Public Eye - Spring 2008 - Mills & Reeve

Publiceye
Spring 2008
Full steam ahead:
local handling of complaints about members
A work in progress:
the community infrastructure levy
Pain relief:
insolvency in the construction industry
Equal pay:
recent developments in the public sector
A future prospect?
Local asset backed vehicles
Case law update
In brief
www.mills-reeve.com

Welcome to the spring edition of Public Eye, our local
authority newsletter. With Christmas firmly out of the
way, we look forward to a year of interesting
developments for local authorities.
In this issue, we examine the Government’s new
take on the planning gain supplement (PGS) – the
community infrastructure levy – and consider whether
it is just another guise for the PGS. Regeneration
projects could benefit from rosier finances if local asset
backed vehicles (LABVs) are successfully introduced
into the local government sphere – we explore the
background of LABVs and what they could mean in
the future.
Insolvency in the construction industry is a major
headache for local authorities and we look at some
pragmatic ways to overcome, or at least reduce, the
risk of contractors’ insolvency hitting your construction
projects hard. We also review the dramatic changes
arising out of the Local Government and Public
Involvement in Heath Act 2007 for councillor
misconduct investigations. Finally, some recent equal
pay cases relating to pay protection and back pay are
given close scrutiny.
Contents:
3 Full steam ahead: local
handling of complaints
about members
The Local Government and
Public Involvement in Health
Act 2007 is bringing about
changes to how complaints
about members are handled.
4 A work in progress: the
community infrastructure levy
The planning gain supplement is
dead – long live the community
infrastructure levy?
Nathan Holden
Partner and Head of Local Authorities
Tel: 0121 456 8350
E-mail: nathan.holden@mills-reeve.com
We welcome feedback on our publications and
therefore, should you have any comments, please
feel free to contact me.
5 Pain relief: insolvency in the
construction industry
How local authorities can
prevent or limit the damage
when insolvency hits their
construction partners.
6 Equal pay: recent
developments in the
public sector
Two new cases have cropped
up to bring more complexity
to equal pay.
8 A future prospect?
Local asset backed vehicles
The Government is looking
to promote new ways of
managing local authorities'
assets to fund regeneration.
10 Case law update
11 In brief
12 Deals and news
2

Full steam ahead:
local handling of complaints
about members
From April 2008 the Local
Government and Public Involvement
in Health Act 2007 (the 2007 Act)
will dramatically alter the course of
how allegations into breaches of the
Code of Conduct are handled. The
new pair of safe hands will be in the
form of the Local Standards
Committee rather than the Standards
Board for England.
• There will be a new devolved
regime for the handling of
complaints against members
• The deadline for
implementation is 1 April
2008
• All complaints will be the
primary responsibility of the
Local Standards Committee
• Local authorities and their
monitoring officers will need
to start preparing now
• New regulations will be
forthcoming in due course
Johann Wylly 0121 456 8226
johann.wylly@mills-reeve.com
Previously, all complaints were dealt with by
the Standards Board, which was originally
established in 2001, but focus will now shift
to its role as regulator, rather than
investigator. This role extends the board’s
function of providing expert guidance to
local authorities on the Code of Conduct,
via publication of the Code of Conduct:
Guide for Members and the Pocket Guide
to the Code of Conduct. The following
amendments will mean that, from April
2008, the 2007 Act inserts a new section
57A into the Local Government Act 2000
substituting it for section 58.
The new standards devolutionary regime
has been fully supported by the Local
Government Association, which has stated
that such matters are best dealt with at a
local level. The Local Standards Committee
will make an initial assessment of
misconduct allegations. Once it receives a
complaint, it has three options as follows:
• refer it to the monitoring officer who
will subsequently investigate it;
• refer it to the Standards Board; or
• make a decision not to take any action
at all.
However, any reference to the Standards
Board will only be on exceptional grounds,
such as in the case of conflict issues or
very serious allegations. It will be for the
monitoring officer to shoulder the
responsibility of investigation in
most circumstances.
What should monitoring officers be
aware of?
This new procedure amplifies monitoring
officers’ responsibilities. 57B of the 2000
Act has created a right for a complainant
to make a written request for a review of
a decision by the Standards Committee to
take no action in respect of an allegation.
The clock starts ticking once a request is
received so that the Standards Committee
is convened, an assessment is made and a
decision regarding the allegation taken
within three months.
