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IN THE HIGH COURT                                                                                                                                                     No HQ02X00013

CHANCERY DIVISION

                                                                                                Royal Courts of Justice

The Strand

London WC2A 2LL

 

Wednesday 7th August

2002

   

Before:

 

     MASTER LESLIE

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B.V. F. GOODACRE

CLAIMANT

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WEALDEN DISTRICT COUNCIL

DEFENDANT

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(Tape Transcription by Smith Bernal WordWave

190 Fleet Street, London. EC4A 2AG

Tel 020 7421-4000

Official Court Reporters)

 

 

MR GOODACRE appeared in person

 

MISS LINDSEY (Instructed by Messrs Vizard Wyeth) appeared on

behalf of the Defendant

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J U D G M E N T

(As approved by the court)

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Wednesday 7th August 2002

JUDGEMENT

1.        THE MASTER: This is an application by the defendant, Wealden District Council, to strike out a claim by Mr Goodacre which he makes against them, which I shall describe in a moment. Alternatively, in certain respects the defendants contend that the Claimant has not only no reasonable grounds for bringing the claim under Rule 3.4 of the CPR, but that under Part 24 he has no real prospect of success and they are entitled therefore to summary judgment.

2.        Before 1993, Mr Goodacre owned a farm in East Sussex called Greenwoods Farm which was beside Greenwoods Lane in, I think, the parish of Heathfield. On the opposite side of the lane was some land which included, as I understand it, some woodland or a copse which is a curious shape and which is not immediately abutting Greenwoods Lane. In 1993, Mr Goodacre was made bankrupt and his house was either repossessed by the mortgagee or taken by the trustee in bankruptcy and it came into the ownership of Mr Clements who also purchased and acquired the land between Greenwoods Lane and the woodland that I am presently dealing with.

3.        The land that I am presently dealing with was retained by Mr Goodacre and vested in his trustee in bankruptcy, who assigned it in August 1995 to the bankrupt, Mr Goodacre. During all this time, as I understand it, Mr Goodacre used the land for agricultural and forestry purposes and, much to the annoyance of Wealden District Council, and moreover, Mr Clements, has used it not only for that purpose but for storage of various building materials and much else besides.

4.        So in August 1995 it reverted to Mr Goodacre. In 1996, as I understand it, Mr Goodacre was discharged from his bankruptcy. However, in the year 2000, by some mechanism that I am not entirely clear about since it was long after his bankruptcy, Mr Ashurst, a new trustee in bankruptcy, decided that he wanted the land back because presumably it had always formed part of the bankrupt`s estate. He took it back in September 2000. Then in June 2001, he disclaimed it from the estate of the trustee in bankruptcy. So by the common law it was escheated to the Crown. In October 2001, the Eastbourne County Court made an order, after due notice had been given to the Crown and by some means, Mr Clements, who no doubt had kept a close eye on all the developments, was there but the Eastbourne County Court declared that the land should revest in Mr Goodacre.

5.        In the meantime, by some means that is not clear to me, but no doubt not entirely unconnected with Mr Clements` unhappiness, living opposite Mr Goodacre`s forestry and storage site, the Wealden District Council were extraordinarily active in trying to stop Mr Goodacre using his land for unauthorised purposes. In May 1998 and August 1999, they served three enforcement notices under Section 172 and 171(a) of the Town and Country Planning Act 1990, as amended, requiring Mr Goodacre to get rid of a caravan, to stop storing building and other waste materials on the land and remove them and to demolish and remove two buildings that were on the land. Mr Goodacre appealed against those enforcement notices as far as the High Court in all three cases, but he was unsuccessful. The last such appeal being dismissed on 2nd October 2000.

6.        On 14th June 2001, the defendants wrote to Mr Goodacre telling him that they were going to come onto the land and exercise their rights and powers under the Act. That they would seize any items, that they would hold those items for three days and then sell them unless Mr Goodacre paid the defendants their costs, which at that stage were estimated to be just short of 13,000.

7.        It must be remembered that these enforcement notices were, in one case, three years old and in the other cases, nearly two years old. Mr Goodacre was told that they were going to enforce them on 14th June. No notice was given as to when they were going to do so, although Wealden District Council, by their counsel, Miss Lindsay, submit correctly that they are not obliged to give any notice, but they chose to. However, they did not actually post it until 19th June and they posted it then second class, so that it did not arrive, I think, until 22nd or 23rd June, which was the Friday before they started clearing the site on 25th June 2001.

8.        I have already said that I think this is absolutely outrageous. It is writing in water what admittedly does not have to written at all. But in order to preserve good relations and to try and make things work properly, one would of thought proper notice would have been given of at least 14 days, given the fact that these notices were themselves so old. But there we are, they were not.

9.        What happened then I shall simply describe as being the defendants, by their contractors, clearing everything off their land. One matter of complaint  which Mr Goodacre made, if I may say so very temperately, was that it was always acknowledged that this land was properly being used by him for forestry and agricultural purposes. The defendants completely cleared the land of everything as far as I can see, except for an electricity post, including a great deal of agricultural implements which, according to Mr Goodacre, in the list at page 174 of the bundle before me, included matters of great importance to him. They were important a) because he used them in and about his forestry and agricultural activities, which were authorised on his land. But more importantly, he had no means of getting them back on the land because he had given an undertaking to the Court that he would not cross the land belonging to Mr Clements and which cut off his land from the main highway, except by a footpath and another narrow path that he had a right to use by way of usage at one end of the land. That means, and as far as I am aware the defendants knew this full well, that he would not be able, except with great difficulty, to be able to get his agricultural machinery back on the land.

