Caravans — Eviction of occupiers of mobile homes — Whether caravan site was a protected site — Appeal by one of a number of occupiers against recorder’s eviction order — Caravan legislation reviewed — Conflict between Divisional Court decision in Hooper v Eaglestone and Court of Appeal decision in Balthasar v Mullane — Recorder’s decision upheld — Stare decisis
litigation concerned a site in respect of which planning permission had been
given in 1963 for use as a caravan site subject to a condition that the use
should be discontinued in 1977 — A site licence had been given at the same time
subject to the same condition — However, the site continued to be used in
breach of the condition after 1977 — In 1988 the owners of the site gave notice
to quit to each of the occupiers of caravan pitches on the site — They refused
to leave and the owners brought proceedings against them for possession — The
occupiers contended that the site was a protected site within the meaning of
the Mobile Homes Act 1983 and the Caravan Sites Act 1968 and that the purported
termination of their occupation was unlawful — In the county court the recorder
decided in favour of the owners against those occupiers who had not settled or
consented to orders — The only occupier who appealed against this decision was
the present appellant, Mr Watkins — The sole issue for the Court of Appeal was
whether the recorder was correct in his conclusion that the site was not
protected
reviewed the mobile home legislation from the Caravan Sites and Control of
Development Act 1960 to the Mobile Homes Act 1983 — The short point involved in
the appeal was complicated by the apparent conflict between the decisions in
Hooper v Eaglestone and Balthasar v Mullane, which the court in the present case
considered at length — The recorder had held that the Balthasar case was
indistinguishable from the present case and was, moreover, in his opinion,
correctly decided despite criticism levelled at it
of the land in Hooper v Eaglestone could not obtain a site licence because he was there
without planning consent — Nevertheless, it was held that the land was within
the definition of a ‘protected site’ — In Balthasar v Mullane the court accepted
the proposition that ‘protected site’ meant a site in respect of which there
was planning permission for the stationing of at least one caravan — The
appellant in the present appeal, who appeared in person, attacked the decision
in Balthasar, contending that it was distinguishable from the present case and
that it was in any event given per incuriam and was thus, although a Court of
Appeal decision, not binding — This attack failed — Even if the present court
had been sure that the decision in Hooper was right and the decision in
Balthasar was wrong (which they were not), they were bound by the latter as a
Court of Appeal decision — In these circumstances the court did not explore the
appellant’s arguments on the merits — The recorder had come to the correct
conclusion that he was bound by the decision in Balthasar and that the site in
the present case was not protected — Appeal dismissed
LJ: It might seem strange that a site owner who had not obtained planning
permission appeared to be in a better position to evict the occupiers than a
site owner who had been law-abiding and had obtained planning permission
The following
cases are referred to in this report.
Balthasar v Mullane (1985) 84 LGR 55; 51 P&CR 107; [1985] 2 EGLR
260; [1986] JPL 751, CA
Hooper v Eaglestone (1977) 76 LGR 308; 34 P&CR 311; 245 EG 572,
[1978] 1 EGLR 118; [1978] JPL 307, DC
National
By-Products Ltd v Brice (1983) 81 LGR 652;
46 P&CR 281
This was an
appeal by Charles Watkins, one of the occupiers, from the decision of Mr
Recorder Whiteman, in Torbay County Court, that all the occupiers of a caravan
site at Solomons Post, Maidencombe, near Torquay, should give up possession to
the plaintiffs, the site owners, Stephen Brian Adams and Brian John Adams (the
present respondents).
The appellant,
Charles Watkins, appeared in person; Jonathan M Karas (instructed by Tozers, of
Exeter) represented the respondents.
Giving
judgment, MUSTILL LJ said: For nearly 60 years there has been a
residential caravan site at a place named Solomons Post at Maidencombe near
Torquay. On March 4 1963 the local planning authority granted planning
permission pursuant to an application by Mr W H Horton, who then owned the
site, for its use as a caravan site subject to the following conditions:
The use of
the land hereby authorised shall be discontinued by the 31st December, 1977,
when the land shall be reinstated to the satisfaction of the local planning
authority.
