Ian Dunkley & Anor v Island Park (Medway) Limited

Introduction

1. Mr and Mrs Dunkley are residents in a mobile home stationed at Island Park, a protected site regulated by the Mobile Homes Act 1983. They appeal, with the permission of the First-tier Tribunal, against a decision made on their application under section 4 of the 1983 Act. The FTT decided that it did not have jurisdiction to make a decision about charges and regulations imposed upon the residents by the site owner’s landlord, Residential Marine Limited (“RML”), which the appellants said were being enforced by the site owner, Island Park (Medway) Limited, the respondent to this appeal.

2. Mr Dunkley presented the appellants’ case in the appeal; the respondent was represented by Ms Victoria Osler of counsel; I am grateful to them both. The legal and factual background

3. Island Park is a protected site under the Mobile Homes Act 1983. It is part of a marina development, Port Werburgh, on which people live (many on boats) and work. Port Werburgh is a substantial area, with entrances controlled by barriers, and the residents have key fobs to give them access.

4. Mr and Mrs Dunkley moved into a mobile home on Island Park in June 2018, pursuant to an agreement with RML, the proprietor of Port Werburgh. RML was therefore at that stage the site owner, and it held the site licence from the local authority, as required by the Caravan Sites and Control of Development Act 1960.

5. In April 2021 the respondent took a long lease of Island Park. I have not seen a copy of the lease; the evidence given to the FTT was that it does not include the road that gives access to Island Park through Port Werburgh. Section 3(1) of the 1983 Act says this: “(1) An agreement to which this Act applies shall be binding on and enure for the benefit of any successor in title of the owner and any person claiming through or under the owner or any such successor.” It is not in dispute that that means that the respondent is now the site owner and has stepped into RML’s shoes as a party to the agreement with Mr and Mrs Dunkley. It also now holds the site licence.

6. The FTT has jurisdiction under section 4 of the 1983 Act to determine any question arising under an agreement to which the 1983 Act applies. In May 2024 the appellants made an application to the FTT in its jurisdiction under section

4. The subject matter of their application was in two parts. The first part was a challenge to the site rules, which they claimed had not been properly adopted, and that challenge failed; there is no appeal from that decision. The second part, beginning at paragraph 2 of the statement of case incorporated in their application form, was a challenge to a number of charges and requirements imposed upon them as residents of Island Park by RML and enforced by the respondent. They included fines for exceeding the 10 mph speed limit within Park Werburgh but outside Island Park, payment for alleged infringement of rules relating to the entrance barriers, and a number of rules imposed upon contractors passing through Port Werburgh in order to access Island Park to work on individual residents’ mobile homes or pitches, including a requirement to obtain the written permission of RML to enter the site, giving 48 hours’ notice, and a requirement to hold £5 million public liability insurance.

7. The applicants’ form said: “2.2 The Respondent as the operator and Licence Holder for the site is enforcing a number of additional “rules” and conditions which they now claim are incorporated in their Lease Agreement with RML and which affect residents right to pass through land owned by RML in order to access their homes located on the land now occupied and leased by the Respondent since 1 April 2021. … 2.4 The Respondent has stated that it is enforcing these rules as they are conditions of their Lease arrangement with RML … Further more the Respondent on behalf of RML is enforcing payment of the administrative charges by threatening to disable the residents’ electronic site key with a charge of £50 plus VAT for reinstatement if the charges are not paid.”

8. The bundle produced for the FTT included letters sent by the respondent to the residents including the following sent in February 2022: “Please be aware that CCTV will be checked regularly and if there is any misuse of the barrier/gates then the fob will be blocked and there will be a charge of £30.00 + VAT to unblock the fob.”

9. Another letter from the respondent in October 2022 said: “For Health and Safety reasons the office must be aware of any Company or individual doing work of any description on site. You need to fill in a Permission Slip obtainable from the office (if you email and request one, then one will be sent back by email). Some work may require a risk and method statement to be completed before work starts. We must have a copy of their insurance certificate before work begins and their public liability must be for a minimum of 5 million.”

10. Similar letters in the bundle were on the headed paper of RML but the above passages are from letters on the respondent’s headed paper.

11. The appellants’ statement of case in the FTT concluded by asking the FTT to rule that the additional charges and rules were invalid and to require both the respondent and RML to cease imposing the extra charges and to refrain from imposing notice and insurance requirements on the residents’ contractors.

