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S&D Railway Trust and Washford Matters

Discussion in 'Heritage Railways & Centres in the UK' started by Andy Norman, Feb 24, 2020.

  1. Monkey Magic

    Monkey Magic Part of the furniture

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    Did you take legal advice on it before coming to your conclusion?
     
  2. Lineisclear

    Lineisclear Member

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    As a lawyer I stand or fall by my own ability to interpret the Law.
     
  3. jumper

    jumper New Member

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    Thank you for your observations. I am sure, that at the time, the new lease was entered into by both parties with the best intentions. Not given to commenting often, but it does seem to me (as a matter of fairness) that the main 'blame' must fall on the PLC for agreeing to enter into a contract which (potentially) is void. Assuming that the other new lease (as I read on this forum) entered into around the same time for 50 years must also be potentially be void?

    If the latter position can/has been sorted, what is the issue with the S&DRT lease also being sorted? and what is the wisdom with the course of action being followed?

    Noting that the level of donations has now dropped to an average of approx £2300 a week over the past three weeks perhaps tells a story (from the excellent wsr.org website)? The old expression of 'when you are in a hole, stop digging' comes to mind!

    That's enough from me!
     
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  4. Monkey Magic

    Monkey Magic Part of the furniture

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    Although there are no consequences for you as a result of your advice, only for others. So it is others who stand or fall on the basis of your ability to interpret the law.

    Is this your specific area of legal expertise? Given the consequences for the parties involved of your interpretation, did you consult with experts to confirm your interpretation?
     
    Last edited: Aug 26, 2020
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  5. John Palmer

    John Palmer Member

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    As do I, John, but when the Law that is being interpreted is withheld from me I am deprived of any material on which I can bring my forensic skills to bear. You'll forgive me, therefore, for declining to take on trust your assertion that the basis on which the S&DRT occupies Washford is in some unspecified way legally defective. I also regard the increasingly vigorous advocacy of that proposition as creating an exceedingly unfortunate impression of partiality.

    As a lawyer, you will be well aware of the significance attaching to details, and there is one detail on which your posts have been noticeably imprecise. One moment you are referring (in post #2911) to
    The next you are referring (in post #2919) to
    Is it your case that the 2018 agreement between the S&DRT and the plc represented a failed attempt to grant a new lease having a 50 year term, or are you saying that the 2018 agreement represented a failed attempt by the parties to extend by 50 years the term of the existing lease granted in 1991? There is a difference between these two alternatives, and one that may well be of legal significance. In addition, I'd be grateful if you would clarify whether you regard the 2018 agreement as being in all respects invalid, or whether you treat it as being invalid only to the extent that it failed in an attempt to create or extend a leasehold legal estate. A little more precision in what you are saying would be welcome.

    In post #2911 you also say:
    I don't understand the point you are seeking to make. Any business tenant should be aware that an application he makes for a new tenancy may be frustrated by the landlord's reliance on that ground, but it's a risk that is only going to arise when the existing tenancy is lawfully brought to an end. Are you now suggesting that the 1991 lease duly expired in 2020 (when the 2018 agreement was intended to take effect), and that the S&DRT and the plc “would have known from the outset” (i.e. in 2018) that this would be the case and that such a risk to the tenant was going to arise only two years later? And if so, how do you reconcile that with the assertion in your earlier post #2535 that:
    It does seem to me that increasingly shrill attempts are being made to convince us that there is some fundamental defect in the 2018 agreement sufficient to deprive the S&DRT of the 50 year extension to its lease it believed the plc to have granted. I've yet to see anything to persuade me that such is the case, and if anything such attempts strengthen my conviction that the S&DRT is right to assert that no circumstances have yet arisen in which a valid notice to quit can be served, and that it is for the plc to prove otherwise. In turn that reinforces my belief that my proposed negotiating strategy of telling the plc that the Trust intends to remain in place is sound.
     
  6. Lineisclear

    Lineisclear Member

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    I’m sure you would agree that the only definitive way of testing whether my view is correct is for the matter to go to Court. Trial by Nat. Pres. achieves nothing.
    It is appropriate for me to highlight the question of validity as the agreement is pivotal but I have made clear to both parties that they should take their own legal advice on the status and effect of the purported 50 year extension. I believe at least one of them has done so but I have not seen the opinion they obtained. Discussions on the future of the Washford site are continuing. Hopefully the parties can resolve the dispute and, from what I have seen, both have sufficient goodwill and intent to make that possible.
     
