Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Judicial review, activities of government, local and national etc.

Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby atticus » Wed Dec 23, 2015 6:54 am

I must have been rounding up.
User avatar
atticus
 
Posts: 18629
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby Cat » Mon Apr 25, 2016 11:25 am

I did not give up the fight, Atticus and Lurker. I made an application to apply for judicial review of the Inspector’s decision.

Permission was refused on the papers at the High Court and refused at an oral renewal of the application for permission, by Mr Justice Dove on 12.11.2015, even though he did not identify and address all of the grounds for appeal and made flagrant errors of law.

Lord Justice Gross said the grounds were all dealt with by Dove J, despite the evidence of the transcript showing that they were not considered by Dove J in his judgment. “Totally without merit” certificate wrongly applied by judge 8th April 2016 and received on 22nd.

(1) Dove J in directing himself that the definitive map route exiting from Glebe Yard over adjacent land, was capable of being a public highway, misdirected himself in law; and

(2) Dove J disregarded the rule of law ‘once a highway, always a highway’, as once a highway over Glebe land has been dedicated by the owner of the land, to use by the public as of right as a through route, as recorded in the definitive statement, the public's right of way cannot be lost by disuse.

Dove J and the inspector confused two issues, the essential characteristics of a highway, and the undisputed evidence of the intention by the owner of Glebe Yard to dedicate a right of way over glebe land between public roads at each end. In order for a way to be deemed to have become dedicated as a public right of way by right of long use, the route has to be of such a character that its use could give rise at common law to a presumption of dedication. This means that the route must be clearly identifiable, as there is no generally applicable right to roam over private land.

Misdirection under section 53(3)(c)(iii) of the Wildlife and Countryside Act 1981:
The Definitive Map route over glebe land from Kimber Road to Glebe Yard, but then exiting over adjacent land onto Queen Street does not constitute a way over land which could give rise to a presumption of dedication at common law. Such use to stray and meander over adjacent land as a substituted means of public exit from Glebe Yard to Queen Street, is clearly not capable of giving rise to a public right of way.

Misdirection under section 53(3)(c)(i) of the Wildlife and Countryside Act 1981:
The Definitive Statement route over glebe land from Kimber Road to Glebe Yard debouching into Station Road does constitute a way over land which gives rise to a presumption of dedication at common law.

Would anyone like to discuss the obfuscation by the judiciary and the misapplication of the law?

Links for anyone still interested and would like to read any of the documents:

Inspector’s decision:
https://www.gov.uk/government/uploads/. ... _14a_4.pdf

Grounds advanced 04.11.2015 before Dove J, but not all considered by him in his judgment
https://docs.google.com/document/d/1Rp3 ... sp=sharing

Transcript Dove proceedings
https://drive.google.com/file/d/0BxFNae ... sp=sharing

Transcript Dove Judgment
https://drive.google.com/file/d/0BxFNae ... sp=sharing


Court of Appeal Order 08.04.2016
https://drive.google.com/file/d/0BxFNae ... sp=sharing
Cat
 
Posts: 1032
Joined: Sat Sep 21, 2013 1:12 pm

Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby atticus » Mon Apr 25, 2016 4:50 pm

Sorry Cat, but you have most definitely reached the end of the road.

I think you may have made mistakes along the way, but those are toi far in the past and cannot now be remedied.

Please - move on, try to put this behind you before you lose everything.
User avatar
atticus
 
Posts: 18629
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby Cat » Tue Apr 26, 2016 11:21 am

Thanks atticus, we can’t move on, we live here and our windows face onto the footpath.

Could we please discuss the law? Does it not concern any forum members, that some “totally without merit” certificates are being wrongly applied by judges of the Court of Appeal, to save the Government Legal Department from an embarrassing situation regarding the definitive map? Because the highway authority prefer to ignore a case where a landowner in 1950, by virtue of his position as Vice Chairman of the Rural District Council, illegally stops up a highway and suffers it to become foundrous, and that this would then lead to the dedication of the substituted route as a public highway.

There is no right to deviate on to adjoining land if the owner of the land illegally stops up a highway and this would not lead to the dedication of the substituted route as a public highway. The judges all know this, which is why they obfuscate in their judgments and do not refer to the parcel of land that was dedicated by the landowner as parcel number 342, and deliberately confuse the situation and instead only refer to B – X – A and B – C. You do not dedicate a right or direction of travel. You create a right by dedicating the land for use as a public passage. As considered by the House of Lords in 1991 in Attorney-General ex rel. Yorkshire Derwent Trust Limited v Brotherton [1991] 1 AC 425.

Dove J referred to the Grounds in Support attached to the Judicial Review claim form, in numerical order. Lord J Gross referred to the arguments advanced to Dove J on 14.11.2015. His Lord’s reasons given, reads that Grounds 1, 2 and 3 were dealt with by the Judge at [8] – [9] of his judgment. But they were blatantly not referred to in Dove J’s judgment. Dove J did fail to consider these points.

Judicial behaviour should be discussed in a legal forum. How many claims certified as TWM are unrepresented Litigants in Person? The same law should be applied, whether represented or unrepresented.
Cat
 
Posts: 1032
Joined: Sat Sep 21, 2013 1:12 pm

Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby atticus » Tue Apr 26, 2016 9:41 pm

There is an alternative point of view to the one that you cannot possibly be wrong.

The judgment of Dove J seems sound on its face.
User avatar
atticus
 
Posts: 18629
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: FUNDAMENTAL DEFECT IN PROCEEDINGS MAKES IT A NULLITY

Postby Cat » Wed Apr 27, 2016 12:27 pm

Thank you very much for taking the time to read it and discuss Atticus. The following points are why I think that I cannot possibly be wrong.

