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

Chapter 6 - Enforcement

6.1. The large majority of site owners of Scotland run effective businesses that comply with the law. However it is important to have in place effective measures that can be used to tackle those site owners who do not comply with the licensing system and any site licence conditions. This section sets out the tools a local authority has to enforce a site licence condition, and when it may wish to consider using them. Section 8 covers the procedures in Part 1A of the 1960 Act in relation to recovering the costs of enforcement action.

6.2. Many of the offences are related to a failure by the site licence holder to meet the conditions placed on a site licence. This highlights the importance of a local authority putting appropriate site licence conditions in place when it issues, or renews, a site licence. The Scottish Government publishes model standards (which a local authority must have regard to) which provide advice on the site licence conditions a local authority may wish to put in place. The Scottish Government intends to publish new model standards, and these will be available on the Scottish Government website.

6.3. We would stress that the use of the enforcement powers should be considered carefully, and usually only used after informal measures (such as discussions with the site manager, letters drawing attention to any potential breaches or problems, and visits to the site) have been undertaken. Enforcement action without any of these preceding informal steps would be unusual and we would recommend only taken where there were very serious concerns about breaches, the breaches needed to be addressed urgently, or where the site licence holder and/or manager had previously demonstrated they were unable or unwilling to improve the site.

Improvement Notices

6.4. This is the first of the formal enforcement measures, which we would expect a local authority to use as an initial measure after informal measures have failed. Under section 32U of the 1960 Act ^[40] if it appears to a local authority that a site licence holder is failing, or has failed, to comply with a site licence condition then the local authority can serve an Improvement Notice on the site licence holder.

6.5. In deciding the terms of the Improvement Notice we recommend that a local authority considers:

• what licence condition is not being met;
• what actions the site licence holder would need to take to meet the licence condition;
• how long the site licence holder should have to carry out those actions.

6.6. If the local authority decides to use the power to issue an Improvement Notice it must then formally serve the Improvement Notice on the site licence holder ^[41] .

The Improvement Notice must ^[42] :

• set out the site licence condition that the local authority believes has not been complied with;
• set out the details of the failure to comply;
• require the licence holder "to take such steps as the local authority considers appropriate and as are specified in the notice" in order to ensure that the licence condition is complied with;
• specify the period within which a site licence holder has to take those steps;
• explain the site licence holders right of appeal.

6.7. The period specified in an improvement notice must begin on the day that the period during which an appeal (against the decision to issue the notice) can be made expires or the day on which such an appeal is finally determined or abandoned whichever is the later. The period given should be one that gives a site licence holder a reasonable period of time to carry out any works required by the Improvement Notice.

6.8. Once an Improvement Notice has been issued a local authority can suspend it or revoke it. The circumstances where a local authority might consider using the power to revoke the improvement notice include a situation where, for some reason beyond the site licence holder's control, it has become much more difficult or impossible to comply with the Improvement Notice. A local authority can also increase the period a site licence holder has to comply with the notice. This could be used if a site licence holder had shown good faith and started the works to comply with the site licence but they would not be completed within the deadline set. Suspending, revoking, or varying an Improvement Notice is something the local authority can do on its own initiative or in response to an application from the site licence holder. The local authority must make the site licence holder aware of any changes to the Improvement Notice as soon as is reasonably practicable.

6.9. Failure to comply with an Improvement Notice is a criminal offence. Compliance is judged on whether a site licence holder has taken the steps specified in the Improvement Notice in the timescale the Notice requires ^[43] . If a local authority considers an offence has potentially been committed in relation to an Improvement Notice it should consider contacting the local Procurator Fiscal who will assess the evidence presented, and decide whether or not to bring a prosecution. If convicted the site licence holder can be fined up to £10,000. For further details see section 7, on offences.

6.10. Failure to comply with an Improvement Notice will also open the way to a local authority carrying out the steps in the Notice themselves, or contracting out someone else to do the work at the request of the local authority ^[44] . If a licence holder has been served with an Improvement Notice, and has not carried out the steps it requires within the timescales set, then the local authority may carry out the steps itself (and any further action it considers necessary to meet the site licence condition specified in the Improvement Notice).

6.11. If a local authority decides to carry out the work required by an Improvement Notice it must serve a further notice on the site owner ^[45] , which sets out:

• the land and the Improvement Notice to which it relates;
• states that the local authority intends to enter the land;
• describes the action the local authority intends to take on the land;
• if the person carrying out the work is not the local authority itself, then the name of the person who will be carrying out the work on its behalf;
• the dates and times on which the local authority intends to carry out the work (in particular when the work will start and when it expects the work to be complete).

6.12 The Improvement Notice must be served sufficiently in advance of the date when the local authority intends to enter the land to give the site licence holder sufficient advance notice of that intended entry.

6.13. In deciding whether to take the action itself a local authority will need to consider whether the matters covered in the Improvement Notice are of such importance, or urgency, that they need to be addressed. As part of this we recommend that the local authority takes into account what danger or nuisance the breach causes for site residents and those visiting or working on the site, and how likely the site licence holder is to address the breach if further enforcement measures are taken (such as a Penalty Notice). It should also consider whether other enforcement action is necessary, and whether the failure to comply with the Improvement Notice is indicative of a general disregard by the site owner for the site licence conditions and other legal requirements.

6.14. In many cases the serving of an Improvement Notice, and the actions it brings about, will be enough to improve a site and bring it into line with the site licence conditions. It is intended to be a useful first step in formal action, for cases where informal attempts to resolve an issue have failed and more serious action is not judged to be necessary by the local authority. However, if an Improvement Notice is not complied with a local authority can then serve a Penalty Notice.

