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> Newbury Town Council's £8,000.00 allotment bill!, And he still hasn't been properly evicted!!!
Andy Capp
post May 3 2012, 08:03 PM
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It would seem the dispute with Simon Kirby has cost Newbury Town's tax payers £8,000.00, and that is even before you include officer time. It would seem however, that Simon hasn't yet been evicted.

Julian Swift-Hook and Graham Hunt, on the face of it, seem to be really cocking this up. Why will they not just simply sue Mr Kirby, or give him what he wants, which is unmitigated access to his well kept plot?

If the case against Simon Kirby is so strong, why is it costing so much taxpayers money? I think Julian Swift-Hook and Graham Hunt should seriously 'consider their positions'.
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NWNREADER
post May 3 2012, 08:05 PM
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QUOTE (Andy Capp @ May 3 2012, 09:03 PM) *
It would seem the dispute with Simon Kirby has cost Newbury Town's tax payers £8,000.00, and that is even before you include officer time. It would seem however, that Simon hasn't yet been evicted.

Julian Swift-Hook and Graham Hunt, on the face of it, seem to be really cocking this up. Why will they not just simply sue Mr Kirby, or give him what he wants, which is unhindered access to his well kept plot?

If the case against Simon Kirby is so strong, why is it cost so much taxpayers money? I think Julian Swift-Hook and Graham Hunt should seriously 'consider their positions'.


Source?
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Andy Capp
post May 3 2012, 08:06 PM
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QUOTE (NWNREADER @ May 3 2012, 09:05 PM) *
Source?

Your supposed to be the 'NWN reader'! wink.gif Today's NWN, Page 19, column 1.
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Andy Capp
post May 3 2012, 08:23 PM
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By-the-way, had the council conceded to the rent rise argument and handed back the £20.00 or so to everyone, it would have cost ~£10,000.00, however; they could have immediately handed the allotmenteers 12 months notice of an increase and all this would be over!
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dannyboy
post May 4 2012, 12:57 PM
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QUOTE (Andy Capp @ May 3 2012, 09:23 PM) *
By-the-way, had the council conceded to the rent rise argument and handed back the £20.00 or so to everyone, it would have cost ~£10,000.00, however; they could have immediately handed the allotmenteers 12 months notice of an increase and all this would be over!

I don't think it was the rent rise wich was the initial problem.
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Andy Capp
post May 4 2012, 02:06 PM
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QUOTE (dannyboy @ May 4 2012, 01:57 PM) *
I don't think it was the rent rise wich was the initial problem.

But that is the justification for the 'eviction'.
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dannyboy
post May 4 2012, 02:09 PM
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QUOTE (Andy Capp @ May 4 2012, 03:06 PM) *
But that is the justification for the 'eviction'.

You mean not paying for something eventually ends up seeing oneself eveicted?
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Andy Capp
post May 4 2012, 02:13 PM
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QUOTE (dannyboy @ May 4 2012, 03:09 PM) *
You mean not paying for something eventually ends up seeing oneself eveicted?

In this case; no. Which is my point. Notwithstanding that Simon's complaint is that he has paid all that he is obliged to pay.

What I am asking is: why are the council unable to evict Simon?
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dannyboy
post May 4 2012, 02:17 PM
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QUOTE (Andy Capp @ May 4 2012, 03:13 PM) *
In this case; no. Which is my point. Notwithstanding that Simon's complaint is that he has paid all that he is obliged to pay.

What I am asking is: why are the council unable to evict Simon?

didn't even he admit his claim over the rent increase might not be legally watertight?

maybe thry don't want to & just want to see the whole saga over?

nothing worse than a martyr
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Andy Capp
post May 4 2012, 02:25 PM
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QUOTE (dannyboy @ May 4 2012, 03:17 PM) *
didn't even he admit his claim over the rent increase might not be legally watertight?

I don't know, because the council seem reluctant to do anything to prove it.

QUOTE (dannyboy @ May 4 2012, 03:17 PM) *
maybe thry don't want to & just want to see the whole saga over? nothing worse than a martyr

... if you are a conservative. Of course they want this over; they are receiving poor publicity over it and appear to be incompetent. Councils seem ready to sue for non payment of council tax soon enough.
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dannyboy
post May 4 2012, 02:32 PM
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QUOTE (Andy Capp @ May 4 2012, 03:25 PM) *
I don't know, because the council seem reluctant to do anything to prove it.

I'm sure SK admitted as much on this forum - notthing for the council to prove if it has already been admitted.

