P. Antino v Burke & Johnny (2016) Barking Magistrates Court

Facts: Notice was served for excavations within 3m under s.6(1) and with an intention to build a wall on the line of junction under s.1(5).  The proposed roof detail creating a trespass.  Request for access to execute works was rejected.  The building owners withdrew s.1(5) notice, moving the wall away from the boundary to allow them to complete the works without access and removing the trespass.  The request for security of expenses under s.12(1) was rejected by the building owners surveyor. The proposed foundations were redesigned several times to remove the obligation to serve notice under s.6(1).  Mr Antino submitted a cost schedule that was ignored. Mr Antino served a s.10(7) request with an offer to reduce costs by 20%, this was ignores and then served an ex-parte Award. This was ignored and a s.17 complaint laid in the Braking Magistrates Court.

Decision:  The Magistrates recognised that the Summons issued against Mr Johnny was invalid due to a clerical error by the Court.  Therefore the case against Mr Johnny was adjourned for lack of valid service of Summons by the Court. The Magistrates accepted Counsel’s argument that there was joint and several liability between the two parties, and that Ms Burke’s summons was validly served and therefore proceeded with the summons. Ms Burke did not attend and in her absence the Magistrates held that the ex-parte Award was valid and on sound grounds, they upheld the Award and the costs awarded by Mr Antino and awarded all his legal costs.

Posted on December 10, 2016 .

Philip Antino Party Wall Specialist

The party wall world is relatively small, the stage of this world contains a number of world known players, Mr Antino is one of these well known players and so is Mr Ashley Bean of Llittlestone Cowan Solicitors   HHJ Bailey   5-5-16.

Master Bailey sits in the TCC and was appointed an Assistant Recorder in 1992, a Recorder in 1997 and has been a Circuit Judge (SE Circuit) since 2000, presently representing London civil judges on the Committee of the Council of Circuit Judges. He has written books on insolvency law and is the English representative on the Judicial Wing of Insol-Europe.

Posted on May 6, 2016 .

Building Owners Appeal Comprehensively Fails

Philip Antino discusses one of the more frustrating cases he has been involved in as the Adjoining Owners Surveyor, involving a trespass, damage, inconvenience and nuisance.

On the advice of Mr Philip Antino, the Adjoining Owners obtained an injunction.  The matter is on-going in respect of a boundary dispute, so I cannot give the full details or the identities of the parties or surveyors at present but it involves s.10(4) & (5) and whether the building owner had validly appointed a surveyor.

Mr Philip Antino served a s.10(4) request upon the Building Owners, after 10 days  Mr Philip Antino appointed a surveyor under s.10(4)(a)&(b). Several weeks later the Building Owners then attempted to appoint a surveyor, "Mr X". Mr Philip Antino rejected theappointment of Mr X and joined with the surveyor appointed under s.10(4)(a)&b) to produce an Award.

The Building Owners challenged the injunction and on the advice of Mr X and their legal team appealed the Award. In September in the Central London County Court there was a preliminary hearing on certain matters relating to the Award. The  Building Owners  claimed that the s.10(4)(a)&(b) appointment was invalid, claiming they had not received the request and had in any event (albeit several weeks after the passing of the 10 day period) purported to  appoint MR X, although Mr X never disclosed his appointment letter for 9 months.

The Building Owners argued that Mr Antino was not validly appointedand therefore had no jurisdiction to adopt s.10 procedures and therefore the s.10(4)(a)&(b) award was invalid. The Building Owners Sought to have the Award thrown out.

Followinga two day hearing on these preliminary points, HHJ Bailey held

(a) The Building Owners refusal to appoint a surveyor triggered the s.10(4)(a)&(b) procedures

(b) Mr Antino was validly appointed,

(c) The s.10(4)(a)&(b) appointment was valid

(c) The appointment of Mr X was invalid.

The Building Owners Appeal comprehensively failed on all points, they are now faced with a significant costs bill of circa £100,000 plus the £17,000 damages and compensation awarded by Mr Antino and the  s.10(4)(a)&(b) surveyor.

The principles behind s.10(4)(a)&(b) and s.10(5) will be discussed along with this case in explicit detail at the forthcoming event (18th November 2015), please see our events page for booking details.

 

Posted on October 2, 2015 .

HIde and seek will not acheive planning consent

HIDE AND SEEK AT YOUR PERIL

By Philip Antino

 

Welwyn Hatfield Council v Secretary of State for Communities and Local Government and another [2011] UKSC 15.

 

In 2001 Mr Beesley successfully obtained planning permission to build a barn. Internally it was built as a dwelling house and externally it resembled a barn. Once the building had been constructed Mr Beesley moved in and lived there with his family. Welwyn Hatfield Borough Council, the Local Planning Authority for the area, was unaware that the building was being used as a dwelling house.

 

After 4 years had passed which is the time limit for taking enforcement action against a change of use of any building to a single dwelling house pursuant to section 171b(2) of the Town and Country Planning Act 1990, Mr Beesley applied for a certificate of lawfulness to use the building as a dwelling house.

 

The application was refused by the Local Authority but on appeal a certificate was granted by the Planning Inspectorate. The council appealed the decision to the High Court where the certificate of lawfulness was quashed. However, Mr Beesley challenged that decision in the Court of Appeal arguing that there had been a “change of use”, within the meaning of section 171b(2) and Mr Beesley should be entitled to a certificate of lawfulness.

 

The council argued that the original planning permission for the barn had been obtained as a result of a deceptive planning application because:

 

  1. The proposed building was described as a hay barn within the application forms and the development involved no change of use.

     

  2. Notice was not given under the Building Regulations (applicable to houses but agricultural buildings).

     

  3. Mr Beesley did not register for Council tax or on the electoral register.

     

  4. The Council was given Mr Beesley’s office address for correspondence when all other correspondence was directed to the barn.

     

    Accordingly, it was decided that Mr Beesley never intended to use the barn as a barn and mislead the council so that no enforcement action would be taken for 4 years.  In his judgment, Lord Manse agreed on one significant point with the High Court that there had never been any intention to use the building as anything other than as a dwelling house and this meant there had not been a change of use within the meaning of section 171b(2). Lord Manse also held that positive and deliberately misleading and false statements by an owner preventing discovery of a breach of planning control which would usually be discovered within the four year statutory period disentitled an owner to rely upon an apparently unqualified statutory provision.

     

    The Supreme Court allowed the appeal and the Certificate of lawfulness was quashed.

Posted on August 18, 2015 .

Appeals can be costly

The case was specifically about an appeal of a boundary dispute, which could have been avoided if the Act had been initiated.  The central issues were whether the defendants’ had committed a trespass by constructing a shed at the end of their garden, using part of an historic wall at a point where the claimants back garden and the defendants met and whether the defendants should demolish the north wall of their shed.

Posted on July 21, 2015 .