The Standards Committee must be properly
constituted to uphold the rules of natural
justice, so that the investigating members
are not identical to the decision-making
members. There should be at least two
sub-committees, one for the assessment
stage and one for the review decision. It
does not mean that a member involved in
either of the initial stages should not be
involved in the conduct decision later on.
The Standards Board has produced a
Checklist for local authorities in the run
up to April 2008 on their website. The
constitution of Standards Committees is
going to be a major consideration for local
authorities, necessitating planning ahead
and pooling members. Monitoring officers
should consider:
• ensuring that the local authority clears
outstanding investigations before
1 April 2008;
• establishing the arrangements for
delegating assessment and review to
sub-committees;
• training members and equipping them
for their new roles;
• recruiting independent members; and
• joint working, if appropriate, with
neighbouring local authorities.
The Department for Communities and Local
Government has released a consultation
document on the detailed arrangements for
putting into effect orders and regulations,
and the closing date for responses was 15
February 2008. There will therefore only be
a short timeframe between release of
regulations and the deadline of 1 April
2008. Local authorities must not get
shipwrecked by the new processes
otherwise they may be subject to the
Standards Board’s powers of intervention
if their functions are not discharged
satisfactorily. However, having an expert
navigator, namely, the monitoring officer,
to steer the local course will reap vital
benefits in promoting local trust in the
new ethical regime.
3

A work in progress:
the community
infrastructure levy
David Brock 01223 222438
david.brock@mills-reeve.com
Oliver Bussell 01223 222542
oliver.bussell@mills-reeve.com
The proposals for the community
infrastructure levy (CIL) were made shortly
after the demise of the planning gain
supplement (PGS) last October. More is
becoming known now, as CIL emerges as
a part of the Planning Bill.
What are they trying to do?
The Government’s justification for seeking
CIL is the shortage of national, regional and
local infrastructure. The Bill requires
regulations to be made for CIL and sets
out heads of terms for their operation.
Any authority with responsibility for
planning may charge CIL. The regulations
must specify the process for calculation and
collection, the uses to which CIL can be
applied and enforcement. Authorities must
use CIL to fund infrastructure, they may be
required to refund overpayments and may
be allowed to accept payment in kind.
How will CIL work?
Charging authorities must prepare lists of
projects and set rates for CIL. It is not clear
where this will occur. Local planning
authorities can use the local development
framework process. But what will be used
by the other charging authorities? If the
information is contained in development
plan documents, they will be subject to
examination and correction by the Planning
Inspectorate. But if within supplementary
planning documents (as appears possible)
scrutiny could be much less rigorous.
Then some sort of rate needs to be set.
CIL will be payable on commencement of
development with liability attaching to the
owner of land at the date of commencement.
The Bill also contemplates payment by
instalments. CIL will be payable whether or
not the value of a piece of land has increased
following a grant of planning permission.
The amount of CIL will be determined
by reference to the date of the planning
permission as a result of which CIL
becomes payable.
CIL can also be calculated by reference to
increases in value consequent on a grant of
permission. This is leading many to ask, “is
this PGS by another name?”.
Legal and funding issues
Non-payment or late payment of CIL may
mean that a planning permission is either
suspended or cancelled. Such revocation
currently gives an entitlement to
compensation. Allowing permissions to be
suspended or cancelled could cause funding
problems. Those carrying out due diligence
on transactions will need to see a CIL
“receipt” – proof against new enforcement
measures being taken.
Another issue is that liability for payment
attaches to an owner of land at the time
when CIL becomes payable. This works
where a landowner obtains permission for
development of his land. But one can apply
for permission over a third party’s land.
What happens at a large development
covering the land of several owners?
Not all of them will even welcome the
development, yet they may be liable for CIL.
While the regulations must require the
collecting authority to apply CIL to
infrastructure, questions remain over
monitoring and delivery. Developers will
want the infrastructure to be delivered as,
presumably, will the electorate. A Grampian
condition preventing development until the
infrastructure is delivered could cause
double charging. Monitoring may be
expensive but it will be necessary.
The Bill also allows section 106 and section
278 agreements to be regulated. Why are
section 38 agreements omitted? Given
however that permissions can also be
controlled and infrastructure effectively
required through conditions it seems to
us that there are other issues that need
to be addressed.
