JUDGMENT (FINAL)
1. The Claimants are man and wife. Since 1990 they, together with their daughter who is now 17 years of age, have resided in a mobile home situated at Pitch 12 Wyatt’s Covert, Denham, Buckinghamshire UB9 5DH (‘the mobile home’). The Claimants own their mobile home and they occupy Pitch 12 under the terms of a ‘Licence Agreement and Statement under the Mobile Homes Act 1983’ dated October 25, 1990 (‘the Licence Agreement’)[206].
2. The Licence Agreement was entered into by the Claimants with the South Bucks District Council who in 1990 were the owners of Wyatts Covert. In 1993 the freehold of Wyatts Covert was sold to the Beacon Housing Association, and South Bucks District Council then licensed the site as a multiple caravan site. Beacon Housing Association continued to own and manage the site until March 2005 when it was sold to the Defendant, a private owner. On 15 January 1993 Beacon Housing Association had issued a set of Mobile Home Park Rules [219] which were amended after discussion with the Wyatt’s Covert Own Tenants Association. It is common ground that these Rules are binding on both the Claimant and the Defendant.
3. Rule 1 of the Mobile Home Park Rules, as amended, provides:
1. Occupiers undertake not to carry out any building works, erect any structure or extension on the Plot without the prior written consent of the Association which will not be unreasonably withheld. If consent is given this does not imply that the Occupier is therefore exempt form the need to obtain planning permission, building regulations, environmental health and fire safety officer’s approvals.
4. There are two categories of mobile home at Wyatts Covert. The first category is those that are owned by the Defendant. The second category are those owned by the Licensees such as the Claimants. The Licensees are entitled to occupy their pitches subject to the payment of a weekly site charge. When the Claimants entered into the Licence Agreement the weekly site charge was £33.90. It is now higher.
5. The terms of the Licence Agreement, Part IV, included:
(a) by clause B.3(e) an obligation on the Claimants to keep the mobile home in a mobile and habitable condition.
(b) by clause B.3(i) an obligation on the Claimants not to erect any structure or a mobile home extension on the pitch without the prior written consent of the Chief Health and Housing Officer.
(c) by clause C.3 a provision that if consent is given by the Chief Health and Housing Officer to the erection of alteration of any structure or fence this does not imply that the Occupier is thereby exempted from need to obtain planning permission or building regulation approval.
(d) by clause C.6(c) a definition of a mobile home as any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted but does not include:-
(i) any railway rolling stock which is for the time being on rails forming part of a railway system or
(ii) any tent.’
This definition precisely follows the statutory definition of a caravan or mobile home.
6 The Claimant’s mobile home was originally a single unit on a wheeled chassis measuring 42 ft x 10 ft. It was manufactured in the 1970s. It has been well maintained and is well presented. The caravan has been the Claimants’ family home since its purchase and they have raised their family in it. During the time that Beacon Housing Association were the Site Owners, the Claimants applied for and received permission to extend their single mobile unit to incorporate a single storey extension measuring 12 ft x 10 ft to be used as a bedroom. The documents granting permission to extend the unit were received from the Council in early November 2002. Permission was also required from Beacon Housing Association in accordance with the terms of the Licence. This was granted by letter dated 19 November 2002 after the Beacon Housing Association’s technical officer had inspected and approved the Claimant’s intended works [223].
7. The extension was installed by Prestige Developments who are experts in the supply and installation for mobile home owners. Prestige’s quotation for the supply and installation of the extension is at [217] and gives a brief description of the construction. The extension is bolted on to the original structure and can be taken apart and removed if necessary. It is not attached to the ground below the mobile home.
8. Having acquired Wyatt’s Covert in March 2005, the Defendant sent out a letter on 24 June 2005 to all the residents stating that the previous licence holders (the Beacon Housing Association) had failed to ensure conformity with the terms of the licence. The letter stated that it was the Defendant’s intention to inspect all mobile homes and asked residents to allow inspections to be made.
9. On 10 August 2005 the Claimants wrote to Mr Carl Barnard, the managing director the Defendant and requested his permission for the erection of a further 12’ by 10’ extension to their mobile home.[225] This request was sought prior to seeking permission from the planning department at the Council, and in their letter the Claimants indicated that they would await the Defendant’s permission before instructing an architect to prepare drawings for an application for planning permission.
10. The Defendant replied on 16 August 2005 saying that permission for the further extension would be withheld until the inspections referred to in the letter of 24 June 2005 had taken place. [226]
11. The Defendant had completed its survey of the site and its inspection of all mobile homes at Wyatt’s Covert by 21 September 2005. In a further letter to all residents the Defendant referred to changes which the South Bucks D.C. had made to the site licence, visits by officers of the council to inspect for risks of fire, and emphasised the importance of avoiding breaches of the Licence Agreement. At the end of the letter was a space to list all breaches of licence conditions at the recipient’s pitch. The letter sent to the Claimants, addressed to ‘Mrs Launay’ [227] stated under the heading ‘Listed below are all breaches of the licence conditions identified at your plot’:
‘There are no recorded breach of conditions on your plot. We thank you for your co-operation ….’.
