THE BERKELEY LEISURE GROUP LIMITED v FREDERICK ROY HAMPTON [2001] EWCA Civ 1474

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SOUTHEND COUNTY COURT

(His Honour Judge Rice)

[2001] EWCA Civ 1474

Case No B2/2001/1092

Venue Royal Courts of Justice, Strand, London WC2, Friday 5th October, 2001

Between

THE BERKELEY LEISURE GROUP LIMITEDClaimant/Appellant

FREDERICK ROY HAMPTONDefendant/Respondent

Before

Lord Justice Peter Gibson

Lord Justice Robert Walker

MR K LEWISON QC (Instructed by Messrs Tozers, Exeter EX1 1UA) appeared on behalf of the Appellant

MR T WEEKES (Instructed by Messrs Twitchey, Musters & Kelly, Southend)

appeared on behalf of the Respondent

LORD JUSTICE PETER GIBSON:

Lord

Justice Robert Walker will give the first judgment.

LORD JUSTICE ROBERT WALKER:

[2]This is an appeal by the Berkeley Leisure Group Ltd ("Berkeley") from an order of His Honour Judge Rice made in the Southend County Court on 4th May 2001. The judge's order dismissed Berkeley's claim against Mr Frederick Roy Hampton for possession of a caravan pitch and its immediately surrounding area known as 64 Halcyon Park, Pooles Lane, Hullbridge, Essex. Berkeley appeals to this court with the permission of the judge.

[3]Halcyon Park is a fairly substantial caravan park, about four hectares in extent, on the south side of the inland end of the estuary of the River Crouch. Planning permission for its use as a caravan park was first given in the 1950s, and since then there have been fairly frequent changes in the terms of the relevant grants of planning permission which it will be necessary to look at in a little detail. Berkeley purchased the park in 1997 from the previous owner, Mr Bill Caton.

[4]Mr Hampton used to work for Mr Caton as a general handyman, doing maintenance work (including plumbing and gardening) at the caravan park. From about 1987 he was allowed to live rent-free in a caravan on plot 34. In 1993 he began living with a partner, Mrs Helena Last, and Mr Caton allowed Mr Hampton and Mrs Last to move to a larger caravan on plot 64, which is in the extreme north-east corner of the park. In 1995 Mr Hampton bought his own mobile home and installed it on plot 64.

[5]When Berkeley purchased the park from Mr Caton, Mr Hampton remained in occupation of plot 64 but he was no longer employed and was required to pay rent, latterly £79.40 a month. On 11th April 2000 solicitors acting for Berkeley served on Mr Hampton two notices in alternative forms, a notice to quit and a notice to determine any licence, both requiring possession on 31st May 2000. Mr Hampton claimed to be entitled to remain in occupation and this litigation ensued in August 2000.

[6]These basic facts are not and were not in dispute and by sensible agreement between the parties the case was heard on the basis of the witness statements and documents, without oral evidence. Berkeley has accepted, for the purposes of this appeal, that Mr Hampton occupies his mobile home on plot 64 as his only or main residence.

[7]The essential issue both before the judge and on this appeal is an issue of statutory construction, that is whether plot 64 was (or was comprised in) a "protected site" for the purposes of the Mobile Homes Act 1983 ("the 1983 Act"). If plot 64 has that protection, then Mr Hampton is entitled to a measure of security of tenure under section 2 and Schedule 1, Part I of the 1983 Act. If the plot is not protected the appeal must succeed.

[8]In order to understand how the 1983 Act works it is necessary to refer to some earlier legislation concerned with caravan sites. Although there were some provisions about caravans in the Public Health Act 1936, for practical purposes the first relevant statute is Part I of the Caravan Sites and Control of Development Act 1960 ("the 1960 Act"). Section 1 contained a general prohibition on the use of a caravan site without a licence from the local authority, this prohibition being backed by criminal sanctions. This general prohibition was subject to various exceptions, mainly for small-scale or temporary use of caravans as habitations (see section 2 and Schedule 1). A local authority could not grant a licence unless the site had planning permission (section 3(3)) but if the applicant for a licence had planning permission, the local authority was bound to issue a site licence (section 3(4)). The local authority could however attach conditions to the licence. The types of conditions listed in section 5 show that the legislative purposes of the 1960 Act were primarily public health purposes supplementing and reinforcing the purposes of control under the Town and Country Planning Acts. Breaches of condition were subject to criminal sanctions. I should I think read section 12(1) of the 1960 Act:

"It shall be a condition of any licence or of any such tenancy as is mentioned in subsection (3) of section one of this Act that if any person in exercise of rights under the licence or tenancy does anything which would constitute an offence under that section if that person were the occupier of the land, the person who is the occupier of the land may take possession of the land and terminate the license or tenancy; and in determining whether the occupier of the land has permitted the land to be used as a caravan site account shall be taken of any powers exercisable by him under this subsection."

