The first defendant (D1) began occupying a mobile home on land now owned by the claimants in about 2001. There was never any written agreement. There was a verbal licence and rent was paid. At the commencement of D1’s licence agreement the use of the claimants’ land for the stationing of a mobile home was not authorised by any planning permission.

In October 2015, a certificate of lawful use or development was issued under section 191 Town and Country Planning Act 1990 on the basis that the use of the land had become immune from enforcement. The day after the grant of the certificate of lawful use, the claimants’ solicitors served a notice on D1 purporting to terminate his agreement. No site license has ever been applied for so the use of the claimants’ land as a caravan site continues in contravention of section 1 of the Caravan Sites and Control of Development Act 1960.

The claimants then applied to the Upper Tribunal for a declaration that the Mobile Homes Act (MHA), 1983 did not apply in the circumstances by reference to the Court of Appeal judgment in Murphy v Wyatt [2011 ] 1 WLR 2129. Mr Justice Fancourt in the Upper Tribunal concluded that the MHA 1983 did not apply – see Dean V Mitchell [2020 ] UKUT 306. The claimants then commenced this possession action. D1 counterclaimed in the possession action, including seeking a declaration against the second defendant (D2) that S.1 of the MHA 1983 was incompatible with his rights under Article 8 of the Human Rights Act 1998. Ultimately, the question of whether a declaration should be granted was transferred to the high court and the possession action was stayed in the county court in the meantime.

Section one of the Caravan Sites and Control of Development Act (CSCDA) 1960 Introduced a prohibition on permitting land to be used as a caravan site unless the occupier of the land holds a site licence and s.1(2) provides that contravention of the prohibition is a criminal offence. S.3 (3) prevents a local authority from granting a site licence unless planning permission is in place and the original version of s.3(4) granted an entitlement to a site licence whereas, since 2013, local authorities have had a discretion whether or not to grant a licence.

S.1(3) of the CSCDA, 1960 defines the ‘occupier’ as the person entitled to possession or who would be entitled to possession ‘but for the rights of any other person under any licence granted in respect of the land.“

The Caravan Sites Act (CSA) 1968 introduced certain procedural protections for residents of mobile homes on protected sites:

“1. Application of Part 1.

(1) This Part of this Act applies in relation to any licence or contract (whether made before or after the passing of this Act) under which a person is entitled to station a caravan on a protected site (as defined by subsection (t2) below) and occupy it as his residence, or to occupy as his residence a caravan stationed on any such site; and any such licence or contract is in this Part referred to as a residential contract, and the person so entitled as the occupier.

(2)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 Caravan Sites and Control of Development Act 1960 or would be so required if paragraph 11 or 11A of Schedule 1 to that Act (exemption of gypsy and other local authority sites) were omitted, 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.”

D2 argued that the lack of a site licence meant that the site was not a protected site. Hugh Mercer KC (sitting as a deputy judge of the high court) did not accept this submission. He stated:
“Drawing together the strands of the above discussion, the correct interpretation of the definition of ‘protected site’, both as a matter of principle and authority is that it is not necessary for a site licence to be in force in order for a site to qualify as a ‘a protected site’ (para 67).
Article 8 provides:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
With regard to the proportionality assessment, that was then required, the judge stated:

“It is common ground that a structured approach for the carrying out of the proportionality assessment is provided by the Supreme Court judgments in Bank, Mellat v HM Treasury (No.2) [2013 ] UKSC 39, in particular at paragraph 74 per Lord. Read:

‘(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right,

(2) whether the measure is rationally connected to the objective,

(3) whether a less intrusive measure, could have been used without unacceptably compromising the achievement of the objective, and

(4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective , to the extent that the measure will contribute to its achievement, the former outweighs the latter’”(para75)

With regard to the question of “legitimate aim“, the judge stated:

“The starting point is to identify the relevant ‘measure’. It seems to me that, in this case, the measure is the grant by the 1983 act of certain benefits to those mobile home occupiers whose site benefited from planning permission at the time of the occupation agreement but not to those who sites obtain planning permission after the occupation agreement is made…” (para 76)

After considering all the submissions, the judge stated:

“I can understand that a measure which limited security of tenure to cases where the occupation agreement post – dates planning permission might make sense and might help to ensure that, for those who are aware that no security of tenure is obtained unless the site benefits from planning permission, and who are able to check planning permission, prospective residents might only search on sites with planning permission. I can however find no supporting material in the background to support this and still less of any underlying social purpose to that effect. Also, there is an air of unreality with a submission that the occupiers, who are acknowledged to be in the weaker bargaining position, bear the consequences of a failure to obtain planning permission”(para 92).

The judge then moved on to the issue whether there was a rational connection between the objectives and the measures. He concluded:

“With regard to the 2004 amendments [to the MHA, 1983 ], there clearly is a rational connection between facilitating informed choices by residents, improving the residents’ negotiating position, and having a written record of terms on the one hand, and, on the other hand, a requirement of advance notice of terms prior to concluding the occupation agreement”(para95).

The judge then turned to the question of margin of appreciation. He quoted from Connors v UK [2004] HLR 52 where the European Court of Human Tights (ECtHR) stated:

“86. The serious interference with the applicant’s rights under Art. 8 requires, in the Court’s opinion, particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed.”