QUOTE (Andy Capp @ May 4 2012, 03:25 PM) *
... if you are a conservative. Of course they want this over; they are receiving poor publicity over it and appear to be incompetent. Councils seem ready to sue for non payment of council tax soon enough.

Sk wasn't daft enough not to pay his rent - he just didn't pay the bit he thought unlawful asked for. A few quid.

If I was running the show I'd have booted him out way back then.

The whole saga is normally what happens when two stubborn types find something to disagree over.

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On the edge
post May 4 2012, 03:19 PM
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QUOTE (dannyboy @ May 4 2012, 03:32 PM) *
......The whole saga is normally what happens when two stubborn types find something to disagree over.



That's certainly quite right. Doesn't do the Council's credibility a lot of good and not simply resolving it makes them look very small. Of course, would have been very easy to have 'booted him out' when it all started up - but again, as this appears to be a matter of principle that would have been the tactics of the school yard bully. Common amongst those enforcing civil rules I grant you!


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Dodgys smarter b...
post May 4 2012, 03:46 PM
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QUOTE (dannyboy @ May 4 2012, 03:32 PM) *
he just didn't pay the bit he thought unlawful asked for. A few quid.

Which was indeed deemed to be unfairly asked for, which was why the Council then changed the agreements and put a gagging clause in Simon's.
QUOTE (dannyboy @ May 4 2012, 03:32 PM) *
If I was running the show I'd have booted him out way back then.

Really? Do tell. Under what legislation would you have been able to that then?
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Andy Capp
post May 4 2012, 05:35 PM
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QUOTE (dannyboy @ May 4 2012, 03:32 PM) *
I'm sure SK admitted as much on this forum - notthing for the council to prove if it has already been admitted.

He has admitted nothing of the sort. He was simply unsure that he is right, but in law, that is true of anything. Law isn't exact when there isn't a precedent.

QUOTE (dannyboy @ May 4 2012, 03:32 PM) *
Sk wasn't daft enough not to pay his rent - he just didn't pay the bit he thought unlawful asked for. A few quid.

Exactly; the amount he alleges is unenforceable.

QUOTE (dannyboy @ May 4 2012, 03:32 PM) *
If I was running the show I'd have booted him out way back then.

So to a degree you must agree with me then; why haven't the council evicted him?

QUOTE (dannyboy @ May 4 2012, 03:32 PM) *
The whole saga is normally what happens when two stubborn types find something to disagree over.

Considering the authorities are quick to enforce the rules a they see fit, why shouldn't the plebs have their right to exercise them?

I think we have an insight to dannyboy's Britain here.
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dannyboy
post May 4 2012, 06:38 PM
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QUOTE (Andy Capp @ May 4 2012, 06:35 PM) *
I think we have an insight to dannyboy's Britain here.

LOL - to right - a place where one or two busy bodies can't go upsetting the status quo.
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dannyboy
post May 4 2012, 06:39 PM
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QUOTE (Andy Capp @ May 4 2012, 06:35 PM) *
So to a degree you must agree with me then; why haven't the council evicted him?

Too blooming spineless.
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Simon Kirby
post May 4 2012, 07:09 PM
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I'm pretty sure that I'm right about the unfairness of the rent review term, but of course I'm not 100% confident that I'm right, that would just be delusional. I'm confident I'm right because the Regulation 5. unfairness test is objective and the issues are clear. The rent review term is unfair if, at the time the tenancy agreement was signed, and taking into account the nature of allotmenteering and the other terms of the afreement, the rent review term causes a significant imbalance in the rights and obligations arising under the contract, and that the imbalance is contrary to the requirement of good faith.

The imbalance part of the test is simple enough. Without the rent review term the landlord can't increase the rent because there is no common law right to review rent, so the rent review term creates an imbalance in the rights and obligations under the contract by allowing the landlord to increase the rent where previously she couldn't. And because the term affects the rent which is obviously an important aspect of the agreement, and because there is no limit to the increase the landlord can impose, then the imbalance created by the rent review term is significant, and to the tenant's detrement.

That doesn't necessarily make the rent review term unfair though, because the imbalance still needs to be contrary to the requirement of good faith. Good faith here is an autonomous construct of European jurisprudence and there are books written on what it means, but there's nothing marginal with the rent review term and the fact that the tenant can't escape the agreement without being obliged to pay the increase is decisive. The Council tried to argue that they wouldn't enforce the contractual requirement to give 12 months notice to quit because that would be unfair, but the contract term is there in black and white and that's all the Regulations are concerned with, and in any event their admission simply reenforces the unfairness if the rent review term.

