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You are here: BAILII >> Databases >> United Kingdom Upper Tribunal (Lands Chamber) >> John Romans Park Homes Ltd v Hancock, Re Morn Gate Caravan Park [2018] UKUT 249 (LC)) (27 July 2018) URL: https://www.bailii.org/uk/cases/UKUT/LC/2018/249.html Cite as: [2018] UKUT 249 (LC)) |
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IN THE UPPER TRIBUNAL (LANDS CHAMBER)
Neutral Citation Number: [2018] UKUT 249 (LC)
Case No: LRX/130/2017
LRX/131/2017
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
PARK
HOMES
– JURISDICTION – whether a mobile
home
park
with planning permission
and site licence for mixed seasonal and permanent use is a “protected site” – s.1(1),
Mobile
Homes
Act 1983 – s.1(2), Caravan Sites Act 1968 – appeals dismissed
IN THE MATTER OF APPEALS AGAINST DECISIONS OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
BETWEEN:
|
and MICHAEL
![]() JULIE ![]() ALISON NEWEY PATRICK HALL |
Appellant Respondents |
Re: 43 and 48 Morn Gate Caravan Park,
Bridport Road,
Dorchester,
Dorset
Martin Rodger QC, Deputy Chamber President
Royal Courts of Justice, Strand, London WC2A 2LL
26 June 2018
Mr A. Walder, instructed by Apps Legal Ltd, for the appellant
Mr J. Burton, instructed by Laceys, for the first and second respondents
Ms A. Newey and Mr P. Hall, the third and fourth respondents, represented themselves
The following cases are referred to in this decision:
Introduction
1.
Statutory
security of tenure is provided to the occupiers of mobile homes
by the Mobile
Homes
Act 1983 (“the 1983 Act) which applies to any agreement under which a
person is entitled to station a mobile
home
on a “protected site”, and to
occupy the
home
as their only or main residence (section 1(1), 1983 Act). The
policy of the 1983 Act is to confer statutory protection on the occupiers of
permanent residential caravans or mobile
homes,
but not on the occupiers of
caravans intended only for holiday or seasonal use.
2.
The issue
in these two appeals concerns the status of sites with planning permission for
a mixture of seasonal holiday caravans and permanent residential mobile homes.
More specifically the issue is whether two pitches on the Morn Gate Caravan
Park
at Bridport Road in Dorchester (“the
Park”)
are, or are part of, a protected
site.
3.
The Park
(which
has recently changed its name to Hardy Country
Park)
is used by both seasonal
holiday caravans, and permanent residential mobile
homes
and chalets.
4.
The appeals
are against two decisions of the First-tier Tribunal (Property Chamber) (“the
FTT”) made on 27 September 2017, by which it determined that agreements for the
occupation of two pitches on the Park
were agreements to which section 1(1) of
the 1983 Act applies. It reached that conclusion because it considered that
the
Park
in its entirety was a protected site.
5.
The appellant, John
Romans
Park
Homes
Ltd, purchased the
Park
in May
2015 from A & M Properties (Dorset) Limited (“A&M”). The principle
shareholder of A&M was a Mr Jackson, a solicitor, whose family had run the
Park
for many years.
6.
The older
of the two agreements considered by the FTT permitted the stationing of a
mobile home
on Pitch 48, and had been made between A&M and a previous
occupier of the pitch, Mrs Ann Ashmore, on 1 March 2001. By the time of the
hearing the appellant was the owner of the
Park
and the person with the benefit
of the pitch agreement was now Alison Newey, the third respondent; the fourth
respondent, Mr Hall, lives with Ms Newey in her mobile
home
on Pitch 48,
although he is not an assignee of the benefit of the pitch agreement.
7.
The second
agreement considered by the FTT was for the occupation of Pitch 43. The
agreement had been made on 29 November 2003 between A&M and Mr and Mrs
Hancock
(the first and second respondents).
8.
The
arguments in the two appeals apply equally to both agreements. Those arguments
were presented by Mr Aaron Walder, on behalf of the appellant, and by Mr Jamie Burton on behalf of Mr and Mrs Hancock.
Ms Newey and Mr Hall also attended the hearing and
invited me to treat the submissions made by Mr Burton as applying equally to
their position, which I am happy to do.
The meaning of “protected site”
9.
