Newport Harbour: Council Admits They Have Breached Their Powers

The council admits that it has acted against the law in Newport Harbour a number of times over decades

Today, tucked away in one of the appendix papers for the upcoming April Cabinet meeting, the council admits they have acted “in breach” of their powers in connection with Newport Harbour – ie against the law.

Newport QuayBack in December 2011, VB highlighted the Newport Harbour Action Group’s (NHAGroup) allegation against the Isle of Wight council in their handling of the harbour. They accused it of “endemic law breaking”.

Later that day the harbour was due to be discussed at the Cabinet Meeting where seven people had lined up questions about it. At the last moment the subject was pulled from the agenda, saying it would be brought back to Cabinet.

Limit of three years on harbour leases
One of the issues highlighted by NHAGroup was that the council was explicitly banned by law from providing leases of more than three years on any of the harbour land. They also alleged that the council had granted leases far greater than this.

The appendix document published today proved that NHAGroup were correct in both aspects.

The way the council describes it is: “There are a number of properties within the current harbour estate which have been leased to third parties by the council for periods of three years or longer. This is in breach of the council’s powers to manage the harbour estate.”

This is as close as the council gets to confirming that they have acted against the law a number of times.

How many? Don’t know due to ‘Confidentiality’
Despite this the council have issued a number a number of leases that break the legal limit. How many we don’t know exactly as they have dropped the veil of ‘Confidentiality’ over an undisclosed number of them.

There are at least six.

The most extreme breach of this was the Premier Inn hotel, which was granted a 125 year lease in 1990 – over forty times the length the council was legally allowed to grant.



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Monday, 26th March, 2012 4:39pm

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Filed under: Business, Island-wide, Isle of Wight Council, Isle of Wight News, Law & Order, Newport

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26 Comments

  1. Robert Turner's comment is rated +23 Vote +1 Vote -1

    26.Mar.2012 5:19pm

    [comment held in moderation whilst being investigated]

    Reply
  2. Island Monkey's comment is rated +17 Vote +1 Vote -1

    26.Mar.2012 5:59pm

    Our council acting unlawfully? Surely not. I love the way they always try and hide behind weasel words when they get found out. As they always do.

    They can never resist trying the ‘confidentiality’ get out excuse either. This council hates admitting its serial wrongdoing. Apologies always have to be dragged from them.

    Well done to those who exposed this latest incompetence.

    Reply
  3. Meursault's comment is rated +13 Vote +1 Vote -1

    26.Mar.2012 6:40pm

    So IWC (back in 1990) issued a 125yr lease to Premier Inn on land that by law they could not lease for more than 3 years. If such leases are judged ‘unlawful’ does it mean said deals are defunct? If so who compensates the likes of PI and others who have invested based on the terms of their lease deal?

    Reply
    • Steephill Jack's comment is rated +9 Vote +1 Vote -1

      26.Mar.2012 9:17pm

    • LowerDeckLawyer's comment is rated +7 Vote +1 Vote -1

      26.Mar.2012 11:19pm

      Pretty interesting question that. Not an easy answer. We can safely say that the granting of the lease was unlawful, but as to the lease itself, that may stand. The problem is that there is no identifiable injured party (according to law), in essence there is no specific legal person who can point to loss they have suffered due to the lease.

      Ahh, but you say, as taxpayers we all own the land. Well, no, the Crown does and they are hardly going to sue another arm of the state for damages. The law does provide for a remedy for breach of statutory duty, but remedies can only be awarded to a specific person or class of persons mentioned in the Act – and it confers a specific right on them. Unfortunately the clauses in the 1848 Act mention no such rights granted to any specific person or class. The 1852 Act is probably important in this respect but I can’t comment as it isn’t yet published online.

      Lastly judicial review is an option, but this tends to act in the future, ie to quash a decision or place an injunction on some action. In any case application for judicial review must be made as soon as possible and certainly within 3 months of a decision. So this is not available for the Premier Inn case.
      The only option NHAG have I guess is to keep vigilant and ensure the Council doesn’t try to do more of this.

      Of course the IW Council do have the option of seeking an Act of Parliament to exempt any development land from the 1848 Act, so best get Mr Turner onside to ensure that doesn’t happen.

      Reply
  4. Stephen's comment is rated +5 Vote +1 Vote -1

    26.Mar.2012 7:28pm

    Do the Audit Commission have any monitoring role in such a blatant disregard for the Law? When were IWC last inspected by the Audit Commission?
    http://www.audit-commission.gov.uk/localgov/pages/default.aspx is an interesting read.

    No doubt with regard to Premier Inns a rolling three year contract with a presumption to renew could be a way out of this legal morass.

