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PUBLIC SECTOR NEWS
LOCAL GOVERNMENT NEWSLETTER
Welcome to the latest issue of Geldards’ local govern-
ment newsletter. Subjects featured in this issue include
updates on planning law in England and Wales, both of
which have seen significant initiatives over the past year.
We have also provided information and comments on the
Public Contracts Regulations 2015, and an update on the
law relating to holiday pay. We hope you find this newsletter of interest and we would welcome your comments.
PROCUREMENT
Public Procurement - 2015 regulations bring
surprises
New public procurement regulations have been made to implement the requirements of European directives that were
adopted in 2014. Many of the provisions in the regulations
will come into force on 26th February 2015, and some will
come into force on other dates specified in the regulations.
The European Commission’s mission to overhaul the Procurement Directives to modernise and simplify and to open
up contracts to SME contractors culminated in the adoption
of three new Directives on 17 April 2014. These cover public
sector contracts, concession contracts (where payment is
derived mainly from end-users) and contracts procured by
utility companies. An ambitious timetable saw publication
in September by the Cabinet Office of draft Public Contract
Regulations for consultation and the regulations being made
in February 2015.
New approach for below-threshold contracts
The regulations apply to contracting authorities. These are
defined in the regulations as meaning the State, regional or
local authorities, bodies governed by public law or associations formed by one or more such authorities or bodies.
Part Four of the regulations introduces new rules that apply
purely at the UK level to below-threshold contracts: £4.32
million for works, and £111,676 or £172,514 for services and supplies, respectively for central government and local authority
contracts. These are intended to implement Lord Young’s 2013
proposals to open up more contracts to smaller businesses.
They introduce a new requirement for central government to
advertise contracts of £10,000 or more on the government’s
Contracts Finder website. Local authorities and housing
associations must also do so for contracts of £25,000 or
more. Schools and academies are exempt from this, as are
certain NHS procurements. In each case, the advertising
requirement only applies if the contract opportunity is put
into the public domain in the first place, which leaves open
the possibility of a behind closed doors deal or a framework
call-off. The Contracts Finder advert must clearly specify the
time limits to respond, how to respond and any other conditions for participation. All the relevant information must
be freely downloadable via a website. The use of pre-qualification questionnaires for such contracts will be banned.
Any questions about credentials or suitability to bid must
in future be relevant to the subject matter of the contract
and proportionate. The Cabinet Office intends to issue more
detailed mandatory guidance to further shape best practice,
particularly around issues like minimum financial standing
and legal status. Authorities must explain any deviation
from the rules by written report to the Cabinet Office.
Regulation 113 introduces a statutory requirement for public
authorities to write into the contract an obligation to pay
contractors within 30 days of a valid and undisputed invoice.
If they fail to do so, the terms will become implied terms. To
help with arguments about whether an invoice is ‘undisputed and valid’, the rules state that invoices must be ‘considered
and verified by the contracting authority in timely fashion’
and undue delay is not to be regarded as justification for
delay in payment.
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was that various categories of development would be excluded from the
deemed discharge procedure, for seemingly sensible reasons.
Summary of other changes
Other important changes include:
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Reductions in time limits for requests to participate and return of
tenders.
Clarification that social and environmental benefits can be considered during evaluation.
Removal of the distinction between
Part A and Part B services, and the
introduction of a new ‘light touch’
regime for contracts in these sectors that exceed €750,000 in value
(about £630,000).
A new power to reserve certain
types of contract to social enterprises and mutuals, provided strict
criteria are satisfied.
The negotiated procedure changes
to the competitive procedure with
negotiation. The circumstances
in which this and the competitive
dialogue procedure can be used are
widened. A new Innovation Partnership procedure is introduced
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to encourage the development of
completely new solutions.
New safeguards against corruption,
collusion and managing conflicts of
interest.
Market engagement and consultation prior to formal tenders is
actively encouraged and permitted.
