Mew v Tristmire Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lady Justice Arden,Lord Justice Maurice Kay |
| Judgment Date | 28 July 2011 |
| Neutral Citation | [2011] EWCA Civ 912 |
| Docket Number | Case No: B5/2011/0064 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2011 |
[2011] EWCA Civ 912
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWPORT (IOW) COUNTY COURT
His Honour Graham Jones
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay Vice President of the Court of Appeal, Civil Division
Lady Justice Arden
and
Lord Justice Patten
Case No: B5/2011/0064
7N101150
Philip Glen (instructed by Abels) for the Appellants
Thomas Jefferies (instructed by Daltons) for the Respondent
Hearing date: 4 th July 2011
Introduction
Tristmire Limited ("Tristmire") is the leasehold owner and registered proprietor of plots 14 and 30, Embankment Road, Bembridge Harbour on the Isle of Wight. It acquired these plots at an auction held on 5 th June 2007. The vendor was a company called Maritime & Leisure Investments Limited ("MLIL") which was granted a long lease of the harbour in 2003 by Bembridge Harbour Improvements Company Limited ("BHIC") which owns the freehold.
The plots in question are roughly rectangular in shape and are situated around the edge of the harbour adjacent to the public highway. They are covered by the sea at high tide. MLIL sold six such plots at the auction. Each of them is occupied by what was described in the auction particulars as a houseboat. On Plot 14 is the houseboat "Emily" which is owned by the first defendant, Mr Mew. Plot 30 is occupied by the houseboat "Watershed" owned by Ms Just.
The evidence provided by Mr David Shields, a civil engineer who inspected the sites and acted as a jointly instructed expert, is that the houseboats are converted landing craft which were constructed locally during the Second World War but not used in service. At the end of the war they were sold off and then modified by their owners with the addition of a super-structure so as to make them watertight and habitable. They were once capable of floating but, like many of the other houseboats in the harbour, they now rest on wooden platforms which are supported by wooden piles driven into, and in some cases cemented into, the bed of the harbour.
Mr Shields reported that there was severe deterioration of the original hulls of the converted landing craft which were built of wood. In each case they could only be removed from the platforms by the use of a crane with an extensive supporting cradle. Given the present condition of the hulls, this is likely to result in damage to or the destruction of the houseboats. But when originally put into position on the platforms they could have been removed by crane and then floated to a new location.
Both "Emily" and "Watershed" have mains services such as water, electricity and gas but these could easily be disconnected. They are not fixed on to their supporting platforms but Mr and Mrs Mew have constructed a wooden PVC-clad extension to one side of "Emily" which is fixed on to the supporting platform and which Mr Shields said could not be removed without demolition.
There is no real evidence as to how "Emily" and "Watershed" (or the other similar houseboats) came to be placed on the supporting platforms or when that occurred. The freehold of the harbour was transferred from the British Railways Board to BHIC under the Pier and Harbour Order (Bembridge Harbour) Confirmation Act 1963 ("the 1963 Act"). This authorised BHIC to continue to operate the harbour:
"subject to the rights, duties, contracts, liabilities and obligations affecting the same (including all rights of access to landing-places, piers, quays and jetties existing immediately before the day of transfer": see s.11(2).
It is apparent from the 1963 Act that there were already a number of houseboats in the harbour because s.15 expressly provides that:
"(1) The Company may provide, place, lay down, maintain, use and have moorings, buoys, marinas and like apparatus and conveniences for vessels and houseboats on land owned or leased by the Company and on any other land with the consent in writing of the owner and lessee thereof in the harbour.
(2) The Company may demand, receive and recover in respect of any vessel using any of the moorings, buoys, marinas or like apparatus or conveniences provided by the Company under this section such reasonable charges as may be prescribed by the Company and approved by the Minister.
(3) The Company may demand, receive and recover in respect of any houseboat within the harbour such reasonable charges as the Company may from time to time determine."
