EBL Exam Notes Rev 3

8/2/2019 EBL Exam Notes Rev 3

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EUROPEAN LEGAL AND INSTITUTITONAL FRAMEWORKS

1. Institutional Frameworks The decision-making triangle

The Unions three principal decision-making institutions are: the European Parliament, which represents European citizens the Council, which represents the Member States; the European Commission, tasked with defending the interests of the Union

This institutional triangle defines the policies and adopts the legislation (directives,regulations and decisions) which apply throughout the Union. In principle the Commission is

responsible for proposing new European legislation, while the Parliament and the Council

are responsible for adopting it.

Two other institutions play key roles: the Court of Justice ensures Community law isrespected, while the Court of Auditors oversees the funding of EU activities.

European Council Heads of Governments and Member States

Lisbon Treaty Introduces a post of President of the European Council, elected by a qualifiedmajority of European Council members for 2-year tenure (renewable once). The president

will chair and co-ordinate European Councils work / The treaty will set out the powers and

rules relating to the European Council

Council of European Union / Council of Ministers Main decision making body formed of oneminister from each of the EUs national governments

6 key responsibilities Pass European Laws in each policy area (jointly with parliament) /Co-ordinate broad economic policies of MS / Conclude international agreements between EU

and other countries / Approve EUs budget with EU Parliament / Develop EUs commonforeign and security policy based on guidelines from European council / Co-ordinate

cooperation between national courts and police forces in criminal matters (freedom security

and justice) Lisbon Treaty Will ensure more decisions made by the council and more decisions made

through QMV

European Parliament Elected by citizens of EU to represent interests 3 key roles Pass European laws (jointly with council) / Democratic supervision over EU

institutions (particularly commission) / Power of the purse (shares authority with council

over budget)

Lisbon Treaty Co-decision would apply to a number of new areas (agriculture, asylum etc)/ European Parliament and the Council of Joint Ministers will have joint decision-making

powers over the entire EU budget / The European Parliament will elect the President of the

Commission European Commission Independent of national governments, with the role to represent and

uphold interests of the EU as a whole

4 key roles Propose legislation to European Parliament and Commission / Manage andimplement EU policies and budget / Enforce European Law / Represent EU internationally

European Court of Justice Ensures EU legislation in interpreted and applied in the same way in all EU countries One judge per MS, assisted by 8 advocates-general who present measured opinion on cases

both publically and impartially


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2. Legal Frameworks Direct Applicability

Often confused with the doctrine ofdirect effect, direct applicability refers to the fact thatregulations require no implementing legislation within individual member states - they take

effect as soon as they are published by the European Commission.

Direct Effect Principle of European law that enables citizens to directly invoke European acts before

national and European courts (not necessary for the Member State to adopt the European act

concerned into its internal legal system)

Established by ECJ in Van Gend en Loos court held that obligations imposed upon memberstates by the treaties could be enforced by individuals, in the form of individual legal rights,

before national courts. The principle has subsequently been applied to legislation adopted

under the treaties in the form ofregulations and directives

"Van Gend criteria" The provision must: be sufficiently clear and precisely stated, beunconditional or non-dependent, and confer a specific right for the citizen to base his or her

claim on If these criteria are satisfied, then the citizen is able to enforce the rights inquestion in the national courts

Defrenne v. SABENAECJ decided that there were two varieties of direct effect: Verticaldirect effectrelationship between EU law and national law - state's obligation to ensure

observance and compatibility with EU law, enabling citizens to rely on it in actions against

the state. Horizontal direct effectrelationship between individuals (including companies). If

a certain provision of EU law is horizontally directly effective, then citizens are able to rely on

it in actions against each other.

Primary Legislation The primary legislation, or treaties, are effectively the constitutional law ofthe European Union. Governments from all EU Member States acting create them by consensus.

They formed basic policies of the Union; establish institutional structure, legislative procedures,

and the powers of the Union. The Treaties that make up the primary legislation include: Treaty

of Maastricht of 1992 (Treaty on European Union), Acts of Accession of Austria, Sweden and

Finland (1994), Treaty of Amsterdam of 1997, Treaty of Nice of 2001, Treaty of Accession

2003,Treaty of Accession 2005, Treaty of Lisbon of 2007

Secondary Legislation regulations, directives, decisions, recommendations, opinions and inter-institutional agreements (agreements between EU institutions clarifying respective powers,

especially in budgetary matters.) Regulations have direct effect, i.e. they are binding in and of

themselves as part of national law, while directives require implementation by national

legislation to be effective. However, the European Court of Justice can fine states that fail or

refuse to implement directives as part of national law. The European Constitution would have

codified EU law and reduced secondary legislation to six clear types: EU laws, EU frameworklaws, decisions, regulations, recommendations and opinions.

Important Treaties Treaty of Nice (2001) Reforming the institutions so that the Union could function

efficiently after its enlargement to 25 Member States. The Treaty of Nice, the former Treaty of

the EU and the Treaty of the EC have been merged into one consolidated version.

Treaty of Amsterdam (1997) Amended and renumbered the EU and EC Treaties.Consolidated versions of the EU and EC Treaties are attached to it.

Treaty on European Union (MAASTRICHT, 1992) 'The Maastricht Treaty changed thename of the European Economic Community to simply "the European Community". It also

introduced new forms of co-operation between the Member State governments - for example

on defence, and in the area of "justice and home affairs". By adding this inter-governmental
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co-operation to the existing "Community" system, the Maastricht Treaty created a new

structure with three "pillars" which is political as well economic. This is the European Union

Single European Act (SEA, 1987) Provided for the adaptations required for theachievement of the Internal Market / Improvement on Treaty of Romes free market

Treaty of Rome (1957) Established the European Economic Community (EEC), signed /The Treaty establishing the European Atomic Energy Community (Euratom) was signed atthe same time and the two are therefore jointly known as the Treaties of Rome.

The Treaty establishing the EEC affirmed in its preamble that signatory Stateswere "determined to lay the foundations of an ever closer union among the peoples of

Europe". In this way, the member States specifically affirmed the political objective of a

progressive political integration.

The EEC known as "Common Market". The member countries agreed to dismantle alltariff barriers over a 12-year transitional period.

3. EU Legislation and the Construction Industry

Predominant focus on environment / at all stages = interlink between controlling measures /assessment of current position of the country / implementation of preventative and actionable

measures to combat the overwhelming environmental impact of construction of n the

environment from all levels

Pre Construction PhaseAll Birds Directive(Directive 79/409/EEC 1979): Replaced by Directive2009/147/ECof the

European Parliament and of the Council of 30/11/09 on the conservation of wild birds.

EIA Directive: Council Directive 85/337/EECof 27 June 1985 on the assessment of the effectsof certain public and private projects on the environment, as amended by Directive

97/11/EEC & Directive 2003/35/EEC .

Seveso II Directive 1996 (as amended by Directive 2003/105/EC): Council Directive96/82/EC of 9 Dec 1996 on the control of major-accident hazards involving dangerous

substances. It introduced new requirements relating to safety management systems,

emergency plans and land-use planning, etc. (See, Article 12 on Land-use Planning.)

SEA (Strategic Environmental Assessment): Directive 2001/42/ECof the EuropeanParliament and of the Council of 27 June 2001 on the assessment of the effects of certain

plans and programmes on the environment. [screening of plans in line with act / wscoping /

documentation of state of envirenment base line / info and consulting public / decision

making based on assemnet] falls in line with UK plans for sustainablitiy in construction

Public Access: Directive 2003/4/ECof the European Parliament and of the Council of 28January 2003 on public access to environmental information.