12. The application to the FTT was opposed on the basis that the charges and requirements were imposed not by the respondent but by RML which was no longer the site owner and no longer a party to the agreement with Mr and Mrs Dunkley, so that (it was argued) the FTT had no jurisdiction under section 4 of the Mobile Homes Act 1983.

13. Mr and Mrs Dunkley pointed out to the FTT that Mr and Mrs Denis Swann were directors of both companies, together with their son; the FTT said at its paragraph 30: “Mr Dunkley points out the commonality of the beneficial ownership and directors which is not disputed.”

14. Nevertheless the FTT agreed with Ms Osler for the respondent. It said: “31. … Given the charges and requirements are imposed by RM over land which does not form part of the mobile home site we accept we do not have jurisdiction to require cessation of these matters. It may be that RM is required to provide access but the written agreements are with the Respondent company. We are satisfied that we cannot within this application direct another legal entity to cease and desist in the way suggested by the Applicants.

32. We must however comment that we do not accept the justification given by Mr Swann for these matters. Much was made of health and safety, particularly over the choice of contractor and the requirements for insurance. Given it is for the homeowner to maintain their homes it seems to us to be a matter for them. Equally several of the charges seem arbitrary and a method of control which goes beyond the terms of the written agreement. Whether these can be enforced is not a matter for us although we are far from convinced that a reasonable and proportionate response is being undertaken by RM. Further it seems the unilateral imposition of such matters given the rights of access afforded to the Applicants under their written agreement may go beyond RMs entitlement as the owner of such land subject to such rights. These are not however arguments for this Tribunal.”

15. However, the FTT gave permission to appeal. In giving permission it said: “When the Applicant purchased their home it was from Residential Marine Limited who subsequently granted a lease of the site to the Respondent company. It was accepted that Mr Swann had control of both companies. If it was the Respondent company imposing these conditions and charges we are satisfied we would have jurisdiction. We are satisfied that the circumstances of this case are unusual and that this ground has reasonable prospect of success.” The arguments in the appeal

16. In their grounds of appeal the appellants argued that a site owner cannot evade the provisions of the 1983 Act by delegating access control to a third party company; that the additional charges and requirements were an interference with their express and implied easements over the access land; and that the charges were not authorised by the agreement or by statute. “The Tribunal should have considered whether the third-party charges were so interwoven with site management as to fall within its jurisdiction, especially where the landowner enforces them by disabling access.”

17. In his skeleton argument Mr Dunkley said “7. [The] ‘administrative charges' have been levied at £15 initially and subsequently now £20 plus VAT in the first instance. Non-payment is accompanied by threats to disable access, and on at least one occasion the actual disabling of, the Appellants’ key fob until a further £50 'administration' charge is paid for reinstatement. The effect is to coerce payment by restricting physical access to the home.”

18. In her skeleton argument and at the hearing Ms Osler pointed out that the FTT has found as a fact that the charges are imposed by RML and that the FTT simply had no jurisdiction in relation to a third party that is not a party to the agreement. The fact that the two companies had common directors was irrelevant. She asserted that the appellants had produced no evidence about the beneficial ownership of the two companies (overlooking, I think, what the FTT said about beneficial ownership at its paragraph 30).

19. At the hearing I pointed out to Ms Osler that the proceedings have been brought against the respondent, and that it is said that the respondent is enforcing the charges imposed by RML. She said that that was denied by the respondent; that the FTT had found as a fact that the respondent was not enforcing the charges; and that it had not been put to Mr Swann when he gave evidence to the FTT that the respondent was enforcing the charges. The letters from the respondent quoted at paragraphs 7 and 8 above she regarded as simply explanations of what RML was going to do.

20. Ms Osler also argued, without prejudice to the respondent’s position that it is not enforcing the charges, was that if it is doing so that would be a matter for the county court; the FTT had no jurisdiction because the access road is not a protected site. She also suggested that it was not open to the respondents to make arguments about easements and access, since such arguments were not made before the FTT; and she stressed that the respondents had not put to Mr Swann, who gave evidence in the FTT, that the respondent was enforcing the charges imposed by RML.

21. I asked Ms Osler how the charges, imposed by RML, could be enforced by disabling the residents’ key fobs if not by the respondent as site owner; her answer – on instructions – was that the key fobs belong to RML. I asked Ms Osler on what basis control of the residents’ access to the site had been surrendered by the respondent to a third party and her response, if I understood it correctly, was that this was for health and safety reasons. Discussion

22. It is worth taking a step back and looking at a hypothesis: if the protected site were still in the ownership of RML, would it have the right to impose charges and rules that are not provided for in the agreement or in the statute? Obviously not.

