Sophie Catherine Mary Dean v Simon Mitchell
| Jurisdiction | England & Wales |
| Judge | Hugh Mercer |
| Judgment Date | 15 June 2023 |
| Neutral Citation | [2023] EWHC 1479 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KB 2022-002460 |
[2023] EWHC 1479 (KB)
Hugh Mercer KC
(sitting as a Deputy Judge of the High Court)
Case No: KB 2022-002460
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Cottle (instructed by Community Law Partnership) for the First Defendant
Zoe Leventhal KC, Emma Dring (instructed by Government Legal Department) for the Second Defendant
Hearing dates: 8, 9, 10 February 2022
Approved Judgment
This judgment was handed down remotely at 10.00am on 15 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Hugh Mercer KC
Hugh Mercer KC:
Pursuant to the Order of HHJ Glen dated 4 May 2022, this is a hearing to determine preliminary issues in relation to the First Defendant's claim for declaratory relief under the Human Rights Act 1998, arising from a possession claim in which the Claimants are seeking to evict the First Defendant who lives in a coach and caravan on their land.
Before one gets to the Human Rights Act 1998, the Secretary of State raises a logically prior argument to the effect that a site which does not have a site licence cannot in any event qualify as a “protected site” as defined so that caravans parked on the site might benefit from the provisions on security of tenure. This point was included in an Agreed List of Issues dated 1 February 2023 and I shall deal with this argument first. This land has never had the benefit of a site licence and so, if a site licence were a prerequisite to a site qualifying as a “protected site”, it would follow that the First Defendant could not obtain any security of tenure under the 1983 Act.
If a site licence is not a prerequisite to a site qualifying as a “protected site”, the First Defendant argues that, in order to protect the right to respect for his home under Article 8 European Convention on Human Rights (ECHR), the Mobile Homes Act 1983 (“ MHA 1983/1983 Act”) must either be interpreted under s. 3 Human Rights Act 1998 (“ HRA”) so as to apply to the First Defendant's licence to occupy the Claimants' land or a declaration of incompatibility is required under s. 4 HRA. If a s. 3 HRA interpretation were possible, it would defeat the Claimants' possession claim. These arguments are reflected in the First Defendant's claim for declaratory relief in paragraph 1 of the prayer to the First Defendant's counterclaim herein. No doubt as a consequence of such arguments, the Secretary of State has been joined to the proceedings.
The specific problem in this case is that, when the occupation agreement was made and the First Defendant entered into occupation, the site did not benefit from planning permission. In a case where Article 8 was not argued, the Court of Appeal held that the scope of the 1983 Act is limited to agreements where the site is a protected site at the inception of the agreement: Murphy v. Wyatt [2011] EWCA Civ 408, [2011] 1 WLR 2129 (“ Murphy”). The issue of importance under the Human Rights Act 1998 in this case is whether, in order to give effect to Article 8, the 1983 Act needs to be interpreted to apply to a licence to occupy land when the land on which a mobile home is stationed was not originally a protected site (within the meaning of s. 1(2) of the Caravan Sites Act 1968, “ the 1968 Act”) when the agreement for occupation was made but became a protected site at a later date whilst the occupation was still continuing. The First Defendant submits that the impact of Article 8 in this case is to require the opposite conclusion to that reached by the Court of Appeal in Murphy.
By a letter dated 6 February 2023, the Claimants informed the Court that they did not propose to appear at the hearing of the preliminary issue both in order to save costs and on the basis that no relief was sought at this hearing against the Claimants. That letter also referred to an agreement between the parties that, following the determination of the preliminary issue, all remaining issues should be transferred to Bournemouth County Court for disposal.