At about the
same time the local authority granted or extended an existing site licence
subject to an identical condition.
In breach of
this condition the site continued to be used as a caravan site after December
31 1977. No further planning permissions or site licences were granted at any
material time. It seems that during this period some of the various structures
placed on the site were from time to time sold by their owners to new owners
with Mr Horton taking a commission on the sales. None of the structures,
several of which had accretions such as extensions and canopies and others of
which were surrounded by fences and gardens, belonged to Mr Horton.
During 1987
the site was purchased from Mr Horton by Mr S B and Mr B J Adams. At about the
same time (the sequence of events is not material) Mr Horton was convicted by
the Teignbridge justices for causing or permitting the land to be used as a
caravan site without a site licence. On February 3 1987, before they acquired
title to the land, the two Messrs Adams applied for outline planning permission
for the erection of six dwellings on the Solomons Post site. Subsequently, on
March 18 1988, Mr S B Adams applied for planning permission for the use of the
land as a site for 30 residential mobile homes. The former application was
granted on July 21 1988. The latter was refused on November 24 1988. Meanwhile,
on June 17 1988
site under section 87 of the Town and Country Planning Act 1971.
These various
events led to the serving by the solicitors for Messrs Adams of one month’s
notice to quit on each of the occupiers of the caravan pitches on the site,
including Mr C R Watkins. The occupiers refused to leave and the landlords
commenced proceedings for possession and mesne profits, which were defended on
the ground that Solomons Post was a protected site within the meaning of the
Mobile Homes Act 1983 and that the purported termination of their occupation
was not in conformity with the Act.
By the time
the matter reached the Torquay Crown Court, where it was heard by Mr Recorder Peter
Whiteman, a number of the occupants had settled or consented to orders, leaving
the case to proceed against 21 of them, including Mr Watkins. The learned judge
decided in favour of the plaintiffs against all the outstanding defendants. Mr
Watkins alone now appeals and has appeared to present his case in person.
Before the
learned judge two questions arose. The second of these questions, which
concerned the issue as to whether Mr Watkins had the protection of the Rent Act
1977, is no longer in dispute before us. We are now concerned solely with the
single question of whether the learned recorder was right to hold that the site
was not a protected site for the purposes of the 1983 Act. In order to make the
point intelligible, I must refer to some of the relevant statutory material
beginning with the Caravan Sites and Control of Development Act 1960, which
was, of course, enacted against the background of the Town and Country Planning
Act 1947. Section 1(1) provided as follows:
Subject to
the provisions of this Part of this Act, no occupier of land shall after the
commencement of this Act cause or permit any part of the land to be used as a
caravan site unless he is the holder of a site licence (that is to say, a
licence under this Part of this Act authorising the use of land as a caravan
site) for the time being in force as respects the land so used.
Section 1(2)
attached criminal sanctions to breaches of section 1(1). Section 3 established
a procedure for the grant of licences by the local authority. I must in
particular refer to sections 3(3) and 3(4), which were in the following terms:
(3) A local authority may on an application under
this section issue a site licence in respect of the land if, and only if, the
applicant is, at the time when the site licence is issued, entitled to the
benefit of a permission for the use of the land as a caravan site granted under
Part III of the Act of 1947 otherwise than by a development order.
(4) If at the date when the applicant duly gives
the particulars prescribed under subsection (2) of this section he is entitled
to the benefit of such a permission as aforesaid, the local authority shall
issue a site licence in respect of the land within two months of that date or,
if the applicant and the local authority agree in writing that the local
authority shall be afforded a longer period within which to grant a site
licence, within the period so agreed.
