Mr Dickenson only following orders & describes cancer patient as “unwell” in Wirral Council v Kane and Woodley (Fernbank Farm)

Mr Dickenson only following orders & describes cancer patient as “unwell” in Wirral Council v Kane and Woodley (Fernbank Farm)

Mr Dickinson only following orders & describes cancer patient as “unwell” in Wirral Council v Kane and Woodley (Fernbank Farm)

             

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

Continues from Notices, Bill Norman’s letter and David Dickenson takes the stand in Wirral Council v Kane and Woodley (Fernbank Farm).

David Dickenson (Wirral Council’s witness)
One of the defendants asked David Dickenson when Wirral Council voted to change their policy? David Dickenson said he didn’t know as it was a “planning matter”. However he stated that it was October time when it came into force. District Judge Woodburn asked David Dickenson which year he was referring to, he replied “October 2012”.

A defendant asked why David Dickenson had tried to deceive and who gave him authority to do so? David Dickenson replied that he had been instructed by the Asset Manager. District Judge Woodburn said to David Dickenson that he thought he was a manager. David Dickenson replied that he worked in asset management as a surveyor. District Judge Woodburn asked if Tony Simpson had agreed to the notice? David Dickenson answered yes but also with the legal department.

Only following orders
A defendant asked why the lease was terminated before the policy was changed? David Dickenson replied that that was what he was instructed to do. District Judge Woodburn pointed out that he [Mr. Dickenson] had already gone through that and that David Dickenson had been instructed to do so by Tony Simpson.

The defendant said that if councillors hadn’t agreed the change in policy David Dickenson wasn’t authorised to do so. David Dickenson just replied that that wasn’t a landlord/tenant issue. District Judge Woodburn said to David Dickenson “let me decide”. The defendant said that the emails about the change back it up with details.

Stopped from paying the rent
She said going to not paying the rent, there were letters about how to stop Fernbank Farm paying the rent, they were told they could stay but the account number was changed so that Wirral Council would not accept the rent. The rent had been paid on the first of each month but their payments were returned.

David Dickenson replied that he had not changed anything to do with it, but when the lease ended on the 31st May Wirral Council were not accepting any payment so the Finance Department closed the account. The defendant said she had got copies of emails and knew councillors had not changed the policy when the lease was terminated. District Judge Woodburn said that she was straying into different areas. He said there was a change of policy, however the notice was sent out before the change. He asked that her questions to the witness were ones that the witness could reasonably respond to.

Wirral Council ignore a terminally ill woman
The defendant said that emails were sent to the court, but when the bundle (prepared by Wirral Council) came back that the emails were all removed from the bundle. She said that not accepting rent after the 31st May was to try to stop them from renewing the lease. District Judge Woodburn asked if she had any more questions? She asked David Dickenson why he had gone out of his way not to renew a protected lease? He answered that she knew the answers why he didn’t return her calls and referred to the change of policy. The defendant said that that was before the lease ran out which was only on the 31st May. She said to the witness David Dickenson, “Did I not speak to you and say I was going to hospital for radium treatment regarding a tumour?”

Wirral Council’s witness describes defendant with cancer as being “unwell”
David Dickenson replied that he didn’t know the details, but he knew she was unwell. The defendant said she had wanted the lease sorted out before her treatment and didn’t David Dickenson say he’d “see to it”? David Dickenson denied that he’d said that.

The defendant said that in negotiations on the previous lease that Wirral Council wanted a 2.5% rise and £300 in legal fees to Wirral Council. She had written a letter detailing how the defendants had covered the costs of repairs caused by storm damage and the letter was asking if there was any way to reduce the legal fees. She said that the letter also stated if Wirral Council couldn’t do anything then it requested that they send it back to her. David Dickenson just stated that he hadn’t said to her not to apply (to the court). District Judge Woodburn asked if she had more questions?

The missing email
The defendant referred to an email from Mrs Carmen to David Dickenson. She said that this email referred to the defendant wanting a record of the decision not to renew the lease. David Dickenson referred to the bundle. The defendant said there was some documents that were missing that were incriminating. District Judge Woodburn said that she may be missing the point of the hearing.

