Park homes – Occupation – Protected site – Applicant owners seeking declaration that Mobile Homes Act 1983 not applicable to agreement with respondent – Whether caravan site becoming “protected site” where planning permission granted after date of occupation agreement – Whether statutory provisions unlawfully discriminating against human rights of non-gypsy occupiers of protected sites – Application granted
Prior to her death, D was the freehold owner of land known as “Sunny Glade”, Haycrafts Farm, Harmans Cross, Swanage. She permitted the respondent to occupy a coach and touring caravan on the land. Following her death, the three applicants became the owners and allowed the respondent to occupy the land on the same basis. They were subsequently issued with a certificate of lawful use in respect of the coach and touring caravan. The next day the applicants served a notice on the respondent purporting to terminate his agreement. No written agreement was ever entered into between the parties.
The applicants applied to the First-tier Tribunal (FTT) seeking a declaration that the agreement was not one to which the Mobile Homes Act 1983 applied. As the application raised an important principle, whether the 1983 Act could apply to an agreement when the land on which a mobile home was stationed was not a protected site (within the meaning of section 1(2) of the Caravan Sites Act 1968) when the agreement for occupation was made but became a protected site during the period in which the agreement continued, it was transferred to the Upper Tribunal pursuant to rule 25 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.
In Murphy v Wyatt [2011] EWCA Civ 408, the Court of Appeal decided that the 1983 Act could only apply where the land was a protected site at the start of the agreement and remained so. The 1983 Act was amended shortly after that judgment. The respondent argued that the same conclusion could not now be reached without unlawfully discriminating against someone in his position and the Act could apply where the agreement related to land which was a protected site for the time being.
Held: The application was granted.
(1) In Connors v United Kingdom [2004] PLR 16, the European Court of Human Rights held that the UK had violated article 8 of the European Convention on Human Rights by a statutory scheme that permitted the summary eviction of gypsies with established caravans on local authority sites, whereas the statutory scheme in the 1983 Act conferred some security of tenure on occupiers of protected sites. Consequently, parliament enacted section 318 of the Housing and Regeneration Act 2008, after which the definition of “protected site” in section 5(1) of the 1983 Act changed. Local authority caravan sites providing accommodation for gypsies and travellers were to be treated in the same way as any private land used as a caravan site. Section 318 came into force on 30 April 2011.
The Mobile Homes Act 1983 (Amendment of Schedule One and Consequential Amendments) (England) Order 2011 prevented gypsies and travellers who entered into an agreement before 30 April 2011 from being treated differently from gypsies and travellers who entered into an agreement on or after that date. Without the transitional provision, those with existing agreements would still be denied the protection of the 1983 Act.
(2) The statutory provisions to be construed in the present case were not the same those considered in Murphy. The change in the definition of “protected site” would not itself have made any difference to the decision of the Court of Appeal, had the case been argued on or after 30 April 2011. The terms of the 2011 Order arguably made a difference. Murphy was a persuasive authority and the question was whether, in view of the amendment and the 2011 Order, a different construction was now required.
Even assuming that the respondent had an “other status” as a non-gypsy non-traveller permanent caravan dweller, within the meaning of article 14 of the European Convention, the 1983 Act itself no longer distinguished between gypsies and travellers and others who permanently lived in caravans on caravan sites. Any agreement made on or after 30 April 2011 that conferred a right to station a mobile home on a protected site and to occupy it as an only or main residence treated those two classes of persons exactly alike.
(3) The 2011 Order meant that the 1983 Act could apply in favour of gypsies and travellers even though, in the case of an occupation agreement made before 30 April 2011, their caravan sites could not have been protected sites when the agreement was made. The 2011 Order only removed the effect of that provision in relation to agreements made before 30 April 2011. It did not otherwise confer on occupiers of local authority sites greater protection than on occupiers of private sites.
The purpose of the 2011 Order was to ensure that equivalent protection to be conferred on gypsies and travellers as a result of the Connors decision was given full effect and thereby end the unlawful discrimination against them. It was not distinguishing between all gypsies and travellers and all other caravan dwellers.
The position of gypsies and travellers was different from caravan dwellers who were not occupying local authority sites because the 1983 Act had never previously been capable of applying to the former. The position on 30 April 2011 of gypsies and travellers on the one hand and the respondent on the other were therefore not analogous in relation to their article 8 rights: The respondent, like others in a similar position, was always entitled to protection under the 1983 Act provided that the terms of his agreement and the site fell within the requirements of the Act. There was therefore no unlawful discrimination against the respondent by the terms of the 2011 Order.
There was a legitimate aim in ending historic discrimination against gypsies and travellers with immediate effect. The transitional provision was effective and necessary to achieve that objective. The protection conferred on gypsies and travellers alone struck a fair balance because it conferred on them the same conditional rights that others already enjoyed. The respondent did not enjoy the same rights because his agreement did not satisfy the conditions of the 1983 Act, which had always been capable of applying to him. Accordingly, the agreement between the applicants and the respondent relating to the occupation of the site was not one to which the 1983 Act applied: Murphy v Wyatt followed.
John Clement (solicitor advocate, of IBB Law) appeared for the applicants; the respondent appeared in person.
Eileen O’Grady, barrister
Click here to read a transcript of Dean and others v Mitchell