12. On 23 September 2005 the Claimants responded stating that they were pleased that they were not in breach of the Licence Agreement. They went on to renew their request for their new further extension proposal to be considered. [230]
13. The Defendant replied on 28 September 2005 [239] stating that it had ‘no objection in principle to you undertaking work so long as there is no breach of the site licence in relation to distance of structures’. The Defendant made the point that its consent did not alleviate the need for the Claimants to obtain planning permission and building regulation consent and the Defendant requested a copy of the planning approval and any plans before it issued ‘final approval’.
14. On their initial application to the South Bucks District Council, the Claimants were refused planning permission due to the neighbouring mobile home being too close to the Claimants’ mobile home. This contravened planning regulations. However investigation revealed that responsibility for this state of affairs rested with the Claimants’ neighbour, and the problem was rectified with the neighbouring home being moved to the position it was supposed to have occupied.
15. While the Claimants were making their application for planning permission, the Defendant offered to supply the Claimants with a twin unit in order to circumvent the planning issues. Both a second hand and a new twin unit were offered. This would have been in place of the existing extension. The Defendant insisted on new units being purchased from them. This meant that they had control over the price and size of the installation.
16. On 26 June 2006 planning permission was granted by the South Bucks District Council for the Claimants’ proposed further extension. [246].
17. On 4 July 2006, the Claimants sent a copy of the planning approval to Carl Barnard of the Defendant (as had been requested in his letter of 28 September 2005) and sought final approval for the installation of the further extension. [251]
18. In his letter in response, dated 10 July 2006, Mr. Barnard raised the issue of the definition of a mobile home. He did so in the following terms [252]:
‘May we also bring your attention to the definition of a mobile home, which means it should be mobile and able for it to be towed/moved to an alternative location in any other part of the site as if and when it was manufactured by the makers. The present extension that exists on your home we have no plans for or for any of the alterations you have made in the past, so the question of mobility should be provided also.’
In order to accommodate the objections raised, the Claimants, by letter dated 17 July 2006 [253] requested Prestige Developments to install a chassis on the existing extension that Mr. Barnard would find satisfactory. They requested permission to go ahead with this and, in order to save on labour costs, they proposed to install a chassis on the new room at the same time.
19. Mr. Barnard replied on 4 September 2006. [258] Whilst he accepted that the mobile home had been on site for many years, he still did not feel satisfied that the home was mobile or satisfied the definition of a mobile home. He requested that the Claimants undertook a survey of their mobile home (at their own expense) to establish whether the unit was indeed mobile in accordance with the legislation. Mr. Barnard then went on to supply the name and contact details of the surveyor he suggested that they instruct, Mr Nick Norrie of Subject II Survey, Chartered Surveyors. The Claimants declined to instruct a surveyor on the grounds of cost. They so informed the Defendant of this in their letter of 25 September 2006 in which they explained why they believed that their mobile home satisfied the definition of ‘mobile home’ under the legislation and Licence Agreement.
20. On 2 April 2007 a survey was carried out of the Claimants’ mobile home by Mr Nick Norrie, instructed by the Defendant.[289] The surveyor offered his opinion as to whether the existing extension (which had already obtained planning approval) was a material change to the mobile home. He also went on to state his opinion that the fact that the mobile home was standing on jacks as opposed to a chassis meant that it was not mobile.
21. The Claimants received a letter from the Defendant’s solicitors, Turbervilles, dated 15 June 2007 [325a], together with a notice served under the terms of the Licence Agreement, [323]. The letter and the notice asserted that the Claimants were in breach of their Licence Agreement in having the 2002 extension and that the breach must be rectified by July 20, 2007, by removing the extension. Permission for the further extension was refused. The Defendant also threatened court proceedings to terminate the Claimants’ Licence Agreement.
22. In 2007 the Claimants issued a claim form and served Particulars of Claim. By these proceedings the claimants seek a declaration that their mobile home satisfied the statutory definition of caravan within the meaning of the Caravan Sites and Control of Development act 1960, s 29(1) and is a mobile home within the meaning of the Mobile Homes Act 1983, and a declaration that the proposed further extension to the Claimants’ mobile home does not constitute a breach of the Licence Agreement and the Defendant cannot reasonably withhold its consent to the further extension. The Claimants also seek declarations that the Defendants are estopped (a) from asserting that the existing extension to the Claimants’ mobile home prevents it from enjoying statutory protection under the Mobile Homes Act 1983 and/or from requiring the Claimants to dismantle the existing extension to their mobile home; and (b) from objecting to the Claimants’ proposed further extension to their mobile home will prevent it enjoying statutory protection under the Mobile Homes Act 1983. There is also a claim for damages.
23. The Defendant served its Defence and Counterclaim on 11 February 2008. The pleading asserts that the Claimant’s mobile home does not satisfy the statutory definition of a ‘caravan’ and that it is not kept by the Claimants in a ‘mobile and habitable condition’ as required by the Licence Agreement. Declaratory relief to this effect is sought, together with an Order terminating the Claimant’s Licence Agreement and requiring the Claimants to give possession of Pitch 12 Wyatt’s Covert. Alternatively an order is sought that the Claimants remove their existing extension to their mobile home and take such other steps as may be required to ensure that it is both mobile and compliant with the statutory definition of a caravan. The Defendant also seeks a declaration that the Claimants may not construct the proposed further extension to their mobile home.