    Reply
  5. daveq's comment is rated +11 Vote +1 Vote -1

    26.Mar.2012 8:34pm

    The cavalier attitude to the law shown so frequently by this council never ceases to amaze me. Is it not time the cabinet were taken to court,surely, if their actions are illegal, they have committed an offence and should therefore be punished as any ordinary citizen would. Ooops, sorry, I forgot they are not ordinary citizens they are ~(in their own eyes) gods and therefore above the law!

    Reply
    • Steephill Jack's comment is rated +14 Vote +1 Vote -1

      26.Mar.2012 9:21pm

      Nevermind the Tory County Councillors, what about their legal department? What advice did they give ?

      Reply
      • LowerDeckLawyer's comment is rated +7 Vote +1 Vote -1

        26.Mar.2012 11:43pm

        To be fair, responsibility always rests with the elected officials. But, also to be fair to the current council the only confirmed lease they granted in breach was in Sep 2009 for only 4 years and 4 months, with a break clause on 6 months notice. So if they gave notice now they would be within the 3 years.
        The others:
        2004, 40 yr Lease (Odessa) Lib Dem/Ind Council
        1992, 7 yr lease (Blackhouse Quay) Lib Dem Council.
        1990, 125 Yr lease (Premier Inn) Lib Dem Council.
        1947, 75 Yr Lease (Blackhouse) (anyone old enough to remember which Council??!!).

        Reply
        • Terry's comment is rated +6 Vote +1 Vote -1

          27.Mar.2012 11:30am

          Isn’t it the officers that are in question, not the councillors?

          Reply
          • LowerDeckLawyer's comment is rated +7 Vote +1 Vote -1

            27.Mar.2012 2:14pm

            Unfortunately for politicians it is a long standing convention in the UK that they answer for the acts or omissions of their civil servants. One of the justifications being that we elect cllrs to oversee the officers and the officers can only act under the authority of the Council, not in their own name. But you hope that Cllrs will be asking some searching questions of the officers involved here (if still employed).

    • LowerDeckLawyer's comment is rated +5 Vote +1 Vote -1

      26.Mar.2012 11:28pm

      ‘surely, if their actions are illegal, they have committed an offence and should therefore be punished as any ordinary citizen would’

      Unfortunately no, it isn’t a criminal offence not to observe the particular Act. Only, potentially a civil wrong.

      Reply
  6. Stephen's comment is rated +6 Vote +1 Vote -1

    26.Mar.2012 10:57pm

    Do the Audit Commission have any monitoring role in such a blatant disregard for the Law? When were IWC last inspected by the Audit Commission?
    http://www.audit-commission.gov.uk/localgov/pages/default.aspx is an interesting read.

    No doubt with regard to Premier Inns a rolling three year contract with a presumption to renew could be a way out of this legal morass.

    Reply
  7. Asite2c's comment is rated +8 Vote +1 Vote -1

    27.Mar.2012 11:23am

    If this rotten Tory council have broken the law, then they should be charged for the offence they have admitted breaking. If this was an individual breaking the same law, the person involved would have been arrested and questioned.

    Just because the Tories have a large majority, it does not mean they are above the law and can do as they please. In my opinion, a complaint should be lodged to the police.

    Reply
    • LowerDeckLawyer's comment is rated +5 Vote +1 Vote -1

      27.Mar.2012 2:09pm

      If you are referring to the leases in the paper above, it is doubtful that the current council has acted unlawfully as only one lease was granted within tenure and this has a break clause allowing return of occupation within 6 months.

      Maybe you are referring to another matter?

      Reply
  8. Peter E's comment is rated +8 Vote +1 Vote -1

    27.Mar.2012 2:49pm

    The council blunder yet again. With so many legal mistakes, you might think someone offering them legal advice would be considering their position?
    Or perhaps they are ‘all in this together’ like their Westminster colleagues?

    Reply
    • Asite2c's comment is rated +6 Vote +1 Vote -1

      27.Mar.2012 4:53pm

      In my opinion, the council’s legal advisors have badly let the council down even though the legal bills must be building up and costing council tax payers money. Money wasted which could have been used to keep public toilets and libraries open.

      Reply
  9. LowerDeckLawyer's comment is rated +3 Vote +1 Vote -1

    29.Mar.2012 7:29am

    It’s very unlikely that the harbour itself would have legal personality. Other than actual people, it is normally things like companies, trusts, charities, cooperatives, etc that are legal persons. One of these types of body would have to have an interest (in a legal sense) to have suffered a loss. Thinking broadly, have any groups suffered a measurable loss, even such as the option to use one of the sites mentioned?
    The wording of the 1852 Act could be important here in that it might show who the harbour was divested from and on what terms. It might be that it gave conditions for the management of the harbour or named groups whose interest was to be maintained.