EU Remedies Directive: Directive 2007/66/EC of the European Parliament and of the Councilof 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regardto improving the effectiveness of review procedures concerning the award of public contracts

remains procurment risk for both contracting authority and winner effects unkown as yet

to be a case brought. In line with [The Public Contracts (Amendment) Regulations 2009improved transparency / tightening of existing provisions / framework agreements introduced

in line with other contract procedures]; and The Utilities Contracts (Amendment) Regulations2009.

Construction Phase The Groundwater Directive (2006/118/EC) on the protection of Groundwater against

pollution caused by certain dangerous substances. [ground water quality standards est. by

end 2008 / pollution trend studies carried out using existing data and mandatory data under
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water frame work directive below / pollution trends to be reversed to achieve envi. Obs by of

water framework directive by 2015 / measures to limit input of pollutants etc]

The Asbestos Directive: Directive 87/217/EEC, on the prevention and reduction ofenvironmental pollution by asbestos.

Safety & Health Directive 1989: Council Directive 89/654/EEC 1989 concerning minimumsafety and health requirements for the workplace. furthers rights under HSW Act 79

Waste Framework Directive 2006 & 2008: Directive 2006/12/EC & Directive 2008/98/ECof the European Parliament and of the Council on waste and repealing certain Directives.

Landfill Directive: Council Directive 1999/31/ECof 26 April 1999 on the landfill of waste:hazardous, non-hazardous, and inert waste.

Water Framework Directive 2000, as amended by the 2008 Directive: Directive 2000/60/ECof the European Parliament and of the Council of 23 October 2000 establishing a framework

for Community action in the field of water policy. Its ultimate objective is to achieve good

ecological and chemical status for all Community waters by 2015.

Post Construction Phase EU Emission Trading Scheme: Directive 2003/87/ECof the European Parliament and of the

Council of - establishing a scheme for greenhouse gas emission allowance trading within the

Community (amended by Directive 2009/29/EC). It aims to introduce significant reductions

in greenhouse gas emissions with a view to reducing the influence of such emissions on the

climate. Considers use Has succeded in imposing a price on CO2 emissions / too early to

provide definitive assemennt of its impact, but has established a new system, including caps

and allocation of allowances Will ultimately have a global effect

Waste Framework Directives 2000, 2006 & 2008, as noted above. The IPPC Directive 2008: Directive 2008/1/ECof the European Parliament and of the

Council concerning integrated pollution prevention and control. It concerns new or existing

industrial and agricultural activities with a high pollution potential (energy industries,

production and processing of metals, mineral industry, chemical industry, waste

management, livestock farming, etc). 2008 directive resulted from 2007 review of

industrial emisisions etc which concluded legislation of industrial emissions needed to be

improved significantly to ensure highest level of protection afforded to environment and

human helat / that legislation had to be simplified and admin costs reduced

Ozone Depletion Regulation 2009: Regulation (EC) No 1005/2009of the EuropeanParliament and of the Council of 16 September 2009 on substances that deplete the ozone

layer (see Montreal Protocol 1987).

Energy Efficiency of Buildings: Directive 2002/91/EC of the European Parliament and of theCouncil of 16 December 2002 on the energy performance of buildings. (Also see the UKrequirement for Energy Performance Certificates when buildings are constructed, sold or

rented out.

4. Lisbon Treaty Every new EU treaty has increased the European Parliament's legislative power. The Lisbon

Treaty now places Parliament on an equal footing with the Council of Ministers in deciding on

the vast majority of EU laws.

More powers The Lisbon Treaty makes the European Parliament a stronger lawmaker by bringing over 40

new fields within the "co-decision" procedure, under which Parliament has equal rights with
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the Council. These areas include agriculture, energy security, immigration, justice and home

affairs, health and structural funds.

Parliament gains a bigger role in setting budgets, as the old distinction between"compulsory" and "non-compulsory" expenditure is abolished. Parliament will decide on the

entire EU budget together with the Council.

More responsibility More power means more responsibility. With this increased legislative power, Parliament's

decisions will, more than ever, directly affect the daily lives of Europe's citizens. Parliament

shall, in all its activities, fully respect the fundamental rights of EU citizens, in line with the

Charter of Fundamental Rights enshrined in the Lisbon Treaty.

MEPs will have a new role in relations with the other institutions of the EU. Results ofelections to the European Parliament now directly linked to the choice of candidate for the

President of the European Commission. The whole Commission, including the High

Representative of the Union for Foreign Affairs and Security Policy, needs Parliament's

approval to take office.

Also the Lisbon Treaty gives Parliament a new right to propose treaty changes. This treaty will conclude the United Kingdoms right to veto new European Union rules in more

than forty policy areas.

William Hague, the shadow foreign secretary, believed it to be a bad day for British democracyemphasizing the negative effect this agreement will have on English independence and, as a

result, the English legal system and inherent traditions.

Other changes brought about by Lisbon Treaty; Power to change the Treaties / Areas of competence / Charter of Fundamental Rights /

Charter of Fundamental Rights from 2000 made legally binding / European Council

separated officially from the Council of Ministers / More powerful Parliamentby extending

co-decision with the Council of Ministers to more areas of policy / National parliaments

engaged by expanding scrutiny-time of legislation and enabling them to jointly compel the

Commission to review or withdraw legislation / Combating climate change explicitly stated

as an objective / Pillars merged to 1 legal person increasing the EU's competence to sign

treaties. (where there used to be 3 pillars) the below now applies;

EU supremacy/erosion of National sovereignty

An erosion of parliamentary sovereignty seemed to be confirmed in the Factortame case whereThe European Court of Justice ruled that national courts could strike down laws that contravened

European Union law. The House of Lords judgement in Factortameprovided the courts with theright to suspend Acts of Parliament, enabling increased judicial intervention in English law.

The influence of the European Unions has evidently promoted a greater freedom and opportunity toboth the plaintiff and the defendant, allowing individuals to go beyond National Acts of Parliament.This has ultimately affected the power that judges hold in enabling the courts to diverge from

National statute. This would suggest that judges are being forced into a more conservative approach

as any liberal judgements would be nullified when taken to the European Court of Justice if not

consistent with European laws.

Compatibility o f Merchant Shipping Act 1988 the Act operated an unfair distinction between UKnationals and those from other Member States as "the great majority of nationals of the [UK] are

resident and domiciled in that State and therefore meet that requirement automatically
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LAND-USE PLANNING AND SPATIAL PLANNING

Spatial planning = methods used by public sector to influence the distribution of people andactivities in spaces of various scales. Spatial planning includes all levels of land use planning

including urban, regional, environmental and national spatial planning / plans

Planning is concerned with development as defined under Section 55(1) Town and CountryPlanning Act 1990; the carrying out of building, engineering, mining, or other operations in, on,

over or under land or the making of any material change in the use of any buildings or land

1. Planning System in England and Wales National Level

Policieson aspects of land use planning: Planning Policy Guidance Notes (PPGs), and their replacements Planning Policy

Statements (PPSs) Prepared by govt to explain statutory provisions and provide

guidance to local authorities on planning policy and operation of the planning system

Explain the relationship between planning policies and other policies which have animportant bearing on issues of development and land use Local authorities must take into account when preparing development plan documents.

Guidance may also be relevant to decisions on individual planning apps and appeals.

NPSs (National Policy Statements; being drafted) Govt produce national policy statements that establish national case for infrastructure

development & set policy framework for infrastructure planning commission decisions;

Statements would explain integration of strategic economic, social and environmentalpolicy objectives inc Govts climate change commitments for sustainable development

National policy statements = primary consideration for infrastructure planningcommission in determining applications for development consent for nationally

significant infrastructure projects, though possible for commission to reject application

which was consistent with the national policy statement in certain circumstances;

Legislation (as policy instrument) Town and Country Planning Act 1990 - regulating the development of land in UK Planning and Compulsory Purchase Act 2004 Planning Act 2008

Regional Level Regional Spatial Strategies (RSS) (8 regions and Greater London (9 in total))

Objective to contribute to achievement of sustainable development. The RSS,incorporating a Regional Transport Strategy (RTS), provides a broad developmentstrategy for the region for a 15 to 20yr period. RSS also inform preparation of Local

Development Documents (LDDs), Local Transport Plans (LTPs)

Following the commencement of the Planning and Compulsory Purchase Act 2004,Regional Planning Guidance (RPG) became RSS in each region outside of London and

now forms part of the statutory Development Plan.