The 1983
Act is intended to benefit the occupiers of permanent residential caravans or
mobile homes,
rather than the occupiers of caravans intended only for holiday
or seasonal use. Effect is given to that policy by both of the qualifying
conditions expressed in section 1(1), which applies the 1983 Act to any
agreement under which a person is entitled to
station a mobile
home
on land forming part of a protected site, and to occupy
the mobile
home
as their only or main residence.
10. By section 5(1) of the 1983 Act “protected site” has the same meaning as in Part I of the Caravan Sites Act 1968 (“the 1968 Act”). Section 1 of the 1968 Act is concerned with the application of Part I. So far as is material, and as amended, section 1(2) provides as follows:
“1(2) For the purposes of this Part of this Act a protected site is any land in England in respect of which a site licence is required under Part I of the Caravan Sites and Control of Development Act 1960 …, not being land in respect of which the relevant planning permission or site licence —
(a) is expressed to be granted for holiday use only; or
(b) is otherwise so expressed or subject to such conditions that there are times of the year when no caravan may be stationed on the land for human habitation.”
11. To be a protected site, therefore, land must first be land in respect of which a site licence is required under Part I of the Caravan Sites and Control of Development Act 1960 (“the 1960 Act”). It must additionally satisfy the negative condition of not being land in respect of which the relevant planning permission or site licence is expressed to be granted for holiday use, or which have effect so that there are times of the year when no caravan may be stationed on the land for human habitation.
12. By section 1(1) of the 1960 Act a site licence is required for any land which is a “caravan site”. Section 1(4) explains that the expression “caravan site” means “land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is so stationed”.
13.
In Balthasar v
Mullane [1985] 2 EGLR 260, the Court of Appeal
considered the definition of “protected site” in section 1(1) of the 1968 Act.
Glidewell LJ concluded (at 263B) that the definition involves the site being
one in respect of which planning permission has been granted for the stationing
of one or more caravans so that "if planning permission has not been
granted, then the site is not a protected site within the meaning of [the 1968
Act] or, thus, within the meaning of the 1983 Act".
14.
In Murphy v
Watt [2011] 1 WLR 2129, the Court of Appeal held that
the occupier of a mobile
home
would only have the benefit of the 1983 Act if
the agreement pursuant to which he or she occupied the mobile
home
had come
within section 1(1) of the 1983 Act at its inception. That was said to be the
natural meaning of section 1(1), and was supported by the requirement that a
written statement be offered to the occupier before an agreement to which the
Act applies is made. If an agreement could come within the Act because of
matters occurring after its inception, this requirement could not be
satisfied.
15.
It follows, as the parties in this appeal agreed, that the question
whether an agreement is one under which a person is entitled to station a mobile home
on land forming part of a protected
site must be answered having regard to the planning and regulatory status of
the site at the date the relevant agreement is entered into.
The Park
16.
The FTT provided a careful description of the layout of the Park.
On
entering from the A35 the
visitor
first encounters a sign giving directions to
holiday sites on the left and to residential sites on the right. To the east
of the entrance, on the “holiday side” of the
Park,
there were twenty seven
caravans and chalets. Pitch 48, occupied by Ms Newey and Mr Hall, is located
in this area. On the western side of the entrance there are three chalets on
Pitches 45, 2 and 43 (Mr and Mrs
Hancock’s
pitch). A further twelve pitches
are located in an enclosure at the south west corner of the
Park.
This is said
by the appellant to represent the permanent residential part of the site.
According to the appellant the rest of the site is reserved for seasonal and
holiday use.
17.
When the appellant acquired the Park
in May 2015 it was provided with a
list of “holiday units” by Mr Jackson of A&M. There were thirty one units
on the list, including Pitch 43 and Pitch 45. Despite featuring on Mr
Jackson’s list of holiday units, Pitch 45 was occupied under the terms of a
written statement complying with the 1983 Act.
18.
The Park
has been used for the stationing of caravans and mobile
homes
since at least the early 1960s. In October 1961 planning permission was granted
to "Continue Caravan Site at Morngate Farm" subject to conditions
limiting the total number of caravans which could be situated on the land at
any one time to twenty, and requiring that not more than twelve of those were
to remain occupied during the period 31st October to 31st March.
19.