23. What appears to have happened is that RML has leased the site to the respondent, and is imposing charges and requirements on the residents which (as the FTT said and as Ms Osler appeared to accept) do not appear to be provided for in the agreement. It cannot be permissible for RML, as site owner, to lease the protected site to another company and then impose charges upon the residents that it could not have imposed when it was the site owner.

24. Yet, inexplicably, RML is doing just that and, according to Ms Osler, controls the residents’ access to the protected site and therefore has the power to enforce those charges upon them by disabling their key fobs.

25. Section 4 of the Mobile Homes Act 1983 reads as follows: “(1) In relation to a protected site [the FTT] has jurisdiction— (a) to determine any question arising under this Act or any agreement to which it applies

26. Section 231A(4) of the Housing Act 2004 gives the FTT additional procedural tools for use in exercising its jurisdiction under section 4 of the 1983 Act, without widening its jurisdiction: “(4) When exercising jurisdiction under the Mobile Homes Act 1983, the directions which may be given by the tribunal under its general power include (where appropriate)— (a) directions requiring the payment of money by one party to the proceedings to another by way of compensation, damages or otherwise; (b) directions requiring the arrears of pitch fees or the recovery of overpayments of pitch fees to be paid in such manner and by such date as may be specified in the directions; (c) directions requiring cleaning, repairs, restoration, re-positioning or other works to be carried out in connection with a mobile home, pitch or protected site in such manner as may be specified in the directions; (d) 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.”

27. Iin light of those provisions, I consider in the paragraphs that follow the FTT’s jurisdiction in relation to the respondent and in relation to RML. Jurisdiction under section 4 of the Mobile Homes Act 1983 in relation to the respondent

28. The appellants’ claim in the FTT was that the respondent is enforcing against them the charges and requirements imposed by RML.

29. Contrary to what Ms Osler said, the FTT’s finding that RML was imposing the charges was not a finding that the respondent is not enforcing them. The FTT certainly made no such finding; it did not address what the appellants said about the respondent in their statement of case, nor the correspondence quoted above which certainly reads as direct threats of enforcement action by the respondent itself.

30. The FTT found (and indeed I do not think it was in issue) that RML imposed the charges. It has not made a finding of fact as to whether RML itself or the respondent is using the key fobs to enforce the charges. Whichever of those positions is true, the FTT has jurisdiction in relation to the respondent, for the following reasons.

31. The respondent is the site owner under the agreement by which the appellants occupy their pitch. It has agreed to give them access to the protected site and quiet enjoyment of their pitch. There is no basis on which it could charge them for access to the site, or use the residents’ key fobs to require them to pay charges imposed by a third party by way of penalty for alleged infringements of rules imposed by a third party. Nor can it restrict access to the appellants’ contractors on the basis of rules imposed by a third party.

32. Ms Osler’s argument that it was not open to the appellants to make arguments about access and easements when those points had not been made to the FTT was unpersuasive. The appellant’s statement of case put in issue “residents’ right to pass through land owned by RML in order to access their homes.” Consistent with that, the appellants in their grounds of appeal were explaining why the FTT did have jurisdiction in relation to the respondent, on the basis of the respondent’s responsibilities to safeguard their access.

33. Ms Osler’s argument that it was not put to Mr Swann that the respondent was enforcing access was equally unimpressive; the appellants are litigants in person and cannot be held to the rules of cross-examination. It was perfectly clear from their statement of case that they were saying that the respondent was in breach of the agreement by enforcing the charges, and from the correspondence that they put before the FTT. In deciding that the FTT had no jurisdiction because the charges were imposed by a third party the FTT missed the point that the appellants were making.

34. Ms Osler further argued that the charges relate to land outside the protected site and that therefore the FTT has no jurisdiction. That is incorrect. The issue is the respondent’s responsibility for ensuring that the residents (and their contractors) have access to the protected site, and their rights of access arise under an agreement to which the 1983 Act applies; there is no basis on which it can be said that the FTT lacks jurisdiction either to determine whether the respondent is in breach of the agreement.

35. If on the other hand it is not the respondent but RML that is using the key fobs to enforce the charges, because the key fobs belong to and are controlled by RML, that does not assist the respondent. It is responsible for the residents’ access to their site; there is no basis on which it can surrender control of access to the site to a third party and allow that third party to use the key fobs to enforce charges and rules which it could not itself impose. If that is what the respondent has done – and that was the position taken at the appeal hearing – then it is as much in breach of the agreement with the appellants as it would be if it was controlling the key fobs itself.