Regional Development Agencies (RDA) The RDA are strategic leaders, bringing together views of people who live and work in

each region, and combining these with business and economic insights to capitalise on

opportunities globalisation brings.

Each RDA is working with partners to build on their regions natural assets, develop theknowledge-based economy, revitalise places and meet the needs of regional businesses.


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Local Level Local Development Frameworks (LDF)

Local Development Framework is a folder of local development documents that outlineshow planning will be managed in your area.

Introduces LDFs and explains the importance and role of each development document. It also explains the importance of community involvement in the creation of the

documents - a crucial part of the new plan system.

Local Planning Authorities (District & Borough Councils); The planning system is needed to control development in your area. Your local planning

authority (LPA) is responsible for deciding whether a development should go ahead.

Within the framework of legislation approved by Parliament, councils should try toensure that development is allowed where it is needed, while ensuring that the character

and amenity of the area are not adversely affected by new buildings or changes in the use

Present position = major works need planning permission from the council but manyminor works do not. Councils can use planning controls to protect the character and

amenity of their area, while individuals have a reasonable degree of freedom to altertheir property - especially since the changes to planning regulations in October 2008.

2. Reform of Planning System for Nationally Significant Infrastructure Projects Problems with the current system - Delays (= reduce international competitiveness) /

Uncertainty in the outcome of planning apps (deters private investment)

Sir Rod Eddington Report on Transport (2006) - Future of Britain's transport infrastructure Set out the case for action to improve road and rail networks, as a "crucial enabler of

sustained productivity and competitiveness". Main conclusions = UK transport networks

provides the right connections, in right places, to support journeys that matter to economic

performance, but roads in serious danger of becoming so congested, economy would suffer

Recommendation = introduce road pricing = "economic no-brainer"/ "no attractivealternative". Cut congestion by half by 2025 / benefits to economy totalling 28bn

The report also called for a programme of improvements to existing road and rail networks,the expansion of key airports

Kate Barkers report(2006) Highlights vital role of planning to deliver sustainable economic development in the context

of growing population, rising incomes, changing demographics, climate change and the

competitive challenges of rapid changes in the global economy.

The report recognises the high costs placed on developers, businesses and communitieswhen the planning system is unnecessarily slow, unpredictable, expensive and bureaucratic. The report recommends streamlining of planning policies and processes to improve the

responsiveness, efficiency and transparency of the planning system to fulfil its potential.

Substantial rationalisation of national planning guidance to provide a clearer and moretransparent national policy framework;

Improving local plan-making processes so plans can be drawn up in 18-24 months notcurrent 36-42. This could save local authorities over 100 million over a 3year period;

Risk-based and proportionate approach to regs, with significant reduction in paperworkrequired to support applications. This will help reduce private sector planning fees (over

200 million a year) and consultancy fees (over 300 million a year);

Greater certainty of timescales


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Faster processing of appeals: from 2008/09 all appeals should take place within 6 mnths,and new Planning Mediation Service to resolve disputes outside appeal proceedings;

In line with the findings of the Eddington Study of Transport, a radical overhaul of theplanning system for major infrastructure projects, including transport, waste and energy,

to improve speed and certainty.

Recommendations to enhance flexibility and responsiveness of planning system to supportsustainable economic growth for the 300,000 business applications a year. These include:

Allowing minor changes to commercial premises Updating planning policy guidance on economic development to clarify full account of

the economic benefits of development applications should be taken in decision-making;

Ensuring plans and decision-makers take better account of relevant price and marketsignals, such as land prices for different uses; and

Promoting more positive planning within the plan-led system by ensuring, when plansare indeterminate, that applications are approved unless there is good reason to believe

the economic, social or environmental costs of development outweigh the benefits.

Proposals for more efficient use of land in the context of the population (55 million by 2026) Encouraging a high proportion of new development into towns through support of town-

centre first policy and use of fiscal policy to encourage empty property to be put into use,

and to incentivise the use of vacant previously developed land;

Greater mixed use designations in plans and a more positive approach to applications forchange of use to reflect the changing needs of the UK's flexible, service-based economy;

(E.G EASY TO CONVERT TO FLATS)

Protecting valued green space in urban areas and taking a more positive approach toapplications that enhance the quality of the 13.5% green belt land (E.G DEVELOPER

INCLUDING INCENTIVE OF IMPROVING A PARK ETC)

Planning White Paper Planning for a Sustainable Future (May 2007) The White Paper proposed reforms to planning system, Inc development consent regimes /

major energy, transport and waste development / town & country planning system.

Builds on Kate Barker's recommendations for improving the speed, responsiveness andefficiency in land use planning, and proposals for reform of major infrastructure planning.

Proposes reforms on decisions re. nationally significant infrastructure projects - includingenergy, waste, and transport - response to economic globalisation and climate change.

Planning Act 2008 Introduces streamlined system for applications to build nationally significant infrastructure /

reforms town & country planning system / introduces Community Infrastructure Levy (CIL). Nationally significant infrastructure projects (NSIPs) are large scale facilities that support the

economy and vital public services (railways, wind farms, airports) Also include modifications

to existing infrastructure (extending electrical lines or improving motorway junctions)

There are thresholds that relate to each of the different types of infrastructure. Ministers will set out national policy in National Policy Statements (NPSs). Act also imposes

requirement on project promoters to consult affected parties and local communities prior to

submitting an application.

Infrastructure Planning Commission (IPC) established to examine and decide applications,based on the policy requirements set out in NPSs.

Reforms to town & country planning system Improving LPD system by removing someminor procedures; adds duty on councils to take action on climate change in dev. plans;


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streamlines development control procedures; changes appeals process; transitional powers

enabling regional assemblies to delegate planning functions to regional planning bodies.

Empower local councils to apply CIL on new developments in their areas to supportinfrastructure delivery. Regulations made in April 2010.

All legislation subject to impact assessment, to assess the costs and benefits of the measures Business impact 3 phase introduction

1. First phase: consultation on the consultation process itself;2. Second phase: consultation before an application is made; and3. Third phase: further consultation following submission of the application.These proposals are onerous for developers and will require a considerable amount of "front

end" preparatory work before any application can be submitted.

An important objective of the new planning regime for national infrastructure is to ensurethat applications are well prepared and have benefited from extensive consultation before

they are submitted to the IPC (Infrastructure Planning Commission)

Domestic Courts Baker v Bath and North East Somerset Council (2009)Held that wherean application is made to change/extend existing Schedule 1 or Schedule 2 developmentand the change/extension may have significant adverse effects on the environment,

screening is required, regardless of the smallness of the change/extension.

Commission v Ireland [2008] C-215/06ECJ condemned Ireland for failing to carry out aproper environmental impact assessment in relation to development of a wind farm

project, as required by Directive 85/337/EEC on the assessment of the effects of certain

public and private projects on the environment.

