Tag: Fernbank Farm

Horses or 100 houses at Fernbank Farm? Liverpool City Region Combined Authority agrees to list it for housing

Horses or 100 houses at Fernbank Farm? Liverpool City Region Combined Authority agrees to list it for housing

Horses or 100 houses at Fernbank Farm? Liverpool City Region Combined Authority agrees to list it for housing

                               

Councillor Phil Davies and Graham Burgess at a meeting of the Liverpool City Region Combined Authority on the 13th June 2014
Councillor Phil Davies and Graham Burgess at a meeting of the Liverpool City Region Combined Authority on the 13th June 2014

Today was the second meeting of the Liverpool City Region Combined Authority. The agenda and reports can be read on Knowsley Council’s website. Item 19 was “Liverpool City Region Strategic Local Investment Plan (2014-17) Housing Sites” and had in its appendices a list of housing sites that are currently in the pre planning stage.

This particular entry in appendix 3 (which can be found on page 124 of the reports pack) caught my eye and is below.

Site Potential Total Units Comments
Moreton (Wirral) Approximately 100 dwellings Cabinet resolution on 7 November 2013 to defer decision for disposal until the outcomes of legal proceedings for the relocation of the existing tenant are known. A court order dated 13 February 2014 granted a Possession Order to the Council which provided tenant with six months to relocate. The Council has since offered to extend this period to 12 months from the date of the court order. No current resolution, however, to dispose of site.

The Cabinet resolution of 7th November 2013 in relation to Fernbank Farm was (3) the decision on land at Manor Drive be deferred and reconsidered at the next scheduled meeting of the Cabinet when the outcome of legal proceedings will be known. The legal proceedings didn’t deal with relocation of the existing tenants but merely Wirral Council’s claim for a possession order.

The court order dated 13th February 2014 gave twelve months, not six as stated in the report before the possession order had effect. The Council hasn’t “offered to extend this period to 12 months” as that’s the date in the court order!

A copy of the court order is below. So who wrote the comments in the Liverpool City Region Combined Authority report which got the history of what had happened so wrong?

Possession Order (February 2014)

Possession Order (February 2014)

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2 different opinions on what regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 means

2 different opinions on what regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 means

2 different opinions on what regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 means

                           

This is going to be a rather long and detailed piece about whether Wirral Council’s eviction notice for Fernbank Farm was valid (or in other words lawful). It is something that Wirral Council and I have a difference of opinion on. I have numbered these paragraphs for ease of reference in any comments people might wish to make.

1. On the 8th August 2012, Wirral Council started a case in the Birkenhead County Court requested a possession order for the land known as Fernbank Farm at Sandbrook Lane, Moreton. The defendants were two trustees of the Upton Park Pony Owners Association and are called Mrs Kane and a Mrs Woodley.

2. The statement of truth to Wirral Council’s claim and particulars of claim was signed on the 5th August 2013 by Surjit Tour.

3. Attached to Wirral Council’s claim form were particulars of claim and a map detailing the land the matter was in relation to, which was 10.12 acres. The particulars of claim outlined the history between Wirral Council and the defendants. The history was that Wirral Council had entered into a lease of the land with the two defendants on the 29th July 2008. This fixed term lease expired on July 2011 and became a monthly periodic tenancy. Rent was paid by the defendants of £4,200 a year payable by equal monthly instalments.

4. On the 13th July 2012, Wirral Council served a notice on the two tenants. The notice served on each tenant were identical and were both of the form which is form one in Schedule 2 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004. This form is headed “LANDLORD’S NOTICE ENDING A BUSINESS TENANCY WITH PROPOSALS FOR A NEW ONE”.

5. Regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 state “The form with the number shown in column (1) of Schedule 1 to these Regulations is prescribed for use for the purpose shown in the corresponding entry in column (2) of that Schedule.” The prescribed purpose for the form that Wirral Council used is stated as “Ending a tenancy to which Part 2 of the Act applies, where the landlord is not opposed to the grant of a new tenancy (notice under section 25 of the Act).” “Act” refers to the Landlord and Tenant Act 1954.

6. According to the notice, if a new tenancy was not agreed between Wirral Council and the defendants before 31st May 2013, then the defendants had the right to apply to the court to order the grant of a new tenancy. If no agreement was reached and no application made then the tenancy would end on the 31st May 2013 (unless Wirral Council agreed to extend the deadline).

7. The form itself which contains the words (attach or insert proposed terms of the new tenancy) was accompanied with Wirral Council’s proposals for a new tenancy. Wirral Council’s offer was to increase the rent to £4,500 and charge £500 for legal fees.

