First-tier Tribunal Varies Site Licence Conditions for Caravan Park

OUTCOME: Allowed in Part

Case Reference : CHI/00HY/PHR/2018/0001

Property : [ADDRESS],

Bradenstoke, Near

Lyneham, Wiltshire, [POSTCODE].

Applicant: [redacted] : [NAME]

Respondent : [redacted]

Representative : Mr [COUNSEL] ([NAME] [NAME]

[NAME] Manager)

Type of Application : Caravan Sites and Control of Development Act 1960, section 7: Application by [NAME] for determination as to [NAME] licence conditions.

Tribunal Members : Judge M. [NAME]

Mr S. Hodges

Mr P. [NAME] of Decision with reasons : 14 March 2019

© CROWN COPYRIGHT 2019

FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Decision

The licence conditons shall be varied as follows.

2.10 The [NAME] must notify the licensing authority when it

proposes that new or replacement homes are to be brought

onto the [NAME] after the introduction of these [NAME] licence

conditions.

7.2 Where new hard standings are constructed after the

introduction of these [NAME] licence conditions the [NAME]

must send to the local authority written notification of the

new base and its location together with written

confirmation that the base has been laid in accordance

with the terms of the current [NAME] of Practice.

9.2 Any decking in excess of 150 mm from ground level which is

installed after the introduction of these [NAME] licence

conditions will be regarded as a “structure” under

condition 2.7 of these [NAME] licence conditions. [NAME]

who wishes to install decking on their pitch must comply

with the [NAME] rules.

Reasons for decision

1. These are the reasons for decision of the First-tier Tribunal (Property Chamber) (Residential Property) (“the Tribunal”) in respect of an application (“the Application”) to the Tribunal under section 7 of the Caravan Sites and Control of Development Act 1960 (“the 1960 Act”).

The Application

2. The Applicant, [NAME] and [APPELLANT], is the [NAME] of the [ADDRESS], Bradenstoke near Lyneham, Wiltshire [POSTCODE] (“the Park”) which is licensed under the 1960 Act for use as a permanent residential mobile homes park. The Application, dated 12 October 2018, is an appeal by the Applicant against a number of [NAME] licence conditions attached to a new [NAME] licence issued by the Respondent, Wiltshire Council, on 26 September 2018.

3. Judge J F Brownhill issued Directions to the parties on 15 November 2018 setting out a timetable for determination of the matter. A Tribunal composed of Judge M [NAME] (Chairman), Mr S Hodges and [NAME]

was subsequently appointed to determine the matter on the basis of the written representations of the parties, and an oral hearing.

The Law

4. The relevant law is set out in the Annex to this decision.

The Inspection and hearing

5. The Tribunal inspected the Park at 10.15 a.m. on 28 February 2018 in

the presence of Mr [NAME], Mr [NAME], Ms [NAME] and Mr [NAME]. A hearing was held at 11.00 a.m. on the

same day at Swindon Magistrates’ Court. At the hearing, the Applicant

was represented by its Accountant, Mr [APPELLANT] and by Mr [RESPONDENT]

and Ms [RESPONDENT] of its solicitors, IBB. The Respondent was

represented by its [NAME] [NAME] [NAME] Manager, Mr [NAME] and

by its [NAME], Ms [NAME]. The Tribunal was

greatly assisted by the helpful constructive approach taken by Mr

[APPELLANT] and Mr [APPELLANT] on behalf of the Applicant and by Mr [APPELLANT]

for the Respondent when presenting their respective cases.

The Applicant’s grounds for appeal

6. In its Application, the Applicant objected to conditions 2.7, 2.10, 3.1, 3.2, 7.2, 9.2 and 11.5 attached to the [NAME] licence dated 26 September 2018. In his witness statement of 14 December 2018, Mr [APPELLANT], who is the Applicant’s Company Accountant and authorised representative, indicated that the Applicant no longer opposed conditions 2.7, 3.1, 3.2 and 11.5. However, the Applicant remained opposed to the other disputed conditions dealt with below. Following receipt of the Respondent’s submission of 4 January 2019, Mr [RESPONDENT] produced a second witness statement dated 11 January 2019.

7. The Applicant contested the imposition of the conditions in question on three grounds. First, that the Respondent had failed to follow the statutory guidance set out in the Government’s 2008 Model Standards for Caravan Sites in England (“the Model Standards”) when seeking to introduce the new licence conditions. The Applicant relied in particular on paragraph 3 of those Model Standards, which provides that

“Where a current licence condition is adequate in serving its purpose

the authority should not normally apply the new standard. Where it is

appropriate to apply the new standard to a condition the local authority

should be able to justify its reasons for doing so, having regard to all

the relevant circumstances of the [NAME]. In deciding whether to apply the

new standard the local authority must have regard to the benefit that

the standard will achieve and the interests of both residents and [NAME]

owners (including the cost of complying with the new or altered

condition).”

