Brightlingsea Haven Ltd & Anor v Morris & Ors, Court of Appeal - Queen's Bench Division, October 30, 2008, [2008] EWHC 1928 (QB)

Resolution Date:October 30, 2008
Issuing Organization:Queen's Bench Division
Actores:Brightlingsea Haven Ltd & Anor v Morris & Ors
 
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Neutral Citation Number: [2008] EWHC 1928 (QB)Case No: HQ07X02327, 02328, 02329IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 30 October 2008 Before :MR JUSTICE JACK- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Anthony Tanney (instructed by Ellisons Solicitors) for the ClaimantsStephen Cottle (instructed by Shelter Legal Services) for the 1st & 2nd DefendantsDavid Schmitz, pro bono, for the 3rd DefendantHearing dates: 7 - 17 July 2008- - - - - - - - - - - - - - - - - - - - -JudgmentMr Justice Jack : Introduction1. Brightlingsea lies at the mouth of the Colne estuary in Essex and is one of the Cinque Ports. Haven Village, or Brightlingsea Leisure Village as it is also called, is a caravan park on the edge of the town. The park contains both caravans in the colloquial sense and lodges, a lodge being what is often called a mobile home - though the mobility is very limited. Both may come within the definition of `caravan' in law. The impression given to a visitor is of a grassy area within a low earthen sea wall containing 40 or 50 chalets or lodges, some finished in wood, some rendered. There are also a number of large caravans. All of these are permanently sited on the park. There is a site office and a small house for the warden. A tarmac drive leads round from a parking area at the entrance. This case concerns rights between the park owners and the three defendants in respect of their lodges. The outcome will affect a number of other lodge owners.2. The first claimant, Brightlingsea Haven Limited, `BHL', is the tenant of the park under a lease granted by the freeholder, Brightlingsea Town Council. The lease is dated 9 May 2000 and is for a term of 30 years commencing on 9 November 1989 and so expiring in 2019. The commencement date is the date of an agreement between the same parties for the grant of the lease. It is unclear how soon after November 1989 BHL took possession of the site. Nor is it clear why the execution of a lease was so delayed. Schedule 5 of the lease contains a number of covenants by BHL. The relevant covenants are:by clause 7(a), to observe, inter alia, any consents and licences issued under Act of Parliament;by clause 10(a), to comply with the Planning Acts and all consents issued thereunder;by clause 11(b), not to use the park `otherwise than as a Static Seasonal Caravan Park';by clause 12(a) to `comply with the ``standards to be imposed as a condition of Licence'' by virtue of the Caravan Sites & Control of Development Act 1960';by clause 12(b), not to allow caravans or mobile homes on the park to be occupied, except for storage, other than between 1 March and 31 October, 12 noon on Fridays to 12 noon on Mondays at other times, and 10 days over Christmas and New Year; by clause 13(b), not to underlet nor part with possession save by way of a standard licence for each caravan. 3. The first site licence for the park issued under section 3 of the Caravan Sites and Control of Development Act 1960, `the 1960 Act', is dated 29 September 1993. It was issued to the second claimant, Hammerton Leisure Limited, `HLL', by Tendring District Council. That was an error, because the `occupier' of the park was and is BHL. No complaint has ever been made by Tendring. Both companies are controlled by Mr Stephen Hammerton and his family. Mr Hammerton is managing director of each. Among the conditions of the licence were conditions, first, that only approved caravans as defined in section 29(1) of the 1960 Act and in section 13(1) of the Caravan Act 1968, `the 1968 Act', were permitted on site, and, second, that caravans might be occupied only between 1 March to 30 November, and over any weekend, and over 10 days at Christmas. The November date was more generous than the lease by a month. The current site licence was issued to BHL on 4 May 2007. It contains the same conditions. I will refer to the dates during which `caravans' may not be occupied as `the closed period'.4. Planning permission had been granted on 28 September 1989 by Tendring District Council on the application of Brightlingsea Town Council, for change of use from `amenity land to seasonal caravan park'. It was a condition of the permission as varied on appeal by a determination dated 4 January 1995 that caravans should only be occupied on the dates which were later set out in the site licences. The reason stated for the condition was to ensure that the caravans remained in holiday use. The success of the appeal must provide the explanation for the divergence between the lease and the site licence as to dates of permissible occupation.5. The defendants' case is that they bought their lodges from HLL (or in the case of the second defendant from the original purchaser from HLL) on the strength of promises that they would