Finally there
is section 6:
Where a local
authority, being required under section 3 of this Act to issue a site licence in
respect of any land, fail to do so within the period within which they are
required to issue a site licence by that section, no offence under section 1 of
this Act shall be committed in respect of the land by the person by whom the
application for the site licence was made at any time after the expiration of
the said period and before a site licence is issued in pursuance of the said
application.
We thus find a
dual system of control brought into existence in respect of caravan sites. The
first element is the general system of planning control. The obtaining of the
necessary planning permission is an essential prerequisite to the operation of
the special system of control of caravan sites created by the 1960 Act. It is
only if a planning permission is in existence that there can be any question of
a legitimate use of land as a caravan site either under a site licence or
temporarily under section 6 without one.
The next
statute is the Caravan Sites Act 1968, which had among its purposes the
creation of restrictions on the eviction from caravan sites of the occupiers of
caravans. It applies to any licence or contract under which a person is
entitled to station a caravan on a protected site. Section 1(2) defines this
latter expression as follows:
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 II of Schedule 1 to
that Act (exemption of land occupied by local authorities) 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.
In essence the
1968 Act created a mechanism whereby on termination by a notice or otherwise of
a residential contract the site owner could re-enter only with the leave of the
court. Further protection for the occupiers is provided by section 4, of which
subsection (1) stipulates as follows:
If in
proceedings by the owner of a protected site the court makes an order for
enforcing in relation thereto any such right as is mentioned in paragraph (b)
of subsection (1) of section 3 of this Act, the court may (without prejudice to
any power apart from this section to postpone the operation or suspend the
execution of an order, and subject to the following provisions of this section)
suspend the enforcement of the order for such period not exceeding twelve
months from the date of the order as the court thinks reasonable.
This
protection is, however, qualified by section 4(6), which reads as follows:
The court
shall not suspend the enforcement of an order by virtue of this section in the
following cases, namely —
(a) . . .
(b) where no site licence under Part I of [the
Caravan Sites and Control of Development Act 1960] is in force in respect of
the site;
and where a
site licence in respect of the site is expressed to expire at the end of a
specified period, the period for which enforcement may be suspended by virtue
of this section shall not extend beyond the expiration of the licence.
Two comments
may be made in respect of this subsection. First, there is at least on first
impression some tension between section 1(2), which assumes that in the cases
to which the protection regime applies there will be a relevant planning
permission or site licence, and section 4(6), which assumes that there may be
cases falling within the scheme where the occupier does not have a site
licence: which in practice is likely to mean he does not have planning
permission either. Second, section 4(6) points towards a legislative policy in
which the interests of the individual occupier are subordinate to those of the
community at large in maintaining a proper control over the development of
caravan sites.
The next in
this chain of statutes is the Mobile Homes Act 1975. I need not quote from
this, since the relevant parts are no longer in force, but it is convenient to
note that the scheme for compulsory agreements between the site owner and the
occupier contemplated in section 2 that the agreement would be coterminous with
any planning permission for the use of the site.
Finally, there
is the 1983 Act. This applies to occupation for residential purposes of a
mobile home on land forming part of a protected site, the latter expression
being defined as follows:
‘protected
site’ does not include any land occupied by a local authority as a caravan site
providing accommodation for gipsies . . . but, subject to that, has the same
meaning as in Part I of the Caravan Sites Act 1968.
The elaborate
scheme of compulsory agreements created by the 1975 Act is replaced in the 1983
Act by something simpler. In particular the statute proceeds by implying into
agreements for stationing a mobile home and occupying it as a main or only
residence a series of terms which are to be found in Schedule 1 to the Act.
These include the following:
Duration of
agreement:
1. Subject to paragraph 2 below, the right to station the mobile home
on land forming part of the protected site shall subsist until the agreement is
determined under paragraph 3, 4, 5 or 6 below.
2. –(1) If
the owner’s estate or interest is insufficient to enable him to grant the right
for an indefinite period, the period for which the right subsists shall not
extend beyond the date when the owner’s estate or interest determines.
