England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MILTON KEYNES COUNTY COURT
(His Honour Judge Serota QC)

		Royal Courts of Justice Strand London WC2
		Monday, 23rd July 2001

1. LORD JUSTICE DYSON:Mr Justice Astill will give the first judgment.
2. MR JUSTICE ASTILL: The appellant is the owner of Beech Park, on which 80 or more mobile homes are pitched. The respondents to this appeal are the residents of the mobile homes, who are members of the residents' association. This is a defendant's appeal against the judge's finding that he was in breach of an implied term of the licence agreement with each claimant that he would not encourage or authorise any occupier to breach the rules of the park.
3. Licences are granted by the appellant or his predecessor in title in two separate forms, A and B. A is the older form and B the more recent one, but for present purposes there is no difference between them. I propose, therefore, only to refer to the more recent form B. Clause 4(e) of the express terms in Part IV is an undertaking by the owner (here the appellant) for quiet enjoyment in these terms:

"That the occupier duly paying the pitch fee and observing and performing the undertakings herein contained and on the part of the occupier to be observed and performed shall and may peaceably and quietly occupy and enjoy the pitch during the continuance of the agreement."

4. By the agreement the occupiers were required to comply with the park rules. Rule 18 provides that:

"Dogs are not allowed as pets except in special circumstances (e.g. guide dogs for blind people) and permission is given in writing by the owner. Permission must be obtained from the owner for visitor's dogs to stay on the park."

5. The agreement between the appellant and each respondent was made pursuant to the Mobile Homes Act 1983.
6. The factual background is that the appellant allowed six dogs on to the site in circumstances where a new licensee came on to the park (usually by the transfer of a licence from an existing licensee) and the incoming licensee had an existing dog which was a pet of the family. The appellant permitted those dogs to be brought on to the site subject to the conditions, as the judge found, that they would be kept within the mobile home, let out only on a lead and properly controlled, and that when the dogs died they would not be replaced. The appellant also, the judge accepted, allowed one elderly licensee who was terminally ill to keep his dog as a companion when he came to occupy a mobile home on the park. There was also, the judge accepted, one guide dog in occupation for a blind or partially sighted person.
7. The judge also accepted that the appellant had received no complaints from any of the licensees about any specific piece of offensive behaviour resulting from a dog on the site. The judge heard evidence from one of the licensees, who was confined to a wheelchair, that he had experienced dog excrement on the wheels and therefore on his hands. The judge concluded that, though that was unpleasant, there was some degree of exaggeration. He concluded, as a finding of fact, that the six dogs that the appellant permitted on to the site had not caused, and would not cause, a significant degree of nuisance.
8. The judge concluded that the evidence before him did not allow him to come to the conclusion that the appellant was in breach of the covenant for quiet enjoyment because the matters complained of were insufficient to constitute a nuisance and/or amount to a breach of his further covenant to keep and maintain the park in proper condition and repair.
9. During the course of the hearing the judge allowed a re-amendment of the claim form to plead an implied term as follows:

"This is an implied term in both forms of written statements and in terms of each agreement with each Claimant and the Defendant that the Defendant will not encourage or authorise any occupier of the park to breach the park rules."