HS2 Approved (15 years to complete) Though campaigners to appeal decision tin the courts 2012 games commitment to sustainable regeneration (aim to maximise beneficial use of urban

land to generate physical, economic, social change / provide infrastructure & utilities platforms

for legacy and backbone / framework to stimulate private sector investment / new jobs etc)

3. Impact of EU on UK Planning System EU no power, but exerts a major influence European Spatial Development Perspecive (ESDP) (1999)

Non-binding policy framework with 60 policy options Strategic aim = balanced and sustainable spatial development strategy. Aim to provide an integrated, multi-sectoral and indicative strategy for the spatial

development, the key ideas of ESDP are:

Integrated approach - Not just look at specific sectors but recognise all affect each other Spatial development - Wider view of the development, vital for integrative approach Strategic aspects - interlinked actions to achieve balanced & sust territorial development Indicative views - Responsibility with the developed regions to implement dev principals

Spatial policy guidelines(1)Development of a polycentric and balanced urban system, & strengthening of partnership

between urban and rural areas, so as to create a new urban-rural relationship.

(2)Promotion of integrated transport and communication concepts, which support thepolycentric development of the EU territory, so that there is gradual progress towards

parity of access to infrastructure and knowledge.

(3)Wise management of the natural and cultural heritage, which will help conserve regionalidentities and cultural diversity in the face of globalisation.

Note - The aim of spatial development policies is to work towards a balanced and sustainable

development of the territory of the EU. Important to ensure that the three fundamental goals

of European policy are achieved equally in all the regions of the EU:


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1. economic and social cohesion;2. conservation and management of natural resources and the cultural heritage;3. more balanced competitiveness of the European territory. In the interests of closer European integration, the Ministers consider co-operation on

regional development among the Member States and among their regions and local

authorities necessary. Regional and local authorities must work together in the futureacross national boundaries. The ESDP is a suitable reference document for encouraging

co-operation, while at the same time respecting the principle of subsidiarity.

European Environmental Legislation Habitats Directive (1992) (on the conservation of natural habitats) Natura 2000 Network (designed by MSsas special areas of conservation (SAC) and Special

Conservation Areas (SPA) these form network of areas protected under Natura 2000).

The Strategic Environment Assessment (SEA) Directive (assessment of the effects of certainplans and programmes on the environment (2001))

Council Directive (1999) on the landfill of waste

Directive 2008 of the European Parliament and of the Council on ambient air quality andcleaner air for Europe

ECJ Case Law Commission v UK, 4th May 2006 Failure MS to full fill obligation to carry out environmental

impact assessment in respect of urban development projects at White City and Crystal Palace

confirms Diane Barker v London Borough of Bromley (4th May 2006)

The mellor case (2009) Whether, under Article 4 EIA Directive, authorities required tomake available the reasons for issuing screening opinion where EIA is not required

The questions referred were:1. Whether under Article 4 of Council Directive 85/337/EEC as amended by Directives

97/11/EC and 2003/35/EC Member States must make available to the public reasons for

a determination that in respect of an Annex II project there is no requirement to subject

the project to assessment in accordance with Articles 5 to 10 of the Directive?

2. If the answer to Question 1 is in the affirmative whether that requirement was satisfiedby the content of the letter dated 4 December 2006 from the Secretary of State?

3. If the answer to Question 2 is in the negative, what is the extent of the requirement togive reasons in this context?

The Advocate-General proposed the following answers:1. The Member States must, under Article 4 of Council Directive 85/337/EEC on the

assessment of the effects of certain public and private projects on the environment, asamended by Directive 2003/35/EC, make available to the public the reasons for a

decision that, in respect of an Annex II project, it is not necessary to subject the project to

an assessment in accordance with Articles 5 to 10 of the directive.

2. Decision must contain or be accompanied by all the information that makes it possible tocheck that it is based on adequate screening carried out in accordance with the

requirements of the Directive 85/337. In particular, must be sufficient demonstration of

the reasons why legal and factual aspects which have already been raised in the

procedure do not show that there is a possibility of significant effects on environment

EU Funding (e.g European Regional Development Fund, ERDF)


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4. Move Towards Spatial Planning inline with EU National Policy Statements (12 NPSs)

Planning Policy Statements (PPSs) prepared by Government after public consultation toexplain statutory provisions and provide guidance to local authorities and others on planning

policy and the operation of the planning system.

Also explain the relationship between planning policies and other policies that have animportant bearing on issues of development and land use.

Local authorities must take their contents into account in preparing plans. The guidance mayalso be relevant to decisions on individual planning applications and appeals.

Communities and Local Government determines national policies on different aspects ofplanning and the rules that govern the operation of the system.

National planning policies are set out in new-style Planning Policy Statements (PPS), whichare gradually replacing Planning Policy Guidance Notes (PPG).

Planning & Compulsory Purchase Act 2004 (as above) Planning act 2008 (as above)

Regional Development Strategies (as above) Local Development Frameworks (as above) Compulsory Purchase Orders

A compulsory purchase order (CPO) is a legal function in the UK that allows certain bodiesthat need to obtain land or property to do so without the consent of the owner. It may be

used, for example, when building motorways where a land owner does not want to sell. (HS2)

The Planning and Compulsory Purchase Act 2004 (Corresponding Amendments) Order 2007 Reported in Sunday Herald of 21/09/08 that last remaining residents of a tenement in

Dalmarnock refusing to sell property to Glasgow City Council as part of the Councils plan

to obtain ownership of whole site to be used for athletes village for 2014 Commonwealth

Games. Council had already resolved to promote a compulsory purchase order (CPO) to

acquire any property in the Games Village site, which it is unable to purchase on a

voluntary basis but it was reported that the family is prepared to object to the CPO on

grounds that compensation offered to them so far by the Council is inadequate.

Article 8 of the European Convention on Human Rights provides that everyone has theright to respect for his private life, his home and his correspondence and that there

should be no interference with that right by a public authority, it is also declared that this

right can be interfered with where it is necessary in specified circumstances ECHR view

that compulsory purchase of property by public authorities does not breach HR, where

use of powers are proportionate / in public interest. Though objections must be heard

2012 Olympics / HS2 both require compulsory purchase of land, but in public interest Other case (the three appeals cases) in Human Rights section

Dale Farm Eviction 12/10/11 (p13) High CourtTravellers tried to use direct effect forbreach of human rights under ECHR Breaking criminal and planning laws whilst staying onsite, bringing system into disripute

Doherty v Birmingham City Council [2008] UKHL 57, relationship between tenancy law andhuman rights law Eviction without cause, permitted in Victoria by s. 263(1) of the

Residential Tenancies Act 1997 (albeit only with 120 days notice.) In the UK, many public

tenants are protected from eviction without cause, but that protection does not extend to

caravan sites [Claim under Art 8 of ECHR- The appellant claimed that s 5(1) Mobile Homes

Act 1983, which had the effect of excluding from the protection of the land occupied by a

local authority as a caravan site for gipsies, was incompatible with his Convention rights.


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IMPACT OF THE ECHR ON THE BUILT ENVIRONMENT

1. The Universal Declaration of Human Rights(Proclaimed by General Assembly of the UN 1948) Declaration adopted by the United Nations General Assembly (10 December 1948 atPalais de

Chaillot, Paris). The Declaration arose directly from the experience of the Second World War

and represents the first global expression of rights to which all human beings are inherentlyentitled. It consists of 30 articles, which have been elaborated in subsequent international

treaties, regional human rights instruments, national constitutions and laws.

2. The "European Convention on Human Rights": Convention for the Protection of HumanRights and Fundamental Freedoms (adopted by the Council of Europe, Rome, 1950):

Article 1 (respecting right) binds the signatory parties to secure the rights under the otherArticles of the Convention "within their jurisdiction".