[9]That provision now takes effect subject to the provisions of the Caravan Sites Act 1968 ("the 1968 Act").

[10]By section 1(4) of the 1960 Act "caravan site" was defined as:

"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."

Part I of the 1968 Act was concerned with protecting occupiers of caravans from summary eviction or harassment on lines similar to the provisions then found in the Rent Act 1965 and now found in the Protection from Eviction Act 1977. But its operation was limited to a licence or contract under which a person was entitled to station a caravan on a "protected site". This was defined in section 1(2) of the 1968 Act, which (with the omission of some immaterial words) is in the following terms:

"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 [1960 Act] ... 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]So a caravan site cannot be a protected site if the terms of the relevant planning permission or site licence - and I add that one would expect both to coincide - are such that at some times of the year "no caravan may be stationed on the land for human habitation."

[12]The 1983 Act repealed and replaced Part I of the Mobile Homes Act 1975 and conferred a measure of security of tenure on any person entitled under an agreement to occupy a mobile home as his only or main residence, but only if the agreement entitled him to station a mobile home on land forming part of a protected site: see section 1(1) of the 1983 Act. It achieved its legislative purpose (section 2 (1)) by implying terms which extend any such agreement until it is terminated under paragraph 3, 4, 5 or 6 in Schedule 1: the owner's rights to terminate in paragraphs 4, 5 and 6 all require an application to the court and an order of the court. Although the 1983 Act refers throughout to "mobile home" that expression has the same meaning as caravan in Part I of the 1960 Act. Subject to an immaterial exception, the definition of "protected site" in the 1968 Act applies for the purposes of the 1983 Act.

[13]Those are the relevant statutory provisions. Some of them have been considered by this court in cases which were cited to the judge and referred to in his judgment. However, before going further into the judgment and the grounds of appeal I must go back to the facts of the case and trace the history in rather more detail.

[14]The first planning permission of which there is documentary evidence was granted by Essex County Council on 27th April 1959. It was a temporary permission, for five years. It referred to earlier permissions granted in 1954 and 1955. It permitted residential occupation between 1st March and 31st October only: during the winter period caravans were to be moved to a storage area and left unoccupied.

[15]The first planning permission which was unlimited in time was granted by Essex County Council on 5th November 1963. It was for use of the land as a holiday caravan park, subject to seven conditions. Condition 1 was:

"Caravans on the site shall only be occupied during the period 1st March to 31st October in each year."

[16]The reason for this condition was:

"The site is not considered suitable as a permanent residential caravan site."

[17]Then on 18th January 1993 the local planning authority (which was by then not the County Council but Rochford District Council) granted planning permission for 12 specified caravan pitches and caravans to be used for permanent residential use by their then occupiers, all of whom are specifically named in the permission. They did not include Mr Hampton. At the end of occupation by any of these named individuals the prohibition on permanent residential use was to arise again, with a restriction to occupation from 1st February to 30th November. The reasons stated for the conditions were that the permission had been granted as an exception to the general restrictive policies in the green belt in view of the personal circumstances of the various occupants concerned. The change in the "close season" from four months (that is from November to February inclusive) to two months (December and January) had apparently been made on appeal in 1982, although the documents relevant to that are not in evidence.

[18]The changes made by the planning permission granted on 18th January 1993 were reinforced by a section 106 agreement (see section 106 of the Town and Country Planning Act 1990) entered into on the same date between Mr Caton, the 12 permanent occupiers, and Rochford District Council.

[19]Finally (so far as planning permission is concerned) on 31st October 1996 Rochford District Council gave permission for 36 caravans on specified sites to be occupied on a permanent basis and without regard to the "close season" in December and January. These 36 caravan pitches are shown on an approved plan (designated 1140-96) and are all within a defined area to the centre and west of the Halcyon Caravan Park. They include some but not all of the 12 which had transitory individual permissions. There was a condition reiterating the prohibition on permanent unrestricted residential occupation throughout the rest of the park. The stated reason for the condition was:

"To ensure that caravans to be used for permanent unrestricted residential occupation lie within the [defined] area; as presently only those within that area will have sufficient height above ground level, without remedial levelling works, to minimise the potential for loss of life, or property, from flooding."

