Kim Howard v Jenny Charlton [2002] EWCA Civ 1086

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM Canterbury County Court

His Honour Judge Poulton

[2002] EWCA Civ 1086

Case No Case No: B2/2001/1491

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

Kim HowardAppellant

Jenny CharltonRespondent

Before

Lord Justice Ward

Lord Justice Clarke

Lord Justice Carnwath

Mr Kelvin Rutledge (instructed by Turbervilles with Nelson Cuff) for the Appellant

Ms Linda Pearce (instructed by Bassetts (Gillingham, Kent)) for the Respondent

Date 25 July 2002

Lord Justice Carnwath :

This

[1]is an appeal from Judge Poulton sitting in the Canterbury County Court. He had before him two cases arising out of disputes concerning mobile homes at the Stoneway Park in Petham, Kent. Only one of those cases is subject to appeal. Mrs Charlton, the respondent, occupies Plot 15 at Stoneway Park. She acquired the site in June 1991, taking over the agreement of her predecessor, Mrs Keates, made in 1984 with the then owner. In its original form the home was a purpose-built Donnington caravan, Castle model, manufactured in 1977. It measured 13 metres x 3.05 metres.

[2]At the end of 1992 Mrs Charlton obtained planning permission for an extension which the Judge described as a “porch”. The extension was 3.7 metres x 1.88 metres, and was attached to the side of the main home. The walls of the extension were of painted boarding. Mrs Charlton says that she obtained verbal permission from the then owner, Mr Tulett, for the extension. We have been shown a letter from Mr Tulett to the new owner, dated 20 th November 1999, saying that he never gave permission for any extensions, but Mrs Charlton’s plot is not one of those specifically mentioned in the letter, and he did not give evidence.

[3]In about 1995, Mrs Charlton altered the roof of her home. According to the description of the single expert, Mr Taylor:

“Originally the roof of the main home was a flat construction covered in felt or, more likely, in a metal sheet. According to the plan, originally, the extension was to have a clear Perspex roof. Either at the time of construction or later, the roof was altered. The roof has been constructed to cover both parts and is tile covered. ”

There is no evidence of a specific consent from the owner for this change, nor of planning permission (assuming it was needed). Nor, however, is there any evidence of complaint by the owner or by the planning authority.

[4]Mrs Howard, the appellant, acquired the park in March 1999. She immediately set about improving the site overall. The Judge found that this was done with the best of intentions, but as he said, “one woman’s improvement is another one’s disruption”. There were disagreements with some of the residents, including in due course Mrs Charlton, who originally had given her support for the improvements. We are not directly concerned with these difficulties. The present claim arises from Mrs Charlton’s action for damages and an injunction, based on various incidents of damage and disturbance referred to in the claim as “harassment”. On these complaints, Mrs Charlton was partially successful, to the extent that the Judge awarded £600 damages for serious damage to her garden caused by Mrs Howard. There is no appeal against that part of the judgment.

[5]The issue with which we are concerned was raised by amended defence and counterclaim. It was asserted that Mrs Charlton’s home was not a mobile home within the meaning of the Mobile Homes Act 1983 and that “accordingly she enjoys neither the protection of the Act nor of the covenants in the said written agreement”. The particulars asserted that following the addition of the porch extension the home “has lost the essential quality of mobility in that both it and the extension cannot be moved from one place to another as a single unit”, or alternatively it could not be moved lawfully on the highway since the overall width was more than the maximum permitted on the public roads, which was said to be 12 feet.

[6]As I have said, there were two cases before the learned Judge. The other case, that of Mr Hursey, raised similar points. In his case the Judge found that the home had ceased to be a mobile home and had therefore ceased to enjoy the protection of the Act. There is no appeal in that case. In Mrs Charlton’s case however he held, as a “question of fact and degree”, that the addition of the porch had not changed the character of the original structure as a mobile home. He therefore dismissed the claim for possession. Mrs Howard appeals against that decision.

