By Manjit Rai – Park Homes Adviser at LEASE
Leasehold Advisory Service park home adviser Manjit Rai examines a recent Upper Tribunal decision concerning the Tribunal’s jurisdiction and home owners’ entitlement to ‘quiet enjoyment’ on a park noticeboard.
Away Resorts Ltd v Ms Morgan (Sandy Balls Estate home owner)
This Upper Tribunal case Away Resorts v Ms Morgan considered the extent of the powers of the Tribunal and the question was: whether the Tribunal are entitled to direct a site owner to ensure that access to a pitch on the site is not obstructed by inconsiderate parking on the part of the occupiers of the other pitches.
Sandy Balls Park is a mixed use site, in Hampshire which consists of permanent residential park homes and holiday lets. The three mobile homes with which this appeal is concerned are Nos. 116, 117 and 119. Nos. 116 and 119 had been in a habit of parking directly in front of their homes in such a way as to narrow the gap between 116 and 119 through which 117 had to drive to reach or leave their own parking area.
Ms Morgan (owner of number 117) made a number of complaints concerning activities of her neighbours which she felt breached her implied right to quiet enjoyment of her home. She also complained that the site owner had erected a sign indicating that residents could park in what was otherwise a designated no parking area. In her opinion, the site owner has encouraged a breach of the site licence. In her experience, rule breaking ‘had become a habit’ for her neighbours.
Ms Morgan applied to the Ft-T for a determination of a number of questions relating to the behaviour of her neighbours and visitors to the park which caused her a nuisance and annoyance, including obstruction of access to her designated parking area by inconsiderate parking.
The Tribunal’s decision
Upon evidence given by Ms Morgan, the Tribunal decided that her car was frequently blocked from entering or leaving her parking area, by vehicles parked on the central gravel driveway.
The Tribunal issued directions for the site owner to comply with the implied term providing for entitlement to quiet enjoyment by ensuring the shared gravel area leading to and providing access to various pitches on Sandy Balls Estate, is kept clear at all times.
The Tribunal directions continue to bind the park owner and to be enforceable against it, despite Ms Morgan, in whose favour the direction was given, no longer having an interest in the case (she sold the home and the new home owners did not wish to take part in the proceedings). The site owner was given permission to appeal to the Upper Tribunal (UT).
Issues for the Upper Tribunal
- Quiet enjoyment. The site owner argued there must be consent or active participation on their part to make them liable in such a case. That it is not enough if the site owner merely knows about the nuisance and does nothing to prevent it.
They also argued that specific instruction was given by the previous site owner regarding the parking in the letter dated 1 May 2015 making it clear that occupiers were not permitted to park in other areas in such a way as to cause an obstruction. The letter could not have been said to have provided authorisation to occupiers which gave rise to a substantial interference with the right of Ms Morgan to gain access to her pitch.
- Jurisdiction of the Tribunal. The UT has had to consider the scope of the Ft-T’s jurisdiction under Section 4(1) of the Mobile Homes Act 1983 and S231A Housing Act 2004. The Ft-T had decided that the gravelled area which provides access to various pitches is to be kept clear at all times.
It was decided that the language of Section 4 of the 1983 Act is very broad and the powers conferred by Section 231A Housing Act 2004 are extensive and expressed in general terms. It should therefore be taken that (with the exception of disputes over termination) the proper forum for disputes between park home owners and site owners in England is the Ft-T.Section 231A(2) Housing Act 2004 gives the Tribunal: ‘Power to give such directions as it considers necessary or desirable for securing the just, expeditious and economical disposal of the proceedings.’S231A(4) arguably provides jurisdiction for an order in the terms made by the Ft-T in subsection (4)(d), which allows the making of: ‘directions requiring the establishment, provision or maintenance of any service or amenity in connection with a mobile home, pitch or protected site in such manner as may be specified in the directions’.
- The Upper Tribunal’s decision. The UT allowed the site owners appeal. The original applicant, in whose favour the Ft-T determination was made (Ms Morgan), no longer continued in the proceedings. The fact that the appeal was only argued on one side did not prevent the UT from making a determination in this case. The UT noted that this appeal is one sided, and therefore was reluctant to give a decision which would become binding on future Ft-Ts. For this reason, the UT was satisfied that this appeal can be disposed of without resolving definitively the extent of the Ft-T’s powers under S231A(4)(d). In answer to the question: whether the Tribunal are entitled to direct a site owner to ensure that access to a pitch on the site is not obstructed by inconsiderate parking on the part of the occupiers of the other pitches. The UT concluded that the effect of the Ft-T directions that the site owner should ensure that access was kept clear was to enlarge, rather than enforce the owners obligation and to make it a guarantor of the good behaviour of other park residents.
The UT decided that the Ft-T decision must be set aside because the Ft-T direction went far beyond the limits of Section 231A(2). The UT did not consider the Ft-T direction was just for the disposal of the proceedings and nor was it desirable. The UT decided that all that was needed was for the removal of the sign and reiteration of the prohibition on parking. They concluded that as Ms Morgan is no longer resident at the park and the sign has been removed and the current occupiers of number 117 have expressed no wish to participate in the proceedings, there is no reason for the Tribunal to give any directions of its own in substitution for those of the Ft-T. The appeal was therefore allowed. Important points to take away from this decision A site owner is not in breach of the Implied Term for ‘quiet enjoyment’ merely because they know that a resident is causing a nuisance and takes no steps to prevent it. There must be consent or active participation on the site owner’s part to make them liable. The Tribunal has the power to give such directions they consider necessary or desirable to deal with the issues presented. However, these powers of the Tribunal are not unlimited. They should not impose unnecessarily burdensome directions on the parties. i.e. to direct a site owner to permanently.
This article was originally published in Park Home magazine on July 2018.