(2) If planning permission for the use of the
protected site as a site for mobile homes has been granted in terms such that
it will expire at the end of a specified period, the period for which the right
subsists shall not extend beyond the date when the planning permission expires.
(3) If before the end of a period determined by
this paragraph there is a change in circumstances which allows a longer period,
account shall be taken of that change.
That is the
background to the issue now brought forward on this appeal. Is the site a
protected site? If it is, then the
appeal should be allowed. Essentially this is a very short point, but it is
much complicated by the existence of two decided cases on the topic which are
said to be inconsistent. The first of these is Hooper v Eaglestone
(1977) 34 P&CR 311.* It arose not
from a claim for possession by the site owner, but from a prosecution under
section 3 of the 1968 Act. What happened was that the defendant was the owner
of a site on which there was a caravan in residential occupation. The site owner
had no site licence, nor did he have planning permission, an application for
which had been refused, although it seems that an arrangement had been made
with the local authority enabling him to keep caravans on the site for a while.
Exactly what this amounted to does not appear from the case stated by the
justices. But it seems to have been some kind of informal suspension of an
enforcement notice which had been served 18 months previously. The site owner
endeavoured to get rid of the occupier by withdrawing her electricity supply
and this led to a prosecution under section 3. The defence advanced was
summarised by the justices as follows:
It was
contended by the defendant that in view of the fact that he was an illegal user
of the land in question, he could not acquire a legal right to hold or have any
standing to apply for a site licence and therefore if such a licence could not
be granted it was not possible for the site to be regarded as a ‘protected
site’ within the meaning of the Act.
The justices upheld
this defence and dismissed the information. The prosecutor appealed to the
Divisional Court which, on this occasion, consisted of Lord Widgery CJ,
Cumming-Bruce LJ and Park J. The appeal was allowed.
In the light
of the contention accepted by the learned recorder that Hooper v Eaglestone
is in conflict with later authority, it is necessary to quote from the judgment
of Lord Widgery CJ, in which the ratio decidendi of Hooper v Eaglestone
is to be found. I read from p 311 of the report in (1977) 76 LGR 308:
Now we go to
the Act of 1960 to see whether the site in question is one where a site licence
is required, because if it is the site is a protected site, and if it is not,
it is not. We turn then to the Caravan Sites and Control of Development Act
1960. Section 1(1) provides:
— then his
lordship sets it out and continues —
That is a very
important subsection because much of the argument revolves around it. It will
be observed that the effect of the subsection is that you cannot cause or
permit the land to be used as a caravan site unless you have a site licence.
You must either have a site licence or keep caravans off the site.
That is
emphasised by section 1(4) which says:
‘In this Part
of this Act the expression ‘caravan site’ means 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.’
At that point
the position has been reached that this is a protected site. This is a site
which requires a site licence under the Act of 1960 by reason of the presence
of the caravan on the site and the use for residential purposes.
As a footnote
one refers to section 3(3)
— and his
lordship then sets that out and continues —
The occupier
of the land cannot get a site licence under the Act of 1960 as things stand at
the moment because he has an unlawful caravan use on the site. But it is quite
false, in my judgment, to argue from there, as the defendant seeks to do, that
not being able to obtain a site licence at the moment he does not have to
satisfy any of the subsequent requirements of the various stages to which I
have referred. The reason why he cannot get a site licence is his own fault
because he is there without planning consent. The land is, in my judgment, within
the definition of ‘protected site’, and I think the conduct of the defendant in
removing the electricity constituted an offence under section 3(1) of the Act
of 1968.