  7. Alan Kebby

    Alan Kebby Member

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    Lineisclear, you have clearly studied the legal aspects and come to the conclusion that due to a technicality the eviction is legal.

    However for most people this is a moral rather than legal issue. The seemingly malicious eviction, with SDRT being called a cuckoo in the nest. Despite the claims of the WSR requiring Washford for their own use, it’s never been made clear what they want it for. I’m interested to know your views on the morality of this, and if you have advised the WSR of the reputational damage this is causing them?

    Also will you be conducting a review of WSRs breach of the agreement to overhaul 53808, and whether this is legal?
     
  8. Snifter

    Snifter Part of the furniture

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    Can you share what that business purpose is ? The site is wholly unsuited to replace Dumpster due to the restrictions on road access such as the tight bend, having to cross the running line, no bay sidings for loading / offloading etc. etc. Any argument for relocating the PW materials closer to the middle of the line ignores the fact that wagons and trains are designed to transport loads over errrrrrm...... railways.

    You may as well shift maintenance for airlines based at Heathrow from Cardiff to Bournemouth. It may be a shorter distance for the positioning flights but the cost difference between those locations is practically zero.
     
  9. MellishR

    MellishR Part of the furniture Friend

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    If that impression is correct, it represents a substantial change from the recent past. However it remains very hard to see any possible resolution besides either withdrawal of the notice to quit or adequate compensation to the Trust, and likewise very hard to see how the PLC, with minimal income and some of its assets already in hock, could afford the compensation.
     
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  10. 35B

    35B Nat Pres stalwart

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    Sadly, I can see a third way. It makes me want to weep that it’s even in question, but it would involve the Trust moving rather than fight an uphill case in the courts, and maintaining as much of it’s equilibrium as possible in the process.

    Law and justice are not always aligned, and I’ve an increasingly nasty feeling that this is one such occasion.

    @Lineisclear has given a clear indication of where he considers the problem to lie, such that any of us so minded and with relevant expertise over the precedents could do our own research if so minded. Both parties to the dispute should seek their own legal advice on this (we know that at least one has); it is unfair to expect someone in John Bailey’s role to provide his detailed legal analysis on this forum.


    Sent from my iPad using Tapatalk
     
  11. Big Al

    Big Al Nat Pres stalwart Staff Member Moderator

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    Standing back from all this and taking the worst case scenario suggested above - i.e. that the PLC and the S&DRT have been operating under an invalid lease - the pressure seems to be primarily on the PLC over this.
    1. Given the closed WSR it makes absolute sense for the S&DRT to take their locomotive elsewhere to earn money and I wish them well on that.
    2. Even if there were no problem over the lease, it still makes sense for the 7F to spend time elsewhere in order to earn money that it cannot currently on the WSR. That's just good business sense of the S&DRT.
    3. The lease problem would not be a problem were it not for the desire of the PLC, allegedly, to use the site for another purpose. So the issue has been triggered by the PLC.
    4. If we assume that the lease is void and the PLC became aware of this, few would be able to argue that this eviction was the kind of moral behaviour that you would expect, even it were legal.
    So given the costs associated with the S&DRT relocating, there is logic in the Trust doing nothing and forcing the PLC to take the next steps.
     
  12. John Palmer

    John Palmer Member

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    If trial on Nat. Pres. achieves nothing then I profoundly disagree that it was appropriate for you to highlight the validity issue in a Nat. Pres. discussion. As a neutral facilitator, it was unnecessary and inappropriate for you to voice your concerns about validity to any wider audience than the parties in dispute, at most. Having chosen instead to express your legal opinion on the matter here, you should expect it to be challenged by other contributors, who will draw their own conclusions from a response that in any way avoids the issue.

    Whilst not unexpected, I'm sorry to note that answers to my questions are not going to be forthcoming. Your reluctance to provide them speaks for itself.
     