Article 6 (Right to a fair trial) everyone is entitled to a fair and public hearing within areasonable time by an independent and impartial tribunal established by law. Judgment shall be

pronounced publicly but the press and public may be excluded from all or part of the trial in theinterests of morals, public order or national security in a democratic society

Article 8 (Right to respect for private and family life) Right to respect for one's "private andfamily life, his home and his correspondence", subject to certain restrictions that are "in

accordance with law" and "necessary in a democratic society". This article clearly provides a

right to be free of unlawful searches, but the Court has given the protection for "private and

family life" that this article provides a broad interpretation. Similar to jurisprudence of the US

Supreme Court. Article 8 sometimes comprises positive obligations: whereas classical human

rights are formulated as prohibiting a State from interfering with rights (e.g. not to separate a

family under family life protection), effective enjoyment of such rights may also include

obligation for the State to become active (e.g. enforce access for a divorced father to his child).

Article 14 (Prohibition of discrimination)contains a prohibition of discrimination. Thisprohibition is broad in some ways, and narrow in others. Article protects against discrimination

based on any of a wide range of grounds. The article provides a list of such grounds, including

sex, race, religion etc / recognises that the list is non-exhaustive. Protocol 12 extends this

prohibition to cover discrimination in any legal right, even when that legal right is not protected

under the Convention, so long as it is provided for in national law.

PROTOCOLS Protocol 1, Article 1 (Protection of Property) Persons entitled to peaceful enjoyment of his

possessions. No one shall be deprived of his possessions except in the public interest and

subject to the conditions provided for by law and by the general principles of international

law. The preceding provisions shall not, however, in any way impair the right of a State toenforce such laws as it deems necessary to control the use of property in accordance with the

general interest or to secure the payment of taxes or other contributions or penalties.

Protocol 12 (discrimination) Applies the current expansive and indefinite grounds ofprohibited discrimination in Article 14 to the exercise of any legal right and to the actions

(including the obligations) of public authorities. - The United Kingdom Government has

declined to sign Protocol 12 on the basis that they believe the wording of protocol is too wide

and would result in a flood of new cases testing the extent of the new provision. They believe

that the phrase "rights set forth by law" might include international conventions to which the

UK is not a party, and would result in incorporation of these instruments by stealth. The UK

Government, nevertheless, "agrees in principle that the ECHR should contain a provision

against discrimination that is free-standing and not parasitic on the other Convention rights"
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ECHR Cases Doherty v Birmingham City Council [2008] UKHL 57 / Dale Farm 2011, page 11 Dale Farm = Until October 2011travelller site established without planning permission. The

site is owned by members of the travelling community and is located within the Green

Belt.[1]The council has said that planning applications for the caravans and chalets on the site

were rejected because the land was green belt. Final legal proceedings seeking judicialreview of the councils decision to go ahead with the clearance of the site were directed at theprecise nature and timing of that action. The basis of the challenge was that the council had

failed to take into account various material considerations, such as the consequences of

children living on the site and their education, as well as the effect on those residents who

were elderly or ill. Thus the argument was that the eviction now would be in breach of the

travellers human rights under A8 which had failed. Article 8 rights were balanced againstwider public interest and the latter defeated the claim. That court had concluded that the

council's decision to enforce was entirely lawful in that the article 8 rights had been

considered a number of times and the proper procedure followed.

Chapman v. The United Kingdom (2001) Challenge of decision by UK nat. authorities to denyGypsy family permission to site caravan on land they owned; whether there was a violation

of the right to enjoy best state of physical and mental health / violation of the prohibition of

discrimination / special obligation regarding vulnerable and minority groups.

Sally Chapman purchased a piece of land in 1985 with the intention of living on it in acaravan. Refused permission by the District Council / 15 months to vacate

She claimed her rights under the ECHR had been violated, inc Article 8 (right to respectfor private and family life) and Article 14 (violation of prohibition of discrimination).

European Roma Rights Centre intervened as a third party referring to internationalstandards regarding the special needs of minorities and other information concerning

the position of Roma (i.e. accommodation & general living conditions) and protocol 1 A1

Following Buckley v. UK (1996) (held interference with the enjoyment of home /private and family life since what was in issue was a traditional way of life) Court ruled

by a majority that there was no violation of rights under the Convention.

Held that Article 8 implied positive state obligations to facilitate the Gypsy way of life.However, in the present case, it applied the exception of Article 8 (2) that interference

was necessary in a democratic society, since the land was the subject of environmental

protection, wide margin of discretion accorded to national authorities in planning issues.

Emerging int. consensus recognizing special needs of minorities not found sufficient/Prohibition discrimination not violated as differences in treatment arose on basis of

legitimate aims & discrimination proportionate / had reasonable objective justification.

Chapman case was one of five similar cases (see Thomas and Jessica Coster v. UK, Johnand Catherine Beard v. UK, Jane Smith v. UK, Thomas Lee v. UK) decided in same manner. A later case, Varey v. UK, was settled before it reached the Court. Gypsy families in the UK

have increasingly purchased their own land to site their caravans due to the ongoing

failure of local authorities to fulfill their legislative obligations to provide sufficient

caravan sites. The Traveller Law Reform Project introduced an E-Petition in 2008. Aim

to ensure same security of tenure for Gypsies/Travellers on sites as is enjoyed by local

authority tenants in houses or flats and non-Traveller residents of mobile home parks.

Significance of the case The Court recognized a possible future consensus amongst themember States of the Council of Europe regarding the special needs of minorities and an

obligation to protect their security, identity and lifestyle J Pye (Oxford) Limited v UK 2007:In 1983 J A Pye (Oxford) Holdings Limited granted a

local farmer, Mr Graham, a licence to graze cattle on land for 10months. At the end of
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10months Pye refused to renew the agreement as it intended to develop the land. Farmerremains in possession unchallenged until 2000 when Pye commenced an action for therecovery of the Land in the High Court. Pye lost the case in national courts and referredthe matter to the European Court of Justice. Grand Chamber declared that the law ofadverse possession prior to the introduction of the Land Registration Act 2002, asconcerned registered land, does not breach the human rights of dispossessed landlord.

The Chamber considered that as the applicant companies had lost beneficial title to theland by the operation of the Land Registration Act 1925 (the 1925 Act) and theLimitation Act 1980 (the 1980 Act), Article 1 of Protocol No. 1 was applicable (12 yearslimitation period)

Connors v. UK ECHR judgement Held that travellers who had licences to live on local authority-owned

land suddenly revoked had been discriminated against, in comparison to treatment of

mobile-home owners who did not belong to the traveller population, and thus Article 14

(discrimination) and Article 8 (respect for the home) rights had been infringed.

However, there has never been a case where the Act has been successfully invoked toallow travellers to remain on greenbelt land, and indeed the prospects of this ever

happening seem highly unlikely after the HL decision in Kay and others v. LondonBorough of Lambeth and othersheard with Price v Leeds City Councilwhich severely

restricted the occasions on which Article 8 may be invoked to protect someone from

eviction in the absence of some legal right over the land.

Price v. Leeds City Council [2005] Court of Appeal upheld a High Court ruling that Leeds City Council could not infringe the

right to a home of a Roma family, the Maloneys, by evicting them from public land.

The court however referred the case to the House of Lords as this decision conflictedwith a ruling from the European Court of Human Rights.

Carey v UK (21 December 2000) Article 6 right to a fair trial /Article 8 right to respect for private and family life /Article 14 prohibition of discrimination Mr and Mrs Varey, gypsies by birth, complained that planning and enforcement measures

taken against them in respect of their occupation of their land in caravans violated

Articles 6, 8 and 14. Settlement when the Government offered 60,000 compensation.

3. The Human Rights Act 1998 (Article 6; Article 8; Article 14; Article 1 of the First Protocol) An Act to give further effect to rights and freedoms guaranteed under the European Convention

on Human Rights; to make provision with respect to holders of certain judicial offices who

become judges of the European Court of Human Rights; and for connected purposes.

Act makes it unlawful for any public body to act in a way that is incompatible with theConvention, unless the wording of an Act of Parliament means they have no other choice.