The second
case is Balthasar v Mullane (1985) 84 LGR 55, which was decided
under the 1983 Act. The action was brought by, not against, the owner of the
site. As an act of charity, the mother superior of an order of nuns had allowed
the defendant, who had been evicted from a caravan site, to move the caravan on
to land owned by the order. After two years it became necessary for the caravan
to be removed, but the defendant refused to go and proceedings were brought by
the trustees of the order in the county court where a possession order was
granted. Two issues arose on the defendant’s appeal to the Court of Appeal.
There was an issue of fact of no materiality here about the terms on which the
defendant had gone into occupation. The principal question was whether the
defendant was entitled to protection from eviction under the 1983 Act, given that
the order had no planning permission for caravans on the part of the land where
the defendant’s caravan was parked. This question was decided in favour of the
plaintiffs. In the leading judgment, Glidewell LJ explained in detail the
legislative history of the matter and continued with a discussion of the
arguments which I cannot do better than quote (I read from p 62):
Mr Ailes
argues, as he argued before the judge, that in section 1(2) of the Caravan
Sites Act 1968, if one looks at the first phrase, one finds that ‘a protected
site is any land in respect of which a site licence is required . . .’. He says
that a site licence is required under the Act of 1960 for any land on which a
caravan is stationed and therefore any land on which a caravan is stationed
automatically becomes a protected site.
The
counter-argument of Mr Pugh-Smith, on behalf of the plaintiffs is that in its
context ‘protected site’ means, and can only mean, a site in respect of which
there is planning permission for the stationing of at least one caravan.
It is
perfectly true to say, as Mr Ailes has pointed out, that if that is what the
section means, it would not have been difficult for it to say so in terms; and
there is no doubt that it does not. But, on the other hand, there are a number
of indications, Mr Pugh-Smith argues, which suggest that that must be the
meaning of the subsection. First, he points out that in the subsection itself
there follow the words ‘not being land in respect of which the relevant
permission or site licence — (a) is expressed to be granted for holiday
use only; . . .’. He submits that it is to be inferred that the parliamentary
draftsman envisaged from those words that there would be planning permission,
and that if there was not planning permission, the subsection did not bite.
Secondly, he
points out that the effect of paragraph 2 of Schedule 1 to the Mobile Homes Act
1983 is that, if planning permission is granted for a limited period, any
agreement under which a caravan is on the land cannot be for a longer period,
and it would be absurd if the effect of a grant of planning permission for a
limited period were to limit the term of an agreement, whereas if there were no
planning permission at all there would be a right to keep the caravan on the
land for an indefinite period.
Thirdly, he
refers us to the whole scheme of this series of Acts under which initially a
person who stations a caravan on land requires planning permission and then in
addition requires a site licence, although if he has planning permission and
applies for a site licence the local authority are obliged to grant it, though
it may be subject to conditions. He says, therefore, it must be assumed that
when Parliament passed the Mobile Homes Act 1983, or its predecessor, the
Mobile Homes Act 1975, they were envisaging sites which were the subject of
planning permission.
Finally, Mr
Pugh-Smith points out that, if his argument is wrong and Mr Ailes’ is correct,
then if the planning authority learn that a caravan is stationed on land
without planning permission they could serve an enforcement notice requiring
the owners and occupiers of the land (the plaintiffs in this case) to remove
the caravan. If the landowners did not comply with the notice within the time
specified, they would be guilty of an offence and could be fined. If they went
on not complying with the notice they could be fined again. But, if Mr Ailes is
correct, the owners would not be able to remove the caravan because the
defendant would have an absolute right to keep it there under the Mobile Homes
Act 1983, so the unfortunate Sisters would go on breaking the law without being
able to do anything about it. That, says Mr Pugh-Smith, cannot have been the
intention of Parliament.
His lordship
then discussed the decision in National By-Products Ltd v Brice
(1983) 81 LGR 652 and resumed:
Accordingly,
in my view, although I have not read the judgment on this point in this case,
the judge was right in coming to the conclusion that the Mobile Homes Act 1983
did not provide these defendants with a statutory protection when they no
longer had any right at common law to keep their caravan on the plaintiffs’
land. Accordingly, he was right to grant the order for possession which he did
grant.