Conclusions
Obviously there is some way to go on CIL.
It is not going to be an easy levy to
calculate and administer. Determining what
infrastructure it covers and the cost will
require manpower. The implications of
linking a levy to implementation of a
permission are considerable. Interrelationship
with the planning system as a whole is
complex. We look forward to the next stage
with interest.
• The community infrastructure
levy is the replacement for the
planning gain supplement
• There is currently a lack of
clarity on rates to be set
• Linked to planning permissions
– non-payment could lead to
suspension or cancellation
of permissions
• Liability for payment attaches
to the landowner at the time
the CIL is payable
• There are concerns regarding
the interrelationship with the
overall planning system
4

• Insolvency can have serious
consequences for local
authorities
• Termination of the building
contract is often an option
• Consider the mechanics of
payment and the provisions of
the Housing Grants,
Construction and Regeneration
Act 1996
• Proper checks prior to entering
into contracts can mean
greater protection
• Local authorities need to be
proactive to protect against
insolvency
Pain relief: insolvency in the
construction industry
Many local authorities are involved in large
and expensive projects. It is often the case
that costs and timetables for projects will be
tight. Therefore any problems that arise on
site or with the contractor will have serious
consequences for the local authority and its
ability to complete the project on time and
on budget.
One of the worst headaches a local authority
can face during a project is the main building
contractor becoming insolvent during the
course of a construction project.
The local authority will need to be aware of
the disruption that is likely to be caused by
an insolvent contractor:
• The works are likely to be delayed and
costs are likely to escalate while a new
contractor is sourced.
• Any defects in the work carried out by the
contractor are likely to need to be put right
at the local authority’s expense, unless
suitable insurance is in place.
• In some circumstances, a local authority
can also find itself liable for unpaid
sub-contractors’ fees, despite having paid
the contractor for that work already, in
effect paying twice for the same work.
Any direct relationships between a local
authority and the sub-contractors need to
be carefully managed and kept at an arm’s
length or, if possible, avoided completely to
avert this situation.
• Issues can also arise over ownership of
materials on site.
Local authorities might think that the only
option would be to become an unsecured
creditor and join the queue of those in a
similar position with no realistic prospect of
recovering any or even very little money.
What, if anything, can the local authority do
to gain relief from the pain of insolvency?
First, it should be noted that, under most
building contracts, insolvency is often a
trigger allowing the employer to terminate
the building contract.
Second, it may also have an effect on the
mechanics of payment. Under section 111
of the Housing Grants, Construction and
Regeneration Act 1996, a party to a
construction contract may not withhold
payment that would otherwise fall due
for payment unless it has given what is
known as a withholding notice within
the required timeframe.
The recent case of Melville Dundas Ltd (in
receivership) v George Wimpey UK Ltd
(2007) looked at this principle. It decided that
there was an exception to it. The exception
was where there was a contractual
entitlement not to have to make certain
payments. This case was dealing with a
provision in the 1998 JCT with Contractor’s
Design Form of Contract, which enables an
employer under a building contract (such as
an NHS trust) to determine the contract
where a contractor becomes insolvent. The
JCT form provides that the employer does
not have to make payments that are due to
the contractor if they fall due less than 28
days before the employer first had the right
to determine the contract. In this case the
court held that the employer did not have to
make payment even though no withholding
notice had been served.
There are also steps that can be taken before
any contract with the contractor is entered
into, which will help to protect local
authorities as the employer, if the contract
later becomes insolvent. It is often a
straightforward process to ascertain the
financial standing of a main contractor prior
to contracting with them. For example,
obtain three years’ worth of the contractor’s
accounts and obtain a credit rating for the
contractor. Finally, the local authority’s
protection can also be improved by contract
amendments to the standard forms, the
holding of retention at an appropriate level
and by ensuring the contractor gives
appropriate guarantees, bonds and
insurance.
Ruth Phillips
0121 456 8211
ruth.phillips@mills-reeve.com
5

Equal pay: recent
developments in
the public sector
Charles Pigott 01223 222411
charles.pigott@mills-reeve.com
Overview
Over the past year we have begun to see
cases emerging that reflect the enormous
complexity of the equal pay issues
generated by Agenda for Change in the
NHS and the Single Status Agreement in
the local authority sector. The cases we
refer to below have been brought in the
local authority sector in the North East, but
the legal principles can readily be translated
to the public sector as a whole.