The number of what were referred to as “static holiday caravans”
permitted on the site was increased from eight to thirty by a planning
permission granted on 21 July 1977. The permission referred to a plan
submitted with the application, and included conditions requiring that access
and landscaping should be in accordance with that plan, but there was no
requirement that the static holiday caravans should be stationed in a
particular area. Nor did either the 1961 permission or the 1977 permission
refer expressly to any part of the Park
as being available for permanent
pitches. Nevertheless, a subsequent letter of 26 August 1977 from the Chief
Executive of the local planning authority to the site owner’s agent explained
that the planning officer regarded the new permission as “covering the 12
residential mobile
homes”
which were “quite clearly shown” on the plan referred
to in the permission. The location of those
homes
was shown on the plan as
being in the south west corner of the
Park.
20.
A further planning permission was granted in 1992 for the use of one
pitch as a permanent residence for a site warden. The plan referred to in this
permission designated nine pitches in the south west corner of the Park
as
“existing 9 No. mobile
homes”
and a further three pitches towards the centre of
the site as “existing 3 No. mobile
homes”.
21.
With twelve caravans able to be occupied all year round, the total
number of caravans permitted on the Park
by July 1977 was 42. This was reflected
in the terms of a site licence issued by West Dorset District Council and transferred
to A&M on 2 September 1978, which provided that "Not more than thirty
Seasonal and twelve Residential caravans shall be stationed on the land at any
one time".
22.
The site licence was subsequently amended by the local authority in
September 1989 in response to a request by Mr Jackson that occupation of
seasonal caravans should be permitted all year. This request was refused, but
the licence was varied
to provide that the thirty seasonal caravans could be
occupied from the sixteenth of March until the fourteenth of January in the
following year. This licence remained in force in 2001 and in 2003 when the
agreements for the occupation of Pitch 43 and Pitch 48 were entered into by the
appellant’s predecessor.
23.
On 25 October 2012 the site licence was varied
again “to permit the 30
seasonal caravans to be occupied all year round”. The former condition limiting
total numbers to "Not more than thirty Seasonal and twelve Residential
caravans” remained applicable, so the effect of the
variation
would appear to
have been that there was no longer a restriction on the period of the year
during which the “seasonal” caravans could be occupied.
24.
A final variation
of the planning status of the
Park
was implemented on
30 January 2015, when a certificate of lawful use was granted by the local
planning authority in respect of "the unrestricted residential occupation
of 30 mobile
homes”.
The basis of this change seems to have been a concern on
the part of the authority that the manner in which the 1977 planning permission
had sought to restrict the thirty units to seasonal or holiday use only had not
been
valid.
Pitch 43
- Mr and Mrs Hancock
25. The proceedings concerning Pitch 43 began in the County Court as a claim by the appellant for possession of the pitch. When the respondents claimed to be entitled to the protection of the 1983 Act the proceedings were transferred to the FTT in October 2016 to enable that question to be determined under section 4 of the 1983 Act which gives the FTT jurisdiction to determine any question arising under the 1983 Act or an agreement to which it applies.
26.
Mr and Mrs Hancock’s
involvement with the
Park
goes back to August 2003
when they sold their former
home
in Staffordshire and moved to Dorset, where they purchased the mobile
home
situated on Pitch 43 for £45,000. They have
lived there as their only residence for almost 15 years.
27.
Although they purchased their mobile home
from its previous occupier, Mr
and Mrs
Hancock
did not take an assignment of the occupier’s pitch agreement.
Instead, they entered into a new written agreement in November 2003 under which
they are entitled to station their mobile
home
on the
Park.
The document
described itself as a “Licence” and referred to Mr and Mrs
Hancock
as “the
Licensee”. It began by recording that the
Park
Owner (A&M) was the holder
of a caravan site licence in respect of the
Park
granted by the District
Council. The
Park
Owner then agreed that the Licensee was entitled to enter
and station one “chalet” on the
Park
and:
“…for that purpose only to have the
necessary use of that part of the Caravan Park
known as Pitch No. L1 or such
other pitch thereon as may be available at the commencement of this Licence as
the
Park
Owner may from time to time during the continuance of this Licence
require the Licensee to occupy (hereinafter called “the Pitch”).”
The effect of the agreement was therefore
that while they were initially entitled to occupy Pitch L1, the pitch allocated
to Mr and Mrs Hancock
could be moved from time to time by the site owner. The pitch
referred to in the agreement as Pitch No. L1 is now known as Pitch 43.
28.