The judgment
of Neill LJ was to a similar effect. I will quote from p 66:
In my view,
when one considers the statutory provisions together, it is clear that a site
cannot be a protected site under this legislation unless planning permission
for the relevant user has been obtained. In the first place it is to be noted
that as a matter of history the Act of 1960 was engrafted on to the earlier
planning legislation and that the requirement of a site licence was a
requirement additional to any requirement for planning permission. Secondly, it
is to be observed that by section 3(3) of the Act of 1960 a site licence cannot
be issued by the local planning authority unless the applicant is entitled to
the benefit of permission for the use of the land as a caravan site granted
under the planning legislation. Moreover, if planning permission has been
granted, then subject to the applicant providing the proper particulars and
subject to the right of the local authority to attach conditions if they so
decide, the local authority is bound to issue a site licence.
Glidewell LJ
has drawn attention to section 6 of the Act of 1960 which deals with the
failure by the local authority to issue a site licence and it will be
remembered that the word used in section 3(4) is ‘shall’ (‘the local authority
shall issue a site licence’).
I would also
again draw attention to section 1(2) of the Act of 1968. The concluding words
of the subsection begin — ‘not being land in respect of which the relevant
planning permission or site licence . . .’. The words ‘the relevant planning
permission’ appear to me to pre-suppose that the protected site in the opening
words of section 1(2) is a site for which relevant planning permission has been
obtained.
Finally, I
find assistance in the fact that, whereas in paragraph 2(2) of Part 1 of
Schedule 1 to the Act of 1983 it is provided that the right to station a mobile
home does not subsist beyond the date when the planning permission expires, no
provision is made to deal with the case when no planning permission has been
obtained at all. To my mind the absence of such a provision clearly suggests
that the right does not arise unless and until there is some planning
permission in existence and that therefore the land cannot form part of a
protected site without permission. It is unthinkable that the right to station
a mobile home should be greater when no planning permission has ever been
granted than when planning permission has been granted but then expires at the
end of a specified period.
For these
reasons therefore, as well as those given by Glidewell LJ I am satisfied that
this caravan was not stationed on land forming part of a protected site and
that therefore the Act of 1983 does not apply to the site.
It is a
curious fact that there is no mention in either of the judgments in Balthasar
of the previous decision of the Divisional Court in Hooper v Eaglestone.
It is to my mind inconceivable that if that case had been brought to the
attention of the Court of Appeal the learned lord justices would not have cited
it and discussed its implications.
When the
matter came on before Mr Recorder Whiteman in the county court he was very
properly referred to each of these decisions, and after hearing argument
concluded, as indeed seems to have been common ground, that there was a
conflict between them. He went on to hold that Balthasar was not
distinguishable from the case before him and that he was accordingly bound to
follow it. He went on to add his own conclusion that the interpretation by Balthasar
appeared to him to be correct.
Mr Watkins now
appeals. As I have said, he is no longer represented, but he has placed before
us some written submissions in which three points are very clearly taken:
(1) Balthasar is distinguishable from the
present case on the facts.
(2) The Court of Appeal in Balthasar did not
know about Hooper. If the opportunity to study the reasoning of the
Divisional Court in that case had been given, the Court of Appeal would have
recognised the compelling force of that reasoning and would have followed it.
Since the Court of Appeal was deprived of this opportunity, the decision in Balthasar
was made per incuriam and does not bind this court.
(3) The interpretation of the 1983 Act to which
the learned recorder gave effect is unfair and absurd, both in relation to this
particular case and in general.
As to the
first point, namely that Balthasar is distinguishable from the present
case on the facts, four points have been taken by Mr Watkins. First, whereas in
Balthasar the occupier was in possession on an entirely gratuitous
basis, no rent or rates being charged, here Mr Watkins was on the site pursuant
to a commercial arrangement. Although this is certainly a difference between
the two cases, I cannot find that it makes any ground of distinction in
principle. There is nothing in either of the cases to which I have referred or
in the statutes themselves to suggest that it makes any difference whether the
occupancy is for value or not.