The Applicant submits that the Respondent has either failed to take

this Guidance into account or has considered it but failed to apply it

correctly.

8. The second ground is that that the Respondent has either failed to take into account, or has considered but failed to apply correctly, paragraph 4.7 of the Best Practice Guide for [NAME] on Enforcement of the [NAME] (“the Best Practice Guide”), published in March 2015 by the Department for Communities and Local Government. That paragraph states that the government’s view is that if an existing licence condition is adequate and enforceable under the new licensing provisions and there are no exceptional circumstances to warrant changing it then a local authority should not do so. The Guide states that where a licensing authority is proposing to impose new conditions it must have regard to a number of factors including

• making sure any licence conditions are adequate and enforceable; • new conditions should not be proposed where current conditions are adequate; • [NAME] should be able to justify any proposed change; • the benefit of the change it will achieve must be considered; • the interests of homeowners and the [NAME] operators should be taken into account and the cost of compliance should be taken into account.

9. The third ground is that the contested conditions are unduly

burdensome and should accordingly be cancelled by the Tribunal under

section 7(1) of the 1960 Act.

The parties’ cases on conditions 7.2 and 9.2

Condition 7.2.

10. This condition states that

“Where new hard standings are constructed after the introduction of

these [NAME] licence conditions the [NAME] must send to the local

authority written notification of the new base and its location together

with a written undertaking that the base has been laid to the industry’s

current standards for bases.”

11. The Applicant opposed the inclusion of this condition on the ground

that it was too vague. It submitted that there was no “industry current

standards for bases.” Mr [NAME] said, in his statement of 14

December 2018, that neither the [COMPANY] nor the National Caravan Council (the two trades

associations representing the parks industry), either individually or

jointly, had published guidance on the construction of bases or hard

standings for caravans. Mr [NAME] also says that the condition is not

in the Model Standards issued by the appropriate Minister under

section 5(6) of the 1960 Act.

12. In response Mr [NAME] stated, in his statement of 4 January 2019, that the Model Standards provided in paragraph 6(ii) that “the hard standings must be constructed to the industry guidance current at the time of siting taking into account local conditions.” Furthermore, he says that paragraph 43 of the Model Standards states that “New bases should be laid as a minimum in accordance with the current industry guidelines issued by the [ADDRESS] Council and the [COMPANY].”

13. Mr [NAME] responded, in his statement of 11 January 2019, that, as noted above, neither Association had issued such guidelines. However, the wording in the Model Standards does follow the requirements for siting park homes set out in paragraph 3 of the [NAME] of Practice. Mr [NAME] stated that [NAME] is an independent insurance backed warranty scheme operated by a third-party company, which offers a warranty to purchasers of new residential park homes similar to the NHBC scheme which covers the buyers of new homes. He said that because the Park is registered with the [NAME] and the Applicant is therefore required to ensure that all new homes are sited in accordance with its Code of Practice that condition 7.2 should be amended to read as follows:

with written confirmation that the base has been laid in accordance

with the terms of the current [NAME] of Practice.”

14. Following discussion of the matter at the hearing with the Applicant’s

solicitor, Mr [COUNSEL], Mr [COUNSEL] said that the Respondent was now

willing to accept a revised condition 7.2 on those terms.

Condition 9.2

15. This condition states that

“The installation of wooden decking to a mobile home plot is at the

discretion of the [NAME] owners. Any wooden decking provided must be

treated with a suitable intumescent (fire resistant) paint. The frequency

of re-cover will depend on the manufacturer’s instructions. Decking in

excess of 150 mm from ground level will be treated as a structure in

clause 2.7 of these [NAME] licence conditions.”

16. In his statement of 14 December 2018, Mr [APPELLANT] stated that the

Applicant was confused as to the Respondent’s reasoning for seeking to

impose this new condition, which is not in the Model Standards or the

2015 Guidance. Mr [NAME] says that the issue of whether or not

decking will be permitted on any resident’s pitch is a contractual matter

between the Applicant [NAME] and the individual Park Home

[NAME] and each situation will depend on the individual facts and

circumstances concerned. He stated that it is not an appropriate matter

to include within the [NAME] licence.