Pay protection
Pay protection (or “red circling”) is often
used by employers to protect certain
groups of workers from the immediate
reduction in pay they would otherwise
have faced as a result of the
implementation of a job evaluation scheme
(JES). Given that this can result in workers
in traditionally female jobs (like catering or
cleaning) continuing to receive less pay
than their male comparators during the pay
protection period, is this in itself a breach
of the Equal Pay Act?
The Employment Appeal Tribunal (EAT) has
come to two different decisions on this
point, in cases which had very similar facts.
Both cases involved a group of female
workers in the North East who were able
to establish equal pay claims up to the
point the council’s JES had been
implemented. However, because of pay
protection, they continued to be worse off
than their male comparators even after the
implementation date. They argued that
they should also receive the same level
of “pay protection” as their male
counterparts.
In the first decision (Bainbridge (No 1) v
Cleveland Borough Council) the EAT ruled
that the council’s pay protection scheme
could not be justified, and therefore the
claimants’ pay should be raised to the level
of the protected pay of their male
comparators. In the second decision,
announced eight months later
(Middlesbrough Council v Surtees), the EAT
reached the opposite conclusion. The only
difference between the two cases was that
in Bainbridge the council had already
conceded some of the equal pay claims,
whereas in Surtees this had not happened.
Both appeals have now been heard by the
Court of Appeal, but at the time of writing
it has not announced its decision.
Does a JES have retrospective effect?
Ms Bainbridge and her cohort of litigants
have not been idle. Not content with their
victory in their first outing, they went to
the EAT a second time. This time the issue
was whether the job evaluation scheme
introduced by Cleveland Council in April
2004 had retrospective effect. In other
words, did the fact that the JES had rated
their work as equivalent to that done by
their male comparators with effect from
April 2004 entitle them to back-date their
equal pay claims to earlier periods when
both they and their comparators were
doing comparable jobs?
In a decision announced earlier this
year the EAT ruled that a JES was not
retrospective in this sense. While the
claimants may well have had valid equal
pay claims for earlier periods, the JES was
not an automatic passport to success. They
would have to prove their claims – which
would have to be for like work or work of
equal value – in the usual way.
Back pay
While the second Bainbridge decision is
obviously helpful to employers introducing
a JES, it does not necessarily mean that
employees will not be able to bring
back-dated claims in respect of the period
prior to its implementation. The difficulties
that public sector employers currently face
in relation to back pay is graphically
illustrated by the EAT’s recent decision
involving the GMB.
GMB v Allen involves a number of women
employed by Middlesbrough Council who
considered that they had been let down
by the way the GMB had negotiated their
claims for back pay under the Equal Pay
Act. Their argument was that the union
had pushed for pay protection for the
members who stood to lose pay as a result
of the council’s JES (who were
predominantly male) at the expense of
the claims for back pay brought by their
6

female members with equal pay claims.
As a result, these claims were settled for
significantly below their true value –
for as little as 25 per cent of what the
council thought they were worth.
The women successfully argued that they
had been subjected to what, in the
absence of justification, would have been
indirect sex discrimination by the GMB.
However, the GMB convinced the EAT that
the way the women had been treated was
justified, in the sense that it was a
proportionate means of achieving
a legitimate aim, ie, to protect its members
against a cut in pay and to safeguard jobs.
The EAT decision may have given the
unions a breathing space, but their cause
will not have been helped by remarks
made in the course of the judgment. The
EAT said that it was possible that the GMB
had acted negligently or misled the
women but added that, whether this was
the case or not, it did not affect its
decision that the GMB had not been guilty
of sex discrimination. It is not clear
whether the launch of negligence claims
against a number of public sector unions –
as many as 3,000 of them according
to recent reports – is connected with
these remarks.
The future
The cases we have mentioned here throw
up a number of other equal pay issues.
There is no space to go into these, but it is
apparent just from the points we have
been able to cover that public sector
employers face a rocky road ahead, even if
the appeals currently in the pipeline go
their way.
7

A future prospect?
Local asset backed
vehicles
Louise Whitehouse 0121 456 8304 louise.whitehouse@mills-reeve.com
8

Local authorities are currently sitting on billions of pounds worth of saleable property assets,
prompting the Government to look into this issue, knowing active management of these assets
would create more opportunities for local government.
