Two interesting points were decided by the Court of Appeal in Murphy v Wyatt:
- Where there is an agreement permitting a mobile home to be stationed on land which does not have planning permission for use as a caravan site (and therefore does not have a site licence), the subsequent granting of permission does not bring that agreement within the Mobile Homes Act 1983.
- The 1983 Act only applies to agreements which are exclusively, or at any rate mainly, limited to granting rights falling within section 1 of the Act, so that where a large area of land is let for agricultural purposes permitting the tenant to live on the land in a caravan, the 1983 Act does not apply.
An area of "rough pasture" was granted to the original tenant under an oral weekly tenancy for a horse livery and stabling business. This was back in 1979. Much happened subsequently: the tenant brought a caravan onto the land, which later became his home. The defendant, his successor in title, came to live with him and the caravan became her home.
Up to this time the use of the land as a place on which to live in a caravan was unlawful. Miss Wyatt realised this in an unsuccessful application for housing benefit and so applied for and obtained a certificate of lawful use in 2002 which backdated to 2001. In 2007 Miss Wyatt "disposed of" the caravan which it seems had become rather decrepit and brought a new, slightly larger, mobile home onto the site. The judge at trial found that this had been done without the freeholder's consent. In 2009, the claimant freeholder served a notice to quit and brought possession proceedings.
Alas, for the claimant, she started proceedings before the notice to quit had expired, so the claim was dismissed. However the judge decided, at trial, that the Mobile Homes Act 1983 did not apply to the defendant's home and she was therefore not protected by the security of tenure provisions in that act. More on the way that the judge came to this decision at the end, but to continue the story, the defendant appealed.
A recap of the law (for those who aren't quite as interested in caravan sites as myself): the Caravan Sites and Control of Development Act 1960 regulates caravan sites and requires that any site has a site licence. The Caravan Sites Act 1968 introduces the idea of a variety of caravan site known as a "protected site" and protects occupiers of such a site by giving them certain protections and rights. These rights are considerably extended by the Mobile Homes Act 1984 which relies on the 1968 Act for its definition of "protected site".
Now, the definition of "protected site" in section 1 of the 1968 Act is:
For the purposes of this Part of this Act a protected site is any land in respect of which a site licence is required under Part I of the Caravan Sites and Control of Development Act 1960 or would be so required if paragraph 11 of Schedule 1 to that Act (exemption of land occupied by local authorities) were omitted, 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.
A naive and literal reading of that definition would suggest that it would apply to any site where a site licence is required, whether or not there actually is a site licence and whether or not such a licence could be obtained as a result of the lack of planning permission. The Divisional Court thought so in Hooper v. Eaglestone (1977) 34 P. & C.R. 311 — a criminal prosecution — but the Court of Appeal thought otherwise in Balthasar v Mullane (1985) 17 H.L.R. 561 where Glidewell LJ decided, on policy grounds, that a site without the relevant planning permission, was not a protected site. He agreed with an earlier decision of the Court of Appeal in National By-Products Ltd. v. Brice (1983) 84 L.G.R. 652 that where there was planning permission but no site licence because the landowner had failed to apply for (or for the renewal of) a licence, the site was protected otherwise a landowner could take advantage of his own wrongdoing. Balthasar v Mullane was followed by the Court of Appeal again in Adams v Watkins (1990) 22 H.L.R. 107.
What if a site licence was obtained after the agreement for occupation? The Master of the Rolls rehearsed a number of difficulties that would arise if an agreement could move in and out of protection under the 1983. Many of these objections will be familiar to readers who have followed the ghastly tale of tenancy deposit protection under the Housing Act 2004. For example, the 1983 imposes certain obligations on the landowner which arise within a certain time of the start of the agreement. How does that or could that work sensibly if the agreement was made years before protection arose?
Parenthetically both the Master of the Rolls and Arden LJ accepted that section 1(8) which states that "Any reference … above to the making of an agreement to which this Act applies includes a reference to any variation of an agreement by virtue of which the agreement becomes one to which this Act applies." might create similar difficulties. If an agreement was varied, then protection could arise long after the agreement was made. It is possible, without doing too much violence to the text and in accordance with Parliament's presumed intention, to read the various timely obligations as applying from the date the variation was made.
The defendant argued that the change in circumstances (the obtaining of planning permission) was a variation in the agreement and hence brought it within protection. This was rejected as being artificial by the Master of the Rolls. While tough on the defendant it is hard to see how what happened in 2002/1 could be described as a variation.
I raise (only to dismiss) the following possibility that might appear in the comments: since the original agreement was an oral weekly tenancy, there was an implied renewal at the end of each period and therefore a new agreement, so that at some point in 2001 a new weekly tenancy would have arisen which was within the terms of the 1983 Act. Such a point has certainly been made in the debate on the Housing Act 2004.
Orthodoxy is against such a line of argument. As those familiar with Hammersmith and Fulham v Monk will recall, a periodic tenancy is a so-called "springing interest". It continues until the landlord or tenant (or one of them as the hapless Mr Monk discovered) decides that the "springing will stop". Unless and until the tenancy ends, there is only one tenancy which just grows and grows.
This idea goes back to the seventh edition of of Matthew Bacon's New Abridgement of the Law printed in 1832, which incorporated the views of Jeffrey Gilbert a former Chief Baron of the Exchequer. The idea appears to have been widely accepted — for example it was argued by counsel in Cardwell v Lucas (1836) 2 Meeson and Welsby 111 150 E.R. 691 and upheld by yhe Court of Exchequer in Gandy v Jubber (1865) 5 Best and Smith 15 122 E.R. 914. Although Gandy v Jubber was settled before the judgment was pronounced it has been treated as good authority in subsequent cases, including by the House of Lords in Monk.
So that's that then.
The other ground of Miss Wyatt's appeal was the finding by the judge that the 1983 Act did not apply because of the extent of the land let to her. The Court of Appeal agreed. Again the Master of the Rolls pointed out the difficulties that would ensue if a large area of land let for purposes that went well beyond the residential occupation of a caravan could be protected by the 1983 Act. There was, he thought, no way of giving protection to the caravan but not the whole of the land and protection of the breadth could not have been Parliament's intention. Miss Wyatt would lose on that point as well.
Two further points of interest:
- The trial judge had made his decision on the applicability of the 1983 Act on a basis that had not been put forward by the claimant and on which the defendant was not given a proper opportunity to comment and which may (there was some argument about this) not have been mentioned in the hearing. In paragraphs 13-19 the Master of the Rolls sets out some fairly clear and robust guidelines on what should be done in circumstances where a judge wishes "to decide a case on the basis of a point which was not argued, or in a way, or to an extent, which is more favourable to a party than the case which that party advanced in court." Very useful material to show to a judge who goes off on a frolic of their own.
- In paragraph 80, Arden LJ leaves open the possibility of an article 8 challenge if any future claim for possession were made. Watch this space.