Caravan Sites and Control of Development Act 1960–Appeal by local authority from a dismissal by justices of an
In these
proceedings the licensing authority, Hereford City Council, challenged a
decision of magistrates that no offence had been committed under the Caravan
Sites and Control of Development Act 1960 by the respondent, Percy Lloyd
Edmunds. The proceedings related to land at Wyelands Caravan Site, Belmont
Road, Hereford.
J Steel
(instructed by Sharpe Pritchard & Co, agents for C E S Willis, chief
executive and town clerk, Hereford City Council) appeared on behalf of the
appellants; Paul N R Clark (instructed by Granville-West, Chivers & Morgan,
of Pontypool) represented the respondent.
Giving
judgment, WATKINS LJ said: On September 13 1983 the justices for the County of
Hereford and Worcester, acting in and for the Petty Sessional Division of the
City of Hereford, sitting as a magistrates’ court at the Court House, Goal
Street, Hereford, had before them an information relating to a local,
so-called, caravan site.
This
information was preferred on April 15 1983. It alleged that on October 18 1982,
in the City of Hereford, the respondent, being the occupier of certain land
known as the circle area of Wyelands Caravan Site, Belmont Road, permitted that
land to be used as a caravan site when he was not the holder of a site licence,
contrary to section 1 of the Caravan Sites and Control of Development Act 1960.
The
respondent, Percy Lloyd Edmunds, contested the charge as laid contending that
he had made in due time, being so entitled to do, an application for a caravan
licence. The local authority then responsible for determining such an
application had not, within a specified time, dealt with the application. So in
law he was deemed to be the holder of a licence. Moreover, that licence has
been in his possession ever since and he cannot, therefore, have at any time
acted in contravention of the terms of section 1.
By the Caravan
Sites and Control of Development Act 1960 Parliament set out to exercise
control over the creation and continuation in being of caravan sites. The
intention of Parliament was to give power to local authorities and planning
authorities to control, by licence, the siting of caravan sites within their
jurisdiction. The Act also laid down that only an occupier of land was entitled
to apply for and hold a licence for the purpose of permitting the use of land
for placing caravans thereon.
The relevant
parts of the Act which require to be quoted for the purpose of this appeal are
these: section 1(1):
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.
(2) If the
occupier of any land contravenes subsection (1) of this section he shall be
guilty of an offence and liable on summary conviction, in the case of the first
offence, to a fine not exceeding one hundred pounds, and, in the case of a
second or subsequent offence, to a fine not exceeding two hundred and fifty
pounds.
(3) In this
Part of this Act the expression ‘occupier’ means, in relation to any land, the
person who, by virtue of an estate or interest therein held by him, is entitled
to possession thereof or would be so entitled but for the rights of any other
person under licence granted in respect of the land: . . .
(4) 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.
Section 3(1):
An
application for the issue of a site licence in respect of any land may be made
by the occupier thereof to the local authority in whose area the land is
situated.
Section 6:
Where a local
authority, being required under section three 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 one 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.
Section 13:
In this Part
of this Act the expression ‘existing site’ means–(a) land which is in use as a
caravan site at the commencement of this Act and which was also used as a
caravan site on the ninth day of March, nineteen hundred and sixty. . . .
Section 14:
No offence
shall be committed under section one of this Act in respect of an existing site
at any time within the period of two months beginning with the commencement of
this Act, and if within that period the occupier of an existing site duly makes
an application under this Part of this Act for a site licence, no offence shall
be committed. . . .
Section 17(3):
Unless–(a)
before the expiration of a period of six months beginning with the date on
which the application is made permission has been granted in pursuance of the
last foregoing subsection for the use of the land to which the application
relates as a caravan site, or (b) before the expiration of the said period, and
either before or after the commencement of this Act, the owner and occupier
(within the meaning of the Act of 1947) of the land have been served with an
enforcement notice under section twenty-three of that Act requiring the use of
the land as a caravan site to be discontinued or with notice of an order
submitted to the Minister under section twenty-six of that Act and requiring
that use to be discontinued, permission for the use of the land as a caravan
site shall be deemed for all purposes to have been granted at the end of that
period under the said Part III of the Act of 1947 without any condition or
limitation.