He asked a question to David Dickenson to which he answered no. District Judge Woodburn thanked David Dickenson. Before he left District Judge Woodburn referred to the change of policy in October 2012 and queried as to whether this changed the terms of the notice that had gone out as the notice said that Wirral Council wouldn’t oppose renewing the lease?

Squaring the circle
David Dickenson replied that it was to do with planning policy and again referred to his line manager. District Judge Woodburn asked if his instructions weren’t contrary to the terms of the notice? David Dickenson agreed that his instructions were contrary to the notice. District Judge Woodburn asked him how he squared the circle and dealt with the lease renewal?

Mr. Dickenson said that if it went past the 31st May and the defendants had not applied to the court or agreed a lease then Wirral Council had more options for the land. District Judge Woodburn asked what happened after October? David Dickenson replied that “plans changed”. District Judge Woodburn asked if the position was to serve the notices and see if an application was made?

David Dickenson said that in November he had made enquiries and again referred to his manager. District Judge Woodburn asked how that would be put into effect if the defendants had applied for a new lease? Mr Dickenson said that if the defendants had applied to the court, Wirral Council would have had to do nothing, but that there had been no discussions on that matter.

David Dickenson was told to keep his mouth shut so that Wirral Council would get a “windfall”
District Judge Woodburn referred to the policy from October 2012. David Dickenson replied to his comment. District Judge Woodburn asked if David Dickenson had been told not to engage in discussions with the defendants between November 2012 and May 2013? David Dickenson replied yes and that he was told not to agree to new terms. District Judge Woodburn asked if he was told not to engage in discussions? David Dickenson replied yes, but that he had to answer the phone. District Judge Woodburn said that if nothing happened by May 2013 then Wirral Council would get a windfall?

David Dickenson replied a potential windfall as no decision had been made what to do. District Judge Woodburn said that the policy changed and David Dickenson received instructions, therefore there would’ve been a windfall. He thanked David Dickenson.

Continues at Mrs Kane takes the witness stand in Wirral Council v Kane and Woodley (Fernbank Farm).

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2 notices, 1 attendance note & confusion over witness statements in Wirral Council v Kane and Woodley (Fernbank Farm)

2 notices,1 attendance note & confusion over witness statements in Wirral Council v Kane and Woodley (Fernbank Farm)

2 notices, 1 attendance note & confusion over witness statements in Wirral Council v Kane and Woodley (Fernbank Farm)

                      

This continues from Witness statements, rules & regulations, possession and estoppel in Wirral Council v Kane and Woodley (Fernbank Farm).

Estoppel defence
Sarah O’Brien, the barrister acting for Wirral Council said that District Judge Woodburn would have to be satisfied as to whether the possession order was precluded by statute but whether the estoppel defence had merit or not was another matter.

District Judge Woodburn said that the estoppel defence constituted reliance and detriment. Sarah O’Brien said that it comprised of representation, reliance and detriment. She said that what was served on the Claimant [Wirral Council] said how it was put. District Judge Woodburn asked if she could summarise?

Sarah O’Brien said that the alleged representation was “too vague” and that it must be sufficiently clear to be relied upon. District Judge Woodburn referred to there being no reply to the amended defence. Sarah O’Brien replied that it was a legal issue rather than a factual issue, the defendants say it was sufficiently clear, however the Claimant [Wirral Council] will say it was not and that on all three hurdles that the proposed estoppel defence fails. She said that it was a claim for possession, simply an order for possession and Wirral Council would not be making a claim for their costs from the defendants.

Landlord and Tenant Act 1954 c.56
District Judge Woodburn said to the defendants Mrs Kane and Mrs Woodley, that it would take us to a lot of technical arguments, both about the original notices and about anything done. He said that the Landlord and Tenant Act 1954 c.56 was quite strict and if things were not done then rights could be lost. He would have to determine if the notices were served in compliance with the Act, if the notices were not in compliance then certain consequences could flow and he’d have to make a determination as to whether they apply.