24. I should record that the Defendant has expressly withdrawn its claim for possession of the Claimants’ pitch. There is a further issue on the pleadings relating to cutting the grass. As has become apparent the relationship between the Claimants and the Defendant has not been good, and the Claimants considered that the Defendant has responded by not mowing the grass around Pitch 12 as the Defendant is required to do under the terms of the Licence Agreement. I am pleased to note that this issue was not pursued at trial.
25. At trial both the Claimants and Mr Barnard of the Defendant gave evidence. There was little that they could add to the correspondence, which speaks for itself. The Claimants are concerned however about a possible motive Mr Barnard may have for acting as he has as the managing director of the Defendant. During the course of the discussions referred to above the Defendant offered to sell the Claimants a twin unit mobile home. This would give the Claimants all the space they wish to achieve with their proposed further extension. The Defendant first offered to sell the Claimants a second-hand twin unit, and then offered to sell the Claimants a new twin unit. There was plainly considerable disagreement as to the condition of the second-hand twin unit, but it is clear that the Claimants were not prepared to consider buying a mobile home from the Defendant.
26. The Claimants are convinced that the Defendant has no reasonable objection to their proposed extension. The Defendant’s only concern is to make money and it objects to the fact that it will not make any profit out of the construction of the proposed extension. Had the Claimants been prepared to purchase a twin unit from the Defendant they would have been allowed to expand to a larger mobile home without any opposition from the Defendant. Accordingly the Claimants see the Defendant as opportunistic. Much of the cross-examination of Mr Barnard was directed to this question. Any ulterior purpose behind the Defendant’s actions may have some bearing on the issue of whether the Defendant has unreasonably withheld its consent to the Claimant’s proposed extension, but cannot affect issues of statutory interpretation.
27. Similar considerations applied to the Claimants’ application for declaratory relief based on estoppel. The Claimants pleaded a case in proprietary estoppel both as to the existing extension and as to the proposed second extension. As to the existing extension the Claimants relied on the Beacon Housing Association’s consent and expenditure incurred in obtaining planning permission and constructing the extension. As to the proposed second extension the Claimants’ pleading relies on the Defendant’s letter of 28 September 2005 stating that it had no objection in principle to the proposed second extension provided there was no breach of the site licence in relation to disturbance of structures. The pleaded case was that the Claimants acted to their detriment by incurring expense in applying for their further planning permission. However on further reflection it became apparent that this case was flawed for a number of reasons, not least of which is that the giving or indicating of consent under a licence agreement does not concern proprietary rights over land. The Claimants have not pursued the pleaded claims for proprietary estoppel. They do however seek leave to pursue a claim of waiver in respect of any breach of the Licence Agreement resulting from the erection of the existing extension. Although sought very late in the day I am prepared to grant the leave requested in accordance with the Amended Particulars of Claim served with the Claimant’s further submissions.
28. Both parties adduced expert evidence at trial, Mr David Vestey of Drew Pearce for the Claimant and Mr Eric Skilton of John Pryke & Partners for the Defendant. There was little between them. With respect to the overall dimensions of the Claimant’s mobile home, with its existing extension Mr Skilton [184, 185] gives the length as 12.83 metres and the width as 6.18 metres, but this width increases to 6.48 metres if the projecting windows and eaves are taken into account. The proposed further extension will not increase the overall dimensions of the mobile home. At present this is L-shaped. Were the extension built there would be a duplicate of the horizontal part of the ‘L’ added to the top of the ‘L’. This proposed extension would neither increase the length nor the width of the total structure. The experts are agreed that:
(a) the addition of the further extension would mean that the completed structure would be in three sections, paragraph 6.3 of the Joint Statement [202];
(b) the original mobile home and the existing extension could be moved on conventional road transporters providing the extension is detached from the original unit, paragraph 4.8 of the Joint Statement [202]; and
(c) the original unit and both extensions could be moved as a whole structure.
I include (c) despite the equivocation of Mr Skilton in paragraph 6.7 of the Joint Statement. The practicalities of moving all three sections together would undoubtedly be ‘more complex’ than moving all three independently. However Mr Vestey makes the point that the three sections could be moved together provided a robust steel sub-frame were constructed to carry it, see para 6.6, and Mr Skilton’s views as expressed at paras 4.7.2 and 4.7.3 are clearly in accord with this view, although a degree of reluctance on Mr Skilton’s part may be deduced from the text.
29. Although some time was spent at trial considering the manner of construction of the Claimant’s mobile home, including the existing extension, and how any new extension would be fitted to the present home, there is no need for me to summarise this evidence. All the findings which need to be made for the purposes of these proceedings are covered by the agreement reached by the experts which I have set out above.
29. The issues between the parties are the following:
(1) Is the Claimants’ existing unit a caravan within the meaning of s 29(1) of the Caravan Sites and Control of Development Act 1960 Act and s 13 of the Caravan Sites Act 1968?
(2) If constructed, would the Claimants’ proposed unit with its second extension come within the statutory definition of a caravan?