8. Before the deadline of 31st May 2013, Mrs Kane wrote to Wirral Council agreeing different terms to that which were proposed. She agreed to no increase in the rent (£4,200 instead of £4,500) and for a waiver of legal fees for reasons outlined in her letter. Wirral Council did not agree her proposed terms.

9. On the 27th September 2012, Wirral Council’s Cabinet (comprising of ten Labour councillors) discussed an item called “Local Development Framework – Core Strategy – Publication of Proposed Submission Draft”. The minutes reflect the following concern about one of the recommendations expressed by a Councillor Pat Hackett “Councillor Pat Hackett raised concerns that planning policy was being revoked which could have implications on greenbelt land. He asked Officers to take all necessary steps to try to ensure that the greenbelt was not eroded.”

Despite Councillor Pat Hackett’s concerns, the Cabinet agreed the following recommendation (which was recommendation four out of nine agreed): “recommends to the Council that the Interim Planning Policy be revoked, to allow decisions to be determined in accordance with the Unitary Development Plan, the Regional Spatial Strategy (until it is revoked) and the National Planning Policy Framework and to allow sites within the previously restricted areas to contribute towards the ongoing housing land supply;”.

10. A meeting of all of Wirral Council councillors (except three who had sent their apologies) met on the 15th October 2012 to consider the Cabinet’s recommendation. An objection to the Cabinet minute (Local Development Framework for Wirral – Core Strategy – Publication of Proposed Submission Draft) had been received. This objection was proposed by Councillor Stuart Kelly and seconded by Councillor Dave Mitchell. This objection (if passed) would’ve deleted recommendation 4 and replaced it with a new recommendation 4: “(4) Council, therefore, requires that the LDF policies retain the principles and policies currently outlined within the current interim planning policy for new housing development for the purposes of development control and regeneration.”. The matter was not debated and there was a vote on the objection. Twenty-six councillors voted in favour of the objection and thirty-six councillors against (with the Mayor abstaining). The voting was split along party political lines. The twenty-six councillors who voted in favour of the objection were the Liberal Democrat and Conservative councillors (apart from the Mayor who abstained). The thirty-six councillors who voted against the objection were Labour councillors. The objection was therefore lost and in mid-October 2012 Wirral Council’s planning policy changed.

11. Wirral Council’s position, which in July 2012 had been stated in the eviction notice unequivocally as “I am not opposed to granting you a new tenancy” to “I am opposed to granting you a new tenancy”. Mr Dickenson told those at the fast track trial that answered that he had been told not to engage in discussions with the tenants between November 2012 and May 2013.

12. Wirral Council’s change of position was not communicated to the tenants. If the landlord is opposed to the granting of a new tenancy then the regulations require that a different form (form 2) should be used which has very different wording to form 1. Wirral Council could have (in either October or November 2012) sent the tenants a new eviction notice and explained to the tenants that their position had changed. However they did not, leading the tenants to believe that Wirral Council still wanted to renew the tenancy. When questioned Wirral Council maintain that there is no legal mechanism to withdraw their earlier eviction notice.

13. Wirral Council asserted in their particulars of claim that as a result of the eviction notice that the “tenancy had been terminated in accordance with the law and the Claimant is therefore entitled to possession”.

14. There are a number of questions that arise however. If Wirral Council genuinely were not opposed to granting a new tenancy, why was a new tenancy not agreed between Wirral Council and the defendants between July and October of 2012? Does Wirral Council’s later change of heart in October 2012 render the earlier eviction notice of July 2012 invalid as they did not send out another?

15. Various court cases have determined the questions that need to be asked to determine whether eviction notices are valid or invalid. In a decision of the United Kingdom Upper Tribunal (Lands Chamber) [2012] UKUT 20 (LC) paragraph 42 of the judgement of George Bartlett QC, President stated:

Mr Barnes submitted that, save in a few exceptional circumstances, a failure to comply with a procedural requirement in relation to something such as the content of a notice will not invalidate the notice if either (a) the non-compliance is insubstantial so that there has been substantial compliance with the requirement or (b) the non-compliance has been waived or (c) the non-compliance does not result in any significant detriment to the other party. He relied for this submission on R v. Home Secretary, ex p Jeyeanthan [2000] 1 WLR 354. Mr Baatz said that Jeyeanthan did not provide the right test, because it was concerned with a failure to comply with a statutory procedural requirement and not, as here, a failure going to jurisdiction. The correct approach in relation to statutory notices in respect of property was that set out by the Court of Appeal in the later decision of Burman v Mount Cook Land Ltd [2002] 1 EGLR 61. This simply required asking two questions: what does the statute require? and does the notice fulfil those requirements?

16. Regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 states “The form with the number shown in column (1) of Schedule 1 to these Regulations is prescribed for use for the purpose shown in the corresponding entry in column (2) of that Schedule.”

