Licensing system for mobile home sites with permanent residents: guidance for local authorities

Chapter 3 - Processes in the new system

What sites are covered by the new system?

3.1. Section 1 of the 1960 Act makes it a criminal offence for someone to run a caravan site without a licence, unless one of the exemptions applies. The new licensing system applies to any relevant permanent. A relevant permanent site is any land that requires a licence under Part 1 of the 1960 Act ^[5] , other than sites where the planning permission or site licence is clear that:

• the site is for holiday use only;
• there are times of the year when no caravan may be stationed on the land for human habitation;
• would meet the conditions above if any excepted permission is disregarded.

3.2 There are a number of exceptions where a site does not require a licence under Part 1 of the 1960 Act and consequently a licence will not be required under the new system either. These are set out in first schedule to the 1960 Act, and the full text of the schedule can be accessed online at: http://www.legislation.gov.uk/ukpga/Eliz2/8-9/62/contents. Local authorities are advised to familiarise themselves with these exemptions in full, but some of the most relevant are summarised below:

• use of a caravan situated within curtilage of a dwellinghouse, and incidental to the use of such a dwellinghouse;
• a caravan site on agricultural land "for the accommodation during particular season of a person or persons employed in farming operations on land in the same occupation";
• a caravan site used for accommodation of a person or persons employed in connection with building or engineering work on the same land.

3.3. If a local authority does not wish an exemption to apply in their area ( e.g. the exemptions for agricultural workers) they can apply to the Scottish Ministers to exempt specified land from the exemptions in the Act. If a local authority wishes to do this please get in contact with officials in the Better Homes Division of the Scottish Government. It is however worth noting that such sites are not exempt from meeting other relevant requirements as appropriate (such as those relating to fire safety).

3.4. Unless any of the exclusions apply a relevant permanent site will require a site licence. From 1 May 2017 any application for a site licence must be handled under the new licensing system. Existing site licence holders have until 1 May 2019 to apply for a site licence under the new system.

Unlicensed sites

3.5. If someone wants to run a relevant permanent site they are required to have a licence. To run such a site without a licence is an offence under section 32S of the 1960 Act ^[6] , and if someone is convicted of the offence they can be fined up to £50,000. This section sets out the process to be followed for a first site licence application, as required under Part 1A of the 1960 Act and the 2016 Regulations.

Process for First Site Licence Applications

3.6. Under section 32B (2) of the 1960 Act ^[7] and regulation 2 of the 2016 Regulations a site licence application must:

a) be made by the occupier of the land.

The 'occupier' of the land will usually be the person who owns the land, or the person who has leased the land with the intention of setting up a caravan site. ^[8]

b) be in writing and in such a format as the local authority decides.

The application must be in writing, and a local authority can require it to be sent in a particular format. For example a local authority could require the application to be made using a particular form, or require it to be made online.

c) specify the land which the application is being made about.

This requirement will generally be met if the applicant provides the postal address for a site (which they are required to do under regulation 2(a) of the 2016 Regulations), and the site's name, if it has one. A local authority may choose to ask an applicant to provide a map of the site if the extent of the site to be licensed is unclear.

d) include any information relevant to the fit and proper person test which the local authority will apply to:

• all site licence applicants;
• where the applicant is not an individual ( i.e. is a partnership, company or other body) to the individual who holds the most senior position; within the management structure of the partnership company or body
• any person appointed by the applicant to manage the site; and
• where the person appointed to manage the site is not an individual to any individual who is to be directly concerned with the management of the site.

3.7. The table at Annex A sets out the information that is required to be submitted with a first site licence application, a site licence renewal application, and a site licence transfer application.

3.8. A local authority may wish to create a standard form for use by site licence applications, which covers the information above. Under section 32B of the 1960 Act a local authority can specify that a site licence application is made on a particular form.

Fee

3.9. In addition to the information above an applicant is required to pay the fee the local authority has set for handling a site licence application. (More information for a local authority on how to decide on its fee is set out in section 4 of this guidance).

Local authority handling

3.10. Once a local authority has received an application it will need to:

• check that the application has been accompanied by the fee required by the local authority;
• assess if the information required under section 32B (2) of the 1960 Act and 2016 Regulations has been submitted;
• decide if it requires any further information, and if so decide what further information it needs, and ask the applicant to provide it ^[9] .