What the
respondent says is that he is by section 17(3) deemed for all purposes to have
been granted permission to use this land for a caravan site.
The procedure
which is adopted since the passage of this Act by local authorities upon the
receipt of an application under section 3(1) is to consult with the planning
authority and to take into account, in either granting or refusing the
application, any observations made by that authority. The consequence of those
observations, if any, may be such as to persuade the local authority either to
refuse the application or to grant it on terms or conditions.
This case has
a very unfortunate history as will be evident as I recite in summary form the
facts found by the justices as stated in their case. It seems that a very long
time ago the respondent, who owned a number of other caravan sites, became
interested in the one in question here. Accordingly, through a solicitor, he
negotiated with the owner of the site for the purchase of it. There was an
exchange of contracts to purchase the site for £14,000 in the month of August
1960 and 10% of the purchase price was paid as a deposit. There was no
completion of the contract until January 1961.
In the
meanwhile, the vendor gave permission to the respondent to enter upon the land
and carry on certain work which he wished to do prior to completion. Precisely
what was contained in the contract, apart from the usual terms, is not known.
The solicitor acting on behalf of the respondent has since died and there are
no copies of the contract, which is not surprising. It is not, therefore,
possible to say whether or not there was a condition in the contract which
permitted
completion.
The
respondent, in the absence of an express provision to that effect, has to be
regarded as, at best, a licensee during that period having regard to the
permission given to him to go upon the land to work.
There was
before the justices a copy of the application which he made very shortly after
the exchange of contracts. The application is dated August 29 1960. That was
the first date upon which any application of this kind could be made under the
legislation.
The local
authority, which was then the Herefordshire County Council, made no response
whatsoever to this application. Indeed, it has never admitted to having taken
any action upon it at all. The consequence of that inertia must have been,
bearing in mind the provisions of section 17(3), that, provided the respondent
was entitled to make an application when he did, six months after the date of
the application he came to be deemed for all purposes to have been granted
permission to use the land as a caravan site. If that be right then the
justices were absolutely correct in, as they did, acquitting the respondent of
the charge as laid in the information.
A certain
amount of the history of what has happened between the local authority and the
respondent between 1961 and recently requires to be told. No one in the
Herefordshire County Council seems to have taken any notice whatsoever of the
respondent’s use of this land for a caravan site. He was first written to with
regard to it by the Hereford City Council, which became the relevant local
authority after the reorganisation of local government in 1972. He was warned
that it was probable, to say the least, that he was not entitled to use the
site for the purposes of keeping caravans there. He was invited to make an
application for a site licence, which he declined to do. He rested upon the
rights he maintained he had under sections 14 and 17. Five years later he was
threatened with proceedings. In 1982 he was informed that an information was to
be laid against him. That information was not, in fact, laid until April 1983.
Such a history
denotes a lamentable failure to take active and timely steps by the local
authority. It is not surprising that the respondent should feel a sense of
grievance that he should be, after this lapse of time, proceeded against for a
penal offence. One of the submissions made to this court is that the decision
of the appellant to take this action constitutes an abuse of the process of the
court. I confess to feeling a great deal of sympathy for the respondent but I
cannot agree that such an abuse was made.
The crucial
findings of the justices were that they were satisfied the respondent had made
the application at the time he said he did and had become the owner when he
claimed completion to have taken place. They accepted every part of his
evidence. Their ultimate conclusion was that, he having made an application for
a site licence within six months of August 29 1960 and no enforcement or other
order requiring the use of the land to be discontinued having been served on
the respondent, planning permission was deemed to have been granted under section
17 of the 1960 Act. Accordingly, by virtue of that section and section 14 they
were of the opinion that no offence had been committed. They dismissed the
information. This decision is challenged here by the applicants.