Schedule 1 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 states in relation to form one that Wirral Council used that the purpose for which it is to be used is “Ending a tenancy to which Part 2 of the Act applies, where the landlord is not opposed to the grant of a new tenancy (notice under section 25 of the Act).”

17. The date the eviction notice was sent was 13th July 2012. The date the eviction notice stated that the tenancy would end was 31st May 2013. If the serving of the eviction notice ended the tenancy on the 31st May 2013 and its purpose is defined in statute as “Ending a tenancy to which Part 2 of the Act applies, where the landlord is not opposed to the grant of a new tenancy (notice under section 25 of the Act).” surely on the date the eviction notice ends the tenancy (31st May 2013) then the landlord has to not be opposed to the grant of a new tenancy on the date the tenancy ends?

18. If the regulations stated that the purpose of the eviction notice was “Ending a tenancy to which Part 2 of the Act applies, where the landlord was not opposed to the grant of a new tenancy (notice under section 25 of the Act).” then I would agree with Wirral Council’s position that the eviction notice brought the tenancy to an end. However Wirral Council’s position on the 31st May 2012 was that it was opposed to the grant of a new tenancy.

19. Therefore does this render the eviction notice invalid and therefore it did not end the tenancy on the 31st May 2013? If so then the monthly periodic tenancy is still in effect and the tenants are also in lawful occupation of the land.

20. The result of the fast track trial was that Wirral Council has a possession order awarded in February 2014 which will come into effect in February 2015. Therefore this needs to be cleared up before then.

I’d be interested to hear other people’s opinion on this matter. Please point out if I’ve made some error or mistake. The above is just my opinion. As detailed here I did ask Surjit Tour to produce a report on this matter. His position is that when the eviction notice was served, Wirral Council weren’t opposed to granting the tenancy. However Wirral Council’s position later changed (before the date for ending the tenancy stated in the eviction notice). Therefore he views the eviction notice as lawfully ending the tenancy and valid. He therefore does not see this as a matter, that he as Monitoring Officer has a legal duty to write a report on for councillors.

Personally, I think it’s a matter that reasonable people can take a completely opposite viewpoint on. Sadly the wording, meaning and interpretation of the regulations of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 weren’t brought up (apart from the Judge asking Wirral Council to provide a copy of the prescribed form) during the fast track trial.

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EXCLUSIVE: 1 letter, 4 emails and a note, Wirral Council’s incredible “behind the scenes” responses on Fernbank Farm

EXCLUSIVE: 1 letter, 4 emails and a note, Wirral Council’s incredible “behind the scenes” responses on Fernbank Farm

EXCLUSIVE: 1 letter, 4 emails and a note, Wirral Council’s incredible “behind the scenes” responses on Fernbank Farm

                        
“If you make money your God, it will plague you like the devil.”

This is very long and detailed. Today may well be the last time I write about the ins and out of the Fernbank Farm saga (unless more documents surface or something dramatically changes), as I can’t see anything changing in the near future. I hope however that this gives an insight about what happened “behind the scenes” at Wirral Council, as if the tenants were kept in the dark by what seemed to them to be a conspiracy of silence, how can politicians hold officers to account on this topic without knowing the full details?

The first document I below is a letter dated 14th March 2014. The context to this letter is that after the fast track trial, the husband of one of the two defendants made a complaint to Wirral Council. This letter is the reply. I’ve not included the Wirral Council logo on the letter, Malcolm Flanagan’s signature or the www.wirral.gov.uk that appears at the foot of each page.

The letter refers to the letter sent in July 2012 to the tenants with the eviction notice (and which forms part of the eviction notice) as the “wrong letter”.

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(Wirral Council logo)

Transformation and Resources Department
Joe Blott,
Strategic Director

PO Box No 2,
Treasury Building
Cleveland Street
Birkenhead
Wirral
CH41 6BU

date 14 March 2014

to Mr M Woodley

your ref
my ref Farm3/MJF/DM
service Transformation and Resources – Business Processes
tel 0151 666 3260 Please ask for Malcolm Flanagan
email malcolmflanagan@wirral.gov.uk

Dear Mr Woodley,

Fernbank Farm complaint

I refer to your complaint of 18 February 2014, regarding the above matter as well as the pack of information including memory stick that you submitted to me on 24th February.

I have been asked to review your complaint under the authority’s complaints process. I have looked at the matters you raise in how the authority acted in these proceedings. I have reviewed your comments as well as the information available to me and spoken to the officers concerned and set out below my views of the complaint.