    Good on you and the NHAGroup by the way, Newport Harbour should be a real draw for the town. Great that you are doing something about it’s neglect.

    Reply
  10. LowerDeckLawyer's comment is rated +4 Vote +1 Vote -1

    29.Mar.2012 11:38am

    @Rob. Forgive if you’ve identified these issues already as I haven’t been following this issue until now.

    In my opinion the issue of the past leases is a side issue. The recommendations in this paper seem to be based on some pretty dubious legal assumptions.

    1. They seem to be recommending that they define the limits of the harbour estate in terms of what they regard as being currently in use, and allow themselves scope for redefinition in the future. The justification is that the estate definition in the 1848 and 1852 Acts is loose regarding land boundaries, so they should set the definition. When interpreting an Act, first you must look at the actual words and then at the intent of the Act. The 1852 Act intended to transfer management of the 1852 harbour estate to the Council, therefore I would argue that this must form the boundary. In any case, the list of those areas falling into the estate includes all areas bordering the river, therefore even in a narrow interpretation all publicly owned areas bordering the river must be in the estate. So any Quays, Docks, etc could not ever be outside even the interpretation that the council holds to.

    2. The Council has no power to act contrary to Act of Parliament. The Council get round this by claiming that the Local Govt Act 1972 and the Landlord and Tenant Act 1954 in effect supersede the 1848 Act. I doubt this is the case as the 1848 Act isn’t expressly repealed and the later acts relate to general powers, not specific sites. You could contrast this perhaps with the recent sale of Puckpool Lodge, which was offered leasehold due to doubts about the councils authority to sell the freehold due to the way the land was granted to it.

    3. The above means that should the Council act outside the 1848 and 1852 acts by refining the estate and or disposing of land for greater than 3 year leases – then arguably they are acting unlawfully and opening to judicial review on these grounds.

    4. I note that in some previous articles that the NHAG considers that the Council has been falling short of its statutory duties to maintain the harbour. Note that if this was the case, it would be grounds for judicial review if the situation was still ongoing. A mandatory order is the remedy you would want to seek, it compels the public authority to fulfil its duty or be held in contempt.

    I’m sure there are a lot of other issues in there as well, I’ve only really been able to skim through.

    Reply
  11. Bob's comment is rated +7 Vote +1 Vote -1

    1.Apr.2012 12:37pm

    Regarding the 3 year leases.This is unbelievable, the leases are totally illegal,

    The 1847 Harbour,Docks and Piers clauses act clearly states in section 23,
    Power to lease wharfs, warehouses, &c.

    The undertakers may lease or grant the use or occupation of any warehouses, buildings, wharfs, yards, cranes, machines, or other conveniences provided by them for the purposes of this or the special Act, at such rents, and upon such terms and conditions as shall be agreed upon between the undertakers and the persons taking the same, provided that no such lease be granted for a longer term than three years.

    So how can the council state in para 28, paper B, However, such leases have been granted in ‘good faith and in accordance with the council’s general powers and process.

    If I built a house without planning permission, it would be demolished without question, If I do anything outside the law I get punished, How can this be allowed!!! I cant say, OOh I found that car on the side of the road ‘in good faith’ so I took it!? Or I Built that house without planning permission ‘ In good faith’ so now I will leave it there, No one else gets away with it! Good on those guys fighting this [part of comment removed by moderator] council, its the same spirit which fought off the enemy in WW2, Those council officers pushing this need to be bought under control , FAST! The elected council must stop being pushed about by these unelected [part of comment removed by moderator]! and get some damned teeth!

    Reply
    • LowerDeckLawyer's comment is rated +2 Vote +1 Vote -1

      2.Apr.2012 5:33pm

      Actually you can build a house without planning permission, if no one objects or takes enforcement action for 4 years you can keep it.

      As to ‘good faith’, this can determine who pays who when transfer of title is challenged. If the seller acted in ‘good faith’ then the buyer may be liable for not discovering 3rd party rights prior to transfer. If the seller acted in ‘bad faith’ by knowingly concealing the existence of 3rd party rights or restrictions, then they will be liable for damages.

      None of that is likely to apply here though, unless there was a non-state body or person that was meant to benefit by the lease restriction. For instance if the land had been given by an estate with conditions, rather than just transferred from one govt body to another.

      The Council are taking the only action they can (calling in the lease with a break clause before its to 3 yrs). However they need to be vigilant with how the manage the remaining harbour estate; it looks to me that the strategy in this paper is open to challenge.

      Reply

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