[2024] UKUT 178 (AAC)

the supposed third formulation of the alleged misrepresentation – the Council said that the previous legal advice related to the 2018 Regulations rather than the 1963 Act regime – is styled by the Commissioner as a new point that cannot be advanced before the Upper Tribunal on appeal and, in any event, is factually flawed. However, before the First-tier Tribunal Mr Dally argued that if the Council sought advice about the 1963 Act regime, its subsequent descriptions of the advice were clear misrepresentations. It is therefore simply incorrect to argue that this formulation of the misrepresentation was not part of Mr Dally’s case before the Tribunal. Regarding the Commissioner’s argument that, had the third formulation been before the Tribunal, it would have been bound to reject it, Mr Dally argues that this downplays the significance of the legal advice that the Council said it received by presenting it as ‘background context to the core point’ namely the Council’s understanding of the 2018 Regulations and its view that its understanding was supported by DEFRA. However, the reference to previous legal advice ‘on this issue’ was of fundamental importance in reassuring the local MP and the RSPCA that the Council correctly decided that MDH did not require a licence.