As far back as 2000 the land in question had been allocated as a potential housing development site/primary residential as identified within the Council’s Unitary Development Plan. The restriction of developing such green field land which had been in place for some time was abolished nationally in May 2012. This then opened up the possibility of the property to development and realising a very significant capital receipt once it had been agreed by the authority. This national change was put before Cabinet on 27 September 2012 and the development restraint was effectively withdrawn on 15 October 2012 at Council.

The authority’s budget process identifying the stark financial position of the authority came to the fore in the September period under the direction of the Interim Director of Finance. It was at this point that wholesale reviews of authority expenditure, income and assets were undertaken. At the Council meeting in October this detailed the severe financial challenge the authority and that it must take drastic action to balance its budget.

It is then as the scale of the budget issue crystallised this property’s standing as a sizeable and realisable asset increased significantly in importance. It is my view that it was this budget process that changed the authority’s position on this property and it was not its original position.

I am satisfied that, despite what the later actions or inactions may make this look like, in May 2012 there was I believe an intention on the part of the authority to negotiate a new lease with the current tenants. I believe this is shown from the early contacts between the tenants and the authority.

I do not believe the authority intentionally used the wrong letter in July 2012. It is clear though that by some time no later than November 2012 the authority had chosen not to respond to enquiries in recognition of how the authority preferred to see the situation develop. I accept the tenants did write and phone but the authority did not respond and I do not think the authority denies this. At the hearing the authority’s officers said this is what they did and why they did it. The Judge at the hearing described this as “staying silent” and it is seemingly something a landlord can legally chose to do, as the tenant still has an available remedy to apply to the court to protect their own position.

I can though understand your concern on this stance and that the tenants were given no clear signal that this was the authority’s developing position. Again I appreciate your view on this non engagement and how you judge whether this is an appropriate way of transacting business as a public body.

In your complaint you asked who authorised the change in position in effect to “stay silent” and were they entitled to do that. My understanding is that officers in Asset Management have within their job description to act in a commercial manner and to effect the best position for the Council. In my interview with David Armstrong he made it clear that while the decision had predated him given the scale of the budget issue he could foresee no other alternative that he could have taken if it had been his service area at the time.

You have also commented that Mr Armstrong was unaware of the legal action. I have spoken with him and having looked at the timing of contacts no other action than the letter of August 13 was being referred to by you. He is clear that when speaking to you he thought from the information you gave that something else had been done without him being aware. This was not the case and it was the August 2013 being referred to.

Reviewing all these matter, I believe that it was a proper and legal position that the authority was entitled to take in recognition of its budget situation. In its formal role as Landlord, it acted within its rights, in a way to best manage its interest which was to re-acquire the property and realise the best possible receipt for use as capital in the future.

I fully realise you will view that differently. The stance taken by the authority was a formal and legal position but I realise how that translates in human terms on the impact it has on the longstanding tenants and the associations members.

Regrettably whilst appreciating your concerns on the authority’s manner of getting to the position it favoured, I cannot uphold your complaint that it was wrong of the authority to do this. I accept that the “non action” did not alert the tenants to the change in the Landlords intention as it was not something they anticipated from the authority.

Whilst I cannot uphold your complaint for the above reasons, I do appreciate the strength of feeling it has caused in so many people affected by this.

At the recent hearing the Judge gave the authority the right to take back the property I believe, in six months from the date of the decision. I am aware that Mr. Armstrong, Assistant Chief Executive, at the hearing indicated the offer of occupancy by the group for a longer period of 12 months. I believe this shows as the senior officer Mr Armstrong is keen to try to offer support for the club and not just act as quickly as the law allowed.

I have spoken to Mr. Armstrong and he is keen to mitigate the loss of the land to the group. He has also indicated to me his intention is to have the officer’s look at alternative sites for the group and to hopefully agree a suitable way forward over the next few weeks. I have had no reason to doubt the authority’s intention to support this process, while realising a very considerable asset, to help as much as reasonably possible those affected by its decision.

I do realise you will be disappointed by the outcome of my review in not supporting your complaint. However I remain clear that whilst all was done by the authority in a legal manner I appreciate how the change to a more commercial operation in handling this situation has been seen by those affected.

I have to advise you that my review is undertaken at Stage 1 of the authority’s complaints process. If you are dissatisfied with my review you do have the right to request a further review, which can be requested by writing back to me and it would be reviewed by another officer.

Yours sincerely,

(Malcolm Flanagan’s signature)
Malcolm Flanagan
Head of Business Processes

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Below are some emails and a note that show what was happening “behind the scenes” at Wirral Council.
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From: Dickenson, David
Sent: 23 January 2013 10:54
To: Voas, Sandy
Subject: Upton Pony Owners Lease, Sandbrook Lane, Moreton

Hi Sandy

As discussed Upton Pony Owners lease land at Sandbrook Lane Moreton and the section 25 notice has been served to terminate the lease on 31st May 2013. The trustees are Mrs Kane and Mrs Woodley. Please can no further invoices be raised or any rent accepted after 31st May 2013. The tenants are not aware yet but the Council may be looking at the future of this land.

