35, Forest Road Park, Oakmere, Northwich MAN/13UB/PHC/2023/0002
DECISION
[1]The Tribunal orders as follows: Car Parking Spaces A, B and C1.1 that in accordance with the Applicants’ right to the “quiet and peaceable enjoyment of the Property”, the Applicants have the right as a matter of custom and practice to the exclusive use of parking spaces B and C; 1.1 the change to the use of parking space C, as authorised and/or directed by the Respondent, is a breach of the Applicants’ right of quiet enjoyment of the Property under Clause 4(e);1.2 since 2016, the Applicants have not had any exclusive right to the use of parking space A. Car Parking Space D1.3 in exercise of its discretion under the Mobile Homes Act 1983 and in accordance with section 231A(4)(d) of the Housing Act 2004, the Respondent is to mark out a pedestrian walkway of not less than 1.2m in width on car parking space D, such walkway to lead directly to/from the parking space D and the walkway to the side of the Property;1.4 the works required under paragraph 1.2 shall be carried out within 28 days of this date of issue of this Decision at the sole cost of the Respondent. Rule 13(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, (“the Rules”)1.5 the Respondent to reimburse the Applicants in full the costs of the application and hearing fees paid by them. Application dated 20 November 2023[2]An application dated 20 November 2023 by the Applicants, made after the Tribunal’s determination of the application the subject of this Decision and seeking orders from the Tribunal in relation to parking space D, is refused. BACKGROUND[3]By an application dated 4 January 2023, (“the Application”), the Applicants sought determinations under section 4 of the Mobile Homes Act 1983, (“the 1983 Act”) as follows:3.1 that the Applicants have exclusive use of the three parking spaces A, B and C located near to and in front of the Property;3.2 that parking space C should be “returned” to the Applicants by the Respondent;3.3 that parking space C is to be painted with a disability parking sign by the Respondent to prevent its use by other residents; and3.4 that the Respondent is to pay compensation to the Applicants, as detailed in their statement of case dated 5 June 2023, (“the Statement of Case”).[4]Directions dated 7 February 2023 and 16 May 2023 were issued pursuant to which the Applicants submitted the Statement of Case.[5]By reason of its failure to comply with the Directions, the Respondent was barred from participation in the proceedings by a barring order dated 24 July 2023, (“the Barring Order”).[6]A hearing was scheduled to take place on Friday 10 November 2023 at 12:00 with an inspection at 10:00 on the same date.[7]A further application was submitted on 20 November 2023, following the hearing on 10 November 2023, seeking orders from the Tribunal in relation to parking space D. LAW[8]Section 4 of the Mobile Homes Act 1983, (“the 1983 Act”), provides that: (1) In relation to a protected site ..., a tribunal has jurisdiction— (a) to determine any question arising under this Act or any agreement to which it applies; and (b) to entertain any proceedings brought under this Act or any such agreement, subject to subsections (2) to (6).[9]Section 231A of the Housing Act 2004 provides that:(1) The First-tier Tribunal…exercising any jurisdiction conferred by or under…the Mobile Homes Act 1983…has, in addition to any specific powers exercisable by them in exercising that jurisdiction, the general power mentioned in subsection (2).(2) The tribunal’s general power is a power to give such directions as the tribunal considers necessary or desirable for securing the just, expeditious and economical disposal of the proceedings or any issue in or in connection with them.(3) … (3A) …(4) When exercising jurisdiction under the Mobile Homes Act 1983, the directions which may be given by the tribunal under its general power include (where appropriate)— (a) directions requiring the payment of money by one party to the proceedings to another by way of compensation, damages or otherwise; (b) directions requiring the arrears of pitch fees or the recovery of overpayments of pitch fees to be paid in such manner and by such date as may be specified in the directions; (c) directions requiring cleaning, repairs, restoration, re-positioning or other works to be carried out in connection with a mobile home, pitch or protected site in such manner as may be specified in the directions; (d) directions requiring the establishment, provision or maintenance of any service or amenity in connection with a mobile home, pitch or protected site in such manner as may be specified in the directions.(5) … INSPECTION Attendance by the Respondent[10]By an email dated 9 November 2023, Mr Mark Burnside, a director of the Respondent, requested information regarding the proceedings/hearing and confirmed that Mr Louis Burnside would attend the inspection.[11]All correspondence relating to the proceedings, including, without limitation, the Barring Order, had been sent to the Respondent at its registered office address.[12]No application had been made by the Respondent to lift the bar on its further participation in the proceedings.[13]Mr Louis Burnside attended at the inspection on behalf of the Respondent and was advised by the Tribunal that, as a result of the Barring Order, the Respondent could take no part in the proceedings. Mr Burnside appeared to accept the Respondent’s position and left the inspection. The Inspection[14]Mr Kenneth Thorley attended the inspection on behalf of the Applicants.[15]The following matters were noted by the Tribunal at the inspection:15.1 the location of parking spaces A-D in relation to the Property;15.2 the decking to the front of the Property which had been erected by the Applicants;15.3 that the walkway to the entrance to the Property leads directly onto parking space D; and,15.4 parking space D is wider than parking spaces A-C; and,15.5 there is a drain cover in parking space D on the side adjacent to parking space C. HEARING[16]Mr Thorley attended the hearing with Mr Andrew Beresford.