Making a pitch

The government has extended occupancy rights for gypsies and travellers on local authority sites. Samantha Jackson examines the change and a recent Court of Appeal case.

On 30 April 2011 s.318 of the Housing and Regeneration Act 2008 (“the 2008 Act”) was brought into force – Housing and Regeneration Act 2009 (Commencement No.8 and Transitional, Transitory and Saving Provisions) Order 2011. SI 2011/1002.

This will extend occupancy rights for gypsies and travellers on local authority sites by including them within the protection of the Mobile Homes Act 1983 (“the 1983 Act”). The implementation of s.318 of the 2008 Act removes the exclusion of “any land occupied by a local authority as a caravan site providing accommodation for gypsies” from s.5(1) of the 1983 Act (which defines the sites protected).

This will be welcome news for many travellers on sites that were not protected as it means sites provided by district and borough councils (along with county councils) will now enjoy security of tenure which means a ground for possession and reasonableness factors will have to be proved for a court to make a possession order. Local authorities are required to provide a written statement of the agreement to the occupiers of such newly protected sites within 28 days of s.318 of the 2008 Act coming into force. New residents moving into pitches after the implementation of s.318 will have agreements that include the specified implied terms of the 1893 Act and the express terms agreed between the local authority and the resident.

On 12 April 2011 in the case of Murphy v Wyatt [2011] EWCA Civ 408, the Court of Appeal decided that the 1983 Act applied only to agreements whose exclusive or substantially exclusive purpose was the grant of a right to station a mobile home on a pitch and to occupy it as a residence. Furthermore, an agreement permitting a mobile home to be stationed on land which did not have planning permission and thus a site licence was not saved and placed within the ambit of the 1983 Act by the subsequent granting of permission.

At first instance the Judge held that as the possession proceedings had been commenced before the expiry of the notice to quit the claim for possession was bound to fail (which was not appealed). The first instance Judge then went on to hold that the 1983 Act did not apply to the tenancy at all and took a view of the application of the statute which was more favourable to the claimant than that which was being contended for her.

He gave two grounds for his conclusion; first was the absence of any planning permission (or certificate of lawful use) for keeping a caravan on the land as at the date the tenancy was granted, namely in 1975; the second ground was based on the fact that the extent of the land included in the tenancy was far greater than the site of the mobile home, in that it comprised nearly two acres.

At paragraphs 13 to 19 of the judgment, the Master of the Rolls gave general procedural guidance for the “proper approach” to be adopted by Judges when they are “proposing to decide a case on the basis of a point which was not argued, or in a way, or to an extent, which is more favourable to a party than the case which that party advanced in court”.

At paragraph 80 of the judgment Arden LJ left open the possibility of arguments on Article 8 of the ECHR which is unsurprising given the possibilities left open from the Supreme Court decision in Pinnock [2010] 3 W.L.R.1441.

Samantha Jackson is a barrister at 1 Chancery Lane (www.1chancerylane.com).