall’s 22 car parks is not any old company. According to a council report, the prospective lessee will in this case be a wholly owned subsidiary of Cornwall Council. Least, that’s what the Scrutiny Committee report of 4th September 2024 states:

“Following a successful trial at Tower Headland ( Little Fistral) in Newquay, a new model of managing some of our car parks has been considered which supports the principle of decentralisation. Essentially this involves the transfer of a car park site by means of a lease to a council owned company, who would then manage the land; paying rental at least sustaining the income to the council and removing the liability of the council to maintain and manage the asset.”

A council-owned company! How arms length is that? The only other companies we can see mentioned in the reports are the privately owned Treveth and Conserve, which would be managing the day-to-day operation of the car parks.

Key to the legality of outsourcing an off- street parking place is paragraph 3(1) of Schedule 4 of the Protection of Freedoms Act 2012, which defines ‘relevant land’ to which Schedule 4 applies and which is stated as follows:

“In this schedule relevant land means land (including land above or below ground level) other than:

a) a highway maintained as a public expense ( within the meaning of section 329(1) of the Highways Act 1980;

b) a parking place which is provided or controlled by a traffic Authority;

c) any land not falling within paragraphs a or b on which the parking of a vehicle is subject to statutory control.”

The other thing which I noticed when reading the officer reports is that, as far as I can see, no mention was made of the Minister’s 2014 warning letter. Nor of Schedule 4 of the Protections of Freedoms Act 2012. Forgive me! But aren’t those ‘material considerations’ for any decision of this type? Apparently not. Let’s see what the Parking Adjudicator makes of it.

Uncategorized

Alarmed by Moves to Scale Back Jury Trials

bruceandholly
Photo by Sora Shimazaki on Pexels.com

I’m alarmed by pressure from senior legal figures to scale back the defendant’s right to jury trial from intermediate offences carrying a maximum sentence of less than two years.  Yes-I know that there is a two-year crown court backlog.  But whose fault is that?  If the State really wants to do justice to defendants as well as victims, it should appoint the judges and make court-space available to reduce that backlog, instead of closing courts.

As is apparent from the stepping down of former Transport Minister Louise Haigh, the real damage of a criminal conviction is not the derisory penalty handed down by the judge or magistrate but the damage to future life-prospects.  We have already seen proposals by the Scottish Government to remove juries in alleged sexual offences in an effort to improve conviction rates.  Is that really what it’s all about?

I have always been a supporter of jury trials, not only in criminal cases but also in some civil cases, where there are major issues of fact (such as libel or slander), or where an individual is facing the might of the State.  Though as a conveyancer, it is hardly likely that I will be addressing a jury any time soon.  But if ever I was at the wrong end of the criminal proceedings, I would certainly want my guilt or innocence decided by a jury instead of a handful of State-appointees.  We have already seen in the Northern Ireland legacy cases, what happens when an ex-serviceman’s right to jury trial is taken away.  Of course, it is not for me to say whether those ex-servicemen would have been convicted or acquitted if their cases had been tried before a jury.  Only that, without a jury, they didn’t have a chance.

Uncategorized

Essential Law for Cemetery and Crematorium Managers 2025

bruceandholly
Photo by Lisa Fotios on Pexels.com

We are pleased to announce the release of Essential Law for Cemetery and Crematorium Managers 2025, which replaces the earlier edition published June 2021 and which became Amazon’s best selling business law book within days of publication. 

So far as we are aware, it still remains the only book on the UK market dealing with this particular aspect of law.  The Institute of Cemetery and Crematorium Management, which represents the cemetery and crematorium industries in the UK, commissioned the publication of this book, as it did the earlier version.  The book is priced at £46.00 for the paperback. 

Ebook and hardback versions are also planned for the new year and we will keep you updated regarding this.  The earlier version, published June 2021, has now been withdrawn from sale. Updated content includes: new arrangements for death certification, following adoption of the statutory medical examiner system on 9 September, 2024; future legal changes regarding re-use of existing graves, which are expected as a result of the Law Commission consultation on burial and cremation launched 3rd October 2024 which is currently underway; as well as recent case law concerning the interpretation of burial rights and involving a well-known London cemetery.  The book also includes three real-life case studies on matters in which ICCM has recently been asked to advise. 