[20]I can deal much more shortly with the position of site licences under the 1960 Act. A licence was first issued to the park on 26th January 1966. Its terms were subsequently amended several times in order to keep in step with the changing planning situation. The site licence was on 5th January 1998 transferred to Berkeley. In its latest amended form (dated 19th October 1998) it contains (among numerous other conditions) the following condition (numbered 18):

"Caravans stationed on the land shall only be used for occupation during the period from 1st February to 30th November in any year with the proviso that the caravans specified under planning consents [then it specifies the two consents] may be occupied between 1st December and 31st January in the following year subject to the conditions attached to those consents."

[21]The caravans covered by those two planning permissions are of course the overlapping groups of 12 and 36 caravans already mentioned, and they do not include the caravan on plot 64.

[22]The judge formulated the issue to be decided as whether Mr Hampton's caravan formed part of a protected site. That echoes the wording of section 1(1)(a) of the 1983 Act, but it must be borne in mind that the definition of "protected site" (in section 1(2) of the 1968 Act) itself operates by reference to the 1960 Act, which (in section 1(4)) defines "caravan site" in terms of a caravan. It is clear (especially from section 5 of the 1960 Act) that a site licence is intended to regulate the healthiness, safety and amenity of an aggregation of caravans, rather than a single caravan, in almost all cases. As Sir Edward Eveleigh said in Holmes v Cooper

[1985] 1 WLR 1060

, at 1063:

"The word `site' is used in the Act so as to include the pitch upon which a particular caravan is stationed or to include compendiously the land upon which a plurality of caravans may be found."

[23]So it quickly becomes apparent that the judge was faced with an issue which, although quite short, was not a particularly easy one.

The judge referred to two principal authorities, both decisions of this court:

[24]Balthazar v Mullane

[1985] 2 EGLR 260

and Holmes v Cooper . In Balthazar v Mullane it was held that the reference (in the definition of "protected site" in section 1(2) of the 1968 Act) to planning permission being required must be read as importing that such permission has in fact been obtained. As Neill LJ said at page 263:

"... it is clear that a site cannot be a protected site ... unless planning permission for the relevant user has been obtained."

[25]Neill LJ gave four reasons for that conclusion (all of them being points on which Glidewell LJ had already expressed the same view).

[26]The judge found Holmes v Cooper more helpful than Balthazar v Mullane . In Holmes v Cooper this court, upholding a county court judge, held that the defendant, who had occupied and paid rent for a caravan on a North London caravan park for 20 years, did not lose protection under the 1983 Act because the caravan park was (as to about half of its seven or eight pitches) occupied by travelling showmen. Schedule 1 paragraph 10 of the 1960 Act contains, among other exceptions (from the need for a site licence) an exception for "the use of land as a caravan site by a travelling showman", subject to other conditions which do not call for mention. Again, the exception is expressed in the singular - a caravan site used by a travelling showman. Sir Edward Eveleigh said (at page 1063) that it would be inconsistent with the purpose of the 1983 Act:

"... to deprive a person of the protection of the Act, who does not himself or herself come within the exceptions, ..."

[27]Distinguishing Balthazar v Mullane , the judge placed weight on the fact that there was planning permission for all-the-year round residential occupation, "albeit not in respect of this particular plot." He concluded that Mr Hampton was entitled to protection and dismissed the claim.

[28]In his written and oral submissions for Berkeley Mr Kim Lewison QC (who did not appear below) has submitted that a protected site must be a site capable of lawful use for the stationing of the caravan in question - not for the stationing of some other adjacent caravan - for the purpose of permanent residential occupation. It cannot have been Parliament's intention, he has submitted, that a landowner should be liable to an enforcement notice under Part VII of the Town and Country Planning Act 1990, or still worse guilty of a criminal offence (under section 9 of the 1960 Act) while unable to bring about the removal of a caravan which was being unlawfully occupied for permanent residential purposes.

[29]That very point was made by Glidewell LJ in Balthazar v Mullane at page 263, where he said:

"I cannot believe that Parliament intended to bring about a situation in which the owners of land could be subjected to an enforcement notice requiring them to remove a caravan on the land and yet be unable to remove the caravan to comply with the notice, thus being at risk of committing a criminal offence because persons residing in the caravan had the protection of the Mobile Homes Act."