It took them over a year to think of it, but the Council's strongest argument was that the Regulations didn't apply to the rent review term because they had a statutory right to increase the rent under Section 10 of the Allotments Act 1950. If the Section did indeed create a statutory right they would be quite right that the Rgeulations didn't apply, but it doesn't, and they do. The Section says:

QUOTE ("Section 10(1) of the Allotments Act 1950")
Land let by a council under the Allotments Acts, 1908 to 1931, for use as an allotment shall be let at such rent as a tenant may reasonably be expected to pay for the land if let for such use on the terms (other than terms as to rent) on which it is in fact let:

Council's aren't actually free to choose the rent at which they let their allotments, they have to use this statutory provision. If there was an implied common law right for the landlord to increase the rent in an annual periodic tenancy then each year the council would be obliged to charge the rent for the year as set by this provision. But there isn no common law right, so this provision just defines the rent at which the allotment is let, and that's the rent the tenant pays each year. For this section to be construed as creating a statutory right to charge a revised rent each year it would need to say that, but it doesn't.

You get a better idea of what the section means by understanding that the 1950 act was an act to ammend previous allotments legislation, and it simply overides the requirement of Section 16(3) of the Allotments Act 1922 that allotments "shall be let at the full fair rent" with a more relaxed requirement that allotments "shall be let at such rent as a tenant may reasonably be expected to pay" which essentially reapplies the implied duty under Section 23(1) of the Small Holdings and Allotments Acts 1908 as enacted that a council provide allotments where otherwise they "cannot be obtained at a reasonable rent".

So I'm not 100% confident that the rent review term would be found to be unfair by a court, but I'm pretty sure it would, and more importantly I'm pretty sure that the Council have no basis for believing that the term is fair.

Of course Trading Standards agreed that the term was unfair and obliged the council to change the tenancy agreement. Trading Standards said
QUOTE ("Trading Standards")
I spoke to our legal representative yesterday and she is of the opinion that the 'rent review term' in the old agreement was itself not unfair, what made it unfair was the lack of ability to withdraw from the contract without penalty, ie you had to give 12 months notice and pay the higher price in the meantime.

And what's crucial here is that Newbury Town Council agreed to ammend the agreement - so that agreed with Trading Standards that the term was unfair! They had to agree because Trading Standards said:
QUOTE ("Trading Standards")
The old agreement, we agreed was unfair, but was changed to comply with the legislation. (If they had not changed it WBC could have applied for a civil injunction to prevent The Council from using the term).

Julian Swift-Hook really needs to explain his statements and the council's actions in the light of this.

But finally, none of this dispute needed to happen, and none of that £8,000 needed to be spent. Trading Standards made the Council revise the tenancy agreement and that was what I wanted. I'd made my protest, there was nothing more to be gained. I wrote to every councillor on 22 May 2010 saying:
QUOTE ("Simon Kirby 22 May 2010")
Dear Councillors

I would like to suggest that now is a good time to think about a mutually acceptable solution. I have made my protest, and there is nothing more to be gained by continuing. My passion is allotmenteering and I have no particular desire to spend the summer outside the Town Hall with my placard.

I respectfully request a meeting with a couple of you as soon as reasonably possible to discuss my legitimate concerns and how we can jointly present the outcome, now that people are watching. I would be very grateful for your response.

Simon
Other than an acknowledgement of receipt from Jeff Beck not one councillor had the decency even to respond, and the town clerk, who I hadn't addressed the request to, responded:
QUOTE
Simon

Following on from your conciliatory e-mail to selected Councillors on Saturday 22 May 2010 (in response to my e-mail of Friday 21 May 2010), requesting a meeting, I was in the process of suggesting such a meeting between us to progress.

Your e-mail of 22/5/10 stated “I would like to suggest that now is a good time to think about a mutually acceptable solution. I have made my protest, and there is nothing more to be gained by continuing. My passion is allotmenteering and I have no particular desire to spend the summer outside the Town Hall with my placard. I respectfully request a meeting with a couple of you as soon as reasonably possible to discuss my legitimate concerns and how we can jointly present the outcome, now that people are watching. I would be very grateful for your response”.

However, your subsequent question to the Community Services Committee meeting on Monday simply undermined all the goodwill that your e-mail of Saturday created and merely continued your protest. It is difficult for us to have any trust in any statement you make. A written response to the Community Services question will be provided in due course.