By clause 2 of the agreement the licence was to continue for a period of
15 years from 9 February 2001 unless determined for breach. By clause 3 a sum
of £3,234 (referred to as “the Payment”) was payable by the Licensee to the
Park
Owner in advance on 1 January each year. By clause 4(2) Mr and Mrs
Hancock
agreed to comply with the
Park
rules, and by clause 4(9) they were
obliged to observe and perform the terms of the site licence. By clause 4(4)
they agreed to use their chalet for private occupation only, for themselves and
their family and no others. On the termination of the agreement they were
required by clause 4(6) to remove their chalet.
29.
Two specific provisions of the Park
rules are relevant to the issue in
these appeals. They provide as follows:
“1. The Payment is payable on 1 January
in full. Statements will not normally be sent, and all Payments must be paid
promptly. No relaxation of this rule will be permitted and a caravan lodge or
chalet remaining on the Caravan Park
unlicensed a month before the opening of
the Season (15 March) will be removed from site and disposed of together with
its contents.
2. Licensees who do not wish to renew
their Licence must ensure that the Licensee’s Caravan Lodge or Chalet and
property are completely removed from the Caravan Park
at the end of the letting
Season (31 October) and on failure to remove the Caravan Lodge or Chalet the
Licensees will be responsible for a winter storage charge to the 1 January.”
As the FTT pointed out, the references in
the Park
rules to “the letting Season” do not appear to have been kept up to
date with changes in the site licence, which since 1989 had permitted
occupation of seasonal caravans except between 14 January and 16 March each
year.
30.
The FTT accepted evidence given by Mrs Hancock
that Mr Jackson told them
“from the outset” that they could occupy their mobile
home
permanently without
moving out for two months each year. It is not clear whether this assurance
was given before the pitch agreement was signed. In a written statement
admitted in evidence by the FTT Mr Jackson denied having given any such
assurance, but the FTT found Mrs
Hancock
to be a credible witness. There was
no dispute that she and Mr
Hancock
had in fact occupied their pitch, without
vacating
the mobile
home,
continuously since 2001.
Pitch 48 – Ms Newey and Mr Hall
31. The proceedings concerning Pitch 48 commenced in the FTT when Ms Newey and Mr Hall applied for an order requiring the appellant to provide them with a written statement of the terms on which they occupy the pitch, as it is obliged to do by section 1(2) of the 1983 Act if the agreement is one to which the 1983 Act applies.
32. The agreement under which the respondents occupy Pitch 48 was granted to their predecessor, Mrs Ashmore, in March 2001. It is in substantially the same terms as the agreement for Pitch 43.
33.
Before Ms Newey acquired Mrs Ashmore’s mobile home,
and took an
assignment of the pitch agreement in June 2011, she and Mr Hall had lived on
the
Park
during the winter of 2009-10 and again from about October 2010 until
May 2011. Ms Newey’s evidence to the FTT was that before she purchased the
mobile
home
on Plot 48 she was told by Mr Jackson that she and Mr Hall would
have the right to full time residence, for twelve months a year, without any
holiday restrictions. This was consistent with a letter written to them by Mr
Jackson in September 2012 in which he advised them that they were not liable to
pay
VAT
on their pitch fees and service charge because they lived permanently
on the
Park
and the mobile
home
was their principal private residence. On
other occasions, however, Mr Jackson referred to the mobile
home
in
correspondence as a “holiday
home”.
The FTT’s decisions
34. Although the proceedings were not heard together, or by identically constituted tribunals, Judge Tildesley OBE, presided at each hearing and the decisions in each case reach the same conclusion and apply the same reasoning.
35.
The FTT found that the Park
was a protected site within the meaning of
the 1983 Act and that the Act did apply to the disputed pitches. The basis of the
decision was that a site with planning permission or a licence for a mixed
residential and holiday use was a protected site because no particular part of
the site was restricted to holiday use only.
36.
The FTT distinguished a decision of the Court of Appeal on which the
appellant relied, Berkeley Leisure Group Ltd v
Hampton [2001] EWCA Civ 1474, in which it had been held that an individual pitch on a mixed
holiday/residential
park
was not a protected site. In that case specific
pitches had been designated in the relevant planning permission as available
for permanent residential occupation, with the remainder being subject to a
holiday restriction. The pitch in issue was not one of those identified as
having permission for permanent residential use. The occupier’s case was that
since the planning permission for the site as a whole was not restricted to “holiday use only”, the entirety
of the site was a protected site and he was entitled to statutory protection. Robert
Walker LJ did not accept that it would always be possible to ascertain the
status of a site as a whole, and said this at [35]:
“However, if the terms of a
planning permission and a site licence distinguish between different parts of a
caravan park
as regards the permitted user, it may be both natural and
necessary to treat the area as divided into two or more parts for the purposes
of identifying any "protected site".”