17. In his statement of 4 January 2019, Mr [NAME], stated that on

reconsideration of the matter, the Respondent proposed a new

condition as follows:

discretion of the [NAME] owners. Decking in excess of 150 mm from ground

level will be treated as a structure in clause 2.7 of these [NAME] licence

conditions.”

18. In his second statement of 11 January 2019, Mr [NAME] welcomed this move but, having expressed concerns that the requirement as drafted could have retrospective effect, stated that the Applicant would be prepared to accept a modified condition as follows.

“Any decking in excess of 150 mm from ground level which is installed

after the introduction of these [NAME] licence conditions will be regarded

as a “structure” under condition 2.7 of these [NAME] licence conditions.

[NAME] who wishes to install decking on their pitch must comply

with the [NAME] rules.”

19. At the hearing Mr [RESPONDENT] stated that the Respondent was willing to

accede to this proposal. The condition was accordingly no longer

disputed.

Condition 2.10

20. This condition states that

“The [NAME] must notify the licensing authority when new or

replacement homes are brought onto the [NAME] after the date of this

licence. If a decision whether to grant consent is not made by the

expiration of 28 days from the date on which the request for consent is

received, the [NAME] may by written notice require that a decision

is made within a further 14 days from the date of that notice. In default

the licensing authority shall be deemed to have withheld consent

The Respondent’s case and the Applicant’s response

21. In his statement of 4 January 2019, and orally at the hearing, Mr

[RESPONDENT] explained why the Respondent had imposed this condition. He

said that problems can arise on a [NAME] where new homes are sited too

close to existing homes leading to enforcement intervention by the

local authority. The purpose of condition 2.10 was to provide a

preliminary stage at which such problems could be obviated by

allowing intervention by the authority before any new home was

sited by the [NAME].

22. Mr [NAME] referred in his statement to paragraph 4.8 of the Best

Practice Guide which stated that “conditions should include notifying

the local authority of changes to the [NAME], for example in respect of

bringing new homes onto the [NAME] or where alterations to the [NAME] layout

are proposed or made. This allows officers to intervene if necessary and

deal with issues at an early stage.”

23. Mr [RESPONDENT] also stated that the Respondent relied on the decision of

the Upper Tribunal ([NAME]) in [COMPANY] v Guildford Borough Council [2017] UKUT

0433 where His Honour Judge Huskinson approved a condition in the

following terms:

“3.1 No material change to the layout of the [NAME] shall be made without

the prior written consent of the Head of Health and Community Care.

Such consent will not be unreasonably withheld. If a decision whether

to grant consent is not made by the expiration of 28 days from the date

on which the request for consent is received, the [NAME] may by

written notice require that a decision is made within a further 14 days

from the date of that notice. In default the Head of Health and

Community Care shall be deemed to have withheld consent.”

24. Mr [NAME] submitted in his statement that condition 2.10 of the

conditions attached to the [NAME] licence issued in respect of the Park at

Bradenstoke differed only slightly from the condition approved by the

Upper Tribunal in the Wyldecrest case. He said that it was the

Respondent’s view that when a new or replacement home is brought

onto the [NAME] this amounts to a material change to the [NAME] as the new

home is unlikely to have the same dimensions and be sited in

exactly the same position as any previous home. Mr [NAME] said

that generally replacement homes are larger than those they replace.

He thus argued that the two cases were similar in all material respects

and that it was reasonable of the Respondent to have imposed

condition 2.10. Mr [RESPONDENT] referred to section 5 of the 1960 Act,

which gives the licensing authority a discretion as to the contents and

nature of the conditions that may be attached to a [NAME] licence although

subject to the licensing authority considering it necessary and

desirable to impose such conditions on the [NAME] (i.e.

the [NAME]) in the interest of persons dwelling in the caravans or

any other class of persons or of the public at large.

25. The Applicant says that condition 2.10, which does not appear in the

Model Standards, is unnecessary and that it would be unduly

burdensome for the Applicant to have to notify the Council whenever

new or replacement homes are brought onto the [NAME]. The Applicant

considered that provided the number of homes on the [NAME] does not

exceed the maximum number permitted under the [NAME] licence it cannot

see why it should be necessary for the Applicant to notify the Council

whenever homes are replaced.

26. The Applicant further submits that condition 2.10 goes significantly

beyond what is envisaged by paragraph 4.8 of the 2015 Guidance by

effectively requiring the Applicant to obtain the Respondent’s

consent before any new park homes can be brought onto the Park.