Neither I nor Councillors see any point in any meeting, unless you provide us, in advance, with clear and specific written proposals for discussion. At that point a meeting may be considered.

In the meantime, your categorisation as a vexatious complainant remains.

Regards

Graham Hunt


I had no further interests in persuing the unfairness of the rent review term, I just wanted to get on with my allotmenteering, but in two years the Council have given me just the one option of signing the new agreement, and that was with the secret gagging clause and that was obviously unacceptable. Ostensibly the council have persued my eviction over the matter of £20, and it has so far cost them - no, cost you - £8,000.

Eviction for arrears is the simplest legal process - but there were no arrears because the rent review term was unfair. All the Council need to do is apply for a possession order, so why don't they do it? What is in those minutes that is so embarrassing that they are unable to present them in evidence?


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Right an injustice - give Simon Kirby his allotment back!
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Cognosco
post May 4 2012, 07:40 PM
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QUOTE (dannyboy @ May 4 2012, 03:32 PM) *
I'm sure SK admitted as much on this forum - notthing for the council to prove if it has already been admitted.


Sk wasn't daft enough not to pay his rent - he just didn't pay the bit he thought unlawful asked for. A few quid.

If I was running the show I'd have booted him out way back then.

The whole saga is normally what happens when two stubborn types find something to disagree over.


So if I come along and boot you out of your house, which would be illegal, you would just accept it then if I follow the lines of you argument?
Simon has done nothing illegal as far as I or many others can see, the only wrong he has done as far as I can see is the perhaps blunt manner in which he used to expose that some inept councillors do not know what they are doing as regards the law, when they were exposed they then tried to ensure that Simon was gagged, hence the reprehensible contract that broke every civil liberty law there is. So just to ensure Simon did not get away with these dastardly deeds they then spend £8000 pounds of taxpayers money in trying to remove him from his beloved plot of land.

Simon has paid the rent that he was legally obliged to pay nothing more nothing less how can that be wrong?
So the only way they can evict him is because they want to they do not have any other legal reason to evict him.

Roll on the next election where I for one will ensure that these matters are fully aired again in public.
The only decent thing for the council to do is to resign en masse and the quicker the better for all Newbury taxpayers as they have now ensured that the council has been brought into disrepute. angry.gif



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Andy Capp
post May 4 2012, 07:45 PM
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What was your "subsequent question to the Community Services Committee meeting on Monday"?
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Simon Kirby
post May 4 2012, 08:11 PM
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QUOTE (Andy Capp @ May 4 2012, 08:45 PM) *
What was your "subsequent question to the Community Services Committee meeting on Monday"?


QUOTE
Councillors

You are to ratify a new allotment tenancy agreement tonight because Trading Standards upheld my complaint that terms of the current agreement are unfair under the Unfair Terms in Consumer Contracts Regulations 1999. Specifically, you are to remove the contractual obligation on the tenant to give notice to quit, and include the contractual requirement on the Council to give notice of a rent increase, and you are making these changes in an attempt to wriggle around the statutory unfairness of the current term under which you imposed an unprecedented 47% increase in rents this year.

Trading Standards have no power to compel you to make these changes, so I infer your tacit recognition that the existing rent review term is unfair under the Regulation, and consequently that this year's rent increase is unlawful and unenforceable.

You have attacked me for making the complaint to Trading Standards, but I made several approaches to this Council in private which were ignored and dismissed out of hand. Do you now recognise that my complaint to Trading Standards was justified.

Will the Deputy Leader of the Council explain his comments to the Full Council of 18 January where he states that the Regulations do not apply to the tenancy agreement? If you believe this to be true how do you reconcile that with your ratification tonight of a new agreement?

Would you now like to apologise for unlawfully demanding an extra 47% allotment rent from me this year, and do you now unequivocally retract your various notices of eviction for my refusal to pay this unlawful rent.

Under the terms of the current agreement you can not require me to sign a new agreement until April 2012, and nor can you legitimately impose any increase in rent. If you are obliged to change the agreement to comply with the Regulations all you can legitimately do right now is remove the unfair terms, but you are seeking to impose a substantially modified contract to the considerable detriment to the tenant. Most especially, you are to impose an agreement to legitimise on-going year-on-year hikes in rent. £108k of tax-payers money to provide the allotment service is eye-wateringly inefficient and in fairness to the tenants and tax-payer will you not now discuss self-management under which the service cost to the tax-payer can be zero, and simply remove the unfair terms from the agreement.

Simon


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