Timescales

3.11. A local authority has 3 months within which to make its decision on an application. The 3 month time limit for making a decision starts from the day the local authority receives the information required under section 32B (2) of the 1960 Act and the 2016 Regulations, together with any fee required. We therefore advise local authorities to assess as soon as an application is received if it provides the information required, and if any further information is needed. If the local authority requires further information, above and beyond what section 32B (2) of the 1960 Act and 2016 Regulations require, the time limit is not extended. It is therefore important that a local authority begins to process an application as soon as it is received, to avoid unnecessary delays in seeking any additional information. If a local authority does not make a decision within this timescale the application is automatically approved. If a local authority is considering refusing an application the time provided for an applicant to make written representations (or taken by an applicant, if shorter) is not counted as part of the three months. A local authority may apply to the sheriff for an extension to the 3 month period. That application must be made before the expiry of the 3 month period. The sheriff may extend the period by such further period as the sheriff thinks fit ^[10] .

Making a decision

3.12. Once the local authority is satisfied it has all the information it needs to decide an application, it can proceed to make its decision. The decision has two stages: firstly, establishing if the site has planning permission for use as a relevant permanent site (other than by way of a development order); and secondly applying the fit and proper person test.

3.13. To establish if a site has planning permission we suggest that a local authority checks its General Register of planning applications. A local authority may also consider asking the applicant to provide the planning reference number, or certificate of lawfulness, of the site.

3.14. In applying the fit and proper person test a local authority should follow the guidance at section 5 of this guidance.

Telling the applicant of the decision if local authority grants licence

3.15. If the local authority decides to approve the application, it should consider what site licence conditions it wants to put in place. The Scottish Government publishes model standards, which provide advice on the site licence conditions a local authority may want to consider. The Scottish Government will publish new model standards and these will be available on the Scottish Government website. Once a local authority has completed this process it should contact the applicant, telling them their application has been approved and of any licence conditions the local authority is putting in place.

Communicating with the applicant if a local authority is considering rejecting an application

3.16. If a local authority is considering rejecting an application it is required, under section 32D (4) of the 1960 Act ^[11] , to give the applicant notice that:

• the local authority it is considering refusing the application;
• give the reason(s) the local authority is considering refusal;
• inform the applicant that they have a right to make written representations. The local authority must give a date by which the applicant must submit any representations. This date must be at least 28 days after the date on which the notice is given. The time given for representations to be received does not count towards the 3 months a local authority has to make its decision ^[12] .

3.17. If an applicant makes representations (for example by sending in further information or arguments) the local authority must consider them. The time taken to do this is part of the 3 month time limit an authority has to make its decision on an application ^[13] . If, after considering the representations, the local authority decides to reject the application it must:

• tell the applicant it has decided to refuse the application;
• give its reasons for refusal on the same day it tells the applicant of its decision;
• tell the applicant they can appeal, and how to do so;
• tell the applicant how long they have to lodge an appeal.

Appeals

3.18. If a local authority refuses an application for a site licence the applicant can appeal to the sheriff ^[14] .

Process for Site Licence Renewals

3.19. Previously caravan site licences were granted in perpetuity. Under the new licensing system a site licence runs for 5 years from the date the licence comes into operation ^[15] . The local authority must renew the licence if planning permission is in place, and the licence holder (and any other person falling within section 32D (2) (b) of the 1960 Act, such as a site manager) pass the fit and proper person test.

Application

3.20. Under section 32B of the 1960 Act ^[16] and regulation 2 of the 2016 Regulations an application to renew a site licence must:

a) be made by the occupier of the land.

The 'occupier' of the land will usually be the person who owns the land, or the person who has leased the land with the intention of setting up a caravan site. ^[17]

b) be in writing and in such a format as the local authority decides.

The application must be in writing, and a local authority can require it to be sent in a particular format. For example a local authority could require the application to be made using a particular form, or require it to be made online.

c) specify the land which the application is being made about ( i.e. the location of the relevant permanent site).

This requirement will generally be met if the applicant provides the postal address for a site (which they are required to do under Regulation 2(a) of the 2016 Regulations), and the site's name (if it has one). A local authority may choose to ask an applicant to provide a map of the site's location, or the title deeds for the site, if they are unsure of the area to be licensed.