Funds could be generated that would
reduce councils’ financial dependence
on central government, and property
investors would realise the potential profit
from buildings and sites that have not
previously been available to them.
Newly-acquired finances could be
recycled to provide long-term funding
for much-needed regeneration projects.
Selling property assets to bring in receipts
is nothing new, however now the
Government is encouraging retention of
assets and the forming of partnerships
with the private sector in property
development joint ventures called local
asset backed vehicles (LABVs). The idea
behind such ventures is that the council
places some of its property assets into the
vehicle and the private sector puts in
money equivalent to their value. Councils’
property portfolios could be developed
this way to bring in more value from
retaining their assets than from selling
them off.
Background
The concept was first introduced in a
government consultation last year on the
proposed city development companies
(CDCs). It considered the ways in which
LABVs and CDCs could interrelate. CDCs
are based upon the concept of urban
regeneration companies, although it has
been suggested that these companies be
created on a much larger scale. They will
have an increased geographical coverage,
a broader range of functions, an
increased profile and leverage over
greater budgets. Consequently, their aim
is to push forward regeneration projects
across cities. One conclusion was that the
companies themselves should be local
asset backed vehicles as these vehicles are
also able to hold assets, a feature that is
lacking in CDCs.
Clearly it would be advantageous for all
of the players involved in regeneration
projects to be under one roof. It is more
efficient to combine the public and
private sector in vehicles such as these
LABVs. By acting as a corporate vehicle,
it places such regeneration work at the
heart of the market, attracting investors.
How do these vehicles work
in practice?
These LABVs have been piloted, albeit
not within the local authority sector, but
by regional development agencies. One
such agency, EMDA, has created the
vehicle Blueprint, a partnership between
English Partnerships, EMDA and Morley
Fund Management’s Igloo Regeneration
(as the private sector partner). This vehicle
has been developed to stimulate and
deliver sustainable development to assist
the East Midlands to deliver their social
and economic agendas. It is a device
through which partners, urban
regeneration companies and other public
sector bodies can deliver their physical
regeneration plans.
The concept of CDCs, on the other
hand, has been piloted within the local
authority sector, an example being
Creative Sheffield. This company
combined the functions of the agencies
Sheffield One, Sheffield First for
Investment and Cultural Industries
Quarter to form one single economic
development company for the city. To
combine all of these functions provides
a single entry point for interested parties,
therefore making the project that much
more efficient and attractive to investors.
A successful project has been the
development of St Paul’s Place, providing
business and leisure facilities in the heart
of the city.
Any concerns?
One concern, which has been voiced by
David Hughes (the regional director for
North East, Yorkshire and East Midlands
at the national regeneration agency,
English Partnerships) is that the councils
would be “putting all of the family silver
in a single pot”. Some councillors may
baulk at this concern as, should the
vehicle invest in a few unfortunate
property ventures, then this could
have serious repercussions for the
local authority.
A factor that may be slowing down
progress is the delay over the introduction
of JESSICA, which is a new European
Commission (EC) backed investment tool
for urban areas. JESSICA allows European
Union member states to invest a portion
of their structural funding in urban
regeneration projects, on which they
will get a return. JESSICA-approved funds
could be channelled through an LABV,
however the Department for Communities
and Local Government is still seeking
more clarity from the EC about how
JESSICA will work in practice, and has
yet to implement the tool in England.
Jonathan Bull-Diamond, a partner at King
Sturge, has commented that “this vehicle
can create a lot of value for both the
council and the developer”. At present
councils are a step behind the regional
development agencies as they have not
yet piloted these schemes, although this
may well change in the near future.
• Local asset backed vehicles
(LABVs) are a new concept
to fund regeneration
projects
• LABVs could interrelate with
city development
companies to hold assets
• They have been piloted by
regional development
agencies while CDCs have
been piloted within local
authorities
• There are some concerns
that will have to be ironed
out
• LABVs could be very
advantageous for local
authorities and developers
9

Case law update
Johann Wylly 0121 456 8226
johann.wylly@mills-reeve.com
10
Accent Peerless Limited v Kingsdon &
Kingsdon (12 December 2007)
This case involved two tenants against
whom possession proceedings were brought
under the Housing Act 1988 by a housing
association. The association claimed that
the defendants’ behaviour had amounted
to a campaign of harassment against their
neighbour.