(3) Did the erection of the existing extension to the Claimants’ mobile home constitute a breach of the Licence Agreement?
(4) If the answer to (3) is yes, has the breach been waived by the Housing Association and the Defendant as successor in title to the Housing Association?
(5) Does the proposed second extension to the Claimants’ mobile home constitute a breach of the Licence Agreement?
(6) May the Defendant reasonably withhold its consent to the proposed second extension?
30. Issue (1) : Is the Claimants’ existing unit a caravan within the meaning of s 29(1) of the Caravan Sites and Control of Development Act 1960 Act and s 13 of the Caravan Sites Act 1968?
It is first necessary to consider the statutory provisions. The Caravan Sites and Control of Development Act 1960 amended the Town and Country Planning Act 1947 with respect to caravans and made provision for the licensing and control of caravan sites. By s 29(1) 1960 Act:
‘caravan’ means any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted, but does not include –
(a) any railway rolling stock which is for the time being on rails forming part of a railway system, or
(b) any tent.’
31. The Caravan Sites Act 1968 introduced protection from eviction for occupiers of caravan sites. The 1968 Act used the same definition of ‘caravan’ as had been provided by the 1960 Act. It also made special provision for twin-unit caravans. By s 13 (as amended by The Caravan Sites Act 1960 etc. Order 2006 SI 2374):
‘13 Twin-unit caravans
(1) A structure designed or adapted for human habitation which –
(a) is composed of not more than two sections separately constructed and designed to be assembled on a site by means of bolts, claps or other devices; and
(b) is, when assembled, physically capable of being moved by road from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer)
shall not be treated as not being (or not having been) a caravan within the meaning of Part I of the Caravan Sites and Control of Development Act 1960 by reason only that it cannot lawfully be so moved on a highway when assembled.
(2) For the purposes of Part I of the Caravan Sites and Control of Development Act 1960, the expression ‘caravan’ shall not include a structure designed or adapted for human habitation which falls within paragraphs (a) and (b) of the foregoing subsection if its dimensions when assembled exceed any of the following limits, namely –
(a) length (exclusive of any drawbar): 65.616 feet (20 metres)
(b) width: 22.309 feet (6.8 metres)
(c) overall height of living accommodation (measured internally from the floor at the lowest level to the ceiling at the highest level): 10.006 feet (3.05 metres).’
32. For completeness I note that the Mobile Homes Act 1983 makes provision to govern the terms of agreements under which mobile homes may be stationed on protected caravan sites or mobile homes occupied as a person’s only or main residence. By s 5 of the 1983 Act ‘mobile home’ has the same meaning as ‘caravan’ in the Caravan Sites and Control of Development Act 1960.
33. Returning to the Caravan Sites and Control of Development Act 1960, it will be seen that s 29(1) imposes three requirements for a caravan. It must:
(1) be a structure
(2) designed or adapted for human habitation, and
(3) it must be capable of being moved from one place to another.
The first two requirements are plainly met in the present case. There can be no doubt that the Claimants’ mobile home with or without the proposed extension is both a structure and one designed or adapted for human habitation. The original unit was a ‘Donnington’ unit expressly manufactured for residential purposes. The existing extension was added after planning permission was granted for residential purposes. The same is true for the proposed extension.
34. With regard to the first requirement it is important to note that a caravan comprises a single structure. This point was stressed by the Court of Appeal in Carter v Secretary of State for the Environment [1994] 1 WLR 1212. In that case a mobile home had been delivered in four prefabricated sections which were then assembled to form one residence. It was accepted as fact that the entire structure could not be moved without disassembly into its four component parts. Sir Stephen Brown P., at p.1219B noted that s 29 contemplated that the structure must be capable of being moved as a single unit. Russell LJ expressed the view that the ‘structure’ for the purposes of s 29 had to possess two qualities. It had to be designed or adapted for human habitation, and it had to be capable of movement. The structure had to be the same for both qualities, and accordingly it was the structure, the single unit, which formed the human habitation which had to be capable of movement.
35. The third requirement requires more careful consideration. Is the Claimants’ mobile home in its existing or in its proposed state capable of being moved from one place to another? As stated in Carter it is the single structure comprising the human habitation that has to be capable of movement between places. On the facts of Carter it was not necessary for the Court of Appeal to consider the extent or manner of any movement.
36. S 29(1) 1960 Act provides that the structure’s movement may be by being towed, or by being transported on a motor vehicle or trailer. Movement as a single structure in either manner is the entirety of this third requirement of s 29(1). There is no statutory provision as to distance, no provision as to whether movement should be by road, nor any express requirement that the structure should be capable of being moved lawfully on the public highway. However a need to interpret movement from one place to another by lawful use of the public highway may be inferred from the provisions of s 13 of the Caravan Sites Act 1968 quoted above. The special exemption for twin-unit caravans provided by s 13(1) would be unnecessary were the provisions of s 29 1960 Act met by movement other than on the highway of a caravan which could not itself be lawfully moved on the highway.
