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IN THE EASTBOURNE COUNTY COURT
No. .....................
4 The Avenue, Eastbourne, E. Sussex
BETWEEN:
YOUR
DISTRICT COUNCIL
Respondent
And
YOUR
NAME
Applicant
Skeleton
Argument of the Applicant
INSOLVENCY RULES & PRACTICE DIRECTION
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Provision
for setting aside a statutory demand is made by rules 6.4 and
6.5 of the Insolvency Rules 1986.
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Paragraph
12.4 of the 1999 Practice Direction provide as follows –
Where a debtor (a) claims to have a counterclaim, set off or
cross demand (whether or not he could have raised it in the
action in which the judgement or order was obtained) which
equals or exceeds the amount of the debt or debts specified in
the statutory demand pr (b) disputes the debt (not being
subject to a judgement or order) the Court will normally set
aside the statutory demand if, in its opinion, on the evidence
there is a genuine triable issue.
THE DEBT DEMANDED
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At
this stage the Court does not go behind the judgement or order
as per Paragraph 12.3 of the 1999 Practice Direction. The applicant therefore reserves his rights on this
issue and for the record disputes the debt as may be apparent
to the Court.
GROUNDS TO SET ASIDE THE STATUTORY DEMAND
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That
the applicant may be experiencing some difficulty setting out
his grounds as to the Respondent Council’s negligence or
wrongdoing is not sufficient reason to deny his application,
where the Court may be satisfied that he has established
genuinely triable issues at the hearing.
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That
the Respondent Council (WDC) are liable to the applicant for
damages in negligence is set out in several precedents cited
herein the first of which is Hedley Byrne & Co Ltd v
Heller & Partners in the House of Lords 1963.
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It
is a simple matter that where WDC are charged with a duty to
perform a function and fail to perform that function, which
neglect of duty is the cause of loss, then a claim for damages
is established.
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That
WDC may be guilty of obstruction and nursing a deception will
be left to the proceedings presently in the process of being
lodged in the High Court, either with the leave of Master Eyre
or via a fresh application.
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The
applicant has adequately explained the situation to Master
Eyre in correspondence and in lodging his Statement of
Grounds, Statement of Facts and Remedy Sought.
It is clear the applicant intends to pursue these
issues by one means or another and made considerable effort to
come to terms with law, procedure and precedent he was
previously unfamiliar with.
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The
Court is itself a public body and as such bound to respect and
preserve the right of the applicant to secure for himself a
fair hearing as to the matters complained of.
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WDC
would see the applicant deprived of his rights in the matter(s)
as it suits their long term ambition to ruin the applicant,
which ambition has been in existence long before the or any
costs orders in favour of WDC.
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It
is somewhat more complex that where WDC are charged with
acting unreasonably and not respecting the human rights of the
applicant, this in itself constitutes negligence or a
combination of recklessness and or negligence.
However, damages may flow from a claim of obstruction
or discrimination, provided the applicant can demonstrate loss
or other harm to his person in the so doing.
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The
applicant here refers to Lambert v West Devon Borough Council,
The Times March 27 1997, where it was held that a duty of care
did arise where a building control officer said that works
could proceed without planning permission, then later was
called to apply for planning permission having begun works.
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For
a duty of care to arise something more than routine advice has
to be involved as in Haddow v Secretary of State of State 2000
L.R. 212 CA.
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In
this matter the Respondent Council sought to deprive the
applicant of his home by taking steps to initiate enforcement
action in 1985. A
report for authorisation to commence proceedings went to
Committee in 1985 under reference C/56/85/HX. However, in
pursuing this aim WDC failed to consider that they were making
the applicant homeless and worse, their committee failed to
consider the fate of a historic building within their area of
administration. This
is clear because WDC’s minutes of the meeting made no
mention of this consideration and subsequently WDC argued at a
planning appeal in 1986 the building held no historic
interest.
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Whereas,
the correct procedure where one suspects a building may
possess a history worthy of retention is to consult
conservation groups, the county archaeologist or English
Heritage as per government circulars and planning policy
guidance notes. Accordingly,
the decision was ill conceived and as per R v Canterbury City
Council ex Parte Springimage Ltd 1993 3 PLR 58, and may be
challenged as to its validity.