Thanks

David

David Dickenson MRICS
Asset Management Surveyor
Asset Management Section
Wirral Council
Cheshire Lines Building
Canning Street
Birkenhead
Wirral
=======================================================================================================
From: Coathup, Cheryl
Sent: 20 May 2013 12:07
To: Dickenson, David
Subject: Telephone Message – Mrs Kane
Follow Up Flag: Follow up
Flag Status: Red

Can you please phone Mrs Kane – 678 XXXX, she is awaiting a response from a letter she sent in 3 weeks ago.

Cheryl Coathup

(Technical Assistant)
Department of Law, HR and Asset Management
Asset Management Section
Tel: 0151 666 3878
Fax: 0151 606 2090
email: cherylcoathup@wirral.gov.uk

=======================================================================================================
From: Jones, Debbie A.
Sent: 20 May 2013 15:48
To: Dickenson, David
Cc: Voas, Sandy
Subject: RE: Upton Pony Owners Lease, Sandbrook Lane, Moreton

Hi Dave

Sorry we don’t have the facility to stop payments coming in at all. All we can do is refund straight away if we receive a payment in.
——————————————————————————————————-
From: Dickenson, David
Sent: 20 May 2013 15:38
To: Jones, Debbie A.
Cc: Voas, Sandy
Subject: FW: Upton Pony Owners Lease, Sandbrook Lane, Moreton

Hi Debbie

After 31st May although no new invoices will be sent out, can the account be changed so no rent can be paid onto old invoices as this would also be classed as them paying the rent by a court.

Thanks

David

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From: Jones, Debbie A.
Sent: 13 August 2013 14:23
To: Dickenson, David; Simpson, Tony
Cc: Voas, Sandy; Chan, Kit C.; Bayatti, Ali N.
Subject: Upton Pony Owners Association

Hi Dave

I refer to another £350.00 standing order payment received against the above mentioned customer 4206583 dated 1st August 2013. Even after the customer number had been made inactive on the AR system, it appears any money being received quoting a valid customer will still appear on their account.

I have again refunded the money back to the Associations bank account but this time have asked for another customer number to be set up with the clients address details and merged the old customer number 4206583 with the new one, therefore making 4206583 invalid so hopefully as the Association quote their customer number when paying by BACS/Standing Order the AR system will now not recognise it as a valid number and place it in our unidentified payments were we will be able to refund straight away without the money hitting their account.

Can you please confirm and send me a copy of the letter that you have sent to the above requesting that they now cancel the standing order payment.

Thanks

(Debbie Jones signature)
(Wirral Council logo) WIRRAL BOROUGH COUNCIL
Accounts Receivables
Debbie Jones
Accounts Receivable Income Officer
Revenues Services/ Business Processes

=======================================================================================================
20th May 2013

After 31st May 2013 Pony owners will have lost the right to renew if they do not apply to court but Sundry debtors must not charge or accept any rent.
Spoke to Tony after getting first message and again, ignore phone call as any commercial firm would do.

Tony has spoken to David Armstrong about situation.

Spoke to Peter Rowlands after 31st May need to apply to court to get them off, after 6 months get protection again. Peter will need to check with Anne Quirk. V important that Council accepts no rent.

Emailed and spoke to Debbie Finance cannot stop any rent payments being received either by tenant using customer number old invoice number of name. Debbie checked with IT.
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* Peter Rowlands is Wirral Council’s officer contact for property that they are auctioning off through Pugh Auctions. Therefore it is clear that Wirral Council’s intention was to get a possession order for Fernbank Farm, evict the tenants and sell the property off to the highest bidder. Obviously before then a Cabinet Member would have to decide to declare it “surplus to requirements” which is something that can’t be decided while the tenants are still there.

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Wirral Council: It’s time for some answers over Fernbank Farm and filming!

Wirral Council: It’s time for some answers over Fernbank Farm and filming!

Wirral Council: It’s time for some answers over Fernbank Farm and filming!