37. In this connection I was referred to the decision of HH Judge Rich QC sitting as a deputy Judge of the High Court in Byrne v Secretary of State for the Environment and Arun District Council (1997) 74 P&CR 420. This case involved an application to quash the decision of the Secretary of State refusing an appeal against an enforcement notice served by the District Council requiring the removal of a log cabin from the applicant’s land. The applicant argued that the log cabin was a twin-unit caravan for the purposes of s 13 of the 1968 Act. The court proceeded on the basis that s13(1)(a) imposed a ‘construction test’ and s 13(1)(b) a ‘mobility test’. The inspector had concluded that although the structure was capable of being split into two parts, it had not in fact been assembled on site out of two separately constructed sections. The Learned Judge held that this conclusion was conclusive that s13(1)(a) did not apply and that by itself was sufficient to uphold the Inspector’s decision and to dismiss the application.
38. However the Learned Judge also went on to consider whether s13(1)(b) applied and whether the log cabin met the mobility test. This issue turned on findings of practicality of lifting or jacking the log cabin which are specific to that structure. Consideration was also directed to whether s 13(1)(b) was satisfied by the structure being capable of movement in its assembled state irrespective of its starting position or whether regard had to be had to its starting position. Such considerations do not apply in the present case, and there is no direct assistance to be had from this decision.
38. My attention was drawn to the passage in HH Judge Rich QC’s judgment on p 421 where, after quoting the relevant portion of the definition of caravan in s 29 of the 1960 Act the Learned Judge stated:
‘That definition raised problems in circumstances where it was physically practical to move a structure, but not lawful to take such structure on the highway.
Section 13 of the 1968 Act, accordingly enacted as follows…’
It is not at all clear where the suggestion came from that s 13 was enacted in order to deal with the problem of a structure which could physically be moved but not lawfully on the highway. The suggestion may be right, although if so it is disappointing that parliament did not make the appropriate amendment to the definition in s 29 of the 1960 Act itself. It may be that parliament was simply concerned with the position of the twin-unit caravan. In any event it does appear from the wording of s 13 of the 1968 Act that parliament legislated for the twin-unit caravan on the basis that lawful movement on the highway was an integral part of the requirement that a caravan be mobile.
39. That there may be doubt as to the correctness of HH Judge Rich QC’s comment quoted above is plain from observations made by Carnwath LJ in Howard v Charlton [2002] EWCA Civ 1086 [2002] 3 EGLR 65. In this case the Court of Appeal was concerned with whether a park owner was entitled to recover possession of mobile home. The structure of this mobile home included an extension measuring 3.7m by 1.88m which was described as a porch, although used for living purposes. The trial judge held that this extension did not take the mobile home out of the statutory definition. The Court of Appeal held that the park owner had no right to recover possession without the need to consider the correctness of the trial judge’s finding. Carnwath LJ gave the leading judgment and in considering the statutory definition of a caravan stated, at paragraph [9] of his judgment:
‘It is immediately apparent that something may be a ‘caravan’ for these purposes, even though it bears no relation to what might be regarded as a caravan in ordinary language. In particular it does not need to have wheels; it is enough that it can be transported on a trailer. The definition was further expanded by the Caravan Sites Act 1968. This, it seems was intended to remove doubts about the application of the definition of the larger types of caravan, usually referred to as “twin unit caravans”, which became popular in the 1960s.’
40. More helpful to the issues in the present case is the decision of Jack J. in Brightlingsea Haven Limited and anor v Morris and others [2008] EWHC 1928 QB. This case concerned a number of issues arising between the owners of a caravan park and owners of mobile homes or ‘lodges’ sited in that park. As in this case one of the points raised by the park owners was whether the lodges were ‘caravans’ within the meaning of the relevant legislation. The Learned Judge gives a detailed description of the lodges at paragraph 71 of his judgment. They are standard products evidently designed to come within the definition of a twin-unit caravan. They are quite different to the Claimants’ mobile home in the present case, either with or without the projected further extension. At para [79] Jack J. considered the effect on the statutory definition of small pieces which required to be added to the two assembled sections to complete the structure, and the position of verandas and other ‘add-ons’. Taking a pragmatic view the Learned Judge held that such ‘add-ons’ did not fall to be treated as part of the structure. He drew a distinction however with a separate room:
‘On the other hand, if what was effectively a separate room was added by being build on to the structure, whether called a porch, a sun lounge, a conservatory or something else, this might well become part of the structure and be a section in itself.’
41. At para [83] Jack J. turns to the requirement of mobility. He notes that s 13 provides alternatives, movement by towing, and movement by loading onto a carrier, and that there are two opposing constructions to s 13(1)(b): whether the structure must be capable of being moved by road from one place to another, with no specific places or roads in mind, or whether the structure must be capable of being moved from where it is and moved by road to another place. Which of these constructions is the correct is not an issue in the present case. In reality of course these mobile homes are never moved. But were the Claimants’ home to be moved, however difficult movement might be, there would be no particular additional difficulty in moving the home to the nearest road. Jack J’s conclusion on these competing construction confirms the view that the requirement of mobility must involve movement by road. At para [84] Jack J. concludes:
‘In my judgment the test which the structure has to pass is as follows. It must either be physically capable of being towed on a road, or being carried on a road, not momentarily but enough to say that it is taken from one place to another. It is irrelevant to the test where the structure actually is, and whether it may have difficulty in reaching a road.’