[30]That absurd result can be avoided, Mr Lewison has submitted, by focusing on plot 64 (where Mr Hampton's caravan is stationed) on its own and treating that as not being the same or part of the same "caravan site" as the defined central enclave of Halcyon Park in which (apparently because of the smaller risk of flooding) permanent residential occupation is permitted.

[31]Mr Lewison has also submitted that his approach is reinforced by section 12(1) of the 1960 Act, which now operates (as I have mentioned) subject to the 1983 Act. For my part I am not sure how much section 12 helps Mr Lewison, but certainly it cannot assist Mr Tom Weekes, appearing for Mr Hampton, and Mr Weekes did not rely on it.

[32]Mr Weekes (who did appear and was successful below) has presented a step-by-step argument. The first step, he has said in his written submissions, is to identify the "caravan site" for the purposes of section 1(1) of the 1960 Act. The second step is to identify "the relevant planning permission or site licence" for the purposes of section 1(2) of the 1968 Act. The third step is to see whether the site identified at the first step was under the permission or licence identified as the second step, subject (and he has to say, subject as to its entirety) to a prohibition on permanent residential occupation (which I use as shorthand for the full wording at the end of section 1(2) of the 1968 Act).

[33]Mr Weekes has submitted that the relevant caravan site is undoubtedly the entire Halcyon Park site. That, he said, is the natural approach, as is recognised by the fact that the whole of Halcyon Park is covered by a single site licence. He described Mr Lewison's multi-site analysis as bizarre and impermissible and suggested that it required the court to read words into the statute. He sought to distinguish Balthazar v Mullane (and indeed submitted that it is actually in his favour) in that it stated the prerequisite for a protected site (at page 263 of the report) as:

"... being one in respect of which planning permission has been granted for the stationing of one or more caravans."

[34]The facts of Balthazar v Mullane were certainly some way away from the facts of the present case. What had happened in Balthazar v Mullane was that an order of nuns had, at the request of a priest and probably without taking legal advice, permitted a married couple, a disabled Irish jockey and his wife (who would otherwise have been homeless) to move their caravan on to part of the nuns' land. There was no planning permission and no site licence for any caravan on this part of the nuns' land. No question arose as to holiday use or other limited use, and the remarks of Glidewell and Neill LJJ must be read in that context. Nevertheless Neill LJ (in a passage at page 263, which I have already cited) referred, as I respectfully think with complete accuracy, to "planning permission for the relevant user".

[35]Mr Weekes' step-by-step argument has its attractions. However, his first step is in my view by no means as clear as he has submitted. It is true that under section 6 of the Interpretation Act 1978 "a caravan" in section 1(4) of the 1960 Act can "unless the contrary intention appears" include caravans (in the plural), and in some places (for instance section 5 of the 1960 Act) it is clear that it must have that extended meaning. 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". Indeed Mr Lewison, in his very short but very effective reply, insisted that the court should concentrate on plot 64 alone. Whether one concentrates simply on plot 64 or on the different planning status of the two parts of the site, the fact is that in this case there is apparently a physical basis - that is, susceptibility to flooding - which does effect a division between two parts of the site.

[36]That approach is still more assisted by the general argument against hardship and absurdity which can be derived from Balthazar v Mullane , despite the somewhat different issues which this court was considering in that case. The court would be very slow to interpret the various statutory provisions so as to make Berkeley potentially subject to criminal sanctions because of a state of affairs which it is (on Mr Weekes' case) powerless to alter, or at any rate powerless to alter except after invoking the special provisions of section 12 of the 1960 Act.

[37]Holmes v Cooper , on which the judge seems to have relied most strongly, was not relied on by Mr Weekes in this court. I would however say a brief word about it. It was concerned with exceptions to the need for a site licence, and it is not at all surprising to my mind that the court treated the "travelling showman" exception as available only if that was the exclusive use of the whole of the site in question, such as a site used by a circus as its winter quarters. The decision supports the general approach of determining whether a particular caravan-dweller is protected by looking at his or her individual circumstances, rather than at the circumstances of others, even if they are neighbours or near-neighbours on the same caravan park subject to the same site licence.

[38]For these reasons I have, despite all Mr Weekes' submissions, come to the conclusion that the judge erred in his construction and application of the statutory provisions. I would allow this appeal.

LORD JUSTICE PETER GIBSON: Although we are differing from the judge, there is nothing which I can usefully add to the judgment of my Lord with which I am in entire agreement.

ORDER

Appeal allowed with costs; orders below discharged, including the costs order; permission to appeal to the House of Lords refused; application for a stay refused; possession order to take effect in six weeks' time.