[7]Before returning to the judgment below, I should refer to the relevant legislation and to the terms of the agreement. The law relating to caravans and mobile homes has both public and private aspects. Sites for caravans require planning permission under the Town and Country Planning Acts, but in addition the layout and use of such sites are controlled by a site licensing system operated by the local authority under the Caravan Sites and Control of Development Act 1960. That system of control has no direct bearing on the present case, save that certain definitions, including that of “caravan”, are imported into the Mobile Homes Act 1983. The private law aspects of such sites, that is the relations between owner and licensee, are subject to control under the Mobile Homes Act 1983, which was passed in order to make permanent the temporary system of control introduced by the Mobile Homes Act 1975. The 1983 Act is not the direct concern of the local authority. It operates by imposing special terms and restrictions on agreements for mobile homes, which are enforceable by the parties through civil courts, in the same way as other contractual obligations. (There are also criminal sanctions against unlawful eviction or harassment: Caravan Sites Act 1968 s 3)

[8]By section 1(1) the Act applies - “to any agreement under which a person (‘the occupier’) is entitled– a) To station a mobile home on land forming part of a protected site; and b) To occupy the mobile home as his only or main residence.” There is no dispute that this is “a protected site” within the meaning of the Act (incorporating the definition in Part 1 of the Caravan Sites Act 1968). Section 2 requires there to be “implied” in any agreement to which the Act applies the terms set out in Part 1 of Schedule 1. By section 3 any such agreement is binding on any successor in title of the owner. The terms implied under Schedule 1 deal, among other things, with the duration of the agreement and termination. For present purposes the provisions for termination by the owner are relevant. They are as follows: 4. The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the court – (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. 5. The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the court is satisfied that the occupier is not occupying the mobile home as his only or main residence. 6.(1) The owner shall be entitled to terminate the agreement at the end of a relevant period if, on the application of the owner, the court is satisfied that, having regard to its age and condition, the mobile home – (a) is having a detrimental effect on the amenity of the site; or (b) is likely to have such an effect before the end of the next relevant period.

(2) In sub-paragraph (1) above “relevant period” means the period of five years beginning with the commencement of the agreement and each succeeding period of five years.

[9]At this point it is necessary to say something about the definitions of “caravan” and “mobile home”. The 1983 Act uses the term “mobile home” but this is stated (s 5(1)) to have the same meaning as the word “caravan” in the 1960 Act. Section 29 of the 1960 Act defines a “caravan” as (so far as relevant) - “Any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer)...”. It is immediately apparent that something may be a “caravan” for these purposes, even though it bears no relation to what might be regarded as a caravan in ordinary language. In particular it does not need to have wheels; it is enough that it can be transported on a trailer. The definition was further expanded by the Caravan Sites Act 1968. This, it seems, was intended to remove doubts about the application of the definition to the larger types of caravan, usually referred to as “twin unit caravans”, which became popular in the 1960s. Section 13 of the 1968 Act, headed “twin unit caravans”, provides:

“(1) A structure designed or adapted for human habitation which – (a) is composed of not more than two sections separately constructed and designed to be assembled on the site by means of bolts, clamps or other devices; and (b) is, when assembled, physically capable of being moved by road from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer), shall not be treated as not being (or as not having been) a caravan within the meaning of (Part 1 of the 1960 Act ) by reason only that it cannot lawfully be so moved on a highway when assembled”

. Sub-section (2) imposes an overall limit of 60 feet (18.288 metres) in length or 20 feet (6.096 metres) in width.