42. There remains the question of the lawfulness of any movement. The point was made on behalf of the Claimants that ‘road’ does not necessarily involve the public highway. That may be so. There are many private roads in this country. But the requirement of movement by road is imported by s 13(1) of the 1968 Act. This sub-section provides that a twin-unit caravan remains within the definition notwithstanding that the twin-unit, when assembled, ‘cannot lawfully be so moved on a highway’. Highway must mean public highway for otherwise there would be no relevance to the lawfulness of the movement.
43. The use of ‘road’ in part of the sub-section and ‘highway’ in another might raise the question whether these words should be interpreted differently, no issue arising on the lawfulness of movement on a road that is not a public highway. Strictly speaking these words could be interpreted differently, without undue harm to the section, because the lawfulness of the movement of the assembled twin-unit structure is not an issue. But effect must be given to the final words of the sub-section (‘shall not be treated.. etc.’). By these words parliament must be taken to have required that the two sections of the twin-unit caravan must each be capable of lawful movement on a public highway when disassembled. Any other interpretation would make a nonsense of these words. The result however is a rather indirect approach to the imposition of a requirement to a statutory definition, and it has the ramification that a single-unit structure must itself be capable of lawful movement on a public highway, something which is entirely missing from the definition in s 29(1) 1960 Act.
44. It has also to be borne in mind that it is only a two-section structure that is protected and kept within the statutory definition where the assembled structure cannot lawfully be moved on a public highway. To rule that a three-section structure which could not lawfully be moved on a public highway when assembled came within the statutory definition because s 29 of the 1960 Act contains no reference to lawful movement on a highway when the structure is moved from place to place would constitute an unacceptable interpretation of the statutory material as a whole.
45. Reworking Jack J.’s conclusion to accommodate the provisions of s 13(1) 1968 Act we have the following:
‘The test which the structure has to pass is as follows. It must be physically capable of being towed or carried lawfully on a public highway either in its assembled state or when disassembled into not more than two separate sections, not momentarily but enough to say that it is taken from one place to another. It is irrelevant to the test where the structure actually is, or whether it or its two separate sections may have difficulty in reaching the public highway.’
46. What then is lawful movement on the public highway? Mobile Homes have as much right as any other load to be moved on the public highway; there is no particular restriction relating to mobile homes. In common with all loads however any transportation of a mobile home must comply with the requirements of road traffic legislation.
47. The Regulations governing the dimensions of vehicles and trailers which are permitted to use the public highway are the Road Vehicles (Construction and Use) Regulations 1986 SI 1986/1078. Were the Claimant’s mobile home to be towed or carried on the public highway there would be no difficulty as regards the length or the height of the resultant load. Regulation 7 of the 1986 Regulations limits the length of a motor vehicle drawing one trailer to 18.75 metres, ie well in excess of the 12.83 metres which is the length of the Claimant’s mobile home. I have no measurements of the length of the locomotive unit that would draw the trailer, but the almost 6 metres remaining within Regulation 7 should be well sufficient to accommodate the additional length of the locomotive unit. Height is governed by Regulations 9 to 10 C of the 1968 Regulations. The height of a bus is limited to 4.57 metres, but otherwise there is no restriction on height. Rather the Regulations provide for various notices and warning devices to be in place where the overall travelling height exceeds 3 metres.
48. For the Claimants’ mobile home the problem dimension is its width. The Claimants’ mobile home is 6.18 metres wide, increasing to 6.48 metres at the points where there are projecting windows and eaves. Regulation 8 of the 1968 Regulations makes provisions for the maximum width of various classes of vehicles; the widest allowed is 2.75 metres. This is not the end of the matter however. Special provision is made for vehicles carrying loads of exceptional width in the Road Vehicles (Authorisation of Special Types)(General) Order 2003 SI 1998. Article 28 of the 2003 Order creates a recognised category of motor vehicles or trailers carrying loads of exceptional width where the overall width of the load exceeds 4.3 metres. Vehicles within this recognised category require particular authorisation to be permitted on the public highway. An upper limit to this category is specified by article 30 which provides:
(1) The overall width of a vehicle falling within the recognised category of special vehicles mentioned in article 28(1), together with the width of any lateral projection or projections of the load carried on it, must not exceed 6.1 metres.
49. The Claimants’ mobile home is therefore too wide to be moved as a single structure lawfully on the public highway. The Claimants argue that their mobile home could be lawfully transported on a public highway with the consent of the Secretary of State under Article 31(4) and Schedule 7 of the 2003 Order. Article 31(4) provides that ‘Where the width of the vehicle exceeds 5 metres, the user of the vehicle must –(a) before the start of any journey obtain the written consent of the Secretary of State in accordance with Schedule 7…’ However this provision is subject to Article 31(1):
‘“Width” in relation to a vehicle falling within the recognised category of special vehicles mentioned in article 28(1), means the overall width of the vehicle together with the width of any lateral projection or projections of the load carried on it.’
Article 31 is plainly dealing with the recognised category of vehicles provided for by Article 28 and, unfortunately for the Claimants, limited by Article 30(1) to a maximum width of 6.1 metres.