37.
The FTT concluded that, since neither the planning permission nor the
site licence restricted the use of Pitches 43 and 48 (or indeed any specific
area of the Park)
to holiday or seasonal use, the
Park
as a whole was a
protected site. It was also satisfied that in each case the respondents were entitled
to occupy the mobile
homes
on their pitches as their only or main residence
(and that either they or their predecessor had been so entitled at the date of
grant of the relevant agreement).
38. The FTT nevertheless acknowledged the importance of the issue of whether a mixed use site could be a protected site and gave permission to appeal to this Tribunal on that issue. In each case it refused permission to appeal on three additional issues. The appellant has renewed its application for permission to appeal on those issues, and the Tribunal directed that it would consider whether to grant permission at the hearing of the appeal on the main question. I will return to those issues later in this decision.
Submissions on the appeal
39. The Appellant’s case before the FTT, and on the appeal, was that upon detailed consideration of both the 1977 planning permission and the 1989 site licence so far as they related to Pitch 43 and Pitch 48, these were “expressed to be granted for holiday use only” so as to fall within the exception in section 1(2)(a) of the 1968 Act.
40.
Mr Walder submitted that it was clear that the Court of Appeal in Berkeley
considered that section 1(2) of the 1968 Act allowed for mixed use sites to
be outside the application of the legislation if the relevant planning
permission or site licence was so expressed that the plot in question falls
within one of the two exceptions at s.1(2)(a) or (b). The successful appellant
in Berkeley had submitted that a protected site must be a site capable
of lawful use for the stationing of the caravan in question, because it cannot
have been Parliament’s intention that the landowner would be liable to
enforcement (for breach of planning permission or site licence) while
simultaneously being unable to lawfully remove the caravan due to its statutory
protection. This “absurdity”, as it was described, could be avoided by focusing
on the planning and regulatory status of the individual plot, rather than
focusing on the Park
as a whole.
41.
Where a planning permission and site licence distinguish between
different parts of a site as regards their permitted use, Mr Walder suggested that
the focus must be on the status of the specific plot alone and not the whole
site. Nor was it enough to consider, as the FTT had done, whether one
particular area of the Park
could be distinguished; what was required was
consideration how in practice a specific plot could be used having regard to the
planning permission and site licence which governed it. Where the number of
pitches available for permanent residential occupation was limited, as in this
case, it was necessary to ask whether a permanent right of occupation could
lawfully have been granted at the date of the agreement in question. If twelve
pitches were already the subject of permanent residential rights, it was not
possible, Mr Walder submitted, for the pitch on which a thirteenth mobile
home
was to be stationed to be a protected site. The FTT had erred in law by
failing to consider the issues on that basis.
42.
Had the FTT not concluded that the whole Park
was a protected site, and had
it instead focussed its attention on Pitches 43 and 48, Mr Walder submitted
that it would have found evidence from which it should have concluded that
those pitches were not available for permanent residential use, and were
instead confined to holiday occupation only.
43.
The evidence on which Mr Walder relied comprised the letter written by
the Chief Executive of West Dorset District Council in August 1977, and the
1992 planning permission for the permanent warden’s accommodation. The 1977
letter had referred to the twelve residential mobile homes
as being clearly
shown on the plan mentioned in the recent planning permission, while the plan
attached to the 1992 permission identified twelve pitches in the south west
corner of the site as “existing mobile
homes”.
Evidence had been given at the
hearing by Mr
Romans
that when his company had acquired the
Park
he had been
given a copy of the 1992 plan and told it identified the 12 permanent residential
pitches. Neither Pitch 43 nor Pitch 48 was on it.
44. Other factors which were said to make it clear that pitches were either for permanent residential occupation, or for holiday occupation, included the location of the pitch, the level of the pitch fee and the manner in which it was increased, the commission paid to the site owner on the sale of the caravan, and the price paid to the previous occupiers for the caravan and for the benefit of the pitch agreement. Most tellingly, Mr Walder suggested, was that the pitch agreements for Pitches 43 and 48 were not in the form required by section 1(6) of the 1983 Act, whereas the agreements for the twelve plots which enjoyed full residential status were.
45.