Witness statements
The argument in the amended defence about a representation made by someone not to worry was a factual issue. District Judge Woodburn continued by saying that who said when and in what context was required in the witness statements which had to be served on the court and Wirral Council by January. No application had been put forward [to change the time limit] so he had to explain the consequences of not filing in time.

One of the defendants asked a question about a witness statement that Wirral Council had. District Judge Woodburn asked when and the defendant answered before November [2013]. District Judge Woodburn asked if the defendant had a copy? The husband of one of the defendants asked if he could speak? District Judge Woodburn politely told him that he couldn’t speak. The same defendant referred to a date of the 4th December and the amended defence. District Judge Woodburn said he had got that. He asked a further question about the statements.

The defendant answered that is was before 9th January, that she had brought it herself and handed it to the office. District Judge Woodburn asked her what she’d handed in, she replied witness statements and all emails, District Judge Woodburn asked a further question to which she answered that the witness statements were three pages long.

District Judge Woodburn asked her if she kept a copy? The defendant held up a document. District Judge Woodburn referred to a document appended to the acknowledgement of service form with a date of the 21st August 2013. However he said there was nothing around December time.

The defendant said that she had taken the papers out of the envelope as she had been told to just give in the papers as they were not able to accept them in the envelope. The other defendant asked if it was the documents in the plastic container, to which the first defendant said “Is that what you meant your honour?” District Judge Woodburn replied that is was an attendance note.

The attendance note
The defendant said that she had had to resend a paper copy out of the folder to the Birkenhead County Court. District Judge Woodburn asked a question about the attendance note. She replied with the name of a person at Kirwans. The Judge said it may be a privileged document as it referred to a spoken conversation, could contain confidential information therefore it was not widely circulated to anyone, but it was a matter whether the defendants wish to rely on it.

Sarah O’Brien, barrister for Wirral Council said she would caution regarding its confidentiality. The defendant said she had sent it to Wirral Council. District Judge Woodburn asked when? She answered before January [2014]. District Judge Woodburn asked if was by post? She answered that it was hand delivered.

The receipt
District Judge Woodburn asked if it was done by Mr. Lewis and if they had got the receipt? He asked them to show the receipt to Miss O’Brien. Sarah O’Brien said she acknowledged the receipt was dated 4th December 2013 for the amended defence therefore she accepted it was received.

District Judge Woodburn said it was not the amended defence and for Sarah O’Brien to pass the receipt back. He said that quite clearly the document may not be required by the court order and the difficulty was regarding the evidence he had to listen to today was that it didn’t look like a witness statement in support of the amended defence.

Witness statements
One of the defendants said that there had been a witness statement. District Judge Woodburn said there had supposed to have been a witness statement and had the defendant not kept a copy? The defendant said it had gone missing. The Judge repeated his question and she answered that it had gone missing and that she hadn’t got any copies.

District Judge Woodburn said the attendance note was not a witness statement, it was a recording of a conversation. He said a witness statement was a formal document, a “document that set out the story” and that it would give far more detail with regards to the assertion. He referred to the witness statement of Mr. Dickenson which set out the kind of document that they were talking about.

One of the defendants asked a question. District Judge Woodburn replied that he would proceed on the basis that they don’t have the document and one was not served in accordance with the rules. Therefore they couldn’t hear evidence in support of the amended defence in support of the assertion “don’t worry” as the detail wasn’t given to the Court or Wirral Council. He could see it in the amended defence, but there was no detail just an outline which may raise the questions such as by whom it was said which can’t be asked or answered by the information within the witness statements.

Notices
District Judge Woodburn said it left the argument about whether the notices were in compliance with the act and whether the notices were responded to as required. He would deal with the responses before the notices, he asked if Sarah O’Brien was still waiting for some to come back?

Sarah O’Brien, barrister for Wirral Council answered, “I am.”

Continues at Notices, Bill Norman’s letter and David Dickenson takes the stand in Wirral Council v Kane and Woodley (Fernbank Farm).