For completeness I should add that I have been provided with a print-out from the Department of Transport website which suggests that vehicles that exceed 6.1 metres in width might be permitted on the public highway on completion of a Form BE16 and on 8 weeks’ notice. However, the Claimants have not produced, nor have I been able to find, any statutory authority for such a movement. On the evidence before me therefore I consider that I am driven to the view that a load exceeding 6.1 metres in width may not lawfully be moved on the public highway.
50. It follows that, with a width of 6.48 metres including lateral projections, the Claimants’ mobile home cannot be lawfully carried or towed on a public highway in its present assembled state. With the projected extension the position is no worse, but that is of little comfort to the Claimants.
51. As noted above, see paragraph 28, the experts are agreed that the original mobile home and the existing extension may be seen as two separate sections. They are each a little over 3 metres in width. When disassembled therefore each section may be carried or towed lawfully on a public highway. However the Defendant argues that the Claimants’ existing unit does not come within the provisions of s 13 of the 1968 Act. This is because, as the point is put in paragraph 4.6 of the Defendant’s skeleton argument,
‘the [existing] extension is a bespoke addition to the original caravan. It was neither designed nor constructed as a single unit that was then to be assembled (ie added together) on site’.
It is evident that the original caravan and the existing extension were not together designed and constructed as a single unit. But this is not, in my judgment, a requirement of s 13. As I understand the submission the Defendant is arguing that s 13(1)(a) should be interpreted as meaning that the two sections of the caravan structure have to be separately constructed and jointly designed to be assembled on site. I see no warrant for such a gloss on the statute. Read naturally s 13 requires that:
(1) the caravan, as a single structure, is designed or adapted for human habitation;
(2) the caravan is composed of not more than two sections;
(3) each section is separately constructed;
(4) the two sections are designed to be assembled on site.
As long as the second section is designed to be assembled to the first these requirements are met. There is no requirement that the first section should also have been designed to be assembled to the second. The effect, incidentally, of the interpretation argued for by the Defendant is likely to have extremely serious consequences for the many mobile homes in this country that have had extensions constructed which were designed to be assembled to existing homes.
The present mobile home may or may not have been designed with the twin-unit provisions of s 13(1) of the 1968 Act in mind. It does come within those provisions nonetheless, although it is only by relying on the twin-unit provisions that the present mobile home comes within the statutory definition.
52. Issue (2) : If constructed, would the Claimants’ proposed unit with its second extension come within the statutory definition of a caravan?
I have effectively covered this above. As I have, I trust, made clear the Claimants’ present mobile home with its existing extension can only come with the statutory definition of a caravan because it may disassembled into no more than two sections each one of which may be lawfully towed or carried on the public highway. The addition of the second extension would take the Claimants’ mobile home outside the statutory definition. As assembled the entire structure could not be lawfully towed or carried on the public highway, for its width would exceed the maximum permitted width of 6.1 metres, see article 30(1) of the 2003 Order. For lawful towing or carried on the public highway the entire structure would have to be disassembled into three sections, and s 13(1) of the Caravan Sites Act 1968 permits disassembly into no more than two sections.
53. I reach this conclusion with regret. The Claimants are good licensees who have obtained planning permission for the proposed second extension. Their wish to provide their 17 year old daughter with additional living space is very understandable, and when completed the entire structure will have a floor area no larger than some of the other mobile homes on the site. It is however a feature, indeed 41 years on one might say a quirk, of the existing legislation that the larger mobile home must be so designed as to be in only two sections. It is the Claimants’ misfortune that the proposed second extension will produce a three-section mobile home.
(3) Did the erection of the existing extension to the Claimant’s mobile home constitute a breach of the Licence Agreement?
54. The breach complained of is a breach of clause B.3(e) of Part IV of the Licence Agreement, the obligation on the Claimants to keep the mobile home in a mobile and habitable condition. Nothing turns on the habitable provision. It is plain that the Claimants’ have maintained their mobile home to very high standards; it is certainly habitable. The complaint is that the mobile home is not mobile. This mirrors the first issue above, whether the mobile home comes within the statutory definition. In its pleading and to a limited extent during the course of argument the point was made on behalf of the Defendant that the Claimants’ mobile home is not really designed to be moveable, and in practice it would be extremely difficult to move. That is evidently the case, in common with, I suspect, a substantial proportion of ‘mobile homes’ throughout the country. Moving the entire structure would be extremely difficult, and, although we had no evidence as to the cost involved, the cost of movement might well be out of proportion to the value of the mobile home. But such considerations are not relevant to the statutory definition of mobility, which is the definition for the purposes of the Licence Agreement.
55. The experts are agreed that the Claimants’ mobile home could be moved both as an entire structure and disassembled into two sections, see paragraph 28 above. Mr D.A. Vestey of Drew Pearce gave evidence as to the ability of the firm King Lifting to transport sizeable mobile homes involving complex engineering. Mr Vestey told me that he had described this mobile home and to a King Lifting representative and that he had seemed ‘quite comfortable’ with the prospect of moving it. I accept Mr Vestey’s evidence. Transporting the Claimant’s mobile home may present engineering difficulties and raise questions as to cost effectiveness, but it would certainly be possible.
