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FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby atticus » Fri May 29, 2015 4:28 pm

We haven't seen Cat for a few weeks.

I just found this beginners guide to appeals by way of case stated which might interest her.
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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby dls » Fri May 29, 2015 4:39 pm

Thank you. Added.
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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby Cat » Sat May 30, 2015 9:18 am

Thanks Atticus, I did find the guide invaluable when I appealed the decision of the Crown Court. Unfortunately Burton J did not comply with the rules, as on the facts found by the Crown Court, the Recorder was not legally entitled to dismiss the complaint after finding that the way was a highway maintainable at public expense as alleged and was therefore a decision which no reasonable court properly directing itself could have reached.
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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby dls » Sat May 30, 2015 8:02 pm

At the risk of starting all this again, you no doubt sincerely believe what you say, but it is a misrepresentation of the judgment appealed against and of Burton's own judgment. You consistently misdescribe the findings. Sorry.
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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby Cat » Sun May 31, 2015 9:52 am

I believe what I say, because it is a true representation of the facts found by Recorder Abbott in his case stated:

“6. I found as follows

7. There was a footpath to be maintained by the Devon Council from Kimber Road to Glebe Yard and exiting though the gap.”

“SKELETON ARGUMENT ON BEHALF OF THE RESPONDENT, DEVON COUNTY COUNCIL

Preliminary

1. This is a complaint [PS Tab A, 1-3] under section 56 Highways Act 1980 ('HA') by Mr. and Mrs. P seeking an order:

1.1 that an alleged highway (a path from Glebe Yard to Kimber Road, Northlew) is out of repair and that Devon County Council ('the Council'), as highway authority, should put it into suitable repair; and

1.2 the Council should pay the proper costs and expenses of the Complainants.

2. The Council denies that the alleged highway is a public highway. Consequently, there is no basis for making an order against it. However, if the way is found (contrary to the Council's contentions):

2.1 to be a footpath, it is in a condition where it can be used by the public and so is maintained to the required standard, save that it is obstructed by a Devon hedge.

2.2 To be a road, thereby allowing vehicular use, then it is not maintained to the required standard by virtue of the condition of the surface and the presence of the hedge.”

Before a highway maintainable at the public expense can be found it has to be dedicated to the public by the landowner. The land dedicated to the public by the landowner was Glebe land from Kimber Road to Glebe Yard as I alleged in my complaint to the Crown Court. What am I misrepresenting regarding the judgments dls? What am I misdesribing regarding the findings dls?

Once a route is a highway it remains a highway, even though it may fall into non use because it is obstructed by the landowner. Whether or not another path exiting from Glebe Yard on parcel number 342, over adjacent land is also capable of being a highway maintainable at public expense was an irrelevant consideration under Section 56 of the Highways Act 1980 legislation.

Section 56 provides a means for deciding the issue of whether a way is a highway. Under Section 56 such cases go straight to Crown Court for resolution and the enforcement of the duty to repair is not conditional on there not being a dispute about the status of an additional spur exiting over adjacent land. The enforcement is not conditional on there not being another dispute

The path from Glebe Yard to Kimber Road is a highway out of repair as I alleged. Glebe land on which the highway runs has not been destroyed and has not ceased to exist. The highway passes over the land on parcel number 342 known as Glebe Yard which is obstructed by a hedgerow rooted in its surface causing disrepair.
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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby Slartibartfast » Sun May 31, 2015 6:21 pm

Welcome back, Cat - the place hasn't been the same without you.
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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby Cat » Mon Jun 01, 2015 11:35 am

Thanks Slarti.

An update on both of my ongoing applications for those still interested:

I have chased my set aside application with the Admin Court on 18th May and received the reply on 20th :

Would you please confirm safe receipt of our application for the judgment to be set aside dated 30th March 2015? It was sent seven weeks ago and was signed for by Joe Bloggs on 1st April 2015.

Dear Mrs P

I can confirm that this application was received and is currently being dealt with.

Regards

Administrative Officer
Administrative Court Office /Upper Tribunal Immingration and Asylum Chamber
Cardiff Office

I have also chased my appeal regarding my Definitive Map Modification Order dated 14.07.2009.

WILDLIFE AND COUNTRYSIDE ACT 1981 SECTION S14
Devon County Council
Application for a direction to modify the Definitive Map to delete a public footpath from Queen Street to Glebe Yard, Northlew, Okehampton, and to add a public footpath from Station Road to Glebe Yard

Dear Ms P, the determination time for Schedule 14 appeals is approximately 26 weeks from the receipt of an appeal. Therefore, for this case, we would endeavour to have the Appeal Decision issued by 11 June 2015.

Best regards

(Rights of Way Section)
The Planning Inspectorate

The Inspector’s decision by the 11th will have to be published on PINS website
http://www.planningportal.gov.uk/planni ... 4decisions

Guidance on the law relating to the continuous review of the Definitive Map and Statement of Public Rights of Way

[DOC]Guidance ANNEX A - Council
council.lancashire.gov.uk/documents/.../Guidance%20ANNEX%20A.do...

It has eventually been acknowledged by Devon County Council after court action, that there is a footpath to be maintained by the Devon Council from Kimber Road to Glebe Yard. The entire area of land from Kimber Road to Glebe Yard is former Glebe land. Glebe Yard has a separate OS parcel, number 342 which adjoins Station Road and does not adjoin Queen Street. The Definitive Statement in 1950 describes the definitive alignment of Northlew Footpath No. 3 as running between County Road C.463 and Unclassified County Road. It records that it starts at County road C.463 which is Station Road. Queen Street is an Unclassified County Road.

It was reflected subsequently in Randall v. Tarrant [1955] 1 W.L.R. 255 where Lord Evershed M.R. said, at p. 259: "The rights of members of the public to use the highway are, prima facie, rights of passage to and from places which the highway adjoins."

The owner of former Glebe land held the legal capacity to dedicate an exit from Glebe Yard onto Station Road. The owner of former Glebe land lacked the legal capacity to dedicate an exit from Glebe Yard onto Queen Street.

The Inspector is going to have to put one hell of a spin on the evidence and contradict published guidance in order to refuse a direction to modify, but I am sure that he/she will manage it.
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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby Lurker » Mon Dec 21, 2015 7:06 pm

It's around this time of year I often wonder how people are doing. Online, that means seeing what they've posted recently. Cat's been very quiet (Last visited: Mon Jun 01, 2015 12:37 pm) so I did a little more digging.

It's not good news for her. The appeal was dismissed.

Hopefully she has given up her fight and decided to enjoy her retirement in peace.
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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby atticus » Mon Dec 21, 2015 10:34 pm

That's a shame. I never understood what she thought she might achieve, but hoped that when she got to Court someone might see something she couldn't make clear in her posts here.

I didn't realise that it had been almost a year since we last saw Cat.
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Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby Lurker » Tue Dec 22, 2015 11:09 pm

atticus wrote:I didn't realise that it had been almost a year since we last saw Cat.

Erm. Jun, not Jan.
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