[10]We were referred to one case in this court, in which the 1960 Act definition has been considered, Carter –v- Secretary of State for the Environment

[1994] 1WLR 1212

. That case concerned a site which had the benefit of an established use certificate, under the Planning Acts, for use for the stationing of a “caravan”. The issue was whether the Secretary of State had been right to confirm an enforcement notice, on the basis that the particular structure on the site was not a “caravan” for those purposes. It was common ground that the 1960 Act definition should be used for these purposes (see Wyre Forest DC –v- Secretary of State

[1990] 2AC 357

). The particular structure was described in the headnote as follows:

“The applicants replaced the caravan with a structure known as a “Park Home” which consisted of pre-fabricated sections that were delivered to the site by lorry. The sections were then bolted together on site and dragged onto the concrete base on which the caravan had rested. The structure lacked wheels and could only be moved after being dismantled.”

The Secretary of State had taken the view that, to satisfy the definition, “a structure must be capable of being moved as a structure (that is, in one piece)...”. Therefore the particular structure did not comply. This view was upheld by the Court of Appeal. The reasoning appears perhaps most clearly from the judgment of Russell LJ (p 1219):

“In order to qualify for the description caravan in section 29 it is therefore ‘the structure’ that has to possess two qualities. The first part of the section provides that it is necessary for the structure to be designed or adapted for human habitation. This, in my view, clearly contemplates a structure as a whole as a single unit, and not the component parts of it. The second quality which ‘the structure’ has to possess is mobility. The structure has to be capable of being moved by being towed or transported on a single motor vehicle or trailer. ‘The structure’ contemplated by the second part of the section is, in my judgment, precisely the same structure as that contemplated by the first part of the section, not a structure which has been dismantled before loading has taken place. In my view the second limb of the definition can therefore only refer to a whole single structure not to component parts of it.”

[11]Turning to the agreement, made between Mrs Charlton’s predecessor and the then owner of the site, it is on a standard form issued by the relevant national bodies, and as one would expect is designed to comply with the 1983 Act. The details of the particular mobile home are given in the First Schedule, where the make and model are described. Part I of the agreement sets out the parties and states:

“You have an agreement to which the Mobile Homes Act 1983 applies”

. Part II sets out “information”; and explains that “because you have an agreement with the site owner which entitles you to keep your mobile home on his site and live in it as your home”, the 1983 Act gives certain rights relating to security of tenure and so on, which cannot be overridden. Part III sets out “implied terms”. These are the terms derived from the 1983 Act, including those relating to termination by the owner as set out above. Part IV sets out “express terms of the agreement”. These are terms not specifically required by the Statute. Clause 1 states as follows:

“The owner permits the occupier to station the mobile home details of which appear at the First Schedule on the pitch and to occupy the same...”

. Clause 3(a) sets out the “annual pitch fee”, subject to review, payable by equal weekly payments in advance. The other provisions are concerned generally with the maintenance of the site and compliance with rules.

(g) :

“Not without the written consent of the owner to carry out any building works or erect any porches, sheds, carriages, outbuildings, fences or other structures on the pitch.”

[12]I come now to the judgment in this case. The Judge rejected the contention that Mrs Howard could rely on anything that happened before her arrival as a breach of the agreement, since rent had been accepted down the years by her and her predecessors:

“She cannot be heard to say that these extensions were done without permission. Even if they were, any such breach is long since waived and I do not accept, as was put forward in Mr Hursey’s case, that the extension was such that it was effectively hidden from view from the owners.... It could easily have been seen by any owner going round the site as presumably at times they have to do; if not the owner him or herself then by an agent which would be quite sufficient.”

He did not in terms say whether he accepted Mrs Charlton’s evidence that she had received verbal permission, no doubt regarding that as irrelevant having regard to his view as to waiver.

