Mobile homes – Protected site – Human rights – First defendant occupying mobile home on claimants’ land – Claimants claiming possession – First defendant seeking declaratory relief under Human Rights Act 1998 – Preliminary issue arising – Whether site qualifying as “protected site” without site licence – Whether Mobile Homes Act 1983 applying to first defendant’s licence to occupy – Whether 1983 Act compatible with defendant’s human rights – Preliminary issue determined
From around 2001, the first defendant occupied a mobile home on land now owned by the claimants. There was no written agreement. A verbal licence entitled the first defendant to occupy his mobile home as his only or main residence in return for weekly payments.
At the start of the licence agreement, the use of the claimant’s land for stationing a mobile home was not authorised as there was no planning permission and no site licence authorising the use of the land as a caravan site.
In October 2015, a certificate of lawful use or development was issued under section 191 of the Town and Country Planning Act 1990 in respect of the land occupied by the first defendant and the use of the land became immune from enforcement.
No site licence had been applied for, so the use of the claimants’ land as a caravan site continued in contravention of section 1 of the Caravan Sites and Control of Development Act 1960.
The claimant served a notice on the first defendant purporting to terminate his agreement. A preliminary issue arose whether the first defendant was entitled to declaratory relief to protect his right to respect for his home under article 8 of the European Convention on Human Rights (ECHR).
The second defendant secretary of state argued that a site without a licence could not qualify as a “protected site” so that caravans parked thereon might benefit from security of tenure. The claimants did not appear and were not represented.
Held: The preliminary issue was determined accordingly.
(1) The first question was whether a site could qualify as a “protected site” in section 1(2) of the Caravan Sites Act 1968, as incorporated into the Mobile Homes Act 1983, where there was no site licence. The issue was whether a licence had to be “in place” or merely “licensable, albeit not in fact licensed”.
The context of the definition of “protected site” in the 1968 Act and the legislative history between the Mobile Homes Act 1975 and the 1983 Act indicated that the definition did not require that a site licence be in force for a site to qualify as a protected site.
In Holmes v Cooper [1985] 1 WLR 1060, the Court of Appeal upheld a decision that a caravan site without a site licence was nevertheless a protected site and granted a declaration that the 1983 Act applied to an oral agreement. Despite various other amendments to the 1983 Act, both as enacted and in the current version, the definition of protected site in section 1(2) of the 1968 Act continued to apply in determining eligibility to the protections in the 1983 Act: Holmes v Cooper applied.
The correct interpretation of “protected site”, both as a matter of principle and authority, was that it was not necessary for a site licence to be in force for a site to qualify as a “protected site”.
(2) As a matter of statutory interpretation without regard to article 8 of the Human Rights Act 1998, caravans on a site which did not have planning permission at the inception of the occupation agreement (as in the present case) were outside the scope of the 1983 Act: Murphy v Wyatt [2011] EWCA Civ 408, [2011] 1 WLR 2129 applied. Berkeley Leisure Group Ltd v Hampton [2001] EWCA Civ 1474; [2001] PLSCS 209 considered.
The challenge here was to the compatibility with article 8 of the ECHR of the exclusion from the benefit of the 1983 Act of persons whose occupation agreement predated the grant of planning permission but where planning permission had in fact been obtained.
The right to respect for a person’s home was not absolute. Interference with that right could be justified on the grounds set out in article 8(2). An interference would be considered necessary in a democratic society for a legitimate aim if it answered a pressing social need and if it was proportionate to the legitimate aim pursued: Connors v United Kingdom [2004] 4 PLR 16 applied.
(3) When carrying out a proportionality assessment, the test was whether: (i) the objective of the measure was sufficiently important to justify the limitation of a protected right; (ii) the measure was rationally connected to the objective; (iii) a less intrusive measure could have been used without unacceptably compromising that objective; and (iv) balancing the severity of the measure’s effects on the rights of the persons to whom it applied against the importance of the objective, to the extent that the measure would contribute to its achievement, the former outweighed the latter: Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 applied.
For the purposes of site licensing, section 191(7) of 1990 Act provided that a certificate of lawful use “shall also have effect… as if it were a grant of planning permission” and section 191(6) conclusively presumed the lawfulness of “any use, operations or other matter for which a certificate is in force”. The court could not go behind those provisions.
(4) It remained to consider the nature of the aim pursued by the restrictions in the balancing process under the fourth limb of the proportionality test. The difficulty in this case was that a clear balancing had occurred as between increasing security of tenure for residents of sites with planning permission (as provided in the 1983 Act) and the interests of site owners; but no such balancing was apparent in relation to any possible deterrent objective for residents (whose sites had planning permission but did not when the resident made the occupation agreement) considering moving onto sites without planning permission. It followed that the relevant balancing was for the court, which had to give considerable weight to informed legislative choices.
Carrying out that exercise, the only available remedy in this case was a declaration of incompatibility under section 4 of the Human Rights Act 1998. Accordingly, a declaration would be granted that the terms of the 1983 Act, in excluding from the scope of the Act all those whose occupation agreements predated the grant of planning permission, infringed article 8 of the European Convention on Human Rights.
Stephen Cottle (instructed by Community Law Partnership) appeared for the first defendant; Zoe Leventhal KC and Emma Dring (instructed by Government Legal Department) appeared for the second defendant.
Eileen O’Grady, barrister
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