Requires UK judges to take account of decisions of the ECJ, and to interpret legislation, as faras possible, in a way that is compatible with the Convention

However, if it is not possible to interpret an Act of Parlt so as to make it compatible with theConvention, judges are not allowed to override it. All they can do is issue a declaration of

incompatibility (does not affect validity of the Act: maintaining principle of Parlt sovereignty

An individual can still take his case to the Strasbourg court as a last resort. Rights protection under the Act

The Act provides that it is unlawful for a public authority to act in such a way as tocontravene Convention rights.

Public authority includes any person "whose functions are of a public nature."


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Section 7 enables any person, with standing, to raise an action against a public authority thathas acted or proposes to act in such a Convention-contravening manner. A person will have

standing provided they satisfy the "victim test" stipulated by Art. 34 of the Convention.

If it is held that the public authority has violated the claimant's Convention rights, then theCourt empowered to "grant such relief or remedy, or make such order, within its powers as it

considers just and appropriate." This can include an award of damages, though restricted Act also provides defence for public authorities if violating act is in pursuance of mandatory

obligation imposed on them by primary legislation. The Act requires Courts to read such

legislation "So far as is possible...in a way which is compatible with Convention rights."

Where impossible to read primary legislation in a Convention compliant manner, the onlysanction available to the Courts is to make a Declaration of Incompatibility in respect of it.

The power to do so is restricted to the higher Courts. Such a Declaration has no direct impact

upon the continuing force of the legislation but it is likely to produce public pressure upon

the government to remove the incompatibility. It also strengthens the case of a claimant

armed with such a decision from the domestic Courts in any subsequent appeal to ECJ

Case law Levson inquiry - ongoing public inquiry into the culture, practices and ethics of the British

press following the News International phone hacking scandal

Campbell v. MGN Ltd [2002], Naomi Campbell and Sara Cox sought to assert right to privacyunder the Act. Both cases were successful for the complainant and an amendment to British

law to incorporate a provision for privacy is expected to be introduced.

Afghan hijackers case 2006, a politically controversial decision regarding treatment of 9Afghan men who hijacked a plane to flee from the Taliban, caused widespread condemnation

by news papers and the leaders of the Labour and Conservative Parties. Ruled by

Immigration Tribunal, under HR Act, that hijackers could remain in UK; a subsequent court

decision ruled that government had abused power in restricting the hijackers' right to work. A (FC) and others (FC) v Secretary of State for the Home Department [2004]HLThe appellants

share certain common characteristics which are central to their appeals. All are foreign

nationals. None has been the subject of any criminal charge. In none of their cases is a

criminal trial in prospect. All challenge the lawfulness of their detention contend that such

detention was inconsistent with obligations binding on the UK under the ECHR, given

domestic effect by the Human Rights Act 1998; that UK was not legally entitled to derogate

from those obligations; that, if it was, its derogation was nonetheless inconsistent with the

ECHR and so ineffectual to justify the detention; and that the statutory provisions under

which they have been detained are incompatible with the Convention. The duty of the House,

to decide whether the appellants' legal challenge is soundly based. Lough v First Secretary of State [2004] Appeal against a decision of Collins J whereby, he

refused an application by Mr David Lough and others made on behalf of themselves and as

Officers of BROAD ("The Bankside Residents for Appropriate Development"), an

unincorporated association, ("the Appellants") to quash a decision of the First Secretary of

State ("the Respondent") whereby in 2003 he granted Bankside Developments Ltd ("the

interested party") planning permission to redevelop a site in the Bankside area of Southwark

between Blackfriars Bridge and Southwark Bridge. Acting by an Inspector appointed by him,

the Respondent allowed an appeal against a refusal of planning permission in 2002 by the

Council for the London Borough of Southwark ("the Council"). The permission was for

demolition of existing buildings and redevelopment to provide a 20-storey building with 28

dwellings and shops and restaurants on the ground floor, and associated facilities.


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The legitimate objectives set out in Article 8 (2) are: acting in the interest of national security,public safety or the economy of the nation / acting for the protection of the rights and

freedoms of others / acting for the protection of disorder or crime / acting for the protection

of health or morals. Article 1: Prohibition of discrimination. General prohibition of discrimination in relation to

the rights guaranteed by the Convention and Protocols. - Frette v France 2004 According to case law a difference in treatment is discriminatory

under A14 if it has no objective and reasonable justification, if it does not pursue alegitimate aim or of there is no reasonable relationship of proportionality between themeans employed and the aim sought to be realised. Convention is a living instrument tobe interpreted in the light of present day conditions. Court will require strong, weightyreasons to justify treating the protected group differently from the comparators. Courtsask a number of questions in addressing complaints of discrimination.

4. Compulsory Purchase Orders (case) Local Authorities have power under various Acts to compulsory purchase a property Clearance of unfit housing - Housing Act 1985 Development or regeneration - Town and Country Planning Act 1990 Local road schemes - Highways Act 1980If objections are received the Secretary of State will direct a CPO Inquiry to be held. Once a CPOconfirmed Council can serve a General Vesting Declaration or a Notice to Treat / Entry which willtransfer the legal interest from owner to council. McCann v UK 2008:

Applicant and his wife were joint tenants of a house let by Local Authority- secure tenantsunder Housing Act 1985. Marriage broke down and husband left the house. Wife wasrehaused and Husband moved back into the family home. Authority gives Husband noticeand starts possession proceedings. Husband claims breach of A8. European Court of Justicestates that A8 has been violated. The house continued to be his home within the meaning ofA8 (1) despite the fact that the wife has served the notice. This notice has interfered with the

husbands right to respect for his home. The interference was in accordance with the lawhowever due to the lack of procedural safeguards, the interference was not proportionate tothe aim pursued and was therefore not necessary in a democratic society as required underA8(2). Loss of ones home was the most extreme form of interference under art 8

John Sole v (1) Secretary of State for Trade & Industry (2) London Development agency 2007: S of S justified in approving CPO for 2012 Olympic Village as there was effective relocation

strategy underway. Although there was Interference with A8 rights the importance of theOlympic Games and its legacy was overwhelming.

The Alconbury Case [2001] UKHL Three joint appeals Right to fair trial?? 65. The issue in these three appeals is whether it is compatible with the Human Rights Act for

Parliament to confer upon the Secretary of State the power to make decisions which affect

people's rights to the ownership, use or enjoyment of land. The Divisional Court has decided

that article 6 of the European Convention requires such decisions to be made by independentand impartial tribunals. This would mean radical amendment to the system by which such

decisions have been made for many years.

The facts Although the principle must be of general application, the contexts in which thequestion has arisen in these appeals are planning, highway improvement and compulsory

purchase. In thefirst appeala company has applied for planning permission to construct a

distribution centre of national significance on a disused American air base near Huntingdon.

It could generate 7,000 new jobs but would obviously affect the lives of many people living in

the neighbourhood. In the second appealthe respondents have applied for planning

permission to use land at Canvey Island for the storage and sale of wrecked cars. Again, the

activity will generate employment but the site is close to some gas storage installations andthe Health and Safety Executive thinks that this would create a danger to people living in the


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area. In the third appealThe Highways Agency, a branch of the department of the

Environment, Transport and the Regions, has promoted a road improvement scheme that

would involve taking the respondent's land.

All three cases involve general social and economic issues. They concern the rights ofindividuals to use, enjoy and own their land. But the number of persons potentially interested

is very large and the decisions involve the consideration of questions of general welfare, suchas the national or local economy, the preservation of the environment, the public safety, the

convenience of the road network, all of which transcend interests of any particular individual

HL Judicial Committee (now the UK Supreme Court) ruled that the relevant Secretary of Statemay make decisions which affect people's rights to the ownership, use or enjoyment of land,

and such decisions are compatible with the HR Act 1998, and the ECHR

5. Effects on judicial behaviour The introduction of the HR Act (incorporated the ECHR) has had a major effect on UK law. Lord McCluskey "by incorporating into our domestic law vague, imprecise and high-sounding

statements of legal rights, we hand what is truly legislative power away from a democratic andaccountable Parlt to an appointed, unelected and unaccountable judiciary (Phillip, J. 2008).