It was therefore clear, Mr Walder submitted, that the twelve pitches
which had planning permission for permanent residential use were being utilised
elsewhere, and neither Pitch 43 nor Pitch 48 could have had such permission
when the agreements were entered into. They were permitted to be used only for
holiday occupation, and as a result the pitches on which the respondents’
mobile homes
were stationed were not protected sites for the purposes of the
1983 Act.
46.
On behalf
of Mr and Mrs Hancock,
Mr Burton supported the decision and reasoning of the
FTT. He also presented a more elaborate argument which had not been considered
by the FTT, to the effect that the 1989 site licence (which for the first time
had introduced a restriction on the period of the year during which the
seasonal caravans could be occupied) was ultra
vires
the powers of the
local authority.
Discussion
47. Although Mr Walder sought to persuade me that the FTT had misunderstood and misapplied the decision of the Court of Appeal in Berkeley, I do not accept that it did.
48.
The facts
in Berkeley were rather different from this
case, in that although the Berkeley site was a mixed use site, the
pitches on which permanent residential occupation was permitted were
specifically identified in the relevant planning permission and site licence.
The respondent’s pitch was not one of those so identified. It was therefore
obvious, from the outset, that permanent residential occupation of the pitch
occupied by the respondent was not permitted. Had the whole park
been
designated a protected site, the applicant would have been unable to remove the
respondent from his pitch, and would have been liable to enforcement
proceedings and criminal sanctions under the planning legislation. The Court
of Appeal accepted the appellant’s contention that the 1983 Act could not have been
intended to operate in that manner. The solution it found was to recognise
that, when applying section 1(2) of the 1983 Act to a particular site, it was
necessary to treat the whole site as sub-divided into two or more parts “if the
terms of a planning permission and a site licence distinguish between different
parts of a caravan
park
as regards the permitted user.”
49.
In this
case, the planning permission and site licence for the Park
do not, in terms,
restrict permanent residential occupation to specific parts of the site. The
1961 permission referred only to the total number of caravans, and to the
number which could be occupied during the winter. The 1977 permission
increased the permitted number of holiday caravans but did not require that the
caravan or mobile
home
situated on any particular pitch should be occupied
permanently or only seasonally. The owner of the
Park
had complete freedom
over where permanent and seasonal occupation was to be permitted. The same was
true of the 1989 site licence.
50.
The
question whether a caravan site with planning permission is a protected site
for the purpose of the 1983 Act depends solely on the terms of the relevant
planning permission and site licence pertaining to the site (if a site licence has
been granted). That is as true where the site is a single pitch on which only
one mobile home
could be stationed, as it is for a large site suitable for many
mobile
homes.
It is the consequence of the express language of section 1(2),
1968 Act, which provides that land in respect of which a site licence is
required is a protected site unless the relevant planning permission or the
site licence is “expressed to be granted for holiday use only” or is “otherwise
so expressed or subject to such conditions that there are times of the year
when no caravan may be stationed on the land for human habitation”. What
matters are the terms in which the permission and licence are expressed.
51.
Is the
planning permission relevant to Pitch 43 and Pitch 48 “expressed to be granted
for holiday use only”? No it is not. The relevant planning permission is the
1977 permission, which leaves the Park
owner free to use any part of the
Park
for either static holiday caravans or permanent residential mobile
homes.
Mr
Walder is no doubt correct that once twelve pitches have been occupied for
permanent residential use, the
Park
owner would be in breach of planning
control if it licensed a thirteenth permanent residential occupier, but that is
not the question. No matter how many permanent residential mobile
homes
there
are on the site, it cannot be said of any individual pitch that the relevant
planning permission is expressed to be granted for holiday use only. Unlike Berkeley, the relevant planning permission does not distinguish between
individual pitches but permits mixed holiday and residential use of the whole
site.
52. Nor is the relevant planning permission “otherwise so expressed or subject to such conditions” that only seasonal occupation is permitted of any individual pitch.
53.
The proper
interpretation of the 1977 planning permission is not affected by the plan
referred to in it. None of the conditions which mention the plan requires any
particular part of the Park
to be used for any particular type of occupation.
The owner was not prevented by the planning permission from changing the lay
out of the
Park,
or allocating a different area to permanent residential
pitches from those marked on the plan. Nor could the understanding of the
planning officer, as reported in the letter of July 1977 from the Council’s
Chief Executive, make any difference to the meaning and effect of the planning
permission.
54.