36. Either the respondent is enforcing the charges imposed by RML or, by allowing RML to control the residents’ access, it is enabling RML to enforce those charges. Insofar as those charges are not authorised by the agreement or the site rules, either position would place the respondent in breach of its agreement with the residents. I see no reason why the FTT does not have jurisdiction in this dispute between the residents and the respondent, against whom the proceedings have been brought.

37. On that basis alone the FTT’s decision must be set aside and the matter must be remitted to the FTT.

38. I note that the respondent’s position, expressed in passing in the appeal, is that the FTT does not have jurisdiction to require the respondent by order to do or not do anything. In my judgment that is incorrect; section 231A(4)(d) enables the FTT to give directions about “the establishment, provision or maintenance of any service or amenity in connection with a mobile home, pitch or protected site”. Access to the site is fundamental to the amenity of the site for the appellants and the FTT has jurisdiction to require the respondent to comply with its obligations in the agreement to provide access and quiet enjoyment, and not to use or to allow a third party to use the key fobs as a way of extracting money from the residents. The FTT’s jurisdiction in relation to RML

39. When RML entered into the lease with the respondent it was the site owner. If the FTT finds that the charges and requirements being imposed upon the residents are not authorised by the agreement or by the site rules, the respondent may say that it is only doing what its lease requires it to do. Whether that is the case or not I do not know as I have not seen the lease.

40. There are two answers to that argument if it is made. One is that it was accepted before the FTT (paragraph 30 of its decision) that the two companies are in common beneficial ownership. If the respondent’s responsibilities as site owner under its agreements with the residents put it in breach of the terms of its lease, that is unlikely to be a problem to it if the beneficial ownership and directorship of the two companies is the same.

41. Another answer is that RML was the site owner when it entered into that lease. It was not open to it to impose on the respondent (if that is what it has done) obligations that would put the respondent in breach of its duties as site owner. That is a matter that arises under the agreement to which the 1983 Act applies, and the FTT has jurisdiction to determine whether that is what has happened and (using its powers under section 231A(4)(d) of the Housing Act 2004) to require RML not to interfere with the respondent’s obligation to provide access to and quite enjoyment of the site. The orders that the Tribunal should make in the appeal

42. I set aside the FTT’s decision because it has jurisdiction to determine the questions raised by the appellants in their application against the respondent. I cannot substitute the Tribunal’s judgment on the appellants’ application because the FTT has not made the findings of fact that would enable me to do so. The appellants did not ask me to do so; their position was that the matter must be remitted to the FTT and I agree.

43. The FTT will need to decide: a. Which of the charges and requirements being imposed upon the appellants, if any, are permissible under the agreement or the site rules; b. Whether the respondent is itself enforcing the charges through the key fobs or is permitting RML to do so; and c. What order to make in consequence of those findings.

44. RML should be made party to the proceedings. The appellants in their statement of case in the FTT sought orders against RML, and the FTT has jurisdiction to determine questions arising from its conduct as site owner and to make orders against it under section 231A of the Housing Act 2004. It will then be bound by findings of fact made by the FTT; it is possible that there will be a need at some point for county court proceedings, either to enforce orders made by the FTT or for injunctive relief, and will assist all the parties if the FTT has determined the relevant facts first.

45. I propose therefore to give a direction making RML party to the appeal and to the remitted proceedings. If RML or the respondent wishes to argue that I should not do so they may make written representations within the next seven days.

46. It will be open to the appellants to apply for directions in their remitted application to the FTT, and the FTT will no doubt give directions enabling RML to file a statement of case. It may be useful for the FTT to permit all the parties to file further evidence of fact; as the FTT said itself in giving permission to appeal, the situation is unusual and I hope that the analysis contained in this decision will mean that both parties may now be better able to see what evidence would assist the FTT.

47. In addition to making RML a party to the appeal I propose to make an order, to remain in force pending the FTT’s determination of the appellant’s remitted application, requiring both the respondent and RML to allow the appellants access to the site without imposing or collecting any charges as a condition of access, whether by disabling the key fob or otherwise. There is no dispute that either the respondent or RML has threatened to do so. Access to the site is governed by the agreement, whether or not access is gained via land owned by a third party, and neither the respondent nor RML is entitled to use their control of access as a way of imposing charges. If either the respondent or RML wishes to argue that the Tribunal should not make an order in those terms just described, they may do so within the next seven days Judge Elizabeth Cooke 24 November 2025 Right of appeal  Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision.  The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties).  An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking.  If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.