Common opinion throughout judiciary is that the system of common law was already providingeffective protection for HRs (Fenwick, H etall 2007) therefore introduction unnecessary.

Many campaigns have been launched to repeal the legislation and many politicians and politicaltheorists have voiced their concerns about its effect on differing affairs;

Tony Blair was concerned with the restrictions it places on the deportation of foreignprisoners and terrorist suspects inflicted under Article 3.

David Cameron pledged to scrap, reform or replace the Act (Cameron, D. 2009) expressingin one instance his objection to letting "the human rights of dangerous criminals fly in the

face of common sense" (Events giving rise to review, 2009).

The one defining problem in the introduction of this act is that of its incompatibility with otherActs (Kerrigan, K. 2002). Requirement to realign pastleg. to be compatible with the HR Act

Introduction of HR Act diminishes authority of the courts and reduces sovereignty of Parlt. As aresult tradition rejected with adoption of legislation from new legislator effectively introduced

Despite diminished sovereignty in the UK, it has been argued that the affect of the HR Act on therunning of the English legal system seems to have taken the power away from parlt and placed

it in the hands of the judiciary. It has been expressed that the HR Act lets judges use either

minimalistic or activist methods in their adjudications (Edwards, RA. 2002)

Lord Hoffman highlights both of these techniques with differing approaches in separatecases. Activist approach in the Belmarsh Case (2005) that contrasted his critiqued

methodology implemented in Profile Alliance where a minimalistic slant was utilised. Although not in the sense of traditional conservatism v activism, it seems introduction of HR

Act has brought about differing methods of application of the law for courts to make use of.

The judiciary at present shows, albeit in a patchy, inconsistent manner, some signs of takingthe view that the [Human Rights Act] authorises the UK courts to develop their own approach

to the interpretation and application of the Act in a manner that promotes Convention rights

rather than merely respects them (Fenwick, H et all 2007). This would suggest an option for

subjectivity by the courts that may enable them to mould the widely criticised act

Consequently there is the possibility that tradition may be detracted from as a result ofincreased influences from legal sources external from the United Kingdom, with concerns for

sovereignty and the excessive powers of the courts becoming something of the past.


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NEGLIGENCE

1. Overview of negligence Nature of professional's work

Work skilled and specialised / intellectually demanding; Period of theoretical & practicaltraining required / Committed to ethical, moral imperatives / Duty of confidentiality / Dutyto wider public interest / Member professional body responsible for training and ethics

Basis for liability Possession of minimum level of skill and competence They should exercise reasonable care in discharge of their duties Reasonable is according to normal standards of the profession; there is not a requirement to

exercise skill at the highest level. "The law does not usually imply a warranty that he will

achieve the desired result, but only a term that he will use reasonable care and skill"[Greaves

& Co. v Baynham Meikle & Partners [1975] 1 WLR 1095, Lord Denning ].

Not all professions have built in failure rate. Surveyors different from doctors and lawyers.Different standards in cases of clinical negligence and solicitors or surveyors negligence. Nowarranty that professional will obtain result sought by the client. Product is not guaranteed.

Contractual liability Generally a contract between client and supplier of professional service; or reasonable fee Implied term of exercise of reasonable care and skill. Specific terms of contract must be complied with; separate duty from exercising reasonable

care and skill. (breach of contract remains even if reasonable care and skill employed)

If I agree to construct a building, I am bound to build it; not my obligation to use skill to buildit, though implied obligation that building will be reasonably fit for purpose used.

Exceptional category Where object of contract to provide peace of mind and freedom from anxiety Must be communicated as a matter of importance and the contract accepted on that basis Surveyors' contracts can be included; too easy and simplistic to define a contract as an

'ordinary surveyor's contract' and exclude liability if purpose of contract to provide freedom

from anxiety [Farley v Skinner[2001] UKHL 46].

Contract to assess impact of aircraft noise not a commercial contract C buying propertynot as speculative investment but as a home 'difficult to perceive any valid reason of public

policy whereby the P should be deprived of the damages for the very real wrong done to him

by the D's negligence. If non-professionals can expect to pay damages for negligence or

breaches of contract where the damage is reasonably foreseeable and/or in the parties'

actual or reasonable contemplation, professionals in general, and surveyors in particular,

should not be in any different position.' [Farley v Skinner[2001] UKHL 46]. Tortious liability (requirements)

Defendant owes a duty of care to claimant; Defendant acted or spoken to breach duty of care; Claimant suffered damage as a consequence of the breach.

More than heedless or careless conduct is required. C must prove that D owed him a duty ofcare to protect him from the kind of harm suffered, that he was in breach of that duty, and

that it was the defendant's breach of duty that caused the claimant's injury.

Duty of care Either courts or legislation establishes this. Not a closed list, but courts reluctant to widen it.

= matter of policy rather than logic


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Examples where duty held to apply: Product manufacturer owes duty to take reasonable care to protect ultimate consumer

against personal injury [Donoghue v Stevenson [1932]

Bank giving reference on behalf of its customer to a third party owes a duty (in theabsence of any disclaimer) to take reasonable care to protect the 3rd party against

financial loss [Hedley Byrne & Co v Heller & Partners Ltd[1964] Local authority exercising its supervisory functions in relation to the construction of

dwelling-houses was held inAnns v Merton LBC[1978] to owe a duty to future owners

and occupiers to protect them against costs of repairing defects which would be liable to

affect health and safety. Reversed by HL in Murphy v Brentwood DC[1991]

Surveyor instructed by building society to value modest house for mortgage purposes,held to owe a duty to protect prospective mortgagor against economic loss flowing from

unreported defects. [Smith v Eric Bush [1990]]

Auditors of public company held not to owe duty of care to persons who might purchaseshares (or to shareholders who might purchase more shares) in reliance upon audited

accounts [Caparo Industries plc v Dickman [1990] 2 AC 605].

2. Principles of judicial decisions on duty of care Specific ratio of cases = decision and line of reasoning leading to that decision. Considerable amount of theoretical discussion about duty of care; not always consistent. Donoghue v Stevenson. Lord Atkins' decision sought to find underlying common element in a

number of previous cases; leaving out inessentials and stating a general principle of high utility:

'You must take reasonable care to avoid acts or omissions which you can reasonably foreseewould be likely to injure your neighbour';

'Who , then, in law is my neighbour? The answer seems to be - persons who are so closelyand directly affected by my act that I ought reasonably to have them in contemplation as

being so affected when I am directing my mind to the acts or omissions which are called in

question.'- Implies physical or psychological harm to claimant.

Hedley Byrne. Concerned 'pure' economic loss; not injury, or economic loss resulting frominjury, or damage to property. Claimants suffered financial loss when acted in reliance on

favourable references supplied by bankers of company that subsequently went into liquidation

HL decided no duty of care because references given 'without responsibility'. Recognised person making a statementcouldowe a duty to recipient (no contract) to take

reasonable care and, in event of breach, could be liable for economic losses suffered

All 5 Law lords recognized that it would be too wide to impose liability on 3 rd parties for allfinancial lossesforeseeablysufferedas a result of negligent misstatement.

Liability requires a special relationship; expressly or by implication D has taken on someresponsibility. Thus, a surveyor undertaking to enquire whether property affected byaircraft noise, who fails to provide the requisite information, the buyer relying on that

information in order to complete sale, is tortiouslyliable for negligent misstatement.