On this question of margin of appreciation, the judge concluded:

“The Secretary of State invited me to consider this matter on the basis that the occupation had been unlawful at all times when no planning permission was in place and that, even when the matter was regularised, this was by a certificate of lawful use, and not a grant of planning permission. However, for the purposes of site licensing the judgment of Parliament in s.191 (7) Town, and Country Planning Act 1990 is that a certificate of lawful use ‘shall also have effect … as if it were a grant of planning permission’ and s.191(6) conclusively presumes the lawfulness of ‘any use, operations or other matter for which a certificate is in force’(para 102).

Finally, therefore, the judge turned to the question of whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective. He stated:

“The difficulty in this case is that a clear balancing has occurred as between increasing security of tenure for residents of sites with planning permission (as provided in the 1983 Act) and the interest of site owners but no such balancing is apparent in relation to any possible deterrent objective for residents (whose sites have planning commission, but did not when the resident made the occupation agreement) considering moving onto sites without planning permission. It follows that the relevant balancing is for the court which must give considerable weight to informed legislative choices.”(para 113).

The judge, then split this assessment into nine points. He stated:

“ First, I must bear in mind both that the loss of one’s home ‘is the most extreme form of interference’… and that the terms in Schedule 1of the 1993 Act which are to be implied include much by way of procedural safeguards which are considered by the European Court to be ‘especially material’

Second, if I take a hypothetical example, there appears to be a risk of arbitrariness from depriving of the benefit of the 1983 Act all persons whose residential accommodation commenced prior to the grant of planning permission. Had a site owner obtained planning permission for residential caravans shortly before the arrival of an occupier for residential use in say 2010, the 1983 Act would apply to the occupation agreement. Had the site owner obtained planning permission shortly after such arrival in 2010, the Secretary of State’s case is that no length of use of a caravan as a person’s home could entitle the occupier to the benefit of the 1983 Act.”(paras 115 and 116).

Moving onto the third and fourth points, the judge stated as follows:

“Third, contrary to the Secretary of State’s submissions that the protection of the 1968 Act is sufficient… On that basis, the protection by way of security of tenure envisaged was that in the 1983 Act and not the procedural protections already available to residents on sites with planning permission under the 1968 Act.

Fourth, there is also an apparent contradiction between an objective to confer additional security of tenure on all persons on sites with planning permission and an objective to deter persons from occupying sites without planning permission by denying all benefits of the 1983 Act to residents of sites with planning permission, but whose occupation, agreements pre-date the grant of planning permission on the relevant site.“ (paras117 and 118).

The judge’s fifth point related to the Secretary of State’s attempt to draw an analogy with the situation of assured shorthold tenants. The judge did not accept that this was a correct analogy.

With regard to his sixth point, the judge stated:

“Sixth, the primary answer of the legislator to the issue of residential sites being operated without planning permission is the well-known provisions for planning enforcement action. In effect the Secretary of State’s arguments assume that councils may fail over many years to use their planning enforcement powers to close a site so that a resident has a very well established home. Such planning enforcement is the principal deterrent element but it is principally a deterrent for the site owner” (para 120).

With regard to his final three points, the judge stated (starting with the seventh point) as follows:
“It is the site owners who commit a criminal offence in hosting caravans without a site licence and who are also in breach of planning control, a situation which the site owners are in by far the best position to apply to correct..

Eigth, no one suggests that the loss by a person of his home is not the most extreme form of interference. The Secretary of State points however to the fact that the First Defendant‘s original occupation was on the basis that ‘he could be asked to leave at any time.’ The analysis of the proportionality of a statutory provision cannot depend however on the individual facts of the case before the Court. But, as Mr Johnson, who has significant experience in this field, observes, the nature of the terms on offer would generally be imposed by the site owner in any event. Moreover, the very nature of statutorily implied terms is that they are intended to, and do, change the bargain.

Ninth, the starting point of the Court of Appeal in Murphy was that advance notice of terms must be possible… Given however that the 2004 addition of advance notice of terms was intending to be an incremental step beyond the 1983 implied terms, to exclude all 1983 Act protection appears disproportionate in that the 2004 Act tail appears to wag the 1983 Act dog.” (paras 121 123).

The judge concluded as follows:

“I find that the severity of the effects of not receiving the benefit of the implied terms for those in the position of the First Defendant (i.e. persons whose occupation agreement pre-dates planning permission) must outweigh and therefore render disproportionate any implicit support which the terms of the 1983 Act as amended might provide for an objective which includes seeking to deter potential mobile home occupiers from entering into occupation prior to the grant of planning permission for the relevant site because 1983 Act protection can never be obtained even if planning permission is subsequently obtained“ (para 124).

The judge, it should be added, also stated that the Act could not be read down so as to be incompatible by use of section 3 of the Human Rights Act 1998.

For all these reasons, he granted a declaration that the terms of the MHA 1983 in excluding from the scope of the Act all those whose occupation agreements, pre-date the grant of planning permission, infringe Article 8 of the European Convention on Human Rights.

Comment

The Secretary of State has decided not to appeal to this decision and, therefore, the MHA 1983 will need to be amended by the Secretary of State to ensure that those residents on sites where the planning permission is obtained after the date that the agreement is entered into do now have the protection of the MHA1983. The matter now returns to the county court. D1 will be seeking a suspension of any possession order pending the relevant amendments to the MHA 1983.

Chris, Johnson of Community Law Partnership was instructed by D1 in the high court and Stephen Cottle of Garden Court Chambers acted for D1. They both continue to act for D1 in the matter that is now returning to the county court.