Paragraph 3 of Dove J’s judgment:
“The subject matter of the case is an appeal decision reached by the defendant's inspector dated 11 June 2015. That decision was in relation to an appeal made in respect of a modification order pursuant to section 53(3)(c)(iii) of the 1981 Act which had been submitted by the claimants. They wished to have the Definitive Map modified in order to delete a right of way which is identified on page 30 of the bundle of papers before me as running along an alignment from B - X - A. They contended that that was an error and that in truth the path which the definitive map ought to have identified ran up to point B and then to a point C, also shown on the plan on page 30, meeting Station Road at a point further west from point A, having travelled effectively due south from point B.”

Whereas that decision was actually in relation to an appeal made in respect of a modification order pursuant to section 53(c)(iii) and 53(c)(i) respectively, to concurrently delete a 12m section of public footpath exiting from Glebe Yard to Queen Street over adjacent land, and add in the alternative a 24m section of public footpath through Glebe Yard onto Station Road over the whole length of the land on parcel number 342.

The failure of Mr Justice Dove to advert to section 53(3)(c)(i) or to approach his whole judgment with that section also in mind, was an error of law.

Dove J’s judgment looked at section 53(c)(iii) in isolation, whereas it is not possible to look at it in isolation, where there is no dispute that a right of way exists but there is a dispute as to precisely the route of that right of way. In those circumstances it is not possible to look at (i) and (iii) in isolation because there has to be a balance drawn between the existence of the definitive map and the route shown on it which would thus have to be removed, and the evidence to support the placing on the map of, in effect, a new right of way.

[B - X – A] and [B – C] is just judicial obfuscation. The whole of the private accommodation road to Glebe Yard and its fields has its own unique parcel number 342, most of which is adopted apart from the last 24m section where it debouches into Station Road. The whole footpath over glebe land from Kimber Road to Glebe Yard has been adopted, apart from 24m. They have never adopted or maintained the section X to Queen Street, through the curtilage of Clome Cottage, either. DCC have always known about the anomoly between the map and statement. And between OS mapping and the definitive map. You create a right by dedicating the land for use as a public passage. The owner of Glebe Yard dedicated the land on parcel number 342 for use as a public passage. Dove J disregarded the legal maxim ‘once a highway, always a highway’, as once a highway over Glebe Yard is dedicated to the public by usage as a through route, the public's right of way cannot be lost by disuse. See judgment para 17.

Paragraph 11 of judgment:
“Similar considerations dispense, in my judgment, with the concerns raised under ground three as to misdirection under section 53(3)(c)(i). This was an application before the Inspector under section 53(3)(c)(iii) of the Wildlife and Countryside Act 1981, which raises different considerations on the basis of an application to modify in the light of evidence which has been discovered. The failure to advert to section 53(3)(c)(i) or to approach it with that section in mind, was not an error of law.”

It was an application under section 53(c)(i) AND 53(c)(iii)!!! Which raises totally different considerations on the basis of an application to modify in the light of evidence which has been discovered.

Paragraph 9 of judgment:
“The first is the failure of the Inspector to approach an implied dedication at common law correctly.”

I alleged that the inspector failed to approach implied dedication at common law. Not that he failed to approach it correctly. The critical question for the inspector was whether the owner of Glebe Yard, had acquiesced in the use of the through route over glebe land from Kimber Road to Station Road as a public footpath prior to 1949 and in consequence that dedication on his part could be inferred. There was no evidence found to rebut an inference of dedication at common law under section 53(c)(i), therefore the decision to refuse the Appeal was without reasonable justification.

The inspector failed to give proper, adequate or intelligible reasons why the owner of Glebe Yard would intend to dedicate a footpath over the land on parcel number 342 into the middle of the yard but did not intend to dedicate a way over the full length of parcel number 342 as a means of public exit onto Station Road. On the evidence before him the inspector's decision not to allow the appeal was unreasonable and perverse.

Paragraph 16 of judgment:
“As he says, the fact that the owner of Glebe Yard could not dedicate in any way, shape or form, whether expressly or by a presumption, a right of way over land not in his ownership, is not in and of itself a bar to dedication having been presumed on the evidence before the survey in 1950 as having occurred through a period of long use over the land B - X - A outside the ownership of Glebe land. His conclusions were conclusions of fact which he reached having had evidence from both parties.”

The fact that the owner of Glebe Yard did dedicate a right of way over land in his ownership reaching Station Road, at common law, was in and of itself a bar to dedication having been presumed on the evidence as having occurred through a period of long use over adjacent land reaching Queen Street outside the ownership of Glebe land. His conclusions were not conclusions of fact, he confused himself as to the essential characteristics of a highway, which is an error of law. Dove J, in directing himself that it was capable of being a public highway, misdirected himself in law.

In order for a way to be deemed to have become dedicated as a public right of way by right of long use, the route has to be of such a character that its use could give rise at common law to a presumption of dedication. This means that the route must be clearly identifiable, as there is no generally applicable right to roam over private land. The Definitive Map route over glebe land from Kimber Road to Glebe Yard, but then exiting over adjacent land onto Queen Street does not constitute a way over land which could give rise to a presumption of dedication at common law. Such use to stray and meander over adjacent land as a substituted means of public exit from Glebe Yard to Queen Street, is not capable of giving rise to a public right of way.
Cat
 
Posts: 1032
Joined: Sat Sep 21, 2013 1:12 pm

Previous

Return to Administrative Law

Who is online

Users browsing this forum: No registered users and 1 guest

cron