The Facts
Certain facts were agreed for proceedings involving the Claimants and the First Defendant before the Upper Tribunal, as recorded in the judgment of Fancourt J at paragraph 6 in conjunction with the factual finding in paragraph 19 of the same judgment. These have been summarised by the Secretary of State, and the First Defendant was prepared in submissions to accept this summary provided that it incorporated reference to the fact that (as found by Fancourt J) the terms of the agreement entitled the First Defendant to occupy the mobile home as his only or main residence. Accordingly, I summarise the facts as follows:
i) The First Defendant began occupying a mobile home on land now owned by the Claimants in around 2001. There was never any written agreement. There was a verbal licence the terms of which entitled the First Defendant to occupy his mobile home as his only or main residence in return for payments of £10 per week, later increased to £30 per week.
ii) At the commencement of the First Defendant's licence agreement the use of the Claimant's land for the stationing of a mobile home was not authorised by any public authority in that there was a) no planning permission and b) no site licence authorising the use of the land as a caravan site.
iii) In October 2015 a certificate of lawful use or development was issued under s. 191 Town and Country Planning Act 1990 on the basis that the use of land had become immune from enforcement. This certified that the use of the part of the Claimant's land occupied by the First Defendant for stationing a mobile home was lawful i.e. the equivalent to the grant of planning permission for the purposes of the site licensing regime: see s. 191(7).
iv) The day after the grant of the certificate of lawful use, the Claimant's solicitors served a notice on the First Defendant purporting to terminate his agreement.
v) No site licence has ever been applied for, so the use of the Claimants' land as a caravan site continues in contravention of s. 1 of the Caravan Sites and Control of Development Act 1960.
Legislative history
For reasons which will become apparent, at the heart of this case are first the prohibition in s. 1 Caravan Sites and Control of Development Act 1960 (“ the 1960 Act”) on occupiers of land causing or permitting any of the land to be used as a caravan site unless the occupier holds a site licence. Second, the term “protected site” as defined in s. 1(2) Caravan Sites Act 1968 (see paragraph 15 below) is also used in the 1983 Act.
Moreover, although the focus must be on the amended statute as if it were a freestanding piece of legislation (see Inco Europe Ltd v. First Choice Distribution [1999] 1 WLR 270 at 272–3) an understanding of steps towards a degree of security of tenure taken both in the Mobile Homes Act 1975 (“ the 1975 Act”) and the 1983 Act as amended from time to time is relevant to understand both the caselaw and also the mischiefs against which such statutory developments were directed together with the purpose of those developments. Moreover, as noted by Hobhouse LJ in the same passage in that case, “The expression of the relevant parliamentary intention is in the amending Act.”. In so far as an Act is not amended, the original wording of the Act remains relevant as an aid to interpreting the meaning of words that are unaltered: Bennion, 8 th edn at Section 8.6(1). The meaning of concepts which have been applied over the course of time, in particular where they have acquired an accepted meaning, is of assistance in interpretation and: “An important element in the construction of a provision in a statute is the context in which that provision was enacted”: Bloomsbury International Ltd v. Sea Fish Industry Authority [2011] 1 WLR 1546 per Lord Phillips at 61 and see paragraphs 58–60 and 66.
In considering the successive statutory amendments, I shall also draw attention to the relevant background material to the legislation in so far as it might assist in identifying the mischief against which each legislative development was directed and which may also inform the reader as to the legitimate aim pursued by each such development, to put matters in ECHR terms. I have been assisted in relation to the background material by a witness statement from Ms Grace Duffy, who is responsible on behalf of the Secretary of State for park homes policy, including the licensing of caravan sites in England and the contractual terms between site owners and mobile home occupiers. At certain points, the First Defendant has also directed my attention to certain additional matters from what have been called the Secretary of State's duty of candour bundles but I limit my references to those materials which the Secretary of State has agreed may be referred to for establishing the mischief behind the legislation.
The starting point is the 1959 Caravans as Homes Report by Sir Arton Wilson which was relied on by the Minister of Housing and Local Government the Rt Hon Mr Henry Brooke in promoting the bill in Parliament, from which, among many other points, the following points are apparent:
i) Due to the scarcity of sites for residential caravanners, the threat of being turned out was considered to be present to a much greater extent than is common in rented houses or flats which means that mobile home owners are shy of pressing complaints about site conditions. This is good for good operators but creates an opportunity for abuse by bad operators and a “source of some uneasiness” to many mobile home occupiers (under the heading...
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