Park homes – Pitch fee review – Procedure – Appellants occupying mobile homes on site owned by respondent – Respondent giving notice of increase in pitch fees – Appellants applying to First-tier Tribunal to determine new pitch fees – FTT striking out applications – Appellants appealing – Whether FTT having jurisdiction to hear applications – Whether appellants entitled to reside in mobile homes as only or main residence – Appeals allowed
The appellants occupied mobile homes at 16 and 17 Meadow View, Pilgrim’s Retreat, Harrietsham, near Maidstone, a site owned by the respondent. The respondent issued notices in the form prescribed by the Mobile Homes (Pitch Fees) (Prescribed Forms) (England) Regulations 2013, notifying them that their pitched fees would be increased from £361,48 to £412.81 per month.
The use of such a form was required for reviews under agreements regulated by the Mobile Homes Act 1983 which, by section 1(1), applied to any agreement under which the occupier was entitled to: (i) station a mobile home on land forming part of a protected site; and (ii) occupy the mobile home as his only or main residence.
The appellants had lived in their caravans for some years as their homes and paid council tax. The respondent said they were not entitled to do so because their written licences were for holiday use only.
The appellants disagreed with the proposed increase and applied to the FTT in accordance with paragraph 17(4) in part 2 of schedule 1 to the 1983 Act to determine the new pitch fee. The FTT gave notice under rule 9 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 that it was minded to strike out the applications because it had no jurisdiction. On the evidence, the park homes were not being occupied as the appellants’ only or main residences, but as leisure/holiday homes.
The First-tier Tribunal (FTT) struck out the applications in accordance with rule 9(2)(a) of the 2013 Rules. The appellants appealed.
Held: The appeals were allowed.
(1) In order to invoke any of the provisions of the 1983 Act, a person had to have an agreement by which he was entitled to live in a mobile home on a protected site. There were two ingredients: (i) entitlement to station a mobile home and to occupy it as an only or main residence; and (ii) the protected site.
As to the second ingredient, section 1 of the Caravan Sites and Control of Development Act 1960 prohibited the use of land as a caravan site without a licence granted by the local authority, and section 5A(5) of the 1960 Act defined a “protected site” as “land in respect of which a site licence is required under this part, other than land in respect of which the relevant planning permission under part 3 of the Town and Country Planning Act 1990 or the site licence is, subject to subsection (6) — expressed to be granted for holiday use only, or 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”.
As to the first ingredient, the FTT concluded from the terms of the copy licence agreements supplied that the two appellants were not entitled to live on the site in their mobile homes as their only or main residence.
(2) The FTT’s two rule 9 notices, and its two decisions striking out the applications, rested on that latter point and on the terms of the licence agreements. There was a mention of the fact that the FTT would also have needed to be satisfied that the site was a protected site, but no finding was made about that by the FTT. The respondent sent a copy of the site licence to the FTT in response to its direction, and in view of the definition of a protected site in the 1960 Act, the terms of the site licence were relevant to whether this was a protected site, but the FTT said nothing about it in its eventual order.
The FTT in giving its rule 9 notices did not consider whether the appellants’ mobile homes were stationed on a protected site; and in striking out the two applications the FTT said nothing about the site licence nor whether the land was a protected site. The FTT had heard no evidence on the point and it was not open to the Upper Tribunal on appeal to make a decision on a point that had not been decided by the FTT. Accordingly, the issue was whether the FTT was right to strike out the applications on the basis that the two appellants were not entitled to live in their mobile homes as their only or main residence.
(3) In determining whether a person was entitled to live in a mobile home as their only or main residence, the written licence agreement might not tell the whole story. Someone who had made their home in their caravan for many years without protest from the owner was, on the balance of probabilities, doing so with the permission of the site owner, whether expressed in words or by conduct: Tingdene Marinas Tingdene Marinas Ltd v Jaffe [2023] UKUT 16 (LC); [2023] PLSCS 16 considered.
When considering whether to strike out a party’s case a court or tribunal had to assume that that party’s account of the facts was true. The appellants said they had each lived, and been allowed by the respondent to live, in their caravans as their homes. If the respondent wanted to argue that it had not in fact permitted them to live there, that was a matter for a finding of fact at a hearing. The FTT could not assume that the applicants would fail on that point.
(4) There was no basis on which it could be said, on receipt of their applications, that the appellants had no prospect of success in showing that they were entitled, on the basis of permission from the respondent, to live in their mobile homes as their only or main residence. The FTT jumped to a conclusion based on the licence agreement alone, and that was an error of law. Accordingly, the order striking out the two applications would be set aside.
(5) No decision had been made that the appellants were in fact entitled to live in their mobile homes as their only or main residence. The evidence had not been tested and the UT could not make findings of fact. Nor had it been decided whether the mobile homes were stationed on a protected site. The applications to the FTT would be restored.
The appeals were determined on written representations.
Eileen O’Grady, barrister
Click here to read a transcript of Robling and another v Doe