[13]However, the main argument for Mrs Howard in both cases was that, if the home which was the subject of the agreement had ceased to be a mobile home, the protective legislation (and the related clauses in the agreement) would no longer apply. This contention was apparently challenged on behalf of Mrs Charlton, but upheld by

the Judge in these terms:

“An argument that was put forward on behalf of Ms Charlton was to the effect that if one had a mobile home agreement then, if it were a mobile home agreement with a mobile home that satisfied the definitions to which I have referred, it remained within the protection of the legislation whether or not it ceased to be a mobile home. The reductio ad absurdum which was put forward by Mr Rutledge in argument seems to me to meet the point very fully. Suppose that, having acquired a mobile home and put a mobile home on a site, one then built round it or on it a block of flats or whatever, which was utterly immobile, it would be absurd to suggest that this was still a mobile home within the meaning of the Act and that the Act applied to it, even though it plainly was not a mobile home. I reject the suggestion that, so to speak, once a mobile home, always a mobile home, even if in fact it is not a mobile home. It follows, in my judgment, that what is necessary is that, in order to establish that the mobile home retains the protection of the relevant legislation, it must be capable of being moved in the way the section states and in accordance with the principle laid down in Carter –v- the Secretary of State for the Environment. ”

[14]On this footing, therefore, it became necessary for the Judge to determine, as a matter of fact, whether in either case the home remained a “mobile home” within the definition. In applying the definition, he drew a distinction between the two cases. In Mr Hursey’s case the extension was very much more substantial than that of Mrs Charlton. He considered that Mr Hursey’s structure had to be regarded as a single unit, and that in view of its width (17’8”) it could not lawfully be moved on the public road. For that purpose he had been shown correspondence with the local Kent Police and other bodies, which satisfied him that “it would not be a lawful load and permission would never be given for it”. It had not been argued in Mr Hursey’s case that the mobile home should be regarded as the original structure, and that one should ignore the extension.

[15]In Mrs Charlton’s case the extension was much smaller, taking up only 12 feet (3.7m) of the overall length of 42’8” (13m).

The Judge considered that this made it “quite different” from that of Mr Hursey:

“This is a much smaller extension ... described as a porch. It is bolted on. It could be unbolted and, although it is obviously of great use to Ms Charlton in the sense that she likes to sit there and it is part of her home, I am satisfied that it is not an essential part of her home. The original structure is still a mobile home and what I consider one should look at is the original structure because the addition is just that; an addition not absolutely crucial or vital to her way of living. In those circumstances, it seems to me that it is plain, both on Mr Taylor’s evidence – indeed, I do not think the contrary was argued – that there is nothing wrong with the mobile home; that is still a mobile home. That, I think, is the structure I have to look at – I am entitled to disregard the bolted-on addition – and that structure is within the protection of the Act.”

Accordingly he dismissed Mrs Howard’s application for possession.

[16]Mrs Howard has appealed against this decision on a number of grounds, the main point being that on the facts the Judge should have held that the original home and extension did not fall within the statutory definition, because they could not be moved as a single unit. It is said that the Judge was wrong, both on the facts and as a matter of law, in treating the extension as something which could be ignored.

[17]There was originally no respondent’s notice. There had been some difficulty about legal aid for Mrs Charlton, and the precise form of her representation was not settled until immediately before the hearing. We understand that Ms Pearce who appeared for her, although originally willing to do this case on a pro bono basis, is now supported by a representative organisation, because of the general importance of this case for mobile home owners. With our permission, and without objection from Mr Rutledge for the appellant, she submitted a respondent’s notice. This raises a number of issues, and in particular raises the question whether the terms of the agreement relating to termination continued to apply even if the home ceased to be a mobile home within the Act. We are grateful to both counsel for their assistance.

[18]In my view, the Judge reached the right conclusion, but he made his task more difficult by starting from the wrong point. The starting point should have been the agreement under which Mrs Charlton held her home. It is not in doubt that, at its inception at least, this was an agreement within the Mobile Homes Act 1983, for the stationing of something which was a “mobile home” within the meaning of that Act. However, the mere fact that under the 1983 Act certain terms were required to be implied, does not make it any less an agreement which is to be interpreted and applied in accordance with ordinary principles of contract. As has been seen, the agreement contained very specific provisions for termination by the owner. The contrast between the three terms is instructive. Clause 5 is in absolute terms. If the Court is satisfied that the occupier is not occupying the mobile home “as described in the First Schedule” as “his only or main residence” the agreement can be terminated forthwith. Clause 6 enables the owner to terminate the agreement at the end of a five-year period if it is having a detrimental effect on the amenity of the site. It is not suggested that either Clauses 5 or 6 apply here.

