Park homes – Procedure – Mobile Homes Act 1983 – Respondent mobile home owner applying for direction that appellant site owner provide statement of account – First-tier Tribunal (FTT) making direction – Appellant appealing – Whether FTT having jurisdiction to require site owner to provide statement of account to occupier of pitch – Appeal allowed
The appellant was the largest owner and operator in the UK of residential park homes sites, owning 98 sites which accommodated about 10,000 residents on approximately 6,100 pitches. It acquired a leasehold interest in St Dominic Park, Harrowbarrow, Callington, Cornwall in December 2018, subject to the agreements under which the residents occupied their pitches.
The respondent lived in a mobile home at the park which was a protected site under the Mobile Homes Act 1983 Act and the respondent had the benefit of an agreement which he made with the former owner of the park in 2006. The agreement entitled them to station a mobile home on the park and was therefore one to which the 1983 Act applied.
Part 1 of schedule 1 to the 1983 Act set out terms which were implied into all such agreements, and which had effect notwithstanding any express term of the agreement: section 2(1). Under the agreement, the only regular payments which the respondent was required to make to the park owner were the monthly pitch fee payable on the first day of each month, and a charge for the supply of water and for sewerage services. In the past a charge was also levied for the supply of electricity, but the respondent now had his own supply.
The respondent applied under section 4 of the Mobile Homes Act 1983 seeking a direction for the provision of a statement of account. The First-tier Tribunal (FTT) directed the appellant to provide such a statement. The appellant appealed against that decision arguing that it was under no obligation to provide a statement of account and that the FTT had no power to require it to do so.
Held: The appeal was allowed.
(1) There was nothing in the 1983 Act or in the express terms of the agreement which required an owner of a protected site to supply statements of account to an occupier. For the most part, the terms of agreements to which the 1983 Act applied were in the standard form implied by operation of law and found in chapter 2 of schedule 1 to the 1983 Act. The statutory implied terms were part of every agreement to which the 1983 Act applied and covered a wide range of subject matter, but none of the terms required the provision of statements of account. The statutory implied terms included some provisions which might be said to promote financial transparency.
Paragraph 22(b) placed an obligation on the owner to provide certain information on request and free of charge. That information comprised “documentary evidence in support of and explanation of – (i) any new pitch fee; (ii) any charges for gas, electricity, water, sewerage or other services payable by the occupier to the owner under the agreement; and (iii) any other charges, costs or expenses payable by the occupier to the owner under the agreement”. Parliament clearly gave thought to the need for charges to be clear and to be justified by evidence, yet it did not make provision for statements of account.
(2) The statutory implied terms reflected what parliament considered appropriate as the protection which all occupiers of protected sites should be entitled to. Although it would be possible for parties to agree to include express terms requiring the provision of information in a particular form, or at a particular time, there was no such express agreement in this case.
For an appropriate term to be implied, it had to: (i) be reasonable and equitable; (ii) be necessary to give business efficacy to the contract, so that no term would be implied if the contract was effective without it; (iii) be so obvious that ‘it goes without saying’; (iv) be capable of clear expression; and (v) not contradict any express term of the contract: BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 52 ALJR 20 considered.
(3) The respondent had suggested that the agreement by which he was entitled to occupy his pitch was a “relational contract”, and that it therefore included a term requiring the parties to deal with each other in good faith. However, agreements governed by the 1983 Act for the occupation of pitches on protected sites were of indefinite duration. They would often be entered into in the expectation that they would last for many years and be associated with a substantial investment by the occupier in purchasing a mobile home to locate on the pitch. Other than those common features, the characteristics of a relational contract were absent. The parties’ arrangement was an entirely transactional one which did not depend on their having trust and confidence in each other, or require any significant collaboration, or give rise to an expectation of loyalty or fidelity: Yam Seng Ptd Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB), Amey Birmingham Highways Ltd v Birmingham City Council [2018] EWCA Civ 264 and Bates v Post Office Ltd [2019] EWHC 606 (QB) considered.
(4) The order made by the FTT was based on the proposition that the respondent’s request for a statement of account arose under the agreement. However, in the absence any obligation on the appellant to provide statements of account, and in the absence of any dispute between the parties over the state of the account between them, the respondent’s application did not raise any question under the 1983 Act or the agreement and could not be said to involve proceedings under the Act or the agreement. It was not enough that the FTT thought it would be reasonable to expect a statement of account to be provided. Section 4 was about dispute resolution, and did not give the FTT carte blanche to regulate the relationship between owners and occupiers. Therefore, the FTT did not have jurisdiction to order the appellant to provide a statement of account and its decision would be set aside and the respondent’s application dismissed.
Per curiam: Nothing in this decision detracted from the powers of the FTT when called upon to resolve a dispute over which it had jurisdiction to give case management directions under its own rules or under section 231A of the Housing Act 2004, requiring a party to produce documents or information, which in an appropriate case could include a statement of account.
The appellant appeared by its representative. The respondent appeared in person.
Eileen O’Grady, barrister
Click here to read a transcript of Wyldecrest Park (Management) Ltd v Turner
