Law reports

ECCLESIASTICAL

Burial authority carrying out cemetery safety inspection - faculty required before laying flat large number of memorials - conditional faculty granted regulating conduct of future inspections

In re Keynsham Cemetery: Bath and Wells Const Ct (Chancellor Briden): 18 September 2002

Without obtaining a faculty the burial authority carried out a safety inspection of consecrated ground in a local cemetery using a 'topple tester' which applied a 50kg testing standard against the memorials.

A large number of memorials failed the test and were laid down flat on the graves.

The burial authority then applied for a confirmatory faculty and for a faculty in respect of future works.

The parties made written representations.

Held, granting a conditional faculty, that when exercising its powers under article 16(1) of the Local Authorities Cemeteries Order 1977 (SI 1977/204), to put in order any tombstone or other memorial in a cemetery, it was not necessary for the local burial authority to apply for a faculty for minor works associated with maintaining the safety of monuments, including non-destructive testing; but that where, pursuant to a policy of safety inspection, it was desired to lay flat a potentially large number of tombstones it was necessary for the local burial authority to obtain a faculty; that, furthermore, the 50kg standard applied by the burial authority in the 'topple test' was too stringent and a maximum 30kg test would be allowed for any future testing; that where in exceptional cases there was evidence that a monument was secure on a date proximate to the burial authority's survey, the authority would be obliged, if required by the court on the application of the owner, to reinstate any monument; and that whenever it was reasonably practicable to do so the burial authority should give any person known to be interested in a memorial which failed a 'topple test' notice thereof and reasonable opportunity to remedy the defect.

FAMILY

Care proceedings - child of member of administrative and technical staff of embassy - diplomatic privilege not barring court's jurisdiction to entertain application for interim care order

In re B (A Child) (Care Proceedings: Diplomatic Immunity) [2002] EWHC 1751 (Fam): FD (Dame Elizabeth Butler-Sloss, President): 30 July 2002

The local authority applied for an interim care order in respect of a child aged 13 who, following a school referral to social services, was found to have significant non-accidental injuries consistent with having been repeatedly and severely beaten.

The father, a foreign national, was a driver employed by a foreign embassy.

A preliminary issue arose as to whether the immunity conferred by the Diplomatic Privileges Act 1964 deprived the court of jurisdiction to entertain the application.

Henry Setright QC and Christopher Poole for the local authority.

Cherie Booth QC and Deborah Sawhney (instructed by Johnson & Co) for the father.

Jonathan Cohen QC and Nigel Cox (instructed by Gillian Radford & Co) for the mother.

Cherie Harding (instructed by Creighton & Partners) for the child.

Susan Freeborn (instructed by CAFCASS Legal) for the child's guardian.

Held, granting the application, that, since article 37 (2) of the 1961 Vienna Convention on Diplomatic Relations, as incorporated into English law by the 1964 Act, gave members of the administrative and technical staff of a mission no immunity from civil proceedings in respect of acts performed outside the course of their duties, there was no bar, procedural or otherwise, to the making of an interim care order in public law proceedings; that the inviolability of the father's private residence under article 30 of the convention did not extend to the consequences of acts done by individuals within those premises; and that, accordingly, the court had jurisdiction to make the order and would do so.

LOCAL GOVERNMENT

Licensing - council removing limit on number of hackney carriages and resolving to grant unconditional licences to private hire vehicles to meet unmet local demand - not unlawful

R (Maud) v Castle Point Borough Council: CA (Lords Justice Kennedy, Buxton and Keene): 2 October 2000

The council, which had not previously granted licences for private hire vehicles, commissioned a firm of consultants to investigate whether there was a significant unmet demand for hackney carriages and private hire vehicles in its borough.

The consultants conducted interviews and investigations in the locality, then, recommended that restrictions on the maximum number of hackney carriage licences should be removed and that private hire vehicle licences should be issued.

The council, relying on the report, resolved to remove the limit on the number of hackney carriage licences to be issued and to issue unconditional licences for private hire vehicles, with the result that such vehicles would be permitted to use cab ranks to pick up passengers.

The claimant, a hackney carriage taxi licensee, on behalf of himself and 28 other licensees, sought judicial review of that decision on the grounds that it was based on irrelevant consideration and that the council had failed to consider whether the licences for private hire vehicles should be issued with conditions attached.

The judge refused judicial review.

The claimant appealed.

David Wolfe (instructed by Griffith Smith, Brighton) for the claimant.

Alan Newman QC and Andrew Muir (instructed by the Borough Solicitor, Castle Point Borough Council, Benfleet) for the council.

Held, dismissing the appeal, that section 16 of the Transport Act 1985 had qualified the discretion of the licensing authority under the Town Police Clauses Act 1847 by permitting it to restrict to the number of hackney carriage licences to be issued as only if satisfied that there was no unmet demand for hackney carriages in the area; that the council had not therefore taken account of irrelevant considerations in relying on the report; and that the issue of licences without restrictions to some and with restrictions to others would categorise the latter as second-class taxis, and the council was right not to do so.

TAXATION

Assessment - inspector seeking to recover refund payment made in error - general commissioners lacking jurisdiction to review decision or to discharge assessment

Guthrie (Inspector of Taxes) v Twickenham Film Studios Ltd: ChD (Mr Justice Lloyd): 27 September 2002

A dispute as to the amount of the taxpayer company's losses resulted in a refund of corporation tax in an amount of 60,167 being made to it by the tax inspector.

Subsequently the inspector concluded that a mistake had been made and raised an assessment for repayment of the amount from the company under section 30(1) of the Taxes Management Act 1970.

On appeal by the company, general commissioners found that the refund had been properly made and discharged the assess-ment.

The inspector appealed.

David Ewart (instructed by Solicitor of Inland Revenue) for the tax inspector.

Conrad McDonnell (instructed by Stephen Mullins) for the company.

Held, allowing the appeal, that section 30(1) of the Taxes Management Act 1970, which states that where tax has been repaid in error, then 'that amount of tax may be assessed and recovered as if it were unpaid tax', gave to the inspector a discretion as to whether or not to make an assessment; that the general commissioners, by exercising the discretion afresh by way of review, were invoking a jurisdiction they did not have; and that, accordingly, it being open to them neither to substitute their own view nor to review the inspector's decision on grounds of unreasonableness, the general commissioners had erred in ordering the assessment to be discharged.