[19]The only other provision is that relating to breaches of the agreement in general (Clause 4). In that case the agreement may be terminated, but only where the occupier has failed to comply within a reasonable time with a notice to remedy the breach, and the Court considers it “reasonable for the agreement to be terminated”. In this case, as we have seen, any breach of the agreement involved in the additions to the original mobile home was treated by the Judge as having been waived. Accordingly, there would have been no question of proceeding under clause 4. However, even if Mrs Howard had been in a position to rely on those matters as breaches of the agreement, her remedy would have been to serve a notice requiring the breaches to be remedied, no doubt by requiring the removal of the offending extensions. There is certainly nothing in the agreement which provides a basis for the ground of termination relied on by the appellant, namely that the structure has ceased to be a mobile home. Indeed one of the oddities of the appellant’s case is that, even if Mrs Howard’s predecessor had given express written consent for the extension in 1992, he could have turned round the next day and claimed possession on the ground that as a result of the permitted extension the structure was no longer a mobile home.

[20]It appears from the skeleton arguments that Mrs Charlton did seek to contend, before the Judge, that the issue of mobility or immobility was irrelevant “because the terms of the agreement are unambiguous and are set out in the written statement.” However the Judge does not seem to have looked at it as a matter of contractual interpretation. As we have seen, he considered the issue to be whether, if the mobile home ceased to satisfy the statutory definition, “it remained within the protection of the legislation”. In answering that question in favour of Mrs Howard, he made two points. The first was the “reductio ad absurdum” that if the extension had been a block of flats it would be absurd to suggest that it was still a mobile home. The other, later in the judgment, was by reference to the “information” in the agreement which states that the rights contained in the implied terms cannot be overridden “so long as your agreement continues to be one to which this Act applies.” The Judge commented:

“That seems to me to support the contention that the agreement must continue to be one to which this Act applies that if the home ceased to be mobile the Act would no longer apply to it.”

[21]Neither of these points seems to me, with respect, to compel the conclusion at which the Judge arrived. The hypothetical example of the erection of a block of flats is so far from the facts of this case as to offer no relevant assistance. No doubt, if a mobile home occupier began to erect a block of flats on land next door to his mobile home, the local authority would have some concerns under the planning legislation, and the site owner would be able to take appropriate action to prevent the work continuing, either under the agreement, or more probably asserting his ordinary rights as a landowner. In the unlikely event that the local authority did nothing, and the owner acquiesced in the work, then no doubt interesting issues of waiver and proprietary estoppel might arise. In any event, such a construction would be wholly outside the contemplation of the agreement.

[22]In this case, by contrast, the structure was well within the contemplation of the agreement. Clause 3 (g) expressly contemplates the grant of consent by the owner for “porches ... or other structures on the pitch”. The Judge was content to regard this as “a porch”. Mr Rutledge says that he gave insufficient weight to Mrs Charlton’s evidence, in cross-examination, as to her use of the extension for living purposes and her view that “the two go together”. However, it is difficult to see why those matters should take the structure entirely outside the scope of Clause 3 (g), which imposes no limitation on the use of the extension. Furthermore, if those were the matters which were regarded as tipping the balance, then the appropriate remedy (assuming no waiver) would be to serve a notice requiring them to cease, and if that notice were not complied with, to attempt to persuade the County Court Judge that it would be reasonable to terminate on those grounds.