Clarification of when an authority
can vary a contract without having
to re-run the competition. A new
de minimis limit of 10% (15% for
works contracts) is introduced, with
clarification of the ability to switch
supplier in the case of insolvency or
corporate restructuring.
Greater transparency on contract
opportunities
Many of the reforms are welcome
clarifications of principles already
developed by case law. The changes to
procedures will require authorities to
adjust systems and processes in readiness before the new regulations come
into force.
PLANNING AND
PROPERTY
Planning Law Update (England)
2014 saw some significant activity from
the Government both in terms of legislation being progressed and in terms
of consultation on proposed changes
which might be progressed in the near
future.
On the legislative front, the Infrastructure Bill was introduced in June and
is at the time of writing close to Royal
Assent. The most interesting aspect of
the Bill from a planning perspective is
the introduction of a power to provide
a procedure for the deemed discharge
of planning conditions if a decision is
not taken within a certain time. At the
same time the Government has been
consulting on proposals to be included
in regulations and it seems likely that
the proposals will be progressed. The
outcome of the consultation process
Further permitted development rights
were introduced by the Town and
Country Planning (General Permitted
Development) (Amendment and Consequential Provisions) (England) Order
2014. These are clearly aimed at getting
empty buildings reused and are aimed
at shops, buildings in mixed use as a
dwelling house with financial services
or shops, and agricultural buildings
although in the latter case the right
is subject to prior determination of
transport and highway, noise contamination and flood risks and there is an
opportunity to prevent developments
where location makes it impracticable
or desirable to change use. One can see
the Government’s economic agenda
coming to the fore in such changes.
This theme is continued in the department for Communities and Local
Government’s recent consultation
which included further permitted
development rights for light industrial
units, warehouses, storage unit, offices
and some sui generis uses to change
to residential and which allows more
changes of use within the high street.
The DCLG consultation also included
proposals to restrict the ability to
open pay day lending or betting shops,
which will require a planning application. One can see a run of test cases
looking at the consideration given
by local planning authorities to such
applications, and it will be interesting
to see how the law develops in that
regard.
Proposed legislative changes also
included the introduction of a “per-
mission” stage in statutory challenge
proceedings, brought about by the
Criminal Justice and Courts Bill, which
will bring that procedure more into
line (procedurally at least) with judicial
review procedures, giving the Judiciary
an ability to weed out unmeritorious
claims at the earliest possible opportunity, without the need for a full
hearing.
In neighbourhood planning, regulations recently made, the Neighbourhood Planning (General) (Amendment)
Regulations 2015 have introduced
requirements for local planning authorities to determine applications for
designation of neighbourhood areas
by a specified date. They have also
added a requirement for a proposal for
a neighbourhood area to include an
environmental report or a statement of
reasons why an environmental assessment is not required.
The year has also seen changes to the
Civil Procedure Rules to enable the
introduction of a specialist Planning Court to enable matters where
specialist planning knowledge would
be of assistance to be dealt with more
appropriately. The procedures include
an ability to designate a case as significant, in which case target timescales
will apply. This will place pressure on
parties to litigation, as the timescales
can, in some cases, be ambitious. Even
where sensible agreements are in place
between parties, the achievement of
targets can override that. Litigators
with experience of the Woolf reforms
will appreciate the significance.
Last but not least, there were some
significant changes in policy in regard
to when section 106 agreements could
be used and what they might require.
In particular changes to when afforda-
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ble housing contributions might be
required have been a surprise to many
clients.
on the floor of the Assembly on a
motion to approve the principles of
the Bill.
Planning (Wales) Bill - Update
The Bill will then proceed to Legislative Stage 2 which will involve detailed
“line by line” scrutiny by the National
Assembly. Geldards have prepared a
briefing note on the background to the
Bill, its provisions and the associated
consultations, which can be downloaded from our website.