56. Accordingly I find that the erection of the existing extension to the Claimant’s mobile home did not constitute a breach of the Licence Agreement.
57. Issue (4) If the answer to (3) is yes, has the breach been waived by the Housing Association and the Defendant as successor in title to the Housing Association?
This issue arises if I am wrong on Issue (3) and the erection of the existing extension had the result of taking the Claimants’ mobile home outside the statutory definition for mobility. As I have recorded above the Claimants’ claim of waiver has replaced the previously pleaded case of proprietary estoppel. The doctrines of waiver and estoppel present their own difficulties, not least in categorisation. Waiver, in the sense of abandonment of a contractual right by election, requires proof that the party making the election both knew the facts giving rise to the legal right abandoned and the legal right to which those facts gave rise, see eg National Westminster Bank v Powney (1989) 60 P&CR 420, at 444 CA, and Peyman v Lanjani [1985] Ch 457.
58. The Defendant argues that there is no evidence as to the knowledge of Beacon Housing Association when permitting the Claimants to extend their mobile home and incur all the associated costs. Strictly that is true, but it seems to me reasonable to infer that a Housing Association that receives an application for permission under the Licence Agreement to extend a mobile home, and which appoints a technical officer to inspect and approve the intended works, both knows the facts relating to the extension and the fact that it has the right to refuse the permission sought. This is all rather artificial however, for I am considering waiver only on the basis that there was a breach of the Licence Agreement, and I have concluded that there was no such breach. It is faintly absurd to ask whether the Beacon Housing Association were electing to waiver its right to refuse permission for the Claimants’ extension on the basis that it was in breach of the Licence Agreement when it is pretty clear that the Housing Association took the view that there was no such breach.
59. The Defendant also makes the point that the obligation under the Licence Agreement is to ‘keep’ the mobile home in a mobile state, and that any waiver of this provision by Beacon Housing Association cannot bind the Defendant years later to a continuing breach. There is something in this.
60. In my view the facts of this case do probably give rise to an estoppel by representation, albeit not a proprietary estoppel as originally asserted by the Claimants. There was a clear representation by Beacon Housing Association that the extension did not constitute a breach of the Licence Agreement, this was relied on by the Claimants to their detriment, and the Claimants would now suffer appreciable damage if the truth of that representation were now denied. It would be quite offensive (I avoid the word inequitable as estoppel by representation was known both to the common law and equity) for the Defendant now to bring proceedings requiring the Claimants to tear down their extension. The doctrine of estoppel is procedural not substantive. The court will not allow the Defendant, as successor in title to Beacon Housing Association, to contradict the truth of the original representation.
61. It is, fortunately, not necessary to consider the precise formulation of any estoppel on which the Claimants might rely, or whether on the state of the pleadings the Claimants are entitled to rely on any such estoppel.
62. Issue (5) : Does the proposed second extension to the Claimants’ mobile home constitute a breach of the Licence Agreement?
I have already held that the proposed second extension to the Claimants’ mobile home would take it outside the statutory definition of a caravan. The Claimants’ obligations under the Licence Agreement include the obligation under para 3(e) to keep the mobile home in a mobile condition. In the context of a Licence Agreement which states at its head that it is a licence agreement and statement under the Mobile Homes Act 1983 ‘mobile’ would naturally be given the same meaning as in the 1983 Act which repeats the definition provided for in the Caravan Sites and Control of Development Act 1960. But any possible doubt on the matter is removed by the provision in paragraph 6 under General Matters repeating the statutory definition as the meaning of ‘mobile home’ in ‘this part of this Statement’. The part referred to is Part IV, the same part that contains the Claimants’ obligation under para 3(e) referred to above.
63. Accordingly I hold that the proposed second extension to the Claimants’ mobile home would, if constructed, constitute a breach of the Licence Agreement.
64. Issue (6) : May the Defendant reasonably withhold its consent to the proposed second extension?
As the proposed second extension would take the Claimants’ mobile home out of the statutory definition of mobile home, the Defendant may reasonably without its consent to its construction.
65. If however I am wrong as to the proposed second extension taking the mobile home out of the statutory definition, and were it the case the mobile home with both extensions constructed would remain a mobile home, I would hold that in the circumstances of this case the Defendant could not reasonably without its consent. The reason for withholding consent has been the question of statutory definition, and the difficulties the Defendant might find itself in were an ‘unlawful’ extension to be constructed to the existing mobile home. A further reason may well have been that suspected by the Claimants; the question of profit on the sale of twin unit. To be fair, Mr Barnard was perfectly frank about this when giving evidence. He would not accept the Claimants’ poor assessment of the second hand unit they were offered by the Defendant, although he was reluctant to put a value on it. As to a new unit Mr Barnard said ‘Of course I want to sell [them] a twin unit’. Were the Claimants’ mobile home with the proposed second extension constructed to remain within the statutory definition there would be no valid reason for the Defendant to refuse consent to its construction.
HHJ Edward Bailey
22 April 2009
66. I have now received submissions from Counsel as to the form of the Order, costs and permission to appeal. Having considered those submissions I make the Order dated 27 May 2009. I formally hand down judgment today without the need for the attendance of either party.
HHJ Edward Bailey
27 May 2009