[23]The other point relied on by the Judge was the reference to the protections applying, so long as the agreement “continues to be one to which this Act applies”. This is no doubt intended to reflect the sense of section 2 of the 1983 Act, which provides that the statutory terms are implied “in any agreement to which this Act applies”. However, it is also important to remember that the Act applies, not to the mobile home as such, but to any agreement under which the occupier is “entitled to station a mobile home” on relevant land. Thus the criterion for application of the Act is not whether the structure is a mobile home, but whether the agreement entitles the occupier to station a mobile home. One can no doubt envisage circumstances in which the structure on the site is so far from that contemplated by the original agreement, that the agreement is to be regarded as having been impliedly revoked, or in any event is not to be taken as applying to the structure on the site. However, that is far from this case. The agreement gave the right to station a particular form of caravan, as described in the Schedule. That caravan is still on site. The extension is entirely within the scope of the matters contemplated by the agreement.

[24]It seems to me therefore that the issue posed by the learned Judge did not arise in the terms in which he posed it. The question was, not whether this remained a mobile home, but whether the agreement to station a mobile home had been validly terminated in accordance with its terms. The simple answer was no. This conclusion makes it unnecessary to deal in detail with the interesting submissions made to us about the proper interpretation of the definition of caravan in the 1960 and 1968 Acts, and in particular the relevance of being able to move the structure, either as a single unit or in parts, on the highway.

[25]In this connection we have been shown the correspondence which was before the judge, dealing with width limits for transport. We have also been shown extracts from two sets of regulations governing movement of heavy loads on the highway: the Road Vehicles (Construction and Use) Regulations 1986, and the Motor Vehicles (Authorisation of Special Types) General Order 1979. Counsel have helpfully prepared an agreed note summarising some of the main points. However, even with that assistance, the picture which emerges is complex. While grateful for the researches of counsel, I do not think that it is appropriate to draw any firm conclusions, as to the relevance or the effect of these provisions, in a case where the issue does not arise.

[26]It is urged that these are important questions on which the Court should give guidance for future cases. However, the relative dearth of reported cases in over 30 years since the 1968 Act suggests that, whatever the theoretical problems of interpretation, the definitions have not caused great difficulty in practice. No doubt this is because their practical application has depended on the particular context in which they come to be applied. There have been cases on the application of the definitions in the planning context (see Carter above, and Byrne –v- Secretary of State

(1997) 74 P&CR 420

). In those cases the issue is normally determined by an inspector, with the benefit of the Departmental experience, and the Court is only involved insofar as there is an issue of law. Similar questions may come before the courts in other contexts. For example, in Elitestone Ltd –v- Morris

[1997] 1WLR 687

, the issue was whether the structure in question (described as a “bungalow”) was a chattel or part of the land. That issue had to be decided on the particular facts applying to common law rules, and the terms of any agreement between the parties could not affect the position (see p 690 D-F per Lord Lloyd).

[27]Under the Mobile Homes Act, by contrast, the terms of the agreement provide the basis of control. The issue arises between the owner and the licensee, and the wider public interest is not directly engaged. Until the present case gave new prominence to the factual application of the definition, the problems do not seem to have arisen frequently in practice. It is difficult to believe that one could not find, on many mobile home sites up and down the country, extensions similar in kind to that of Mrs Charlton. Yet it does not seem to have been argued by owners that this fact of itself enabled them to escape the protection of the Act. Indeed, the only reported case which is in any way comparable was the other way round, the occupier seeking to argue unsuccessfully, that the caravan (which in that case was owned by the site owner) was “a house” and therefore subject to Rent Act control ( R v Nottinghamshire Rent Officer, ex p Allen

(1985) 52 P& CR 41

). Once it is appreciated that the issue is one to be approached in most cases in accordance with the terms of the agreement, it is unlikely that the precise definition of mobile home will be determinative.

[28]For these reasons I would dismiss this appeal.

Lord Justice Clarke:

[29]I agree.

Lord Justice Ward:

[30]I also agree.

Order

application for permission to appeal against the order for costs refused; respondent's application for permission to serve and file a respondent's notice allowed; appeal dismissed; no order for costs; application for permission to appeal to the House of Lords to be dealt with in writing. (Order does not form part of the approved judgment)