be granted leases of their sites by BHL until the end of BHL's lease from Brightlingsea as it might be extended, and that, although they could not sleep in the lodges during the closed period, they could use them during the day in that period. They were selling their homes in order to buy their lodges, which was known to BHL. Those promises, they submit, give them rights in equity against BHL, which should be met by the grant of leases on those terms. The matter of day time occupation in the closed period is of great importance because if they use bed and breakfast accommodation during the closed period they must have somewhere to go during the day, and the position may not be much different if they lodge with a relative or friend. BHL's case is that they have only periodic tenancies, terminable on notice, with a term that they cannot use them for occupation during the closed period either by day or night. The determination of the defendants' rights is of importance not only to the parties but to other lodge owners who occupy their lodges as their homes. The defendants seek primarily a declaration as to their rights. BHL seeks an injunction preventing them from occupying their lodges during the day in the closed period, 6. If the defendants are correct as to the rights they can assert against BHL, the assertion of those rights would appear to put BHL in breach of its lease, the site licence and the terms of the planning permission. That creates difficulties which go beyond the determination of the rights themselves.7. The underlying cause of the problems is the manner in which Mr Hammerton chose to deal with the rights between BHL and the lodge owners. Although no evidence was called to establish this directly, it appears from the evidence that I heard that it is usual for a licence agreement relating to use of the site (or pitch) to be signed by the park owner and by the lodge purchaser prior to or at the same time as a lodge is purchased. The National Caravan Council and the British Holiday & Home Parks Association have jointly promoted a form of licence since the mid 1990s. If this course had been adopted, the purchasers of lodges would have seen the intended terms on which they were to hold their sites before they committed themselves, including any term that occupation during the closed period was prohibited. There would have been no breach of the head lease by subletting, and there should have been no problems. For either the purchasers would not have purchased, or they would have purchased knowing where they stood. However, in July 1990 Mr Hammerton had procured from BHL's solicitors, Ellisons, a form of lease to be used at Haven Village. It provided for the tenant to hold his site for a term of years (the term was left blank by Ellisons), at a variable rent with covenants only to use the lodge as a domestic holiday lodge, and during December to February to use it only at weekends and for 10 days over Christmas and the New Year. It was Mr Hammerton's practice to provide a copy of such a lease to a purchaser some time after the purchase of the lodge and the purchaser had moved in. It was not seen by the purchaser until then: in particular it was not shown to a purchaser prior to purchase. The `lease' delivered to the purchaser would be signed on behalf of BHL prior to delivery. Mr Hammerton did not think it necessary to get it signed by the tenant. It is not surprising that it is not sought to rely on these `leases' in these actions. I will record here that none of the defendants had solicitors acting for them in connection with the purchases of their lodges and the arrangements relating to their sites. Nor did they have legal advice. That was also the case in relation to the other residents of Haven Village who gave evidence. I deduce that because they were not buying houses or flats they saw no need. They were, of course, unwise not to ask to see the terms of the lease which they were told they would get. None of the defendants or witnesses did so. They did not do so because they trusted what they were told and because of a lack of commercial sophistication.8. In addition to the matters I have referred to there are issues as to the rent which BHL is entitled to charge, and there are claims against BHL for damages for harassment under section 3 of the Protection from Harassment Act 1997.9. The claimants have been represented by Mr Anthony Tanney instructed by Ellisons. The first and second defendants, Mrs Morris and Mr Foster, have been represented by Mr Stephen Cottle on the instruction of Shelter Legal Services. The third defendant, Mr Richard Clark, died on 29 September 2008. He was aged 71 and had suffered from mesothelioma. Written submissions were made on his behalf by Mr David Schmitz acting pro bono, which adopted and added to those of Mr Cottle. Mr Schmitz also prepared for Mr Clark a third witness statement. Subsequently Mr Schmitz like other counsel also provided written submissions in September 2008 as to the effect of the decision of...

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