[17]The Applicants’ written and oral evidence is summarised as follows:17.1 the Applicants bought the Property in 2007;17.2 important in their decision to buy the Property was the permission of the then-owner (Mr Dugdale) that they could have exclusive use of the three car parking spaces in front of the Property, being the car parking spaces A-C;17.3 their submissions include letters from the late Mr Dugdale’s son and daughter and from previous owners of No 34 and No 36 confirming the Applicants’ use of these parking spaces since 2007;17.4 as a concession and because of the Applicants’ relationship with Mr Dugdale, the Applicants agreed in 2016 to the shared use with the owners of No.36 of parking space A as a space for visitors to each of their properties;17.5 with regard to parking spaces B and C, the Applicants had continuous and exclusive use of them from 26 June 2007 (the date of acquisition of the Property) until, in the case of parking space B, the present date and, in the case of parking space A, until 2021;17.6 in 2021, without any prior notification to the Applicants, the Respondent granted the owners of No. 36 an exclusive right to use parking space C;17.7 until 2021, the occupiers of No. 36 had used only parking space D;17.8 when using parking space C, the owners of No. 36 have frequently been in breach of the requirement that they should not park within 3 metres of the Property;17.9 because of Mrs Thorley’s mobility issues the exclusive use of parking space C is of particular importance as it is needed to ensure accessible access to the walkway to the Property;17.10 the Applicants believe that the Respondent’s act in granting the owners of No.36 the right to park in parking space C is a breach of their legal rights as follows:(1) the Applicants had been granted a parking right to use the three parking spaces A, B and C, first granted in 2007 by Mr Dugdale and accepted by the Respondent on its acquisition of the Park in 2016, with which the Respondent could not now lawfully interfere; and/or,(2) Mr Dugdale had granted an exclusive right to the Applicants to use the three parking spaces, which right had been subsequently acknowledged by the Respondent, and its subsequent actions by adversely affecting the extent of the Applicants’ right of user, amounted to a derogation of that grant; and/or,(3) the Applicants have a right of quiet enjoyment of their Property under the 1983 Act and the Respondent’s actions in granting the right to use parking space C to the owners of No. 36 has interfered with that right.[16]The Tribunal was referred to the Written Statement dated 26 June 2007 in respect of the Property, (“the Written Statement”), and to the Park Rules, (“the Park Rules”).[17]At the hearing, Mr Thorley confirmed on behalf of his wife and himself that they did not want to pursue any claim for compensation and/or damages, as set out in the Statement of Case.REASONS
[18]Having regard to the Applicants’ evidence, the Tribunal is satisfied that:18.1 the Applicants have continuously and exclusively used parking spaces B and C since their acquisition of the Property in 2007 until 2021 when their user of parking space C was disrupted by the Respondent’s actions. In particular, the evidence from the relatives of the previous owner and of the Applicants’ former neighbours confirming their user is noted; and,18.2 there is no express reference to the grant or use of any specified car parking spaces in relation to the Property in the Written Statement or in the Rules. Parking Right/Derogation of Grant[19]The Tribunal is satisfied that there is no evidence of the grant of an express parking right or other benefit giving the Applicants the sole and exclusive use of the parking spaces A, B and C. Implied Right by Custom and Practice[20]The Tribunal is satisfied that:20.1 the Applicants’ exclusive use of parking spaces B and C since their acquisition of the Property on 26 June 2007 is a matter of custom and practice which is now integral to their right to the “quiet and peaceable enjoyment” of the Property in accordance with Clause 4(e) of the Written Statement in respect of the Property;20.2 it is appropriate, in this respect, to have regard to Mrs Thorley’s mobility issues of which the Respondent is aware; and,20.3 the Respondent’s acts in interfering with the Applicants’ use of parking space C is a breach of its obligation to ensure the Applicants’ “quiet and peaceable enjoyment” of the Property. Parking Space D[21]At the inspection the Tribunal noted that it is necessary to walk over parking space D to access the walkway to the Property from parking spaces B and C. It also noted that parking space D was a wider space than A, B and C and that there was a manhole cover in the area nearest to parking space C.[22]As a consequence, the Tribunal considers it appropriate to exercise its discretion under the 1983 Act and, in accordance with section 231A(4)(c) of the Housing Act 2004, to direct the Respondent to establish a walkway on car parking space to ensure unobstructed access by the Applicants to the walkway to the Property. Parking space A[23]Having regard to the Applicants’ evidence, the Tribunal is satisfied that, since 2021, they have agreed to the use of parking space A as a parking space for visitors in common with the occupiers of N0. 36. Rule 13[24]Having regard to its decisions in paragraph 1 of this Decision, the Tribunal considers it appropriate, acting on its own initiative, to order the Respondent to reimburse the Applicants in full the costs of the application and hearing fees within 28 days of the date of issue of this Decision.