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Posted by: John Brace | 13th February 2014

District Judge Woodburn grants Wirral Council possession order: pony club given a year to leave Fernbank Farm

District Judge Woodburn grants Wirral Council possession order: pony club given a year to leave Fernbank Farm

                          

Wirral Council v Kane and Woodley (case 3BI05210)
Birkenhead County Court
13th February 2014
Court Room 1

Continues from Cross-examination of Kane & Woodley, parties summarise their case in Wirral Council v Kane and Woodley (Fernbank Farm).

In the Birkenhead County Court in Wirral Borough Council versus Kane & Woodley (case 3BI05210) after a two-hour hearing people were invited back into Court Room 1 to hear District Judge Woodburn’s judgement.

He asked people to “please have a seat” and said was now going to deliver his judgement, asking everyone to remain silent until the end when he would invite representations from the parties to the case.

District Judge Woodburn said that it was a claim by Wirral Metropolitan Borough Council to recover possession of land. The defendants were trustees of Upton Park Pony Owners Association and tenants of the said association had occupied the land for many years. A formal lease to the land had been formalised with the association on the 29th July 2008. This lease had been from the 1st June 2008 to the 31st May 2011. The rent had been £4,200 a year paid monthly on the first of each month. The lease enabled the defendants to use it for grazing and a paddock for gymkhanas. In his mind there was little doubt that this was a business use and leased for that purpose.

The method of termination had been the Landlord and Tenant Act 1954 c. 56. When the fixed term had ended nothing had happened. The 1954 Act detailed steps in protecting the position of the tenants in terms of expired leases until a notice to terminate a statutory tenancy. The landlord had been the first to act and the notice dated 13th July 2012 was each on each of the defendants, which was a notice to terminate the statutory tenancy.

Each notice had followed the prescribed form, which was a strict form determined by regulations made by the 1954 Act. The notice to each defendant stated that the tenancy would come to an end on the 31st May 2013, this notice was dated 13th July 2012, therefore there was in excess of ten months notice given to terminate the tenancy.

He had heard and read the evidence of David Dickenson that the notices were properly served. The notices were both in the same form so he would refer to just one notice. Paragraphs two, three, four and five of the notice were given to end the tenancy. Wirral Council was not opposing a new tenancy as of July 2012 which was set out in a schedule to the notice referred to later. Paragraphs four and five were quite clear that if you can’t agree than either you or the landlord could ask the court to grant an order for a new tenancy and that if you wished to do so you must do so by the date in paragraph two.

This date was the 31st May 2013 and it must be done by this date unless there was agreement in writing to a later date before the date in paragraph two. There was no document in writing agreement to extend the date. Schedule two set out the proposed terms, £4,500 a year as opposed to £4,250 plus legal fees of £500. All other terms were as per the old lease.

The question that arose was what the defendants did in response. It was left principally to Mrs Kane and he had heard the evidence of Mrs Kane. He was satisfied that Mrs Kane had made contact and tried to reach terms and that he was satisfied of an intent to seek reduction in the rent and costs sought in the schedule. District Judge Woodburn was satisfied that this was the intent on behalf of the association to secure a new lease.

He was satisfied by the evidence of Mrs Kane and Mrs Woodley that they had each received and read the notices and understood the notices. From the evidence there were two issues, the argument lawyers refer to as estoppel, which means a representation made and relied upon that results in a detriment arising and the second issue was whether formal agreement with David Dickenson with regards to a new lease. ‘

There was a technical issue regarding arguments, but no witness statement with regard to estoppel or agreement presented. The Claimant had cross examined and sought to elicit when she could have renewed the lease. District Judge Woodburn said that the matters before him as to estoppel originate from the fact there must have been a representation on behalf of the Claimant, representation from David Dickenson (Asset Surveyor) on behalf of Wirral Council.

David Dickenson’s evidence to District Judge Woodburn had been that in about October 2012 he had received instructions from his line manager not to agree terms to a new lease with the trustees of the association, which ran contrary to the terms of the notice sent in July specifically paragraph three which stated that Wirral Council were not opposed to granting a new tenancy. David Dickenson had said the policy and changed and he had clear instructions not to agree the tenants a new lease.

District Judge Woodburn could find no evidence that these instructions were communicated to the defendants due to the manner in the way David Dickenson effectively avoided communication with Mrs Kane. By April 2013 there had been a number of phone calls to Wirral Council by Mrs Kane to speak with David Dickenson. Apparently she caught up with David Dickenson by April as there is a letter dated 17th April “Dear Mr Dickenson, As requested a letter re the new lease”, the letter sets out Mrs Kane’s position as to the local authority’s proposals with regards to schedule two of the notice. It set out expenses incurred over the previous year, her feelings that the £500 legal costs were not warranted and that she would be grateful if he could look at the expenses of upkeep.

The letter stated that she would like to renew the lease for a rent of £4,250 which was the rent set out in the lease that had expired at May 2011, not on the terms set out in the notice. The letter sought to object to terms put by the Council but there appeared to have been no response to the letter.

Page 37 referred to a note of the telephone call of Mrs Kane to Wirral Council chasing the letter and wanting a response and referred to the letter of 17th April as being sent two weeks ago. There was a further phone call by Mrs Kane wanting a response on the 20th May 2013 as the tenancy was to end on the 31st May 2013. As to whether any reliance at all can be placed on this at all, it seemed to District Judge Woodburn that from the letter dated 17th April it repeated a request for a response which suggested to him that Mrs Kane had received no response at all and there was no binding agreement between the parties.

Evidence of Mrs Kane suggested that she was frustrated by the excuses over why Wirral Council did not respond, however we now know that David Dickenson was under instructions not to engage in discussion and was therefore keeping out of the way. The letter of the 17th April did not propose accepting the terms in the schedule to the notice by the landlord.