  13. Bayard

    Bayard Part of the furniture

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    Legally, yes, but in a much more important court, the Court of Public Opinion, trial by Nat. Pres. can achieve a lot. Why should a private company take any notice of the Court of Public Opinion if they are legally in the right, or have not been proved not to be in the right in a court of law? The answer is alluded to in post #2923, the not-so-small matter of donations from that same public whose opinion is judge and jury in that court. One of the main problems that has beset the WSR in recent years is that it is being run as one would run an ordinary private company such as a bus company, with only one set of customers being catered for, the potential bums on seats. The other customers, those who give their money and labour, appear to be largely taken for granted. Indeed, there has been talk, how well founded I do not know, of moving to the employment of paid staff only, presumably to move away from dependene on this type of custom.
    It has already been shown in these many many pages of posts that the WSR cannot survive if it depends on the fare box alone as its source of income and no-one is denying the need for donations to the railway to increase substantially, even without the effects of the government restrictions due to COVID-19, yet what we have is a decrease in those donations and a disregard of the donors. No attempt is made to employ the carrot, only the stick is used, with the message coming from the Plc being "give us your money or the railway dies".
    Just as you can have the law on your side, you can go to court and get a judgement in your favour, but when you come to collect the money owed to you, there is nothing to collect, so the Plc can have the law on its side, it can go to court and have a judgement in its favour, but when it takes possession of the disputed premises, it can do nothing with them, because it has no funds to do anything with.
     
  14. Sidmouth

    Sidmouth Part of the furniture Staff Member Moderator

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    Were 53808 to remain on the WSR the nature of the agreement is that its use is FOC with the PLC returning the engine to the trust fully overhauled at the end of the ticket , so you are right in that as the obligation to overhaul the engine seems to not being honoured then earning towards an overhaul is the right thing for the engine and that is away from the WSR

    Secondly moral behaviour; this then poses the key question . How does the community respond and what is the most effective response? I hope that if a move is required for the S&D trust then the movement will support the trust both financially and physically to transition to a new home.
     
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  15. jma1009

    jma1009 Well-Known Member

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    We are probably going round in circles here, and John Palmer and myself are never going to be persuaded by any opinion of 'Lineisclear' (John Bailey).

    John Bailey's opinion is superficially attractive to the WSR PLC board (and I have been aware of his views since I received his full report including the redacted sections), but it is in my opinion false.

    Why?

    The Notice to Quit was served before the old lease had expired.

    The Notice to Quit cites the 50 year new agreement as it's basis.

    The Landlord and Tenant Act 1954 requires not only that the Notice to Quit must be valid, but must also rely on one of the grounds specified. It is not enough by relying on s.(g) grounds that you have an intention to use the premises for the landlord's own business or use. The WSR PLC board might just have well said they intend to fly to the moon! It must be able to show that it's intention can be carried out - it must be able to prove it's stated intention at the time of any court case and any hearing. The WSR PLC board was in no position to do this when the Notice to Quit was served on 10th February, and it is certainly not in a position to do this now.

    This is, I hope, an objective assessment by me.

    Why John Bailey takes a contrary view is quite unclear to me, and nothing he has posted here, or is contained in his full report, convinces me otherwise. John ought, in my opinion, reflect on this, and hopefully reconsider his own assessment of the facts and law.

    Julian Atkins
     
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  16. jma1009

    jma1009 Well-Known Member

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    (A clear analogy, that any civil litigation lawyer will know of, is a Landlord claiming possession from a tenant or tenants in order to carry out repairs to a property, which repairs cannot be accomplished without vacant possession.

    It is not enough to serve a Notice stating this ground. The intention must be proved. A builder's or surveyor's report will be required. Estimates in writing. Proof that the Landlord can pay for the required repair work. The builder or surveyor prepared to turn up at court and give evidence on oath as to the contents of a report.

    No County Court Judge would accept a mere statement of an 'intention' by a Landlord!)
     
  17. Lineisclear

    Lineisclear Member

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    At the risk of boring repetition it’s not my opinion that matters. I’ve identified a perceived problem with the validity of a document on which, as Julian points out, both parties seek to rely. If they intend going to court then surely it’s better that they check whether my concerns are justified before racking up the costs involved.
     
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  18. Big Al

    Big Al Nat Pres stalwart Staff Member Moderator

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    Amen to that. And in a similar vein, the 7F is going to the MHR where it will be welcomed. The good folk of the WSR community just need to get over it.

    And unless there is a significant change in the PLC or its attitude, the S&DRT is probably on the move.
     
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  19. twr12

    twr12 Member

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    In a different world, having decided to have a year off from running trains, for some reason or another. WSR Plc could have hired out 53808 to other preserved railways to gain hire fees to go towards its contractually agreed overhaul.

    a reliable loco could earn £30k+ in 6 months of running. Better than nothing.
     
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  20. S&DRT 25th July AGM report quotes their chairman answering a member's question:

    Q: Have we engaged a solicitor and if so what legal response has been made to the WSR Notice to Quit letter?

    A: Ian Young said that we had indeed engaged a solicitor.... There was very little we could do to counter the Notice to Quit as the WSR had already stated a reasonable purpose for the re-use of the site.
     

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