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Witness statements, rules & regulations, possession and estoppel in Wirral Council v Kane and Woodley (Fernbank Farm)

Witness statements, rules & regulations, possession and estoppel in Wirral Council v Kane and Woodley (Fernbank Farm)

Witness statements, rules & regulations, possession and estoppel in Wirral Council v Kane and Woodley (Fernbank Farm)

            

This continues from Who’s who, “plebgate” and DDJ Grosscurth’s court order in Wirral Council v Kane and Woodley (Fernbank Farm).

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

Witness statements
District Judge Woodburn said that the defendants had not prepared witness statements or given them to the Court or Wirral Council. One of the defendants said they had sent a bundle to the Town Hall containing the amended defence and what they’d been told to send.

District Judge Woodburn said they had been told last November that they were to exchange witness statements by the 9th January 2014. One of the two defendants said that they had put in witness statements after November. The District Judge asked if she had a copy if the defendants were to rely on it as it was not in the bundle? The defendant again repeated that she did submit witness statements.

Once again the Judge asked for a copy and the date of the witness statement. One of the defendants answered 21st August 2013. He asked when it was sent to the Town Hall? She answered that it must have been before 21st August 2013.

Sarah O’Brien, counsel for Wirral Council said the defendant was referring to the original defence at page fourteen in the bundle, however this had been amended by the new defence. District Judge Woodburn asked if the document she was referring to was the document at page fifteen? She replied it was. He asked if that was the one sent to the Town Hall in August? She said it was and also the amended defence.

District Judge Woodburn asked the defendants about the witness statement whether it was the only witness statement submitted? One of the defendants answered “yes”. The Judge said that one witness statement had been submitted before the date on the order. Sarah O’Brien counsel for Wirral Council said that she thought it was a defence not a witness statement.

District Judge Woodburn said that it comprises a document appended which was a two page manuscript by one of the defendants, was it the only document the defence was relying on? The defendant who has written it answered and the Judge said that if it was not in the bundle or the witness statement then the defendants would be deprived of the right to rely on it. One of the defendants referred to emails that had been sent to the court.

Civil Procedure Rules
The Judge referred to the bundle received in February 2014. He said (to the defendants) that as far as either of you night want to prepare facts not contained in the document submitted in August, that they were not to present other facts not in the witness statements and that they were prevented from doing so. He said that they were subject to the court’s rules (he held up a thick copy of the Civil Procedure Rules) and referred to them as the “rules we are all governed by”.

He said it didn’t matter whether parties were represented or not, that Civil Procedure Rule 32.10 (Consequence of failure to serve witness statement or summary) meant if if the court made an order for witness statements by a date and witness statements were not given by that date that that party would not be able to rely on that witness evidence at the trial and that they could only rely on evidence served before January of this year.

One of the defendants said that the bundle from Wirral Council had papers missing from it. District Judge Woodburn said that he would “see how we go” and whether it related to issues of fact, but that he had to deal with technical issues and issues of law. He said that the “facts may not play a big part” and referred to Wirral Council’s witness statement.

Where are the regulations?
Sarah O’Brien, counsel for Wirral Council asked what the issues were likely to be? District Judge Woodburn asked her if she had a copy of the regulations relating to s.25 of the Landlord and Tenant Act 1954 c.56?

Sarah O’Brien asked the Judge for the validity of his request? He said that Wirral Council were asserting compliance in their claim. Sarah O’Brien said something and the Judge replied that Wirral Council still had to prove their claim. Sarah O’Brien, counsel for Wirral Council said that there was “never any assertion that the notices were invalid or not served”. District Judge Woodburn said it was for Wirral Council to prove the notices were valid.

Sarah O’Brien, counsel for Wirral Council said that “if it is an issue we can get a copy”. District Judge Woodburn said that “he wasn’t here to rubber stamp” and it would “have to be proved”. He said that he would “have to make sure the notices comply with the legislation” as it was “asserted they were in the prescribed form”. Sarah O’Brien, counsel for Wirral Council said she would ask her solicitor to get a copy. District Judge Woodburn said that subject to that she could start.

Wirral Council’s claim
Sarah O’Brien, counsel for Wirral Council said that the claim was for a possession order in Sandbrook Lane. There had been a fixed term lease between Wirral Council and the tenants from July 2008 for three years which had expired in July 2011. The rent had been due monthly under a monthly periodic tenancy.