Overall on factual issues, no terms were agreed between Wirral Metropolitan Borough Council and Kane & Woodley on behalf of the Association. On balance there were no facts that a binding agreement was reached. The fact that she was chasing a response corroborates the evidence that Wirral Council would see if they would take up the option to apply to the court, if not then Wirral Council would secure a windfall.

If the defendants had applied the likelihood is that the court would have been obliged to give them a new tenancy on the terms agreed or those found appropriate and reasonable by the court. No representation was made by David Dickenson that might of swayed or dissuaded Mrs Kane or Mrs Woodley. No representation was made on which the defendants might place any reasonable reliance.

If “don’t worry” was used, it did not prevent this as the letter of the 17th April shows that they were not of like minds with regards to the lease. The date of 31st May came and went. This was fatal. If no application had been made to the court by this date the defendants lose the right to continue their occupancy which is what the notice said and meant. Any reading of the notice would tell you what you should do and there is agreement it was read. By the middle of May no agreement had been reached.

The business tenancy ended on the 31st May and District Judge Woodburn was satisfied by the evidence that no other tenancy formal or otherwise was created therefore was compelled to grant an order for possession of the land to the local authority principally on the basis of the inaction of Mrs Kane and Mrs Woodley.

District Judge Woodburn said it was a pity but a salutary lesson to members of the public doing good work in the community that trustees had obligations that were real and had far reaching consequences. The notice was clear and had given the defendants the opportunity to apply to the Birkenhead County Court if agreement was not reached or the landlord just kept on avoiding them. The opportunity was not taken up, which is why the tenancy was lost. He asked for representations on the order.

Sarah O’Brien (the barrister acting for Wirral Council) said that they were relaxed, but referred to s.89 of the Housing Act 1980 and referred to forty-eight days being only in cases of exceptional circumstances.

District Judge Woodburn disagreed with her and said that s.89 of the Housing Act 1980 applied to only residential tenancies.

Sarah O’Brien acting for Wirral Council said that s.89 of the Housing Act 1980 referred to possession of land and was content with whatever District Judge Woodburn saw fit.

District Judge Woodburn pointed out there were ten horses on the land. Mrs Kane referred to the difficulty of finding stables. District Judge Woodburn said that alternative arrangements were going to have to be made. He said a reasonable period to find alternative arrangements for the ten horses was six months. If in that time there were still difficulties, the Court must be told what the difficulties are. He felt that six months was reasonable considered the number of owners and the historical use of the site.

Mrs Kane pointed out that the association had sixteen hundred members. District Judge Woodburn said that the association was not affected and that they had a right to keep horses. Mrs Kane referred to the pony club. District Judge Woodburn said he understood the history of the association. It was however left to the local authority as to whether they would agree to an extension of times or any other tenancy.

Sarah O’Brien acting for Wirral Council said that she had received instructions that they had no objections to twelve months. District Judge Woodburn said he was grateful for that. Mrs Kane referred to the letter to relocate them sent twelve to fourteen years ago which referred to relocated them and building new stables.

District Judge Woodburn said, “What can I do? I can’t make an order”. Mrs Kane said it was hard to find stables on the Wirral. District Judge Woodburn said he appreciated the position the defendants were in and was grateful that the local authority had extended it to twelve months. He said that he hoped that Wirral Council could listen and give consideration to members of the association, who were members of the community and council tax payers, whether any alternative arrangements for the association could be found. However he had to deal with the structures of law and that was the pity.

District Judge Woodburn said he had a description that the defendants by 4pm on the 13th February 2015 shall deliver possession of the land situated at Sandbrook Lane, Moreton and asked if there was to be an order for costs?

Sarah O’Brien (the barrister acting for Wirral Council) said Wirral Council were not requesting an order for costs.

District Judge Woodburn said “OK”. He told Mrs Kane and Mrs Woodley that they would get a copy of his order through the post. District Judge Woodburn said that he hoped notwithstanding the order that there might be some accommodation to the members of the association, he couldn’t influence it but he could make an observation. He wished Mrs Kane, Mrs Woodley and the association the very best.

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Responses

  1. A sad day when the Council dismisses what morals it has and relies on the law. Now this land will revert to a neglected wasteland before a dubious development takes place.

    • Well Wirral Council didn’t go after the losing side for their legal costs and agreed to delay implementation of the possession order for a year. So at least someone at Wirral Council has the common sense to mitigate the situation!

      However yes, due to a recent change in planning policy (made by Wirral Council), the value of its land went up. I’m sure any development proposed on the 10 acres there would have to go before the Planning Committee though……

  2. This evasiveness of a Goliath to a David, who does not have a battery of 16 solicitors, a subsciption to online legal case law, and a large purse, does recall the behaviour of WBC vis-a-vis leases at the Millenium Centre. Strangely enough the case to which I refer also crops up in the ISUS case, being the file referred to the police. The owners of a tenancy at law wished to build up a business and obviously required a lease in case of selling on. On promises of an eventual full lease they ploughed tens of thousands of pounds of alterations in Leasowe Millenium centre, The Trust acted as agents for WBC in letting offices and workplaces and promised that the Council would award the full lease. Subsequently wirralbiz advised them charging the Council handsomely for this advice, that in fact the lease was due and would arrive. David’s advisor was not a solicitor though David believed he/she had advised him so. The bubble burst when finally a £250 an hour solicitor pointed out that the tenacy at law given by the WBC rental agents could remain indefinitely and the promise therein to convert to a full lease expressed no term to this promise.Apparentl;y a common piece of legal chicanery which one imagines that The Trust used under advisement from WBC legal department.

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