In s.3 of the 1963 Act "houseboat" means:
"any vessel lying in the water or on the foreshore of the harbour which is used or capable of being used as a place of habitation and if so used whether such use be temporary, intermittent or permanent or as a place for accommodating or receiving persons for purposes of shelter, recreation, entertainment or refreshment or as club premises or as offices but shall not include –
(i) a vessel normally engaged in the transport of persons or goods; or
(ii) any pleasure vessel used in navigation; or
(iii) any lightship or watch barge;
….
"vessel" includes any vessel, ship, lighter, keel, barge, boat, raft, pontoon, hover vessel, and craft of any kind howsoever navigated, propelled or moved and except for the purpose of levying rates any seaplane on the surface of the water;"
BHIC was empowered by s.24(1) to make byelaws including ones for the regulation of the mooring, careening, beaching or anchoring and keeping of vessels and houseboats in the harbour.
The records of BHIC do not disclose whether houseboats like "Emily" and "Watershed" were originally secured to floating moorings and were then raised up on to the existing platforms or whether they have always rested on their present supports. Mr Mew purchased "Emily" in 1993. Ms Just acquired "Watershed" in 1991. In both cases what they bought was the houseboat itself rather than any interest in the land it occupies. The purchase agreement signed by Mr Mew which is in evidence contains a covenant by him with the vendor to "pay all harbour dues and any other fees, tolls or other sums due for mooring" but does not include an assignment of the tenancy or licence under which the site was occupied.
The practice seems to have been for BHIC to be informed of the change of ownership and thereafter to bill the new owner for the fees due. So, in the case of Mr Mew, BHIC invoiced him from 1993 in respect of "site-rent" for his plot which was payable quarterly in advance at the rate of £96 per quarter. This practice continued until 1998 when the billing seems to have changed to monthly charges for "mooring". In May 2007 Mr Mew received a letter from BHIC "in connection with your houseboat in Bembridge Harbour and the leases we have been granting to the owners of the houseboats". The letter went on to explain that the company had offered long leases of the various plots to the houseboat owners but was now writing to Mr Mew because he had indicated that he was not interested in acquiring such a lease in respect of his own plot. BHIC intended therefore to dispose of the remaining plots at auction which it did on 5 th June 2007. Thereafter Mr Mew would have a new "landlord".
By the time of the auction BHIC had granted a long lease of the plots and other land to MLIL and the successful purchasers at the auction were granted sub-leases of the individual plots for terms of 99 years (less 3 days) from 25 th March 2005. The auction particulars contain details of the rents paid by the houseboat owners for the plots which are calculated on the length of the houseboat concerned. The special conditions of sale referred to Mr Mew and Ms Just as holding under oral licences at those rents.
On 13 th July 2007 Tristmire gave to each defendant notice terminating their licences and requiring them to deliver up possession on 31 st August 2007. Proceedings for possession were issued in October 2007. The defendants served defences contending that they occupied the plots as tenants not licensees and that their houseboats were dwellinghouses so as to give them protection as assured tenants under the provisions of the Housing Act 1988 ("the 1988 Act"). They also pleaded that the notices served on 13 th July 2007 were invalid in any event because they did not comply with the requirements of the Protection from Eviction Act 1977. As a consequence, two further sets of notices were served on 11 th November 2008 requiring possession to be given up on 11 th February 2009. One set referred to "Emily" and "Watershed" by name and contained the prescribed information. The other set referred to the plots occupied by the houseboats and did not contain that information. At the same time Tristmire also served notices under s.13 of the 1988 Act which purported to increase the rent with effect from 15 th May 2009.
On 5 th March 2009 another two sets of identical notices were served expiring on 5 th June 2009 together with a further set of s.13 notices. On 22 nd December 2009 a yet further set of s.13 notices were served which were stated to take effect at the beginning of the next period of the defendants' tenancies commencing after six months from the date of service of the notices.
After the trial had taken place and the draft judgment had been circulated to the parties, Tristmire served further notices to quit dated 25 th November 2010 which expired on 25 th February 2011. The notices were given in respect of the plots themselves and on the footing that the defendants were only licensees.
The principal issue for the judge at the trial was whether "Emily"...
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