Uncategorized

Expert Guidance for Local Authority Conveyancing Professionals

bruceandholly
Photo by SevenStorm JUHASZIMRUS on Pexels.com

Updated guidance for the 34,500 in-house solicitors practising in England and Wales, re-states how those solicitors should respond to the challenges of working for a corporate employer, particularly where employer-demands conflict with the general professional responsibilities which apply to all UK  lawyers.  Published  18 November, 2024 under the heading, ‘Dedicated Guidance Issued to Support In-House Solicitors’, it provides advice on how to identify and deal with potential conflicts of interest as well as client confidentiality.  It also provides advice to corporate employers on how to manage in-house solicitors in a way which does not compromise their professional responsibilities.  But there is a limit as to how much information you can put in a couple of dozen pages.

The opening chapters of Local Authority Conveyancing Law and Practice UK. also deals with the same subject matter, but in much greater detail.  It addresses the circumstances when a practising certificate is required as well as issues relating to anti-money laundering; professional training; avoiding conflicts of interest and client confidentiality.  But whilst the SRA guidance is written for all in-house solicitors, Local Authority Conveyancing Law and Practice focuses on that a tiny proportion of solicitors forming part of an in-house conveyancing team.

It also deals with the challenges facing local authority conveyancing teams, which now exist in a competitive environment where nothing can be taken for granted.  It explains what a corporate client really wants from an in-house team, which is not about being cheap and cheerful.  The book will also encourage you to look seriously at any opportunities for getting into management.  Because management experience does not only look good on a CV.  It is also a valuable life skill.  But no local authority conveyancing book would be complete without a raft of reference material as well as practical tips on how to manage a conveyancing transaction when you don’t have access to a client account.

Law, Uncategorized

Dorset Council and Planning Enforcement

bruceandholly
Photo by Sora Shimazaki on Pexels.com

Speed is of the essence when it comes to the enforcement of planning regulations.  Unauthorised building work can become immune from planning enforcement in as little as four years.  For an authorised change of use, it is 10 years.  Although the law was changed on 25 April, 2024 to extend the enforcement of time limits from four years to 10 years in relation to unauthorised building work, that change does not apply retrospectively.  It means that unauthorized building work completed before that date will continue to be subject to the four year rule before it becomes immune from enforcement.  Nor are planning irregularities always a victimless crime.  Imagine if you were disturbed day and night by the revving of car engines because your next door neighbour had turned their domestic garage into a motor repair shop.  Wouldn’t you want your council to take action?

Nor are local authorities obliged to act against planning irregularities in every case.  Only when they consider it ‘expedient’ to do so.  But this does not absolve councils from the responsibility to investigate complaints of planning breaches, where they are reported, in order to make that crucial decision.  The council which refuses to do this and allows a planning irregularity to become ‘established’ by default, opens itself up to the possibility of ombudsman complaints.  Nor is it any excuse for the local authority to say that it does not have the resources to investigate planning irregularities.  Does it have the resources to pay out the compensation claims which will inevitably follow if it fails to act against planning irregularities where there is a need to do so?

Once a planning irregularity has been reported, it needs to be investigated.  Only then, can a decision be made as to whether it is ‘expedient’ to take enforcement action.  But that is only the beginning of a statutory process.

Information has to be gathered.  A decision made whether it is expedient take planning enforcement action or to ignore the irregularity because it is considered harmless.  Once it is decided that enforcement action has to be taken, a legal decision has to be taken as to the appropriate course of action to be taken against that planning-breach.  There are several choices.  Including a planning contravention notice; breach of condition notice; or the traditional enforcement notice, against which there is an appeal to the Secretary of state, which could, although rarely, lead to the cost of a public inquiry.  Once any statutory appeals against the enforcement process has been exhausted, the local authority have to follow up with prosecution if the breach continues.

It is also important that councils are seen to be robust when it comes to regulatory enforcement.  Otherwise it sends the wrong message.  That planning irregularities can be ignored.  It is why Dorset Council’s backlog of 900 cases is so problematic.  Many of those pending cases are already on their way to becoming immune from planning enforcement, as well as those cases which have already become immune.  If the council does not have the resources in-house to deal with it, and maybe it should consider outsourcing that function.