[2024] UKUT 294 (LC)

Ms Ava accepted that there was nothing to distinguish these appeals from the Court of Appeal’s decision in PR Harman, and that therefore she could not rely upon clause 3(b) or the statutory implied term at paragraph 21 to create the liability to pay POW ‘s charges. However, she referred to two further provisions which appear in Mrs Brazier’ agreement and in no other.

One is in a schedule “Electricity Supply Agreement”, of which paragraph provides:

“Provided that the electric installation and appliances in the Occupier’s Mobile Home, comply with the requirements of Merseyside and North Wales Electricity Board (hereinafter called “the Board”) the owner agrees to use his best endeavours to provide a supply of electricity available to the Occupier at all times, at a meter placed in the meter compartment of the Occupier’s shed or elsewhere under cover on the pitch”.

Ms Ava argued, first, that “the Board” is now Ofgem, and, second, that therefore Ofgem’s ‘Alternative Homes Energy Guidance’ is incorporated as a set of implied terms in the written agreement.

I do not accept either proposition. Ofgem is a regulator, not an electricity supplier, and I can see no reason why it should be slotted into the agreement in place of a supplier that no longer exists. And there is no necessity for the terms of Ofgem’s guidance to become implied terms of the written agreement; Ms Ava suggested that it is necessary because this is in effect government guidance, but that flies in the face of principle in terms of the reasons why a term can be implied in a contract.

But in any event, the Guidance does not assist the respondent. Ms Ava referred to the following passage from the Guidance:

“Rules Site Owners must follow

You can be charged an extra fee for things like meter readings and invoicing on top of your energy costs. People living in park homes can only be charged that fee if it is included as an agreement, also known as an express term, in their written agreement.”

As discussed above, it is not so included. The Ofgem Guidance takes things no further.

Second, Ms Ava referred to a further schedule that appears in Mrs Brazier’s agreement only, headed “Calor Gas Supply Agreement”. She contended that the terms of that Schedule apply to the supply if LPG, and stated that if the appeal succeeds then the respondent will charge for LPG in accordance with the terms of that schedule. The schedule sets out a calculation which enables the site owner to charge for the price of the calor gas, plus 37.5%, plus tank rental. She produced a calculation on the basis of current costs which would require the owners to pay 52.6p per unit per day, including the cost of the LPG.

I make no comment on whether the schedule relating to Calor Gas can be applied to LPG, nor on the correctness or otherwise of Ms Ava’s calculation. She did not seek to use the terms of that schedule to justify POW’s charges and they seem to me to be irrelevant to the outcome of the appeal.

Finally in relation to Ms Stanton and to Mr and Mrs Mackinnon Ms Ava referred to the park rules, which she said were relevant in the absence of anything in the written statements about utilities. Rule 48 says this:

“It is your responsibility to pay and discharge all general and/or water rates which may be assessed charged or payable in respect of the home or the pitch and pay additional charges in respect of electricity, gas water and telephone and other sources, to the overall benefit of the park determine by the Park Owner.”

Those words echo the terms both of clause 3(b) and of the implied term in paragraph 21. They cannot impose any further obligation than do those terms. They are susceptible to exactly the same analysis as was applied to clause 3(b) in Britaniacrest (see paragraph 22 above). Very clear words would be needed for the park rules to impose a contractual service charge, whether generally or solely in respect of the collection of payment for utilities; if clause 3(b) and the implied term at paragraph 21 do not achieve this, then neither does rule 48.