Following its introduction on the 6th
October 2014, the Planning Wales Bill
has been referred to Stage 1 of National Assembly for Wales’ legislative
procedure. This requires consideration
of the principles of the Bill by the relevant Committees of the Assembly.
The Bill was first considered by
the Constitutional and Legislative
Affairs Committee on 10th November
2014 which took evidence from Carl
Sergeant AM the Minister for Environment and Sustainability. The Committee will report on the drafting of the
Bill and on the extent and appropriateness of the secondary legislative
powers proposed.
The Environment and Sustainability
Committee of the National Assembly
has held four evidence gathering
sessions on the 27th November, 3rd
and11th December and 14th January,
from the Minister and a wide variety
of stakeholders, including the representatives of local government, the
national parks, the RTPI, business interests, Welsh language organisations,
and statutory agencies. Representatives of the Law Society (one of whom
was Huw Williams , the lead partner
Public Law at Geldards), the Planning
and Environment Bar and the UK
Environmental Law Association gave
evidence together on 3rd December
2014.
The Environment and Sustainability
Committee produced its Stage 1 report
at the end of January, which allowed
the Bill to proceed to a plenary debate
Disposal of playing fields in
Wales
The Welsh Government is expected to
introduce regulations in 2015 which
will impose new restrictions on the
disposal of playing fields in Wales.
Draft regulations that were issued for
consultation last year would impose
new requirements for local authorities
to comply with before they can dispose of a playing field or any part of it
that has been used in the previous five
years. These include:
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An impact assessment.
A notice in a local newspaper for
two consecutive weeks.
Making the proposal available for
inspection for at least six weeks.
Allowing at least six weeks for the
receipt of representations.
Displaying a copy of the notice in
at least one place on or near the
playing field and at each official entrance for not less than six weeks.
Publishing the notice on its website and displaying it for at least six
weeks.
Sending a copy of the notice to any
owner or occupier of land adjoining the playing field and to bodies
specified in the regulations.
Providing a copy of the details of
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the proposed disposal to anyone
who requests it during the consultation period
Considering any representations
received and making a decision.
Publishing a notice of a decision to
proceed in a local newspaper for
two consecutive weeks. Also displaying this on the local authority’s
website and at or near the playing
field and at each official entrance.
Making its decision report relating
to a decision to proceed available
for inspection for at least six weeks
and sending a copy to anyone who
made a substantive representation
and anyone who requests it.
Sending a decision report relating
to a decision not to proceed to
anyone from whom it received a
substantive representation.
There are some exemptions from the
regulations and transitional arrangements will apply to proposed disposals
which have already been the subject
of notices under section 123(2A) of the
Local Government Act 1972.
Local authorities will be required to
have regard to guidance from the
Welsh Ministers when exercising their
functions. The Welsh Government published draft guidance for consultation,
along with the draft regulations.
Local authorities will need to ensure
that they are familiar with the requirements of the new regulations, so that
any disposals made after the regulations are made and come into force are
compliant. Geldards have prepared a
briefing note on the background to the
Bill, its provisions and the associated
consultations, which can be downloaded from our website.
WORKFORCE
Calculating Holiday Pay
At the beginning of November, the
Employment Appeal Tribunal (EAT)
delivered its judgment in three cases relating to the calculation of holiday pay
Bear Scotland Ltd v Fulton & Others,
Hertel (UK) Ltd v Wood & Others and
Amec Group Limited v Law & Others.
In each of these cases the claimants
had succeeded in their original employment tribunal claims that additional
elements of their pay, namely non-guaranteed overtime (i.e. overtime they
were required to work but their employers were not obligated to provide)
and travel allowances should have been
included as well as their basic pay when
their holiday pay was calculated. The
EAT upheld the employment tribunal
decisions in each of these cases and the
parties are not appealing the decision.
