Ownership of Land Memo Example

Ownership of Land Memo Example memoFromJessica SmithToMary RhodesReThe Daniels FamilyPlanning PermissionThe gaucherie of wrong Ors v Leeds City Council 2005 EWCA Civ 289 is distinguishable from the situation of our clients on the basis that in that causa it was non disputed that the local confidence had title to the engaged reduce whereas here the Daniels are the owners of the land having purchased it from Norman Guild. However, Price clay significant in that it raises the ask it off of the operation of Article 8 of the European Convention on Human Rights which enshrines the good to the respect for everyones confidential and family life, his home and correspondence and provides that(2) There shall be no interference by a public authority with the exercise of this right, except much(prenominal) as in accordance with the law and is necessary in a antiauthoritarian society in the interests of national security, public safety or the economic well- macrocosm of the country ..or for the protection of the rights and freedoms of others.While the issue here is not the same as in Price where Article 8 was being raised as a potential defence to a take aim for possession which was undeniable on other grounds since the gypsies had not been give a licence or every other right to occupy, it whitethorn be argued that the requirement that the Daniels vacate or be served with an Enforcement Notice restraining their role of the land for residential purposes is a similar infringement of Article 8.Mid-Bedfordshire DC v Thomas Brown Ors 2004 EWCA Civ 1709 turned upon the question of the appropriateness of suspending an injunction requiring land to be vacated for so long as would allow functional compliance but not until determination of a course of studyning operation. However, it is of avail in that it applies the principles established by the House of Lords in confederation Bucks DC v Porter 2003 2 AC 558 followed and applied by twain decisions of the C ourt of Appeal in Davis Ors v Tonbridge Malling DC 2004 EWCA Civ 194 and Coates Ors v South Bucks DC 2004 EWCA Civ 1378 and details the competing interests and discretionary principles which a approach in decision making whether to grant such(prenominal) an injunction should weigh the practical problems of enforcement facing the court if an injunction is breached, the councils position on the planning merits, the possibility that the council magnate come to a different planning judgment, the planning history of the site, the point of flagrancy of the breach of planning controls, the availableness of suitable alternative sites, the right tending(p) by Article 8 and, of particular significance in this case, humane contemplations of health, safety and education in particular, those adversely affecting any children involved. In the light of these criteria, our clients are assisted here by the special call for of Charlene and the health of Michael and Jane particularly in view of the detail that the restricted availability of suitable alternative accommodation bequeath lead to a atomization of the family unit with adverse implications for the care of the elderly couple. On these principles it is possible to recommend that our clients obtain an injunction suspending any attempt to remove them pending determination of a planning application by them.The principles to be applied in determining such a planning application are stipulate forth in South Cambridgeshire DC v first-class honours degree deposit of enjoin McCarthy Ors (2004). In the first instance the planning inspector will be required by s.54A of the Town and Country Planning enactment 1990 to weight the relevant material considerations against the relevant local development plan and policies. In R (on the application of Evans) v First Secretary of affirm Anor 2005 EWHC 149. Here Newman J held that as a matter of principle where an application for planning permission was made in respect of greenway land (where residential development would ordinarily be presumed against) gypsy status totally could not be determinative of any case. Therefore, our clients case will have to be considered on its individual merits with the presumption against greenbelt development being weighed against the rights bestowed by Article 8 and a consideration of the availability of alternative accommodation.Given the strength of our clients Article 8 rights, the issue of alternative accommodation is likely to be critical. In Robert Simmons v (1) First Secretary of State (2) Sevenoaks DC 2005 EWHC 287 it was common ground that the development of a gypsy site in a greenbelt area was inappropriate. It was held that for such development to be allowed very special circumstances were required to relieve it. In that case, the planning inspector allowed a defence to the Enforcement Notice on the basis of a lack of alternative sites. This was challenged by the Secretary of State who was criticise d by Newman J for basing his decision upon a lack of evidence of searches for alternatives by the applicant. Thus in the case of our clients in that location will have to be clear evidence from empirical sources available to the local authority of a lack of alternatives. We should be encouraged by the concession that there is before long only one space available on local authority sites in the area but it must be acknowledged that this fact alone will not be conclusive of a peg lack of reasonable alternatives.Our clients case is weakened by the fact that residential care or bed and breakfast accommodation is available for Michael and Jane. In Leanne Codona v Mid-Bedfordshire DC 2004 EWCA Civ 925, it was held that a local authority might put off violation of Article 8 by offering bed and breakfast accommodation provided that this was of reasonable quality and duration. If, in addition, the site available to total heat and Sandra allows Charlene to continue to attend William de F errers inculcate, the local authority may succeed in refusing planning consent to our clients without violating their Article 8 rights or the other principles government the grant of permission to gypsies for development on greenbelt land.School ejectionAssuming that the school from which dean has been excluded was a maintained school, the School Standards and fabric Act 1998 will apply. Section 64 of the Act allows the head instructor to exclude a savant for one or more improve periods up to a maximum of 45 days in any one school year. There is therefore nothing objectionable in principle to an elimination of 5 days. Since the excommunication does not exceed 5 days, the headmaster is not under the duty imposed by s.65(4) to tell the LEA and the governing body of the exclusion and afford the governors the opportunity to consider the exclusion under the procedure laid rarify in s.66 and Schedule 18 of the Act unless by being so excluded Dean has lost the opportunity to t ake a public exam.However, such exclusion is subject to s.68 of the Act which requires a head teacher to have regard to any guidance given from time to time by the Secretary of State. This guidance is currently contained in DfES round 10/99. Deans Head Teacher would appear to be in breach of this guidance. His decision to send Dean home on the speck and failure to inform his parents contravenes paragraph 1 of Annex D of the CircularA head teacher who excludes a pupil should make sure as shooting the parent is notified immediately, ideally by telephone, and that the telephone call is followed by a letter within one school day. An exclusion should normally protrude on the next school day emphasis supplied. dissever 6.2 of the Circular states that exclusion should not be decided in the heat of the moment unless there is an immediate risk to the safety of others in the school or the pupil concerned. While Deans use of violence is sufficiently serious to warrant exclusion, the head t eacher has failed to abide by para.6.3 which requires him to consider all the relevant facts and firm evidence. In particular, he is oblige to check whether an incident appeared to be provoked by racial or sexual harassment.Deans parents should have been informed of their right to state their case to the Governing Bodys Discipline Committee. Paragraph 7 of Annex D is ambiguous in Deans case. It states that if the exclusion is fewer than 5 days the Discipline Committee cannot adopt reinstatement but should consider any statement from the parent reinstatement is available for exclusions of more than 5 days in a term. Nonetheless, our clients should state their case to the Discipline Committee. Even where reinstatement is not available (which given the duration of the exclusion and the fact that Dean will be back at school before the Committee can be expected to meet) they will be enabled to give their views and the Committee (para.11) can consider whether to add information to Deans record (para.16). Thus, even though the damage has been done by the exclusion, the full circumstances of the incident can be explored and Deans record corrected accordingly.