3.21. The table at Annex A sets out the information that is required to be submitted with a first site licence application, a site licence renewal application, and a site licence transfer application. For a licence renewal applicant an applicant has to provide either:

• confirmation that there has been no change to the information already provided to the local authority in relation to the site licence; or
• details of any information that has changed. ^[18]

Fee

3.22. In addition to the information above an applicant is required to pay the fee the local authority has set for handling a renewing a site licence. (More information for a local authority on how to decide on its fee is set out in section 4 of this guidance).

Local authority handling

3.23. Once a local authority has received a renewal application it will need to:

• Check that the application has been accompanied by the fee required by the local authority;
• assess if the information required under section 32B(2) of the 1960 Act and the 2016 Regulations has been submitted;
• decide if it requires any further information, and if so decide what further information it needs, and ask the applicant to provide it.

Timescales

3.24. A local authority has 3 months within which to make its decision on an application. The 3 month time limit for making a decision starts from the day the local authority receives the information required under section 32B (2) of the 2006 Act and the 2016 Regulations, together with any fee required. We therefore advise local authorities to assess as soon as an application is received if it provides the information required, and if any further information is needed. If the local authority requires further information, above and beyond what section 32B(2) of the 1960 Act and the 2016 Regulations require, the time limit is not extended. It is therefore important that a local authority begins to process an application as soon as it is received, to avoid unnecessary delays in seeking any additional information. If a local authority does not make a decision within this timescale the application is automatically approved. If a local authority is considering refusing an application the time provided for an applicant to make written representations (or taken by an applicant, if shorter) is not counted as part of the 3 months. A local authority may apply to the sheriff for an extension to the 3 month period. That application must be made before the expiry to the 3 month period. The sheriff may extend the period by such further period as the sheriff thinks fit ^[19] .

Making a decision

3.25. Once the local authority is satisfied it has all the information it needs to decide an application, it can proceed to make its decision. The decision has two stages: firstly, establishing if the site has planning permission for use as a relevant permanent site (other than by way of a development order); and secondly applying the fit and proper person test. If the site has planning permission, and the fit and proper person test is passed, a local authority must issue a site licence.

3.26. To establish if a site has planning permission we suggest that a local authority checks its General Register of planning applications. A local authority may also consider asking the applicant to provide the planning reference number, or certificate of lawfulness, of the site.

3.27. In applying the fit and proper person test a local authority should follow the guidance at section 5 of this guidance.

Telling the applicant of the decision if local authority renews a licence

3.28. If the local authority decides to renew a site licence, it should consider if it wants to change the site licence conditions it has in place. The Scottish Government publishes model standards, which provide advice on the site licence conditions a local authority must want to consider, alongside this guidance. The Scottish Government intends to publish new model standards, and these will be available on the Scottish Government website. Once a local authority has completed this process it should contact the applicant, telling them their licence has been renewed and to inform them of any licence conditions the local authority is putting in place.

Communicating with the applicant if a local authority is considering rejecting an renewal application

3.29. If a local authority is considering rejecting an application it is required, under section 32D (4) of the 1960 Act ^[20] , to give the applicant notice that:

• states the local authority it is considering refusing to renew the site licence;
• give the reason(s) the local authority is considering refusal;
• inform the applicant that they have a right to make written representations. The local authority must give a date by which the applicant must submit any representations. This date must be at least 28 days after the date on which the notice is given. The time given for any representations to be received does not count towards the 3 months a local authority has to make its decision ^[21] .

3.30. If an applicant makes representations (for example by sending in further information or arguments) the local authority must consider them. The time taken to do this is part of the 3 month time limit an authority has to make its decision on an application. If, after considering the representations, the local authority decides not to renew the licence it must:

• tell the applicant it has decided to refuse the application;
• give its reasons for refusal on the same day it tells the applicant of its decision;
• tell the applicant they can appeal, and how to do so;
• tell the applicant how long they have to lodge an appeal.

Appeals

3.31. If a local authority refuses to renew a site licence the applicant can appeal to the sheriff ^[22] .

Process for Transferring a Site Licence

3.32. The process for transferring a site licence is set out in section 32E of the 1960 Act ^[23] . Under section 10(1) of the 1960 Act where a site licence holder will cease to be the occupier of the land they can apply to transfer the site licence to the person who will be becoming the occupier of the land. For example, this will be necessary where an existing site licence holder is selling a site as a going concern, and the new owner needs a licence.