                                 

Wirral Council v Kane & Woodley Particulars of Claim page 1 of 3 thumbnail

Particulars of Claim Wirral Council v Kane & Woodley Page 1 of 3

Wirral Council v Kane & Woodley Particulars of Claim page 2 of 3 thumbnail

Particulars of Claim Wirral Council v Kane & Woodley Page 2 of 3

Wirral Council v Kane & Woodley Particulars of Claim page 3 of 3 thumbnail

Particulars of Claim Wirral Council v Kane & Woodley Page 3 of 3

Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
9th June 2014

Surjit Tour
Monitoring Officer
Wallasey Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED

Dear Mr. Surjit Tour,

You are designated as the Monitoring Officer for Wirral Metropolitan Borough Council. Section 5(2)(a) and 5(2B) of the Local Government and Housing Act 1989 state the following about a legal duty of the Monitoring Officer:

Subject to subsection (2B), it shall be the duty of a relevant authority’s monitoring officer, if it at any time appears to him that any proposal, decision or omission by the authority, by any committee, or sub-committee of the authority, by any person holding any office or employment under the authority or by any joint committee on which the authority are represented constitutes, has given rise to or is likely to or would give rise to—

(a) a contravention by the authority, by any committee, or sub-committee of the authority, by any person holding any office or employment under the authority or by any such joint committee of any enactment or rule of law or of any code of practice made or approved by or under any enactment; or

(b) any such maladministration or injustice as is mentioned in Part III of the Local Government Act 1974 (Local Commissioners) or Part II of the Local Government (Scotland) Act 1975 (which makes corresponding provision for Scotland),to prepare a report to the authority with respect to that proposal, decision or omission.

to prepare a report to the authority with respect to that proposal, decision or omission.

(2B) Where a relevant authority are operating executive arrangements, the monitoring officer of the relevant authority shall not make a report under subsection (2) in respect of any proposal, decision or omission unless it is a proposal, decision or omission made otherwise than by or on behalf of the relevant authority’s executive.

On Friday 6th June the Chair of the Licensing Act 2003 subcommitee Councillor Steve Niblock insisted that I stop filming a public meeting of the Licensing Act 2003 subcommittee. The legal adviser to that committee insisted that he was entitled to take this action because of Regulation 25 of the Licensing Act 2003 (Hearings) Regulations 2005. This regulation is below:

“Procedure at hearing

25. The authority may require any person attending the hearing who in their opinion is behaving in a disruptive manner to leave the hearing and may—

(a) refuse to permit that person to return, or

(b) permit him to return only on such conditions as the authority may specify,

but such a person may, before the end of the hearing, submit to the authority in writing any information which they would have been entitled to give orally had they not been required to leave.”

“authority” in this context is defined in Regulation 2 as “in relation to a hearing, the relevant licensing authority which has the duty under the Act to hold the hearing which expression includes the licensing committee or licensing sub-committee discharging the function of holding the hearing;”

At no point during the meeting was I asked to leave the room by the Chair or the subcommittee as a whole. Regulation 2 which defines authority makes is clear that persons can only be required to leave if it is the opinion of the whole subcommittee that the person/s are behaving in a disruptive manner. There were two members of the subcommittee Councillor Harry Smith and Councillor John Salter who did not express a view, therefore Regulation 25 was not engaged.

The legal adviser to that committee, Ken Abraham said, “We have rights under the regulations too, which empower them to stop a hearing proceeding if there is an issue about disrupting the meeting and the Chair took the view at that time that because it was clearly indicated that he didn’t want filming that he could have asked you to leave the room but he didn’t.” As you can see from this quote, he refers to the Chair (Councillor Steve Niblock)’s view, not the view of the whole subcommittee. It is unknown whether the other two members of the subcommittee agreed with this view or held a contrary view as they did not state their view during the meeting on this matter.

S. 6(1) of the Human Rights Act 1998 states “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” and s.3(1) states “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

The Convention Right in question is article 10 which is below:

“

ARTICLE 10

Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Bearing the above in mind and your previous email of the 2nd April 2013 in which you stated “Furthermore, there no ban on filming” I would ask you to exercise your duty as Monitoring Officer to prepare a report about the above matter.

There is also another matter which I wish to draw to your attention, which may place a duty on you to write a further report about a different matter. I am sure you are aware of Wirral Council’s successful attempt to gain a possession order for the land known as Fernbank Farm in Moreton.

Section 3 of Wirral Council’s Particulars of Claim stated “On 13th July 2012 the First and Second Defendants were served with a notice in the prescribed form persuant to section 25 of the Landlord and Tenant Act the effect of which notifies them as Tenants of the intention to bring the tenancy to an end on 31st May 2013 but that the Council had no objection in the meantime to creating a new lease on certain terms.” and Section 8 of the Particulars of Claim stated “As a result the tenancy has been terminated in accordance with the law and the Claimant is therefore entitled to possession.”

At the fast track trial on 13th February 2014, Wirral Council’s expert witness David Dickinson stated (under oath) that he had been instructed by a manager not to renew the lease. In answer to District Judge Woodburn’s question to David Dickinson that his instructions were contrary to the terms of the notice, Mr Dickinson answered that his instructions were contrary to the notice. In answer to another question Mr Dickinson answered that he had been told not to engage in discussions with the tenants between November 2012 and May 2013.

Regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 prescribe which type of form should be used. Wirral Council used form 1 and the prescribed purpose for form 1 is defined in Schedule 1 as “Ending a tenancy to which Part 2 of the Act applies, where the landlord is not opposed to the grant of a new tenancy (notice under section 25 of the Act).”

Based on David Dickinson’s testimony under oath, Wirral Council had decided not to renew the tenancy therefore form 2 should have been used, the prescribed purpose for form 2 is defined in Schedule 1 as “Ending a tenancy to which Part 2 of the Act applies, where—

(a)the landlord is opposed to the grant of a new tenancy (notice under section 25 of the Act); and
(b)the tenant is not entitled under the 1967 Act to buy the freehold or an extended lease..”

Clearly either a number of assertions (as outlined above) made in the particulars of claim are incorrect and Mr. Dickinson was telling the truth about Wirral Council’s decision not to renew the lease or alternatively what was outlined in the particulars of claim was correct and Mr. Dickinson was not telling the truth under oath. I am sure you will understand that the possibility of either scenario is concerning.

Therefore bearing in mind the above I would request that you write a further report on this matter which is your legal duty as Monitoring Officer. In order to aid you in this, I do know that following a complaint made by one of the tenant’s spouses that a long multi-page letter was sent to him about this and other related matters.

If a report (or reports) have already been written by yourself (or others on your behalf) I would appreciate being sent a copy. If a report (or reports) on these matters are in the process of being written by someone either at Wirral Council or an external third party I would appreciate being told who they are and by what date their report is expected to be completed.

If you feel a report (or reports) on the above matters are not necessary, I would appreciate hearing from you your reasons as to why. I intend to publish any such reply I receive either from yourself (or others on your behalf) as I feel that both these matters are of concern to large numbers of citizens on the Wirral and need to be resolved.

Yours sincerely,

John Brace

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EXCLUSIVE: What was the defence used in Wirral Council’s court case to evict the Fernbank Farm tenants?

EXCLUSIVE: What was the defence used in Wirral Council’s court case to evict the Fernbank Farm tenants?

EXCLUSIVE: What was the defence used in Wirral Council’s court case to evict the Fernbank Farm tenants?

                     

This continues from yesterday’s blog post EXCLUSIVE: How Wirral Council’s court case to evict the Fernbank Farm tenants began on the 8th August 2013. As with the documents published yesterday, the thumbnails should link to higher resolution versions of each image. The text in each document is copied below each thumbnail.

Contents

The Acknowledgement of Service Form (Part 8 Claim)

Acknowledgement of Service Form Page 1

The only boxes filled out on page 1 are “In the BIRKENHEAD COUNTY COURT” and “Claim No 3BI05210”.

Acknowledgement of Service Form Page 2

Claim No 3BI05210

A box is ticked in Section D “I object to the Claimant issuing under this procedure”. Under “My reasons for objecting are” the following is handwritten “WE HAVE NEVER GAVE UP OR SAID WE WOULDN’T RENEW OUR LEASE. WE HAVE BEEN WAITING FOR MR DICKINSON, TO GET BACK TO US. AS FAR AS WE ARE AWARE WE WERE WAITING FOR HIS REPLYS INVOLVING OUR LEASE AND TO THIS DAY HAVE STILL HAD NO REPLY FROM MR DICKINSON, AND WE ARE COMPLETELY SHOCKED BY THESE LETTERS.”

In Section F “Full name of the defendant filing this acknowledgement” is handwritten “VALERIE PATRICIA WOODLEY”.

In Section G “I am duly authorised by the defendant to sign this statement” is crossed out and underneath “*(I believe)(The defendant believes) that the facts stated on this form are true.” is the signature of Valerie P Woodley.

In a box for the date 17th August 2013 is entered.

The home address, postcode and phone number of the defendant are redacted before being published.

Defence Form

Defence Form

Claim No 3BI05210

In the box “I dispute the the claimant’s claim because:-” is written “As we are aware we are still waiting for Mr Dickinson to reply so we could, renew our lease.”

In the Statement of Truth “The defendant(s) believe(s))” is crossed out but it is unsigned. The defendant’s date of birth is redacted. The defendant’s full name is given as “VALERIE PATRICIA WOODLEY”. The defendant’s home address, postcode and telephone number are redacted.

Amended Defence

Amended Defence Letter

The Court Manager
Birkenhead County Court
76 Hamilton Street
Birkenhead
Merseyside
CH41 5EN

Dear Sirs

RE: Claim Number 3BI05210, WBC v Carol Eileen Kane

Please find enclosed the Defendant’s Amended Defence in triplicate.

We can confirm that we have served the Claimant with a copy of the same.