The tenants both suffered from
post-traumatic stress disorder and, as a
result, they were hypersensitive to noise and
tended to exaggerate the effect on them of
noise and other disturbances. They made
repeated complaints about their neighbours
to the Environmental Health Department, to
the association and to the police. This,
together with behaviour such as contacting
their neighbour’s employer to make false
allegations, led to this claim of harassment.
At the trial, a psychiatrist gave evidence to
the extent that the defendants could control
their behaviour to a degree, but that their
feelings about the current situation would
not change without medical treatment and
therefore, given that they had refused this
treatment, they were unlikely to give up this
campaign against their neighbours.
The judge found that the defendants were
guilty of the acts of nuisance and that their
conduct was unjustified. He therefore
granted an outright possession order. The
defendants appealed this decision on the
basis that their behaviour had now ceased
and therefore it was not reasonable to make
a possession order. The Court of Appeal
dismissed this contending that, although
there had been an improvement in the
defendants’ behaviour, they had refused
treatment. This clearly showed that their
attitude had not changed and therefore, in
light of their medical condition, it was likely
that the defendants would re-offend.
Letting International Ltd v Newham
London Borough Council (21 December
2007)
The facts of this case were that the
appellant property management company
had brought proceedings alleging that the
local authority had failed to disclose in
advance the full criteria for awarding
contracts, had therefore acted unfairly and
without transparency and was in breach of
the Public Contracts Regulations 2007. The
company had applied for an interim
injunction to prevent the authority from
entering into further contracts until the
conclusion of proceedings.
The key issue was whether there was a
serious issue to be tried about a tendering
procedure adopted by the local authority
and also whether an interim injunction
should have been granted. The judge in the
High Court found that, though the case was
arguable, it was not sufficiently strong to
warrant the grant of an injunction. Further,
while damages would be a sufficient remedy
for the company, they would not be
adequate for the local authority and so the
balance of convenience was against
granting the junction.
The Court of Appeal reminded itself of the
test for granting of interim relief in American
Cyanamid Co (No1) v Ethicon (1975):
whether or not there was a serious issue to
be tried, whether damages were an
adequate remedy and whether the balance
of convenience favoured maintaining the
status quo. The local authority had argued
that there was no serious issue to be tried
because the company could not
demonstrate that it had suffered any loss or
risk of loss and it could not show that, but
for the alleged breaches, the company
would have been successful. The Court of
Appeal said that this test set the bar too
high. It was not required that every claim
had to show that there would otherwise
have been a successful tender. What the
company had lost was the chance to
compete and this was enough.
The decision takes a logical principled
approach and one which is within the spirit
of competitive tendering. It illustrates that
local authorities can face challenges
notwithstanding that the challenger
would probably not have been awarded
the contract in any event and is a reminder
to public bodies generally of the need to
maintain scrupulous standards of
transparency in tendering.
Camden London Borough Council v
Price Job (18 December 2007)
Camden dismissed Mrs Price-Job nine
months into a two-year term because of her
disability-related sickness absence. The key
issue in this case was whether the duty to
make reasonable payment adjustments
under the Disability Discrimination Act 1995
was limited to steps that the employer knew
or ought to have known were available.
The employment tribunal had concluded
that termination of her employment was not
justified and that, if the local authority had
complied with its duty to provide various
items of workstation equipment, she would
have been able to work. It found that the
local authority was also under a duty to
arrange its own medical assessment and
that it ought to have allocated some of
her duties to another person during her
absence.
The Employment Appeal Tribunal (EAT)
allowed the appeal. It remitted the questions
of adjustments and justification to the
tribunal. It concluded that failure to obtain
medical assessment before dismissal is not
breach of duty to make reasonable
adjustments. To conclude that the duty was
dependent on the employer's knowledge
would substantially restrict the nature of the
duty and could not be derived from the
statutory words. HHJ Burke said:
"The duty is to make adjustments ... in order
to prevent the effect of the substantial
disadvantage which must be proved to exist
... The steps contemplated by s.4A must
have the effect of preventing, in whole or in
part, that disadvantage; the obtaining of a
medical assessment does not ordinarily have
that effect. It may inform the employer of a
step or steps which could fall within s.4A;
but there is nothing in s.4A to suggest that
the duty to make reasonable adjustments
arises only when the employer knows or
ought to have known that such a step or
steps is or are available ... "

In brief
Johann Wylly 0121 456 8226
johann.wylly@mills-reeve.com
Corporate manslaughter sentencing
guidelines
It has already been widely reported that the majority of
the Corporate Manslaughter and Corporate Homicide
Act 2007 will come into force on 6 April 2008.
