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Refusal order decision is successfully appealed in Upper Tribunal

By Chris Humphreys and Antony Tregenna, Legal Advisers

March 2015

LRX/33/2014

This appeal relates to an application for a Refusal Order by a site owner and has implications for site owners who are concerned whether a proposed occupier is complying with the site rules. A site owner can apply for a Refusal Order to the First-tier Tribunal within 21 days from receipt of a Notice of Proposed Sale if they have grounds and wish to prevent a sale from proceeding.

In this case, the site owner asserted that the application for a Refusal Order had to be served upon the proposed seller before applying to the First-tier Tribunal. The question for the Upper Tribunal was whether the application should be served on the proposed seller before or after applying to the First-tier Tribunal. The Upper Tribunal decided that the legislation was clear that the application needed to be made first and the park home owner notified after the application was made.

FACTS

The Upper Tribunal was asked to consider whether a home owner could be notified by a site owner of an application for a Refusal Order before the application had been made to the Tribunal.

The Mobile Homes Act 2013 distinguishes between ‘existing agreements’ – made before 26th May 2013 and ‘new agreements’ made after 26th May 2013. As the agreement in question was made before 26th May 2013, it was necessary for the sellers to serve a Notice of Proposed Sale upon the site owner. The time limit for a site owner to then make an application to a First-tier Tribunal for a Refusal Order is 21 days from receipt of the Notice of Proposed Sale and the owner must give notice of the application to the seller within the same period.

The pitch agreement prohibited the keeping of any animal on the pitch. The sellers served a Notice of Proposed Sale and assignment of the agreement upon the site owner on 23rd September 2013. This confirmed that the prospective purchaser wanted to keep 2 dogs at the mobile home. The site owner decided to object to the proposed assignment if no assurances could be provided that the purchaser would comply with the agreement.

The site owner stated that it had provided notice of its intention to apply for a Refusal Order to the home owner’s solicitors by post on 10th October 2013 and that the home owner received the notice of the application for a Refusal Order within 21 days of the service of the Notice of Proposed Sale.

On 11th October 2013, they then applied for a Refusal Order to the First-tier Tribunal and the application was received by the First-tier Tribunal on the following working day, 14th October 2013.

Issues for the First-tier Tribunal

The issue was whether notification of the application for a Refusal Order to an occupier could be made before the application had been sent to a tribunal (as argued by the Appellant) or only after it has been ‘made’ and ‘received’ by the tribunal.

The First-tier Tribunal issued its decision on 17th December 2013 and refused to make a refusal order, but the proposed purchaser had by then withdrawn from the sale. The site owners appealed to the Upper Tribunal.

Arguments put forward by Appellant

The site owner argued that the First-tier Tribunal’s view that the notice of an application for a Refusal Order could only be sent to an occupier after an application had been ‘made’ and received by the Tribunal contradicted the PH5 application form for Refusal Form and relevant Practice Direction.

Both the application form and Practice Direction require evidence that the occupier has been informed of the application. The Practice Direction states that if evidence is not supplied, the application should be stayed for 7 days. The appellant argued that if the park owner has to wait until the Tribunal received the application before it could give a valid notice to the occupier, the effect of the Practice Direction would result in a stay of 7 days in every case. This would not be beneficial to either party.

DECISION

The Tribunal refused to make a refusal order. If the appellant’s argument that providing notice to the occupier of an application before its receipt by tribunal is valid, it provides the possibility that a site owner may not apply for a refusal order within 21 days.

They concluded that despite the ‘features’ of the Practice Direction and application form, paragraph 7B (2) of the Mobile Homes Act 1983 refers to a notice that the site owner ‘has applied to a Tribunal rather than a notice that the owner intends to apply’ A site owner would be required to apply to the First-tier Tribunal for a Refusal Order and serve it upon the occupier within 21 days from the receipt of the Notice of Proposed Sale (in that order).

The tribunal considered that it was not necessary to wait for confirmation from a tribunal that the application form had been received before a site owner sends notice of the application to the occupier, but for the purposes of the appeal they did not express a concluded view on this issue.

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