Park homes – Protected site – Caravan Sites and Control of Development Act 1960 – Appellant appealing against decision of Upper Tribunal that it was liable to liable pay annual licence fee permitting use of land as caravan site – Whether appellant was occupier under section 1 of 1960 Act – Whether site protected within section 5A(5) – Whether site licence payable – Appeal dismissed
The appellant was the owner of land known as the Tallington Lakes and Leisure Park in Lincolnshire, part of which was used as a caravan site. In May 2003, the respondent local authority issued a site licence permitting the use of the land as a caravan site. The land to which the site licence related comprised, or at least included, seven areas where planning permission existed for the stationing of caravans. The appellant did not pay the annual site licence fee.
The respondent applied to the FTT for an order requiring payment under section 5A(3) of the Caravan Sites and Control of Development Act 1960. The appellant made an application purporting to be an appeal against the site licence conditions contained in the 2016 revised site licence. Both applications were directed to be heard together.
The FTT decided the applications without an oral hearing. It ordered the appellant to pay site licence fees of £4,137.50. The appellant appealed to the Upper Tribunal which held that: (i) the appellant was the occupier of the site section 1 of the 1960 Act, not a different company (L) which had rights to occupy the site; (ii) the FTT should not have decided the application without an oral hearing but the UT would re-make the decision itself; and (iii) the site was a relevant protected site under section 5A of the 1960 Act. Consequently, the appellant was liable to pay the annual licence fee: [2022] UKUT 334 (LC). The appellant appealed.
Held: The appeal was dismissed.
(1) The Upper Tribunal was entitled to conclude that it had the relevant documentary material, in particular the site licence and the relevant planning permissions, to remake the decision. The initial directions had required the parties to produce relevant documents, including all planning permissions. The respondent produced the seven planning permissions referred to in the site licence and referred, in its evidence, to other planning permissions. The appellant had ample opportunity to put its arguments in writing and orally on the meaning of section 5A and on the site licences and planning permissions in evidence. The UT did not err in deciding to re-make the decision itself.
(2) Section 1(1) of the 1960 Act provided that no “occupier” of land should cause or permit any land to be used as a caravan site without a site licence. “Occupier” was defined by section 1(3) as “the person who by virtue of an estate or interest therein … is entitled to possession thereof” or would be so entitled but for the rights of any person under a licence. The appellant was the registered proprietor of the freehold title and was entitled by virtue of that estate to possession of the land.
The question was whether L had a lease of the land or simply a licence to occupy. If it was a licence, L would not be occupying pursuant to an estate or interest in land and the appellant would remain the occupier for the purposes of section 1. If an agreement conferred exclusive possession at a rent, that would normally give rise to a lease. The issue involved analysing the management and trading licence agreement and determining what rights were conferred by that agreement. That depended on what a reasonable person, having all the background knowledge, would have understood the parties to mean by the language they used: Street v Mountford [1985] 1 EGLR 128 and Arnold v Britton [2015] EGLR 53 applied.
(3) It was clear that the management and trading licence agreement did not confer on L an exclusive right of occupation of the land on which caravans were situated. It was stated to be a management and trading licence agreement. It was not expressed to be a lease. The agreement was for L to “occupy, use, manage and operate and control the property” and the business assets. The occupation was not expressed to be exclusive. The use was for the particular purpose of managing and operating the business. The appellant was to pay a fee to L for the services it provided, referred to as a management and trading licence fee. All those factors, individually and cumulatively, confirmed that the agreement was a licence. Therefore, the appellant, not L, was the occupier for the purposes of section 1.
(4) Section 5A(1) provided that a local authority which had issued a site licence in respect of a relevant protected site might require the licence holder to pay an annual fee. “Relevant protected site” was defined in section 5A(5) as “land in respect of which a site licence is required” other than land in respect of which the relevant planning permission or site licence was granted for holiday use only; or “otherwise so expressed or subject to such conditions” that there were times of the year when no caravan might be stationed on the land for human habitation.
The land in respect of which a site licence was required, and granted, in the present case comprised, or as a minimum included, all the areas of land subject to the seven planning permissions expressly annexed to the 2003 site licence. It was expressed to be a licence for use of the land as a caravan site, not for holiday use only. Section 5A(5)(a) did not therefore apply and did not remove the land from the definition of relevant protected site.
(5) The conditions in the 2003 site licence were not within the proviso in section 5A(5) in any event. The conditions referred to static holiday caravans which might be stationed on the land, not the use that might be made of them.
The whole of the land for which the site licence was granted had to fall outside the definition of “relevant protected site” for the proviso in section 5A(5) to apply. Unless all the land within the site licence fell outside section 5A(5), the annual licence was payable. Here, there were no restrictions on at least two areas to which the site licence related. Therefore, the annual licence fee was payable by the appellant under section 5A as the respondent had issued a site licence in respect of a relevant protected site.
The appellant appeared by its representative; Jenny Wigley KC (instructed by South Kesteven District Council) appeared for the respondent
Eileen O’Grady, barrister
Click here to read a transcript of Tallington Lakes Ltd v South Kesteven District Council
