My local council has classified a sideroad (separated from the street by a pavement) as an off-street car park. It insists that only residents adjacent to the road have a permit. The council will issue penalty notices on others parking on the road and take the revenue. Can it do this?
A local authority off-street parking places order is made under powers given by Parliament in section 32 of the Road Traffic Regulations Act 1984.
It can designate off-street areas or parts of roads as parking places and impose conditions and charges under section 35, the charges being recoverable as a civil debt. Breaches of the order are an offence. Councils are required by section 55 to keep an account of their income and expenditure on parking, the surplus being used only for designated highway and parking uses.
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If a solicitor has merely been named in a will as an executor, is he not entitled to charge whatever he likes for his work? If he needs authority in advance for charging, whom does he get it from?
An executor is appointed to act as trustee of the estate and administer it according to the testator’s wishes.
It is a strict rule that he cannot exploit his position to make a profit for himself. So unless the testator has by his will given him the right to charge the estate for his services (a charging clause), the executor cannot charge for his solicitor’s services. Without such a clause, if the executors pay the solicitor executor fees for services, the beneficiaries could insist on repayment — their consent in advance is therefore necessary. Including a charging clause is not really a problem for solicitors as in virtually all cases where they are appointed executor they will also draft the will. Until recently, employees of the firm who witnessed the will might inadvertently invalidate the clause, as gifts to beneficiaries witnessing a will are void. Recent legislation has made it clear that charging clauses are not gifts and thus not invalidated in this way.
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An elderly friend cannot sell her house because of the neighbour’s 12ft-high leylandii. What action can she take to reduce the height to a more acceptable level?
The law of nuisance does provide some protection in that neighbours can be liable for acts or omissions, which substantially interfere with your ordinary enjoyment of land. Overhanging tree branches can be cut back to the boundary and it is possible that fastgrowing trees (like structures) obstructing natural light to windows can be removed as a nuisance. However, legal action in respect of leylandii is fraught with uncertainty and entering the neighbour’s premises to cut back the trees will be met by claims for trespass and possibly criminal damage. However, by the end of this year new legislation on high hedges (Part 8 Anti-social Behaviour Act 2003) will be in force, enabling you to take the complaint to your local council. After weighing up the competing interests of your right to amenity and your neighbour’s privacy, it can order the cutting back of the hedge (backed up with £1,000 fines for non-compliance). It is worth trying to reach agreement now with the neighbour for reducing the hedge (perhaps offering some incentive) as this may well be the council’s eventual order.
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At my relative’s trial the barrister failed to call two favourable witnesses. My relative was convicted and sent to prison. I am now told that such evidence cannot be used on appeal, which seems grossly unfair. Should a barrister’s incompetence be allowed to deny my relative his freedom?
As you say, it is not for the Court of Appeal to hear evidence that should have been heard by the jury. It can certainly do this with fresh evidence unavailable at that time and, of course, if it was the judge’s fault that available evidence was wrongly excluded from the jury it could quash the conviction as unsafe. However, it is clearly different if the defendant or his barrister fail to produce the evidence. If the barrister’s decision not to call the evidence probably caused the conviction, then he might be liable for negligence, the historic immunity for advocates being removed by Hall v Simons (2000). However, the House of Lords emphasised that it would be difficult to prove negligence in criminal cases where the convictions still stood. The courts will be wary of retrying the case in a civil trial so this is an area on which you will need careful advice.
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We regret that we cannot reply to individual queries. The above commentary must not be taken as legal advice; readers should consult a solicitor. Readers can e-mail queries to tde@easynet.co.uk