Mr Walder also
referred to the terms of the site licence which prohibited the use of the
thirty seasonal caravans between 14 January and 16 March each year. Had that
restriction been applied to specific pitches, or to a specific part of the
Park,
it would have been sufficient to take that pitch or the relevant part of
the
Park
outside the scope of the 1983 Act, by reason of section 1(2)(b), 1968
Act. But once again the licence was not prescriptive about which area could be
used for which type of occupation.
55.
Mr Walder’s
contention that, where in fact there were already twelve permanent homes
on
protected sites, the 1983 Act would not apply to a thirteenth, which could not
be on a protected site, must fail because it focuses on matters other than the
terms in which the planning permission and the site licence are expressed.
56.
The
suggested absurdity of a site owner being unable to comply with an enforcement
notice in respect of a mixed site because the whole site would qualify as
protected is easily avoided. No occupier of a mobile home
can acquire the
right to station his or her
home
on a pitch except by agreement with the site
owner, or by taking an assignment of the benefit of such an agreement. If the
number of permanent residential pitches which may be allowed on a site is
limited, to ensure that the 1983 Act does not apply to the agreement the owner
need only make it a condition of the agreement that the occupier may not use the
pitch as their only or main residence. Such a term would make it impossible
for the occupier to satisfy section 1(1)(b), 1983 Act. If the site owner does
not impose such a restriction, he may find itself in difficulty, but the
difficulty is one against which it (or its predecessor) could easily have
protected themselves and there is no reason to allow their failure to do so to influence
the proper interpretation of the 1968 Act.
57.
In my
judgment, therefore, the FTT came to the correct conclusion on the main issue
in both appeals, for the reasons it gave. In those circumstances it is not
necessary to consider Mr Burton’s additional argument that the seasonal
limitation in the site licence was ultra vires.
The application for permission to appeal on additional grounds
58.
The FTT
refused permission to the appellant to argue on appeal that the evidence showed
that the Park
was designated into different sectors, with permanent residential
homes
in the south west and seasonal or holiday
homes
elsewhere. In my
judgment there is no realistic prospect of a successful appeal on that issue
and the FTT was right to refuse permission. The evidence relied on had nothing
to do with the terms in which the planning permission or site licence were
expressed, and in any event it did not establish the strict segregation
suggested.
59.
The FTT
also refused permission to appeal on the question whether the pitch agreement
prohibited use of each of the pitches as the occupier’s only or main residence.
Once again I consider the FTT was right to refuse permission. The basis of the
appellant’s submission was that the agreement required the occupier of the
pitch to comply with the Park
rules, which contained the terms set out in
paragraph 29 above. It was said that these imported a requirement that the
occupier must
vacate
the pitch between 31 October and 15 March the following
year. In my judgment they do no such thing. The first rule relates to the
date and manner of payment, and the reference to “the opening of the Season (15
March)” imposes no limitation on the occupier’s right to live on the pitch all
year round. The same is true of rule 2, which simply fixes a date by which an
occupier whose licence to occupy is seasonal must remove their caravan if they
do not wish to renew for the next season. It imposes no requirement of
seasonal occupation, and none is included in the Pitch agreements for either
Pitch 43 or Pitch 48.
60.
Mr Walder
also sought permission to argue that certain features of the pitch agreements,
such as are mentioned in paragraph 44 above, indicated that the pitches were
not intended to be occupied as the only or main home
of the respondents. None
of those features includes, or has the effect of, an agreement that the occupier
may not occupy throughout the year, or may not occupy as their only
home.
The
FTT refused permission to appeal on that argument and I do the same.
Disposal
61.
For these
reasons I am satisfied that the FTT reached the correct conclusion on both of
the applications before it. I therefore dismiss both appeals. The whole of
the Park,
including Pitch 43 (Mr and Mrs
Hancock) and Pitch 48 (Ms Newey and Mr
Hall), is a protected site to which the 1983 Act applies.
62. In the case of Pitch 43 the parties should now apply to the County Court for it formally to determine the appellant’s claim for possession of the Pitch and any ancillary matters such as costs which may arise.
63. In the case of Pitch 48, I direct the appellant to provide Ms Newey with a written statement of the terms on which she occupies the pitch, under section 1(6), 1983 Act, including those matters specified in section 1(2)(a)-(e), of the Act. The written statement must be provided within 14 days of the date of this decision, that is by 10 August 2018.
Martin Rodger QC
Deputy Chamber President
27 July 2018