Local Authority round-up 28/04/23

Regulatory

New taxi licensing rules for councils

With effect from 27 April 2023, councils in England will be mandated to use a national database to record instances where taxi and PHV drivers have their licences removed for misconduct under the Taxis and Private Hire Vehicles (Safety and Road Safety) Act 2022. The existing database is already used voluntarily by some councils, but only 74% of councils in England are using it and the new measures are being introduced in order to clamp down on unfit taxi and private hire vehicle (PHV) drivers and boost passenger safety. Councils will now also be compulsory required to record in the database every driver licence application and the Department for Transport will monitor its use closely. Councils that fail to do the necessary checks could face legal action. Transport Secretary Mark Harper said “The safety of passengers, especially women and girls, is paramount. That’s why I’m bringing in tough new measures to ensure that when you catch a cab, you can be confident your driver will take you from A to B safely and without incident. While the vast majority of drivers are hardworking and honest, we’re taking steps to remove the few who abuse their position and pose a risk to passengers.”

For more information please click here.

Welsh Government consults on civil sanctions to enforce Environmental Protection (Single-use Plastic Products) (Wales) Bill

The Welsh Government (WG) has published a consultation on its proposals to introduce civil sanctions as an enforcement alternative to criminal proceedings to enforce the bans on specific single-use plastic products being introduced under the Environmental Protection (Single-use Plastic Products) (Wales) Bill. The consultation closes on 9 June 2023. The Bill is awaiting Royal Assent and will make it an offence for a person to supply or offer to supply (including for free), certain commonly littered and unnecessary disposable single-use plastic (SUP) products to a consumer in Wales. Local authorities will enforce the bans. The consultation proposes introducing the following civil sanctions by regulations:

• Variable monetary penalties (VMPs) or compliance notices. The regulator must be satisfied beyond reasonable doubt that the person has committed the offence and will have first to serve a notice of intent. VMPs will be used for more serious offences and will reduce the burden on the court system of taking a prosecution. While there is no upper limit, the amount will be proportionate depending on the size of business, scale of offence, environmental impact and level of financial benefit.
• Stop notices. These will prohibit a person carrying out an activity specified in the notice until certain steps have been taken. The local authority must reasonably believe the activity is causing, or there is a significant risk that it will cause, serious harm. There will be compensation for an unlawful stop notice.
• Enforcement undertakings. An offender will be able to proactively address non-compliance by offering to stop the supply of a prohibited plastic product, knowing failure to do so will mean prosecution.

Criminal proceedings remain available where the offender fails to comply with the civil sanction and are subject to an unlimited fine on summary conviction in the magistrates’ court. The WG is basing its proposals on existing civil sanctions regimes for single use carrier bags and microbeads, and proposed waste regulations to require separation of waste for recycling.

For more information please click here.

Planning and housing

Section 78 of Building Act 1984 provides no exemption from need to obtain planning permission

Section 78 of the Building Act 1984 (BA 1984) gives a local planning authority (LPA) power to take steps to deal with a building or structure which is in a dangerous state, such that immediate action is needed to remove the danger. The High Court considered the central issue in this judicial review was whether section 78 did away with the need to obtain planning permission, which would otherwise be required in order to undertake the necessary steps. The High Court (Lane J) held that section 78 of the BA 1984 provided no exemption from the need to obtain planning permission. Where an LPA invokes section 78 (whether in respect of its own land or that of a third party) and there is not enough time to obtain planning permission for demolition, then, just as in the case of any other owner who takes action to address the danger, the LPA will be able to rely upon the defence in section 196D(4) of the TCPA 1990, in the event that a prosecution is brought. The High Court considered that the existence of that defence meant it was unlikely that a prosecution would be brought. Section 78 of the BA 1984 also provides the “lawful excuse” to preclude the possibility of prosecution for criminal damage under section 1 of the Criminal Damage Act 1971. The LPA, like any other owner, could seek to regularise the position regarding planning permission after the event (obtain retrospective planning permission) and could legitimately demonstrate why enforcement action would be inappropriate. The fact that planning permission was required, but not obtained did not mean that the LPA acted outside the powers of section 78 of the BA 1984. To hold otherwise would place an LPA which invokes section 78 in order to carry out work on the property of a third party, in a significantly worse position than that of the owner of the property.

For more information please click here.

Government publishes guidance on homelessness duties and Homes for Ukraine scheme

The Department for Levelling Up, Housing and Communities has published guidance for local housing authorities (LHAs) in the context of their homelessness duties for when guests on the Homes for Ukraine scheme are asked to leave their accommodation due to unreasonable behaviour and may approach LHAs for assistance with their rehousing. The guidance confirms that LHAs should treat these households in the same way as any other household which is homeless or at risk of homelessness, and consider their duties under Part VII of the Housing Act 1996, including by having regard to the Homelessness Code of Guidance. The guidance states that LHAs:

• Should remember that applications for homelessness assistance can be made to any department of a local authority and expressed in any form.
• Must take reasonable steps to prevent and relieve homelessness for those who are threatened with it or are already homeless. A “rematch”, with suitable accommodation that has a reasonable prospect of being available for at least six months, may satisfy this duty. Any criminal charge or conviction should, where known, be communicated to any prospective host offering a rematch with the guest’s consent.

The guidance adds that a guest can have their permission to stay in the UK cancelled under the criminality grounds set out in Part 9.4 of the Immigration Rules.

For more information please click here.

Welsh Government consults on regulation of building control professionals

The Welsh Government (WG) is consulting on its proposed system for the regulation of the building control profession and building control bodies. Once fully in force, the new building control regime under the Building Safety Act 2022 (BSA 2022) will require the WG to oversee the building control profession in Wales. The equivalent function in England will be carried out by the Building Safety Regulator (BSR), which has already undertaken a similar consultation. Among other things, the WG’s consultation:

• Covers the registration of both building inspectors (who will become registered building inspectors (RBIs)) and approved inspectors (who will become registered building control approvers (RBCAs)). In particular, it sets out the WG’s vision for transitioning between the end of approved inspectors into RBCAs.
• Suggests that the WG will delegate the majority of its administrative functions to England’s BSR.
• Proposes changes to various building regulations forms and procedures, and to existing secondary legislation relating to approved inspectors.

The consultation ends on 16 June 2023.

For more information please click here.

Upcoming webinars

Webinar series: Data Protection

Register your interest for our on-going webinar series on ‘Data Protection’ for in-house lawyers, DPOs and senior management in private and public sector organisations. The series will run throughout 2023 providing attendees with up to date information on key Data Protection topics. The short one hour sessions will be delivered by our experts with allocated time for you to ask any questions you may have. The next in our series ‘Data Subject Access Requests’ will take place on 16 May 2023.

For more information or to book your place, please click here.

If you have any questions about the issues raised in this update, please do not hesitate to get in touch.