10. The judge then set out his reasons for finding that there was an implied term in each occupier's agreement with the appellant in those terms. Neither the reasoning nor the conclusion are challenged in this appeal. The matter for consideration is whether that implied term has been breached, and that is dependent upon the construction of rule 18. The judge concluded that the bracketed words, "e.g. guide dogs for blind people", qualified "Dogs are not allowed as pets except in special circumstances", in the sense that the bracketed words help to define what was meant by special circumstances. He concluded that "special circumstances" were limited to such as guide dogs, hearing dogs, shopping dogs (i.e. those trained to shop for disabled people) and possibly a dog as a sole companion to a terminally ill licensee. Those were examples, the judge concluded, of special circumstances. He concluded that the decisions of the appellant to allow new occupants with existing dogs to bring them on to the site, even with the conditions attached, could not amount to a special circumstance.
11. Mr Adams, for the appellant, challenges that narrow construction of rule 18. He submits that there is a general rule that there should be no dogs and that something has to take it out of the norm. A special circumstance, he submits, would be an incoming family with an existing dog to which there was personal attachment; the family wished to come on to the site and they satisfied the owner that the dog would be kept under control and would not be replaced when it died. The use of the word "pets" and the words in brackets give an obvious example of when a pet should be allowed. The bracketed words, Mr Adams submits, should have very little effect. They reduce and narrow rule 18 to the point where it almost ceases to have any effect and removes its purpose. He submits that it may even have been carelessness that allowed the words in brackets to be included in the rule. He submits that a guide dog and a pet are not the same thing. This rule deals with pets and "special circumstances" is a subjective judgment. The owner can make that decision provided anyone acting reasonably would have made that decision.
12. Any reluctance that I have had in coming to the conclusion that I have reached arose from my acknowledgment that pet dogs can be an important part of a family and that interpreting rule 18 strictly, as the respondents contend for, has the potential to place a stark choice on the potential incomers with pet dogs either to stay out or to come in. However, in my view the wording of rule 18 itself does not allow for the interpretation placed upon it by the appellant. The words in brackets are clearly intended to restrict permission being given to dogs which are necessary for the quality of life of incoming occupants. Dogs upon which an owner depends to enjoy accepted normal qualities of life are, in my judgment, in a different category from dogs which give enjoyment as mere pets. Pets are valued often as part of a family, but are not necessary for the enjoyment of the basic necessities of day-to-day living. The reasons for permission may be many and they are certainly not confined to the examples that I have given. However, in my judgment a dog as a mere pet is too wide for the purposes of the construction of rule 18, and construed in that way would destroy the very reason that rule 18 is there.
13. It is the wording of the rule itself, therefore, that has persuaded me that the wide interpretation given to it by the appellant cannot be justified. Accordingly, this appeal, in my judgment, should be dismissed.
14. LORD JUSTICE DYSON: I agree.
15. The issue that arises on this appeal is narrow in compass. It is conceded that there was an implied term that the appellant would not encourage or authorise an occupier of the park to breach the park rules. The question is whether the appellant has been in breach of that implied term. That resolves itself into the question whether his policy in relation to permitting occupants to bring dogs on to the park authorises breaches of rule 18. The appellant in his witness statement says of his policy:

"On occasions a prospective occupier has a dog and I am asked if it can be brought onto the park. Provided I think the dog is going to be properly controlled my response is that the dog can come onto the park with the occupier but only on the basis that at the end of the dog's life it is not replaced."

16. To my mind it is plain that the appellant is authorising breaches of the first sentence of rule 18 by adopting that policy. Rule 18 does not give him complete freedom to grant or withhold permission as he chooses. He may only do so in special circumstances. Even without the words in brackets, I would have said that the circumstances in which he gives permission for dogs to be brought on to the park do not have the necessary distinctive or unusual features to qualify as "special". They are, as it seems to me, entirely ordinary. It is highly unlikely that any applicant who already has a pet dog would not want the dog to accompany him or her on to the park. The words in brackets merely emphasise the point that permission will only be granted in unusual or special circumstances.
17. Mr Adams submits that the appellant has a discretion whether or not to give permission under rule 18 and that what are special circumstances are a matter for his subjective assessment. He also submits that the court should not interfere with the appellant's exercise of discretion and assessment unless it is one which no reasonable owner could have made. I cannot agree. It seems to me that the first sentence of rule 18 does not give the appellant a true discretion at all. Properly construed, I think that, if special circumstances exist, the appellant is required to give permission: he has no discretion.
18. The only question, therefore, is whether special circumstances do exist. I accept that whether special circumstances exist is to some extent a matter of judgment on which there is some limited scope for legitimate differences of opinion. It is not appropriate to attempt a definition of what would constitute special circumstances, or even to identify exhaustively the criteria required for special circumstances to exist, but I am quite satisfied that the circumstances relied on by the appellant in this case are not special circumstances within the meaning of rule 18.
19. For these reasons, as well as those given by my Lord, I would dismiss this appeal.
Order: appeal dismissed with costs assessed at £5,500.