3.33. A local authority can also transfer a site licence without an application, in particular circumstances. This is covered in section 10 of this guidance.

Application

3.34. The application is made by the person who currently holds the licence, but will need to include information about the person who is to become the occupier of the site (the 'transferee') and any others to whom the fit and proper test is applied under section 32E(2). Regulation 4 of the 2016 regulations sets out the information which must be included in the application.

3.35. In addition there is a duty on both the applicant and the transferee, either at the time of making the application or subsequently, to provide the local authority with such information as the authority may reasonably require in order to determine if the persons mentioned in section 32E(2) are fit and proper ^[24] .

The table at Annex A sets out the information that is required to be submitted with a first site licence application, a site licence renewal application, and a site licence transfer application.

3.36. To determine if a person is fit and proper a local authority has to have regard to all the circumstances of the case and the full requirement is set out in section 32O (2) and we advise local authorities to consult that section directly. A local authority may wish to consider what information it will require from an applicant or transferee.

Fee

3.37. A local authority cannot charge a fee for handling a site licence transfer application.

Local authority handling and timescales

3.38. A local authority has 3 months within which to make its decision on an application. The 3 month time limit for making a decision starts from the day the local authority receives the information required under the 2016 Regulations. We would therefore advise local authorities to assess the information provided by the applicant and call for such further information as may be required under section 32E(3), especially from the transferee. If the local authority does require such further information, the time limit is not extended. It is therefore important that a local authority begins to process an application as soon as it is received, to avoid unnecessary delays in seeking any additional information. If a local authority does not make a decision within this timescale the application is automatically approved.

3.39. We recommend that local authorities should consider a site licence transfer application speedily. Although there is a 3 month time limit within which the decision must be made, transfer applications will often be taking place as part of a commercial transaction to sell the park to a new owner. It is therefore important that a decision is made quickly, and we would suggest 2 months is an appropriate timescale for all but the most complex cases.

Making a decision

3.40. When transferring a site licence the fit and proper person test must be applied to the transferee (the person who will be taking on the licence) and any others to whom the fit and proper test is applied under section 32E(2). In applying the fit and proper person test a local authority should follow the guidance at section 5 of this guidance.

Communicating with the applicant if a local authority is considering rejecting an transfer application

3.41. If a local authority is considering rejecting an application to transfer a licence it is required, under section 32E (4) of the 1960 Act ^[25] , to give the applicant notice that:

• states the local authority it is considering refusing the application;
• give the reason(s) why the local authority is considering refusal;
• inform the applicant that they have a right to make written representations. The local authority must give a date by which the applicant must submit any representations. This date must be at least 28 days after the date on which the notice is given. The time provided for representations to be received, or the time taken (if shorter), does not count towards the 3 months a local authority has to make its decision ^[26] .

3.42. If an applicant makes representations (for example by sending in further information or arguments) the local authority must consider them. The time taken to do this is part of the 3 month time limit an authority has to make its decision on an application. If, after considering the representations, the local authority decides not to transfer the licence it must:

• tell the applicant it has decided to refuse the application;
• give its reasons for refusal on the same day it tells the applicant of its decision;
• tell the applicant they can appeal, and how to do so; and
• tell the applicant how long they have to lodge an appeal.

Appeals

3.43. If a local authority refuses to consent to transfer a site licence the applicant (who currently holds the licence) and/or the transferee (the person who wants to become the holder of the licence) can appeal to the sheriff ^[27] .

Transmission of a Site Licence

3.44. A site licence is transmitted when an existing site licence holder dies, and the site is inherited. This is covered by section 10(4) of the 1960 Act, and the process has not been changed by the 2014 Act. Under section 10 the person inheriting the site is to be:

"treated as having become the holder of the licence on the day on which he became the occupier of the land, and the local authority in whose area the land is situated shall, if an application in that behalf is made to them, endorse his name and the said date on the licence."

3.45. A local authority cannot charge a fee for the transmission of a site licence. A local authority may choose to apply the fit and proper person test to the new licence holder, once they have the licence, under section 32L of the 2014 Act. This is covered in more detail in section 4 of this guidance.