Spielplatz Ltd v John Pearson and Another
| Jurisdiction | England & Wales |
| Judge | Sir Colin Rimer,Lord Justice Burnett,Lord Justice Laws |
| Judgment Date | 28 July 2015 |
| Neutral Citation | [2015] EWCA Civ 804 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2015 |
| Docket Number | Case No: B5/2014/1670 |
[2015] EWCA Civ 804
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
Her Honour Judge Lindsay Davies
Case No: 3S100209
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Burnett
and
Sir Colin Rimer
Case No: B5/2014/1670
Mr John de Waal QC and Mrs Andy Creer (instructed by Gateley LLP) for the Appellant
Mr Gary Blaker QC (instructed by Photiades Solicitors) for the Respondents
Hearing date: 2 July 2015
Introduction
The claimant/appellant is Spielplatz Limited, the freehold owner of a woodland naturist resort at Spielplatz, Lye Lane, Brickett Wood, St Albans ('the resort'). The defendants/respondents are John Pearson and his wife Maureen, who have occupied the resort's Plot 44A since 1992 as Spielplatz's tenants under a tenancy agreement dated 14 August 1992.
By proceedings issued on 2 July 2013 in St Albans County Court, Spielplatz claimed possession of Plot 44a from the Pearsons, asserting that they had no more than an unprotected common law tenancy of the plot which it had determined by a notice to quit. The Pearsons' defence was that their tenancy was an assured tenancy under the Housing Act 1988, which Spielplatz had not determined in accordance with that Act, nor had it shown any ground entitling it to possession.
The claim was tried before Her Honour Judge Lindsay Davies at Luton County Court over two days in April 2014. By her reserved judgment, of which we have an agreed draft, and an oral addendum to it of which we have an agreed note, the judge explained her reasons for finding that the Pearsons had an assured tenancy of Plot 44A which Spielplatz had not determined. Her order of 7 May 2014 dismissed both Spielplatz's claim and the Pearsons' counterclaim. She refused Spielplatz permission to appeal but Sir Timothy Lloyd granted permission on 1 July 2014. We are not concerned with the dismissed counterclaim. The appeal turns primarily on whether the judge was right to find that the tenancy was one under which a dwelling-house was let as a separate dwelling for the purposes of section 1 of the Housing Act 1988 and so gave the Pearsons an assured tenancy.
Mr de Waal QC (who did not appear below) and Mrs Creer (who did) represented Spielplatz. Mr Blaker QC (who also appeared below) represented the Pearsons.
The background facts
I take these from the judge's judgment, supplemented in minor part by agreed matters derived from the documents. The naturist resort was established in about 1930 and was developed over subsequent years. Spielplatz acquired the freehold in about 1946 and its title was registered at HM Land Registry in 1997. The resort comprises about 12 acres of green belt land and includes 64 plots. Spielplatz lets the plots only to its members (i.e. its shareholders). Originally the expectation was that the tenant would put a caravan or pitch a tent on his plot, which he would own. As time went by, the tenants developed a taste for more substantial accommodation and many constructed cabins or chalets on the plots.
Some of the 64 plots are designated by Spielplatz as for holiday or seasonal use only, and Spielplatz owns two chalets which it lets for holiday use: the resort has a clubhouse, swimming pool, tennis courts and other games facilities. Other plots are designated as for all year round occupation. Of the latter, some are occupied permanently; others are used mainly as weekend homes. Spielplatz is not, and never has been, involved in the installation or construction of the accommodation that tenants put on their plots, nor is it or has it been involved in their sale to, or purchase by, successor tenants. Its view has always been that its only proprietary interest is in the plot and that the accommodation installed or constructed on any plot is a chattel that belongs to the tenant who installs or constructs it or who buys it when he takes over the plot.
The judge explained the history of Plot 44A. A single-storey wooden chalet was constructed on it in 1975. It was occupied by Mr Caffari and Ms Crossley, the tenants of the plot. On 11 August 1980, the planning authority (St Albans District Council) gave a renewed permission for the use of the chalet, specifying that 'the bungalow shall only be occupied on an occasional basis and at no time as a permanent dwelling'. On 17 December 1980, the District Council gave permission for the construction of 'an extension and carport to weekend chalet' at Plot 44A, a permission that was duly implemented. On 3 October 1988, Mr Caffari and Ms Crossley wrote to Spielplatz that they had received a copy of the District Council's letter to Spielplatz 'stating that [the District Council had] transferred the Residential Status from 19B to Plot 44A…' and saying that they had paid the occupier of Plot 19B £10,000 for the transfer. That transfer meant that from then on the chalet on Plot 44A could lawfully be occupied on a permanent basis.