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The
evidence produced to the Court today in support of this
present application amply demonstrates that WDC, having been
apprised of the history by Elizabeth Cowling in 1983,
neglected to either consult the archaeological community
generally, or to put the base information before their
planning Committee.
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The
enforcement notice WDC issued in 1986 was a borderline issue
concerning the four-year rule.
Past May of 1986 the change to a residential use became
immune as per the Town and Country Planning Acts 1972 and
1990.
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The
significance of the validity of the enforcement notice cannot
therefore be understated, for if the notice is invalid, the
subsequent action WDC engaged in by way of injunctions, also
come under scrutiny for validity.
Indeed, the actions from whence the costs arise and the
subject of the statutory demand could not have happened.
Clearly, therefore, the applicant has sustained a gross
injustice.
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But,
the negligence does not stop with the 1986 enforcement notice.
In each successive planning application between 1988
and 1999 WDC
failed to consult as per PPG16.
When finally the applicant alerted English Heritage to
the situation, WDC obstinately refused to review past
decisions and tried a new tack to avoid granting residential
permission in so doing ignoring the Secretary of State
decision letter from 1997.
NEGLIGENCE AND LOSS
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The
applicant is fully entitled to challenge the validity of any
extant enforcement notice – provided he has evidence to
substantiate his claim and WDC refuse to strike their notice -
and that they do. Especially
so, where WDC owes the applicant a special duty to act with
great care inasmuch as they made him homeless and that they
have prime responsibility for conserving the historic
environment. Therefore,
WDC should have considered the residential use as a solution
as to re-use in accordance with conservation practice.
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The
onus was on WDC officers to be especially sure not to mislead
the committee on significant material considerations.
In this matter, the most significant factor to consider
was that if the history attaching to TSH made the building one
of local interest, it then became worthy of preservation as
per their local plan. English
Heritage confirm it is not just of “local interest”, but
of “considerable local historic interest”.
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WDC’s
committee had no way of asking for further reports, because
they were deprived of the base information in the first place.
The void of material matters for consideration were
replaced by character assassination such as to wipe the minds
of the members from asking pertinent questions and to set them
prejudicially against the applicant.
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However,
it does not stop there. For
the applicant’s home is the building the subject of the
enforcement notice. Until
such times as the notice is quashed, he may not peacefully
enjoy his home or possessions.
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Apart
from the real growth, the property could have benefited the
applicant in two other ways: a) as personal accommodation, or
b) for commercial letting.
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Should
the property have been let at a conservative £300 (at
today’s values) per calendar month since June of 1986, to
February of 2004, it would yield £63,600.
This figure to be added to the real growth.
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As
for damages to the obstruction and/or discrimination, the
applicant looks for guidance to Davis v Wansdyke District
Council 2001 (Times report).
The sum of damages agreed between parties was reported
as £790,000. It
is reported this sum was for obstruction and unhelpfulness
between 1989 and 1991. Mr
Davis, was only deprived of permission to improve his home.
The applicant has several additional years loss to
consider and for many years was deprived of his home in
entirety. However,
for the matter at hand it will suffice to set a similar sum in
damages.
JUDICIAL REVIEW
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An
application for review would encompass claims of negligence
and claims for damages as to obstruction and discrimination or
maladministration. That
leave is likely to be granted as to failing to take account of
the history of TSH is demonstrated in the application by
Samuel Smiths Old Brewery in Case No. CO/2614/99 at Pararaphs
51, 54, 68 and 82 of the Judgement of Mr Justice Sullivan.
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In
effect WDC are asking this Court to strike out the
applicant’s claim. This
was the situation in Lane v New Forest District Council (NFDC)
2001 3 AII ER 914. In
that matter the District Judge upheld the application of NFDC
that the claim held no reasonable prospect of success.
However, the Appeal Court overruled that argument
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The
applicant has established a cause of action against WDC
against negligence. The
applicant has established a cause of action against WDC
failing to carry out its statutory functions.
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The
applicant has specified particulars of loss relating to
property value and loss on rents, which particulars alone far
exceed the sums WDC claim, hence there is little point adding
further losses.
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