Yours faithfully,

(signature of Valerie Woodley and Carol E Kane)

Carol Eileen Kane

There is a stamp of “BIRKENHEAD COUNTY COURT COUNTER 04 DEC 2013 A/C 21283 £ _____ Section ______”

Amended Defence Page 1 of 3

IN THE BIRKENHEAD COUNTY COURT

Claim No: 3BI05210
BETWEEN:
Wirral Borough Council
Claimant
-v-
Carol Eileen Kane
Defendant
____________________
AMENDED DEFENCE
____________________

Amended Defence Page 2 of 3

Document is stamped BIRKENHEAD COUNTY COURT COUNTER 04 DEC 2013 A/C 21283 £ ______ Section _______ .

IN THE BIRKENHEAD COUNTY COURT

Claim no. 3BI05210

BETWEEN:

Wirral Borough Council

Claimant

-v-

Carol Eileen Kane

Defendant

__________________________

AMENDED DEFENCE

__________________________

1. The contents of the Particular of Claim is neither admitted nor denied and the Claimant is put to strict proof in regards to the statements contained therein

2. The Claimant did make known to the Defendant that discussions were on going in relation to renewal of her lease, both explicitly and implicitly, insofar as an employee, servant or agent of the Claimant, told the Defendant ‘not to worry’ and thereafter failed to communicate intention of possession.

3. The Defendant relied upon the representations of the Claimant ‘not to worry,’ insofar as the Defendant continued peaceable enjoyment of the land which was invested in utilising the Defendant’s financial resources..

1

Amended Defence Page 3 of 3

4. The Claimant has reneged on previous representations and failed to communicate its instructions to the Defendant adequately if at all.

DATED this the 03rd day of December 2013.

STATEMENT OF TRUTH

I believe/ that the facts contained within the Amended Defence are true.

(Signed) (signature of Valerie Woodley) (signature of Carol E Kane)

(Dated) 4th December 2013

Claimant

To: the District Judge

And To: the Defendant

2

Court Order (29th November 2013)

Court Order (29th November 2013)

General Form of Judgement or Order

In the
BIRKENHEAD
COUNTY COURT
Claim Number 3BI05210
Date 29 November 2013
WIRRAL BOROUGH COUNCIL 1st Claimant
Ref
CAROL EILEEN KANE 1st Defendant
Ref
VALERIE PATRICIA WOODLEY 2nd Defendant
Ref

Before Deputy District Judge Grosscurth sitting at Birkenhead County Court, 76 Hamilton Street, Birkenhead, Merseyside, CH41 5EN.

Upon the Court’s own motion

IT IS ORDERED THAT:-

1. The Claimant shall include in the indexed bundle pursuant to paragraph 4 of the order of 21st November 2013 a chronology setting out all relevant dates relating to the granting of the lease, notices given and dates by when action persuant thereto should have occurred.

This order has been made by the court of its own initiative under CPR 3.3. Any party affected by this order may apply to have it set aside, varied, or stayed within 7 days of the date on which the order is served on that party.

Dated 28 November 2013

_______________________________________________________________________________________________________

The court office at Birkenhead County Court, 76 Hamilton Street, Birkenhead, Merseyside, CH41 5EN is open between 10:00 am and 2:00 pm Monday to Friday. When corresponding with the court, please address forms or letters to the Court Manager and quote the claim number. Tel: 0151 666 5800. Fax: 0151 666 5873

N24 General Form of Judgement or Order

Produced by: N Swann

CJR065

Possession Order (February 2014)

Possession Order (February 2014)

General Form of Judgement or Order>

In the
BIRKENHEAD
COUNTY COURT
Claim Number 3BI05210
Date 17 February 2014
WIRRAL BOROUGH COUNCIL 1st Claimant
Ref
CAROL EILEEN KANE 1st Defendant
Ref
VALERIE PATRICIA WOODLEY 2nd Defendant
Ref

Before District Judge Woodburn sitting at Birkenhead County Court, 76 Hamilton Street, Birkenhead, Merseyside, CH41 5EN.

Upon hearing Counsel for the Claimant

IT IS ORDERED THAT:-

1) The Defendant’s shall by 4.00pm on the 13th February 2015 deiliver up possession of land situate at Sandbrook Lane, Moreton, Wirral.

2) No order as to costs

Dated 13 February 2014

_______________________________________________________________________________________________________

The court office at Birkenhead County Court, 76 Hamilton Street, Birkenhead, Merseyside, CH41 5EN is open between 10:00 am and 2:00 pm Monday to Friday. When corresponding with the court, please address forms or letters to the Court Manager and quote the claim number. Tel: 0151 666 5800. Fax: 0151 666 5873

N24 General Form of Judgement or Order

Produced by: N Swann

CJR065

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