Mr Caffari died in 1992. On 14 August 1992, Spielplatz granted an annual tenancy of Plot 44A to the Pearsons. At about the same time the Pearsons bought from Mr Caffari's personal representatives his interest in the chalet on the Plot 44A for £36,000.
The material provisions of the Pearsons' tenancy agreement are as follows. The demised premises were described as 'the plot or clearing in the grounds of Spielplatz' known as Plot 44A. Clause 1 provided that the tenancy was for a term of one year from 30 June 1992 at the rent of £800 per year, exclusive of rates, payable quarterly in advance on the usual quarter days and thereafter in each year. There was a usual form of proviso for re-entry upon 'the said Plot or clearing' in the case of a breach of the obligation to pay rent or of any other condition of the tenancy agreement. Clause 2 prohibited the cutting down of trees or bushes without Spielplatz's permission and required the tenant's effects to be confined to the plot. Clause 3 required the tenant to 'keep the exterior of any Cabin Hut or other building in GOOD repair and properly painted or creosoted'. Clause 3 prohibited any sub-letting of the plot, assigning of the tenancy or parting with possession of the plot without Spielplatz's prior written licence. Clause 5 gave Spielplatz a right to inspect the plot at reasonable times, but not more than once a week. Clause 7 banned dogs from the resort. Clause 9,'Visitors', provided that the plot was 'let for the habitual use by the two Pearsons and their son Terry, but:
'… the Tenant shall be entitled subject to the conditions set out in this agreement and to previous arrangements with the Landlord to introduce not more than three persons being personal or family acquaintances as free visitors each month. Additional visitors may be introduced by previous arrangement with the Landlord and will be subject to charges for admission on the appropriate scale and to the conditions aforesaid.'
Clause 10 permitted the tenant to keep one motor vehicle at the resort. Clause 11 imposed rules about sunbathing. Clause 13 was an ill-spelt clause imposing rules as to when dress must (and must not) be worn at the resort. Clauses 14 and 15 were about photography and rubbish. Clause 17 required the tenant to 'discharge all general rates payable in respect of the said Plot and any rateable building thereon' and to produce the current receipt to Spielplatz on request.
The Pearsons remained in occupation of Plot 44A as yearly tenants. Their rent increased over the years and by April 2006 it was £1,863 per year. At first they used Plot 44A only at weekends but later began to use it all the year round as they were entitled to do following the 1988 transfer of residential status to the plot.
The judge's summary of the material evidence
The evidence was materially devoted to the question whether the chalet was a chattel (and so not part of the land demised by the tenancy agreement) or was part and parcel of Plot 44A (and so was demised by the tenancy agreement: quicquid plantatur solo, solo cedit). The resolution of that issue was crucial to the decision as to whether the Pearsons had an assured tenancy of the plot.
The judge said the Pearsons' evidence was that in 2008 they put breeze blocks around the outside of the chalet and rendered it. In 2011, they put on a new roof. In 2012, they refurbished or 'virtually rebuilt' much of the building following a leak into the bathroom. They estimated they spent about £100,000 on the works. Spielplatz was aware of the works and wrote to the District Council on 2 April 2012 expressing its concern that the Pearsons 'could be changing an essentially wooden dwelling into a larger and more permanent brick/block structure.' The outcome of some unfriendly correspondence between Spielplatz and the Pearsons was that on 25 September 2012 Spielplatz sent the Pearsons a six-month notice to quit.
The judge summarised the evidence of Fred Nicholls, who is in the business of moving static caravans and mobile homes. He said it was impossible to move a building of the size of that on Plot 44A in either one or two pieces. It could only be moved 'by being taken back to its constituent parts'. The building measured 37 x 40 feet and fell outside the dimensions of a mobile home.
The judge also referred to the report dated 9 April 2014 of a jointly instructed expert chartered building surveyor, David Turner, and said of his evidence:
'19. … He considered the original plans for the building that was erected in 1975. He noted that much of the original construction...
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...— [2014] 2 EGLR 21 47 (1703) 91 ER 320 48 [2013] EWHC 2689 (Ch) and see Spyer v Phillipson [1931] 2 Ch 183; Spielplatz Ltd v Pearson [2015] EWCA Civ 804, [2015] 2 P & CR 365, [2015] HLR 791. Tenant's fixtures which cannot be removed in this way become landlord's fixtures by operation of ......