In July 2012 a s.25 notice had been served on the defendants and proof of receipt was in the bundle which ended the tenancy on the 21st May 2013. She said that the notices were clear that the defendants must apply to the court if agreement was not reached, if they didn’t make such an application before 21st May 2013 then the defendants would lose that right. Although it was contested by the defendants, no new terms had been agreed as the defendants had been seeking the original rent. The defendants had not applied before 21st May or indeed at all. Subject to the validity of the notice, if it had been valid the tenancy had expired on the 21st May 2013 subject only to the issues raised in the defence. Therefore Wirral Council had a claim in law to be entitled to possession.

Sections, notices and possession
District Judge Woodburn asked under what section? Sarah O’Brien, counsel for Wirral Council said the time limits in s. 29 of Landlord and Tenant Act 1954 c.56 referred to either the tenant or the landlord. She continued by saying that under this section that once the tenancy had expired, the tenants had no right to make an application and if the tenants had no right to make an application for a new tenancy, then the tenants were in occupation of the land pursuing an expired tenancy. The claim for a possession order was because the defendants had no tenancy.

District Judge Woodburn asked what triggered the claim, what section? Sarah O’Brien, counsel for Wirral Council said the notice.

District Judge Woodburn said that he could see that it was a periodic tenancy brought to an end by the notice. He could see the statutory provision where there was opposition to granting a new tenancy but where did it state that that an application could be made for possession when it was agreed to renew [the tenancy]?

Estoppel
Sarah O’Brien, counsel for Wirral Council said it was common law versus statute. The statute dealt with termination of the tenancy. Once it was terminated she didn’t think that that arose in the statutory scheme. Moving to the defendant’s defence, it was a defence effectively of estoppel by representation, specifically that one of the defendants was told “not to worry” and thereafter a failure to communicate the intention to seek possession.

District Judge Woodburn said that if a s.25 notice was served and there was no application then that was the end of it if proved. Sarah O’Brien, counsel for Wirral Council said it seemed right that the court had no jurisdiction to order a new tenancy, only if Wirral Council’s claim was debarred by some sort of estoppel.

District Judge Woodburn said that the renewal of business tenancies was a creature of statute, but that he didn’t see how it fits. Sarah O’Brien, counsel for Wirral Council said that she would have to satisfy him in seeking the possession order. She referred to the witness statement but considered the termination of the tenancy to be the end of the matter. District Judge Woodburn said he had jurisdiction to hear the estoppel defence.

Continues at 2 notices, 1 attendance note & confusion over witness statements in Wirral Council v Kane and Woodley (Fernbank Farm).

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District Judge Woodburn grants Wirral Council Possession Order: Pony Club given a year to leave Fernbank Farm

EXCLUSIVE: 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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Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) returns to Birkenhead County Court for Trial

Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) returns to Birkenhead County Court for Trial

Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) returns to Birkenhead County Court for Trial

                          

The court case involving Wirral Council seeking a possession order for Fernbank Farm is listed for a fast track trial at Birkenhead County Court on the 13th February 2014 starting at 10 am in front of District Judge Woodburn.

The previous hearing in this case (Wirral Borough Council -v- Kane & Woodley case number 3BI05210) was reported as an exclusive by this blog in two parts. These are the links to the previous detailed blog posts on part 1 of the November hearing in Wirral Borough Council v Kane & Woodley and part 2 of the November hearing in Wirral Borough Council v Kane & Woodley.

To recap what happened at the previous hearing, Wirral Council was keen that the case moved ahead and as the defendants had run out of money to pay for legal representation, Cllr Ian Lewis offered to represent them both. The defendants were asked to file witness statements. As the case is now listed for trial and at that hearing the Deputy District Judge told the defendants that if they didn’t file witness statements that judgement would be entered in favour of Wirral Council, they must have done so.

The case is proceeding on the basis of it being a part 8 claim. The trial is expected to last two and half hours, with half an hour set aside for District Judge Woodburn to read through the case. At the end of the trial the issue of costs will be decided.

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