The Applicant says that there is nothing in the 2015 Guidance which

suggests or recommends that a park owner should obtain the

consent of the relevant licensing authority before it is able to station

new or replacement park homes on the [NAME].

27. The Applicant submitted that if the Respondent’s concern was that the

Applicant might seek to [NAME] new or replacement homes in breach of

the terms of the [NAME] licence then it would already have a remedy

under the other clauses of condition 2 dealing with density and

spacing matters. The Applicant says that since 1995 around six new or

replacement homes have been sited on the Park in accordance with

the licence conditions without any compliance notice having been

served by the Council. The Applicant also produced evidence of sites

that it owns in other areas none of which had condition 2.10 attached

to the [NAME] licence. Indeed on one Park licensed by the Respondent in

2014 ([ADDRESS], Wootton Bassett) no such condition was

imposed. (In response Mr [NAME] said that the Council is revising its

licence conditions generally in the light of the 2015 Guidance).

28. The Applicant further submitted that condition 2.10 would create

practical difficulties to the Applicant in running its business. This is

because any agreement to sell a new home to a proposed purchaser

would be conditional on the need for the Applicant to obtain consent

from the Respondent to the new home being sited on the Park.

However, a new home could not be ordered until a contract was in

place and the delay caused by the need to obtain prior consent would

inevitably lead to lost sales.

29. Finally, the Applicant submitted that the Wyldecrest case was

distinguishable from the present case for a number of reasons. First,

that the condition in Wyldecrest related to a “material change in the

layout of the [NAME]”. Second, that, unlike the present case. there was a

history of non-compliance with [NAME] licence conditions by the [NAME] which had led to the authority serving a compliance notice that

had been upheld by a previous tribunal. Third, that the Upper

Tribunal in Wyldecrest had emphasised that a conditon in the form

sought would not always be necessary and that the local authority

should take into account the particular facts of the case.

Discussion

30. The Mobile Homes Act 2013 introduced, as from 1 April 2014, a new [NAME] licensing regime for relevant park home sites. It did so by amendment of the 1960 Act. Section 5(1) of the 1960 Act gives the local authority power to issue a [NAME] licence subject to such conditions as the authority may think it necessary or desirable to impose on the [NAME] (i.e. the [NAME]) in the interests of persons dwelling therein in caravans or of any other class of persons or of the public at large. The same provision specifies examples of conditions that may be imposed. Section 5(6) empowers the Minister to specify model standards with respect inter alia to the layout of caravan sites and provides that in deciding what conditions (if any) should be attached to a licence a local authority shall have regard to the specified standards. The model standards, which represent those standards normally to be expected as a matter of good practice on caravan sites, are to be applied with due regard to the particular circumstances of the relevant [NAME]. In April 2008 the Department for Communities and Local Government (“the Department”) issued Model Standards 2008 under section 5 of the 1960 Act.

31. The Applicant says that condition 2.10 does not appear in the Model

Standards. However, as the Respondent submitted, [NAME]

may in the circumstances set more demanding ones. Furthermore, in

March 2015 the Department published “A Best Practice Guide for

[NAME] on Enforcement of the [NAME].”

Paragraph 4.8 of that Guide says, by way of advice to be

considered by the local authority when drafting licence conditions,

that “Conditions should include notifying the local authority of

changes to the [NAME], for example in respect of bringing new homes

onto the [NAME] or where alterations to the [NAME] layout are proposed or

made.”

32. In paragraph 8 of his witness statement Mr [RESPONDENT] stated that the

Respondent’s aim in including condition 2.10 was to replicate with

necessary modification the condition approved by the Upper Tribunal

in Wyldecrest. That is to say to impose an obligation on the [NAME] to obtain permission from the authority for new or replacement

homes to be brought onto the [NAME]. It was anticipated that this

would enable the authority to assess whether intervention by it at an

early stage was necessary in order to avoid the risk of homes being

placed too close to other homes. However, in paragraph 15 of the

same statement, Mr [NAME] inconsistently states that, “Condition 2.10

requires simple notification to the council should new or

replacement homes be brought onto the [NAME].” This obviously falls

short of the consent requirement for which he was also making a case.