Non-guaranteed overtime and travel
allowances have therefore been added
to compulsory/contractual overtime
(Bamsey and others v Albion Engineering and Manufacturing plc [2004] IRLR
457) and commission (Lock v British Gas
Trading C-539/12) on the list of additional elements of pay which should
be included when calculating holiday
pay. The trend of European case law
suggests that in reality any element
of pay which is “intrinsically linked”
to the performance of a contract of
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UPCOMING EVENTS
employment should be included when
calculating holiday pay, consideration
should be given therefore as to whether
productivity or attendance bonuses,
standby and emergency call out payment and shift premiums or allowances should also be included.
Public sector employers who pay such
additional pay elements are exposed to
potential claims if these elements have
not historically been included in the
calculation of holiday pay. A worker is
entitled to bring an unlawful deduction
from wages claim in relation to miscalculated holiday pay provided the claim
is brought within three months of a
deduction or three months from the
last in a “series of deductions”.
The EAT has given employers a degree
of comfort in this regard by limiting
the scope of a “series of deductions” by
stating that the series will be broken
by a gap of three months or more (this
will apply to all unlawful deductions
claims and is not limited to holiday pay
claims). In practical terms this means
that if an employee has a gap of more
than three months between periods
of holiday the series will be broken
and their ability to track the unlawful
deduction any further back will stop.
In addition, the result of the Government’s task force, assembled in reaction
to the EAT’s decision in these cases,
is the Deduction from Wages (Limitation) Regulations 2014 which seek to
cap back dated unlawful deductions
from wages claims. The effect of these
Regulations will be to limit all unlawful
deductions claims to two years before
the claim is lodged with the employment tribunal. In addition, the Regulations explicitly state that the right
to paid holiday is not incorporated as
a term in employment contracts, thus
preventing workers from circumventing this two year limit by bringing
breach of contract claims in the County
Court. However, these Regulations do
not apply to claims lodged with the employment tribunal before the 1st July
2015 so it remains to be seen whether
this deadline prompts a glut of unlawful deductions claims for holiday pay to
be lodged with Employment Tribunals
in the meantime.
24 FEBRUARY 2015
4 MARCH 2015
25 MARCH 2015
9:30-13:00
Em Lawshare Training: Equalities
Act: Venue: West Midlands:
9:30-13:00
EM LawShare Training: Localism Act:
Venue: Browne Jacobson’s offices,
Nottingham.
9:30-13:00
EM LawShare Training: Planning,
including Environmental Issues.
Venue: Freeths, Birmingham.
Speakers include Huw Williams and
Tomos Phillips from Geldards.
EM LawShare members only. To book a
place, contact Julie Scheller at Freeths on
0845 272 5701 or
[email protected]
25 FEBRUARY 2015
9:30-13:00
EM LawShare Training: Planning,
including Environmental Issues.
Venue: Browne Jacobson’s offices,
Nottingham.
EM LawShare members only. To book a
place, contact Julie Scheller at Freeths on
0845 272 5701 or
[email protected]
EM LawShare members only. To book a
place, contact Julie Scheller at Freeths on
0845 272 5701 or
[email protected]
10 MARCH 2015
Supporting Strategic Commissioning
in Public Services learning event.
Venue: SWALEC Stadium, Cardiff
To book a place, go to the WLGA website:
www.wlga.gov.uk
10-11 MARCH 2015
26 FEBRUARY 2015
LGA annual fire conference and
exhibition. Venue: Gateshead.
11:30-16:15
SOLACE Leadership Forum. Venue:
Eversheds London office.
To book a place, go to the Local
Government Association website at: www.
local.gov.uk
To book a place, go to the SOLACE website
at: www solace.org.uk/events
17 MARCH 2015
26 FEBRUARY 2015
Masterclass - Leadership through
political waters. Venue: Central
London
SOLACE Annual Charity Dinner.
Venue: The Globe Theatre, London
To book a place, go to the SOLACE website
at: www solace.org.uk/events
3-4 MARCH 2015
LGA Culture, Tourism and Sport
annual conference 2015 - A New
Magna Carta? The power of culture,
tourism and sport to transform
places and renew democracy: Venue:
Durham.