Second, it is
suggested that the present case is to be distinguished from Balthasar
and is to be assimilated to that of Hooper in that the caravan site has
been long established as a commercial site on quite a large scale, whereas in Balthasar
the occupant was on the land on a purely ad hoc basis.
For the same
reasons in respect of the first ground, I am unable to see that there is
anything in the authorities or the Act which suggests that this is a material
factor.
Third,
reliance was placed on the fact — and it appears to be a fact — that the site
owner here did not appeal against the enforcement notice and that in some way
or another this causes him to be estopped from relying on what will otherwise
be his right to evict Mr Watkins. It must be noted straightaway that there had
been an application for planning permission which had already failed, and it
seems to me that in those circumstances an appeal against an enforcement notice
would have been an empty formality.
Finally, Mr
Watkins draws attention to the fact that in the planning history of this site
there has for a substantial number of years been in force a planning permission
which had been allowed to lapse. Although the statutes do indeed deal with the
implications of the lapse of planning permission, it seems to me that in
relation to the point with which we are now concerned it makes no difference
whether there have been planning permissions which have lapsed or whether there
has been no planning permission in the first place. Thus, although I recognise,
of course, that the present case is strikingly different from Balthasar
on the facts, none of these differences seem to me to affect the general
principle which exemplifies and which seems to me to be directly applicable to
the present case.
The second
point raised is that we should decline to follow Balthasar on the ground
that the decision was given per incuriam. The premise of this argument
is that Balthasar is wholly inconsistent with Hooper. I have felt
some degree of doubt about this, for it might be (and I emphasise ‘might be’)
that Hooper turned on the application of a kind of estoppel highly
unusual in a criminal case, precluding the defendant from denying guilt on one
ground by relying on his own wrongful act in another respect. In the end, I
have concluded that this basis of distinction is unsound, but it makes no
difference. Since the two courts do not have concurrent jurisdiction, the
decision of the Divisional Court was not binding on the Court of Appeal, the
members of which were free to make up their own minds on the meaning of the
statutes, although, of course, the court would have been greatly assisted by an
opportunity to see how other judges of great experience had approached the
matter. This being so, even if we were quite sure that the decision in Hooper
was right and that in Balthasar wrong, and for my part I am far from
being sure of that, we would not ourselves be free to discard the later case in
favour of the earlier one. The doctrine of stare decisis must, in my
judgment, have the effect of concluding the appeal in the respondents’ favour.
In these
circumstances there is no necessity to explore in detail the appellant’s
arguments on the merits. It may, however, be appropriate to make two
observations. First, in the particular, there was evidence at the trial that
the previous owners had made it clear to the occupiers when they first moved in
that there was no site licence and that they were at risk. This evidence was
and is disputed by the appellant. The recorder made no finding on it, rightly
so, because it was immaterial to the issue before him. I mention it solely to
show that the hardship to Mr Watkins resulting from the order in the county
court may perhaps not be as clear as at first sight it might seem to be.
Second, in the general, although it certainly does seem strange that an
occupier is in a worse position as regards eviction if his landlord is
law-abiding than if he is not, it is well possible that, as Sir Michael Kerr
has suggested in argument, the Legislature has deliberately chosen to place the
interests of the community ahead of those of the individual occupier — a view
which is consonant with section 4(3) of the 1968 Act, to which I have already
referred.
Be that as it
may, it seems to me that in the circumstances we have no alternative but to
dismiss this appeal.
FARQUHARSON
LJ and SIR MICHAEL KERR agreed and did not
add anything.
The appeal
was dismissed with costs; an application for leave to appeal to the House of
Lords was refused.