10.    I therefore think that on that ground alone, Mr Goodacre has reasonable grounds for bringing a claim for trespass to goods in respect of the agricultural machinery and implements that were on the land and were on the land but not in breach of any planning obligation or in defiance, if that is the right word, of an enforcement notice. 

11.    Mr Goodacre also says this. At the time that the land was entered upon by the defendants, he was not the owner of the land since it was in escheat to the Crown, in the circumstances I have already described. He says that by operation of Sections 296 of the Town and Country Planning Act 1990, the defendants ought not to have done what they in fact did. Miss Lindsay points out that under Section 296.2(a)(ii) the power to enter the land, only with the consent of the Crown Estates Commissioners, is limited to the power to enter under Section 106.6 of the Act. This was an entry, I think, under Section 172 and 171(a0 of the Act and therefore I accept what Miss Lindsay says in respect of Section 296.2(a)(ii).

12.    However, I cannot accept for present purposes, that is to say I think Mr Goodacre has reasonable grounds for advancing a case under Section 296.2(a) that, except with the consent of the appropriate order, no order or notice shall be made, issued or served, under the provisions of Section 172 under which these notices were issued.

13.    Arguing to the contrary of that, Miss Lindsay says that these notices were issued, as I have described, in August 1999 and May 1998 at a time before the land was in escheat to the Crown. That is correct. But I think that it is at least arguable, with a sufficiently real prospect of success and there are reasonable grounds for saying the mischief in the Act, or what is intended to be stopped by the Act, is not just the making issue or service of an order or a notice, but clearly its enforcement. It seems to me the circumstances of this case are very unusual. What Parliament seems to have intended to stop is that there should be no order made against the Crown under Section 172 and therefore, it would never be enforced. If the land comes into the possession of the Crown, by escheat, and an order has already been made, then it seems to me at least arguable that the and should not be entered onto by a local authority.

14.     Therefore I am against Miss Lindsay and I think Mr Goodacre has a sufficiently real prospect of success in establishing that he has reasonable grounds for bringing such a claim. Because it follows that it would have been an unlawful entry onto the land in the possession of the Crown. Although Mr Goodacre concedes that he can have no claim for damages for trespass to the land, he clearly has in my judgment, if he is successful on that, a real prospect of success and/or reasonable grounds for a claim, that the taking of everything on the land in furtherance of an unlawful entry was trespass to those goods.

15.    There are other matters that he complains about, which it seems to me there is something in what he says and sufficient in what he says to say there are reasonable grounds for bringing the claim and not striking it out. For instance, although he has said and given some evidence himself in his submissions to me , it seems to me on the material that I have seen as admissible evidence, that is at least arguable  that the defendants, and there are reasonable grounds for claiming that the defendants owed him some duty in exercising their powers to take these goods, if it was not a trespass, to look after them for at least three days, to tell him how much he owed, to give him the opportunity to pay it. They did not. They simply dumped it. Somebody seems to have made a rather half-hearted effort, says Mr Goodacre, I think he has reasonable grounds for saying this, to try and sell these goods privately. There is some evidence that a rather fine old Massey Ferguson tractor, although I suspect it was not in very good condition, was simply knocked out almost for scrap. This is not good enough, in my   judgment, and Mr Goodacre has reasonable grounds for making that claim.

16.    I should also add this. Mr Goodacre makes a claim for damages for misfeasance in public office. It appears to me that there are reasonable grounds for him to say, with a sufficiently real prospect of success, that in doing what they did, the defendants, by their servants, were actuated by the sufficient malice and the types of malice required by the law to make out a claim in misfeasance in public office. The way in which notices were served at the very last minute, I have given but one example in this judgment. The way in which the defendants, knowing that the Crown was involved, because they wrote a letter two days before they moved in, to the Treasury solicitor, not seeking consent under the act, but simply giving them some sort of notice. The way they acted in that way. All that is, in my judgment, sufficient for me to say there are reasonable grounds for making this claim and not striking it out.

17.    Moreover, there is the issue of Mrs Bates. I do not want to go into the details of this. Certainly the findings of the court in that case do not redound to, with any credit, to Mr Goodacre. It might be said that the defendants, having dredged that up for the purposes of this case, does not redound very much to their credit either. But I take into account, for what it is worth, what was said there about Mr Goodacre seeking to mislead the court about his address and so on and so forth. 

18.    But what is important about the Mrs Bates` factor is that there is evidence that the defendants, in breach of their own guidelines and probably in breach of the Data Protection Act, fed, because that is the right word, fed information to Mrs Bates which they ought never to have given out to anybody and which was clearly, says Mr Goodacre, with reasonable grounds for saying, were confidential and should not have been given out. That, in my judgment, supports his claim (which I find to have reasonable grounds for bringing) of malice in support of the claim for damages for misfeasance in public office. In those circumstances, I shall not strike this claim out or any of it.

19.    However, I think I am going to give Mr Goodacre an opportunity to re-plead his case because, as a litigant in person, he has not been assiduous as putting it as clearly as it might be and as clearly as it has emerged as a result of his submissions to me today. I shall therefore give a further appointment for a case management conference at which, and in advance of which, Mr Goodacre should have, having taken advice I hope, served a better formatted particulars of claim.

SMITH BERNAL


For more information like this Contact your local Councillor or MP

Please note: This document is that which was put into Court by Mr Brian Goodacre.  For the latest on the case, please contact Mr Goodacre directly.