Additionally, will be contractuallyliable under Farley v Skinnerif C can prove an element of

contract was for information needed to make decision on whether to buy.

3. Does concurrent liability in contract & tort make any practical difference for the claimant? Inclusive approach in Dorset Yacht Co v Home Office [1970] Held by Lord Reid that Lord Atkins

speech in Donoghue v Stevenson should be considered a statement of principle, not a statutory

definition; 'apply unless there is some justification or valid explanation for its exclusion'.


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Anns v Merton; two-stage test. Held duty of care owed to future owners of flats, where crackingcaused by structural movement attributable to council employees who approved foundations of

insufficient depth. Two-stage test formulated by Lord Wilberforce:

a. Sufficient relationship of proximity between defendant and claimant, such that, in thereasonable contemplation of the former, carelessness on his part may be likely to cause

damage to the latter?.... If so, then:b. Any reasons which may exclude, reduce or limit the scope of the duty, or the class of persons

to whom it is owed, or the damages to which a breach of the duty might arise?

Widely applied to cases involving liabilities of solicitors / surveyors to 3rd parties. Problems due to undue weight given to foreseeability of damage and the wide extension of

tortious liability to many new situations.

Lord Keith in Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd[1985]: 'The truequestion in each case is whether the particular defendant owed to the particular plaintiff a

duty of care having the scope which is contended for, and whether he was in breach of that

duty with consequent loss to the plaintiff. A relationship of proximity must exist before

any duty of care can arise, but the scope of the duty must depend on all the circumstances ofthe case In determining whether or not a duty of care was incumbent upon a defendant, itis material to take into consideration whether it is just and reasonable that it should be so.'

Leigh and Sullivan Ltd v Aliakmon Shipping [1986] Held duty of care could not exist wherepreviously held no duty. Anns sidelined; & overruled inMurphy v Brentwood DC[1991]

Threefold testCaparo test. In Smith v Eric S. Bush [1990] 1AC 831, surveyor instructed bybuilding society failed to spot a serious defect in a house, granted mortgage to claimant. Both

mortgage application form and report contained disclaimer of liability for accuracy of report

(breach of Unfair Contracts Terms Act 1977). HL held DofC owed to prospective mortgagee

a. If it is foreseeable that if advice is negligent the recipient is likely to suffer damage; andb. there is a sufficiently proximate relationship between the parties; andc. it is reasonable to impose the liability.

Caparo v Dickman [1990] A single, general principle to determine the scope of the duty of carein any situation cannot be found:

Exclusive approach - Problem with threefold approach is that questions 2 and 3 so broad thatoften impossible top tell in a particular case how they should be answered. Concepts such as

proximity and fairness vague and 'not susceptible of any precise definition as would be

necessary to give them utility as practical tests'. (Caparo)

Incremental approach: with reference to established categories, new categories of duty ofcare might arise. In Murphy v Brentwood[1991] C purchased house with defective

foundations, claiming negligence against local authority for negligent approval of plans. HL

reversedAnns / upheld incremental approach / decidedAnns was case of pure economic loss. In effect, both 3-stage approach and incremental approach are both valid and exist side by

side. Incremental approach seen as too restrictive.

SinceAnns, HL retreated back to category-based approach. E.g. Lord Hoffman in Stovin v Wise: 'Trend of authorities has been to discourage the assumption that anyone who suffers loss is

prima facie entitled to compensation from a person (preferably insured or a public authority)

whose act or omission can be said to have caused it. The default position is that he is not.

E.g. no remedy to development company suing a local authority for the financial loss causedby inadequate drainage system, which the authority had allegedly approved. (Peabody

Donation Fund v Sir Lindsay Parkinson & Co [1985] Foreseeability of harm not a sufficient

test for liability. Addressing the nature of the relationship between the parties is essential,

especially in cases involving control over 3rd parties, where proximity problems often great.


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Principles:1. New duty situations not excluded but rare;2. Where excluded by previous case law, cannot be included3. Caparo requirements must be satisfied foreseeability / proximity / fair, just & reasonable.

Foreseeability Requires to be foreseen that that individual (or member of a class) andinjury ofthe kind that actually occurred

Proximity Where no prior relationship between parties, omission to act will not be actionablenegligence, however foreseeable the harm. (Passer-by watching a child drown under no duty)

Skill and Care 'As a general rule a sufficient relationship of proximity will exist when someonepossessed of a special skill undertakes to apply that skill for the assistance of another person

who relies upon such skill and there is direct and substantial reliance by the plaintiff on the

defendant's skill'. (Capital & Counties plcv Hampshire CC[1997] 1060, CA.

3rdParties Remoteness argument as neighbour test over-stretched if liable because of actionsof 3rd parties, even if loss and damage readily foreseeable and preventable. Unless 1) special

relationship between 3rd party and defendant or between claimant and defendant AND 2)

Damage done by 3rd

party closely related to and very probable result of failure of care by D. Fair, just and reasonable another way of saying policy. Duties on public authorities may be

less onerous than on companies; different also for voluntary organisations. Duties on trained

professionals may be higher.

4. Position of public authorities InAnns, HL concluded that in operational spheres a public authority could owe a duty of care to

persons affected by its acts and omissions. In policy spheres, scope much more limited but did

not have total immunity.

Negligence here often a failure to exercise a statutory power. In Stovin v Wise [1996] minimumrequired to establish duty of care, Lord Hoffmann argued:

Need to establish that irrational for local authority not to have exercised the power, so apublic law duty to act;

Exceptional grounds for holding that policy of statute requires compensation to be paid topersons suffered a loss because the power was not exercised.

5. Conclusions on duty of care A person should take reasonable care to avoid causing foreseeable harm to others. Legal duty to take care is more restrictive than corresponding moral duty Tort law more readily imposes liability for acts than omissions / for actions than words Where injury is pure economic loss, tort law does not generally impose liability. Tort law does not impose duties which are unduly wide or otherwise oppressive The closer the relationship, the more readily the court will impose a duty and the wider that

duty will be, even embracing a duty to protect against pure economic loss (Hedley Byrne).

Persons giving advice in course of business/profession more readily be held liable for words (asopposed to deeds) and for pure economic loss (as opposed to physical injury) than others.

Where obligations clearly defined in contract, law will not generally impose any wider duties. Law of tort less readily imposes duty of care in favour of party with remedies available. Duties of care imposed by tort law should be consistent with public policy as expressed or

implied by Parliament in legislation.

Public authorities acting within ambit of a discretion conferred on them do not generally owe aduty of care to persons affected by the exercise of that discretion.

Law of tort should not generally impose a duty of care in a wholly novel situation.


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NUISANCE

1. Private Nuisance consists of an interferenc for a substantial period with the use and enjoymentofland: "...the essence of a nuisance is a condition or activity which unduly interferes with the use or

enjoyment of land" [Clerk and Lindsell on Torts (17th edition) p.889].

use or enjoyment = what a person does on or with his property; or how his land used may affect the value as well as actual use of the property, but need not for a nuisance action to

succeed

merely upholding a lifestyle = a use of land. E.g. activities of a neighbouring factory might interferewith my fox-hunting / spoil my way of life as a landed aristocrat

can I / should I be able to force the factory to close? do the activities conflict enough to merit my having a redress? Are they both legitimate uses of the land? do I have a case in tort? Against whom? exs. of condition = something associated with my property that affects anothers e.g. condition of

rock face in Kirklees MBC v. Field and Others [1998]

or activity running factory which causes excessive smoke, noise, vibrations so others having aninterest in their property have that interest interfered with because of activity

Focus is on the interest which the claimantseeks to protect and not the defendant's conduct.=protection of proprietary interest property right not an environmental right

Implicit = uses of land can be conflicting / w

EBL Exam Notes Rev 3

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