The justices
ask us this question: Did they come to the correct conclusion that the
respondent was the occupier of the land within section 1(3) of the 1960 Act at
the time of the alleged making of the application on August 29 1960?
Mr Clark
suggests to us that the respondent was, between the exchange of contracts and
the date of completion, in equity a beneficial owner of this land. He may have
been a tenant at will and, as such, could be said to be an occupier of the land
within the meaning provided under section 1(3).
He also
submits that the words ‘entitled to possession’ may not be a reference to an
entitlement to possession at the time of the making of an application but an
entitlement to possession in the sense that the applicant had a contract for
the purchase of the land which he is entitled by action to enforce.
He further
contends that the appellants have failed to establish that there was not in
existence in the contract a term which gave the right to the respondent to
possession of the land from the date of the exchange of contract for the
purpose of doing the work which I have referred.
He also
maintains that it would not be equitable now for a court to find, given the
impossibility of discovering precisely what terms there were in that contract,
to come to the conclusion that it did not include a provision entitling the
respondent to possession. He says this is an appeal without merit, and so in
many respects it is. Mr Steel does not contend to the contrary save for
maintaining that it is necessary, if not vital, for the respondents to know, in
the public interest, whether there is a licence in respect of this land under
the Act or not.
The site forms
part of a much larger site in respect of which there have been difficulties of
control of planning and otherwise. The appellants are anxious to see exactly
where it is they stand in this matter so that they may better exercise overall
control.
Mr Steel says
that three points arise. First, that the respondent must come within the
definition of occupier under section 1(3); second, that he must be so entitled
by virtue of an estate or interest in the land; and third, he must be entitled
to possession of the land, the rights of any licensee of his or anyone else
notwithstanding. With that I agree. He goes on to submit that it cannot be right
that the applicant for a licence can be other than an occupier of the land at
the time he makes the application. With that, too, I agree. He says possession
here means actual possession. He refers to what was said by Denning LJ in Hills
(Patents) Ltd v University College Hospital Board of Governors
[1956] 1 QB 90: ‘Possession in law is, of course, single and exclusive; but
occupation may be shared with others or had on behalf of others.’
Here he
contends there cannot be any doubt but that the vendor of this land was in
possession and there is no evidence to the contrary.
It seems to me
that that is an irresistible conclusion. It is right to say that at the outset
the burden of proving the charge in the information lay upon the appellants,
but when they had established that the respondent has never been granted a
licence the burden of establishing that he was entitled to possession of the
land and deemed to have a licence rested upon the respondent. He could not–and
one has sympathy with him in this–for historical reasons discharge that burden.
He was not in a position during the hearing before the justices to show that
there was any fact which entitled him to call himself either an occupier or a
possessor of the land in question at the relevant time.
What is the
relevant time? The relevant time, I think, was the day of the making of the
application. On that day I see no reason otherwise than to conclude that the
respondent was but a mere licensee.
Accordingly,
he cannot be said to have been an occupier for the purposes of section 3(1) and
further to have had the benefit of the provisions of section 17(3). In answer
to the only question which we are invited to answer, I would say that the
justices did not come to a correct conclusion in saying that the respondent was
the occupier of the land at the relevant time. For those reasons I would allow
this appeal.
The question
would then arise as to whether or not this case should go back to the justices
with a direction to convict. If it were not for the past history one would not
hesitate to say that it should go back with such a direction. There have been
circumstances before this court in which we have declined, although finding the
justices to be wrong in dismissing convictions, to send a case back with a
direction to convict. However, the circumstances in this case are not, in my
opinion, such as to permit us so to do. There was clearly an offence committed.
The respondents are entitled to have the matter decided in a proper way by the
justices so that they will know for the future where they stand with regard to
this and other caravan sites.
I would say
this, however, to the justices. They may feel, doing the bidding of this court,
that if ever there was a case in which no kind of monetary penalty should be
imposed this is it.
NOLAN J agreed
and did not add anything.
The appeal
was allowed and the case remitted to the justices with a direction to convict.
There was no order for costs.