To book a place, go to the Local
Government Association website at: www.
local.gov.uk
To book a place, go to the SOLACE website
at: www solace.org.uk/events
EM LawShare members only. To book a
place, contact Julie Scheller at Freeths on
0845 272 5701 or
[email protected]
25 MARCH 2015
Equality in 2015: Making an Impact.
Venue: The Metropole Hotel,
Llandrindod Wells, Powys
To book a place, go to the WLGA website
at www.wlga.gov.uk
16-18 APRIL 2015
LGG Weekend School in association
with LLG. Venue: University of
Exeter.
To book a place, go to the LGG website at:
www.lgg.org.uk/events/2015-04-16
22 APRIL 2015
9:30-14:00
EM LawShare Training: Planning,
including Environmental Issues.
Venue: Browne Jacobson’s offices,
Birmingham.
EM LawShare members only. To book a
place, contact Julie Scheller at Freeths on
0845 272 5701 or
[email protected]
PUBLIC SECTOR NEWS
CONTACT
CHARITIES
EDUCATION
PLANNING AND PROPERTY
Giselle Davies, Partner
Christopher Whittington, Consultant
Charles Felgate, Partner
T: +44 (0)29 2039 1797
E: [email protected]
T: +44(0)1332 378 302
E: [email protected]
T: +44(0)29 2039 1858
E: [email protected]
Jamie Gordon, Partner
CONSTRUCTION
EMPLOYMENT
T: +44(0)115 983 3703
E: [email protected]
Chris Hawrylak, Associate
Rhian Brace, Partner
Paul Hilsdon, Partner
T: +44(0)1332 378 316
E: [email protected]
T: +44(0)29 2039 1734
E: [email protected]
T: +44 (0)1332 378 351
E: [email protected]
Kim Howell, Partner
Tomos Phillips, Associate
T: +44(0)29 2039 1473
E: [email protected]
T: +44(0)29 2039 1787
E: [email protected]
Stephen Jenkins, Partner
David Williams, Partner
T: +44(0)29 2039 1730
E: [email protected]
T: +44 0115 983 3757
E: [email protected]
CONTRACTS, PUBLIC
PROCUREMENT AND
SERVICE DELIVERY
Ceri Delemore, Partner
T: +44(0)29 2039 1712
E: [email protected]
GOVERNANCE AND
CONSTITUTIONAL LAW
Owen Willcox, Partner
T: +44 (0)20 7921 3986
E: [email protected]
Owen Willcox, Partner
T: +44 (0)20 7921 3986
E: [email protected]
Owen Evans, Senior Associate
T: +44 (0)29 2039 1850
E: [email protected]
Huw Williams, Partner
T: +44 (0)29 2039 1765
E: [email protected]
DISPUTE RESOLUTION
Huw Williams, Partner
T: +44 (0)29 2039 1765
E: [email protected]
STATE AID
Huw Williams, Partner
T: +44 (0)29 2039 1765
E: [email protected]
Owen Evans, Senior Associate
T: +44 (0)29 2039 1850
E: [email protected]
Jonathan Butler, Partner
T: +44(0)1332 378 321
E: [email protected]
Jonathan Griffiths, Partner
T: +44(0)29 2039 1723
E: [email protected]
[email protected]
www.geldards.com
+44 (0)844 736 0006
This guidance note is intended solely as an overview of the law in England and Wales. It was last updated on 02.09.2014. No responsibility can be accepted for the completeness or accuracy of this guidance note and professional advice should be taken in relation to any specific
matters. Geldards LLP is a limited liability partnership registered in England and Wales (OC313172) and is authorised and regulated by the Solicitors Regulation Authority. A list of Geldards LLP members is available for inspection at our registered office at Dumfries House,
Dumfries Place, Cardiff CF10 3ZF. We use the word ‘Partner’ to refer to a member of the LLP or an employee of an equivalent standing and qualification.