The Sentencing Advisory Panel (SAP) has recently
published a consultation paper on how the courts
will calculate the fines to be imposed on organisations
found guilty of the new offence of corporate
manslaughter. This paper makes it clear that the fines for
the new offence should be much higher than those
currently ordered by the courts. They suggest that the
starting point should be 5 per cent of the offender's
average annual turnover but this will be adjusted to take
account of the aggravating and mitigating features.
The paper also looks at how the courts will calculate
fines to be imposed on organisations found guilty of
work-related deaths under existing health and safety
legislation where the offence of corporate
manslaughter is not made out. In those cases they
suggest that the courts should take as a starting point
2.5 per cent of the average annual turnover of the
defendant organisation. The SAP expresses the hope
that this will at least lead to a consistency of approach
by the courts even if the actual levels of the fines
themselves will still vary widely.
Responses to this consultation paper were due on 7
February 2008, so it is questionable whether the final
sentencing guidelines will be published before the Act
comes into force. The paper is available to download
from www.sentencing-guidelines.gov.uk/
New compulsory purchase order inquiry
procedure rules
A Circular, together with the new Compulsory
Purchase (Inquiries Procedure) Rules 2007 (SI
2007/3617) that came into force on 29 January 2007,
has been released giving guidance on the new rules.
They take account of changes introduced by Part 8 of
the Planning and Compulsory Purchase Act 2004 and
the subsequent Compulsory Purchase of Land (Written
Representations Procedure) (Ministers) Regulations
2004 (SI 2004/2594). These changes are part of the
Government’s commitment to unify the rules to
comprise ministerial and non-ministerial CPOs. They
also reflect current practices adopted in procedure rules
for other types of inquiries. The rules are available from
www.opsi.gov.uk/si/si2007/uksi_20073617_en_1 and
the Circular is available at www.communities.gov.uk/
documents/planningandbuilding/pdf/15. They should
help to streamline the inquiry process.
11

Deals
Walsall MBC
The local authorities team has recently won a tender to Walsall MBC to draft and negotiate an agreement for
domiciliary care services worth £7 million per annum. This project is intended to deliver high quality services to the
local area and to improve capacity and stability in the local market by utilising block purchasing methods.
Coventry City Council
A team, led by Guy Hinchley and assisted by Nathan Holden and Chris Plumley, has advised Coventry City Council on
a £360 million housing regeneration programme. The project will see around 3,500 new homes being built in the
northeast area of Coventry over the next 12 years, with work expected to start in 2009.
The London Borough of Newham
A team led by Nick Finlayson-Brown has advised longstanding client, the London Borough of Newham, on the
acquisition of a landmark new-build on the Royal Albert Dock. The acquisition of 300,000 square feet will see the
relocation of 2,000 key staff currently dispersed in over 24 buildings across the borough. The transaction drew on
expertise from Mills & Reeve’s local government team (on governance matters) as well as the real estate, construction,
employment and planning and environmental teams.
Local government team news
SLG Annual Weekend School
As usual, we are hosting a stand and sponsoring this year's Weekend School on 3-6 April 2008 at Exeter University.
We are looking forward to meeting old and new faces, both at our stand and at the annual dinner.
New appointment
Alex Jones has recently joined our real estate team in Birmingham as a partner from DLA Piper, where he advised
clients including Coventry City Council on their participation in the Ricoh Arena project and Birmingham City Council
on a number of key real estate-based schemes. Alex specialises in large-scale real estate transactions including town
centre redevelopment projects.
Seminars
Our regular Local Authority Legal Update seminar is being held on 22 May 2008 at our Birmingham office. It
will be covering a variety of topics relevant to local authorities. If you would like more information, or to book
a place on this seminar, please contact Joy Middleton in our marketing team on 0121 456 8216 or e-mail
joy.middleton@mills-reeve.com
www.mills-reeve.com
Telephone: 0844 561 0011
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March 2008