33. At the hearing Mr [NAME] recognised that it was clear that condition

2.10 as drafted would not achieve the aim set out in paragraph 8 of his

statement. It made no explicit provision for requesting consent or

reference to a reasonableness standard to be applied by the local

authority when refusing consent. Mr [RESPONDENT] then said that on

reflection the Respondent no longer wished to impose a consent

requirement and would be content for condition 2.10 to require

only that the [NAME] notify the authority when any new or

replacement homes are to be brought onto the [NAME]. Thus the authority

no longer argued that it was appropriate in the circumstances of the

case to include a clause that mirrored the condition approved of in the

Wydlecrest case. In response, the Applicant clearly welcomed this

concession but continued to submit that there was no need for

condition 2.10, even as modified to remove any consent requirement,

because the rest of condition 2 provided ample scope for the local

authority to control the size and spacing of homes on the [NAME].

34. The Tribunal finds that in the light of the Respondent’s concession, it is

not necessary to consider whether a conditiion based on that approved

of in Wyldecrest should be included in the present case. The Tribunal

does however find that a notification requirement is not unduly

burdensome on the Applicant, nor would it be ultra vires. It is

clearly within the local authority’s discretion to include such a

condition and, although not included in the Model Conditions

2008, is in line with paragraph 4.8 of the 2015 Guidance. The fact

that such a condition has not been attached to any [NAME] licence for

other sites owned by the Applicant does not mean that it should not be

included on this occasion, given that the authority is reviewing its

conditions in the light of the 2015 Guidance. The purpose of such a

condition would be to enable the authority to enter into a dialogue

with the [NAME] to see whether there is any likelihood of a

breach of the spacing and density requirements of the remainder of

condition 2 thereby preventing a situation arising where its

enforcement powers would otherwise need to be invoked. Indeed Mr

[NAME] recognised as much in paragraph 15 of his first witness

statement of 14 December 2018.

35. The Tribunal therefore determines that condition 2.10 should be varied

to read as follows.

“The [NAME] must notify the licensing authority when it proposes

that new or replacement homes are to be brought onto the [NAME] after the

date this licence condition comes into operation.”

RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal ([NAME]) must seek permission to do so by making written application to the First-tier Tribunal at the Regional Office, which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28 day time limit, that person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.

[NAME] 14 March 2019

Annex: The Law

Caravan Sites and Control of Development Act 1960 5 Power of local authority to attach conditions to [NAME] licences. (1) A [NAME] licence issued by a local authority in respect of any [NAME] may be so issued subject to such conditions as the authority may think it necessary or desirable to impose on the [NAME] in the interests of persons dwelling thereon in caravans, or of any other class of persons, or of the public at large; and in particular, but without prejudice to the generality of the foregoing, a [NAME] licence may be issued subject to conditions—

(a) for restricting the occasions on which caravans are stationed on

the [NAME] for the purposes of human habitation, or the

total number of caravans which are so stationed at any one time;

(b) for controlling (whether by reference to their size, the state of

their repair or, subject to the provisions of subsection (2) of this

section, any other feature) the types of caravan which are

stationed on the [NAME];

(c) for regulating the positions in which caravans are stationed on

the [NAME] for the purposes of human habitation and for

prohibiting, restricting, or otherwise regulating, the

placing or erection on the [NAME], at any time when caravans are

so stationed, of structures and vehicles of any description

whatsoever and of tents;

(d) for securing the taking of any steps for preserving or enhancing

the amenity of the [NAME], including the planting and

replanting thereof with trees and bushes;

(e) for securing that, at all times when caravans are stationed on the

[NAME], proper measures are taken for preventing and

detecting the outbreak of fire and adequate means of

fighting fire are provided and maintained;

(f) for securing that adequate sanitary facilities, and such other

facilities, services or equipment as may be specified, are

provided for the use of persons dwelling on the [NAME] in caravans

and that, at all times when caravans are stationed thereon for

the purposes of human habitation, any facilities and

equipment so provided are properly maintained.

7 Appeal against conditions attached to [NAME] licence

(1) Any person aggrieved by any condition (other than the condition referred to in subsection (3) of section five of this Act) subject to which a [NAME] licence has been issued to him in respect of any [NAME] may, within twenty-eight days of the date on which the licence was so issued, appeal to …. the tribunal; and the ….tribunal, if satisfied (having regard amongst other things to any standards which may have been specified by the Minister under subsection (6) of the said section five) that the condition is unduly burdensome, may vary or cancel the condition (1A) In a case where the tribunal varies or cancels a condition under subsection (1), it may also attach a new condition to the licence in question. (2) In so far as the effect of a condition (in whatever words expressed) subject to which a [NAME] licence is issued in respect of any [NAME] is to require the carrying out on the [NAME] of any works, the condition shall not have effect during the period within which the person to whom the [NAME] licence is issued is entitled by virtue of the foregoing subsection to appeal against the condition nor, thereafter, whilst an appeal against the condition is pending.