Penalty Notices

6.15. A Penalty Notice is the next step on the ladder of formal measures that can be taken by a local authority to enforce site licence conditions and ensure compliance with the licensing system. A Penalty Notice can only be served ^[46] if:

• land is being used as a site without a site licence; or
• an Improvement Notice has been served and the site licence holder has failed to take the steps specified in the Improvement Notice in the time limit required.

6.16. The effect of a Penalty Notice is to reduce the income that can come from a site, either because such a site is being run without a licence, or without compliance with a site licence condition which has not been addressed after an Improvement Notice. The effect of a Penalty Notice is that for the duration of the Penalty Notice anyone living on the site will not have to pay to the site licence holder:

• any amount due for the right to station a caravan on the site;
• any amount due for the rent of a caravan on the site;
• any amount due for the use of common areas on the site, and their maintenance;
• any commission due if a resident sells their mobile home on the site.

Residents will still be required to pay any amount due for utilities (gas, electricity, and water) provided to them on the site during the period of a Penalty Notice.

6.17. Serving a Penalty Notice is a serious step as it will lead to a reduction in the income from a site, and a local authority should carefully consider if it is an appropriate and effective action to take. Situations where it may be appropriate include:

• where an important site licence condition has not been met, and informal enforcement action and an Improvement Notice have been ignored by the site licence holder;
• where a site is being used without a licence, and the person running the site has taken no active steps to apply for a licence;
• where residents on such a site have poor services and amenities because of the failure to meet licence conditions.

6.18. The local authority must also decide what period a Penalty Notice will run for. The period the Penalty Notice runs for must begin on the day the period someone has to appeal the Penalty Notice has elapsed or on the day any appeal made has been determined or abandoned, whichever is the later. The 1960 Act gives someone 28 days to lodge an appeal, beginning with the day on which the Penalty Notice was served ^[47] .

6.19. In terms of section 32X of the 1960 Act ^[48] a Penalty Notice is a notice which:

a) sets out the condition in question and details of the failure to comply with it;

b) explains the effect of the Penalty Notice in removing the requirement on site residents to pay for certain things, as set out in section 32X(3) of the 1960 Act;

c) specifies the period which the Penalty Notice runs for;

d) explains that the person who has had the Penalty Notice served on them has a right of appeal.

6.20. As soon as practicable after serving a Penalty Notice the local authority must notify those living on the site that a Penalty Notice has been served. The local authority can decide the best way to do this, but it would include fixing a notice in a prominent place at or near the main site entrance ^[49] .

Revoking a Licence

6.21. As it is a local authority who issues a site licence it is also a local authority who can decide if a site licence should be revoked. Revoking a site licence is a very serious step, and one that a local authority should only consider as a last resort. Under section 32L of the 1960 Act ^[50] a local authority can only revoke a licence if it is satisfied:

a) that the licence holder is nor, or is no longer, a fit and proper person to hold a site licence;

b) where the licence holder is not an individual, that the person who holds the most senior position within the management structure of the partnership, company or body is not, or is no longer, a fit and proper person to hold a site licence;

c) that any person appointed by the licence holder to manage the site is not, or is no longer, a fit and proper person to do so;

d) where the person appointed to manage the site is not an individual, that any individual who is directly concerned with the management of the site is not, or is no longer, a fit and proper person to do so.

6.22. In considering revoking a licence we recommend that a local authority considers:

• any enforcement action taken;
• the seriousness of any breaches of licence conditions;
• the site licence holder, or site manager's, behaviour on a site, including any reports of threatening or intimidating behaviour to residents, local authority officers, or others; and
• persistent failures to address site licence conditions breaches, or to co‑operate with local authority officers investigating such breaches.

6.23. It is important that the local authority tells the site licence holder it is considering revoking the site licence. Where a local authority is considering revoking a licence it is therefore required to serve on the licence holder a notice ^[51] which states:

a) that the local authority is considering revoking the site licence, and its reasons for doing so;

b) that the site licence holder has the right to make written representations before a specified date (which is at least 28 days from the date on which the notice is given).

6.24. The local authority must consider any representations made to it by the site licence holder in response to its notice. If, after considering any representations, the local authority decides to revoke the licence it must tell the person who held the licence ^[52] that it has revoked the licence, its reasons for doing so and the rights of appeal that they have.

Interim Manager

6.25. Revoking a licence could potentially leave a site without anyone to manage it. This could be detrimental to the interests of residents, so the new licensing regime allows for the appointment of an interim manager to run the site ^[53] . The interim manager would be put in place to run the site in the short to medium term, while the future of the site was established after revocation or if no one was managing a site.

6.26. As it is giving a person the power to oversee someone else's property an interim manager is appointed by a sheriff, on application from a local authority. A sheriff will consider the local authority's application and decide whether an interim manager should be appointed, and if so the terms of their appointment. Under section 32Y of the 1960 Act a sheriff can only appoint an interim manager if:

• the local authority has refused to renew a site licence; or
• the authority has revoked a site licence; or
• the sheriff is satisfied that the licence holder is failing or has failed, either seriously or repeatedly, to comply with a site licence condition; or
• the sheriff is satisfied that the site is not being managed by a person who is a fit and proper person to manage a site;
• the sheriff is satisfied that no one is managing the site.

6.27. In addition to considering carefully whether asking a sheriff to appoint an interim manager is appropriate, a local authority should take time to identify who they want to appoint as an interim manager. This person should have the relevant skills and experience to manage a site, and be trustworthy and competent. It will be for a local authority to identify the right person or organisation, but possible interim managers could include former site owners or site managers with a good track record of running a site; business administrators with experience of the mobile home sector; or specialist businesses involved in the running and maintenance of sites.

6.28. The sheriff will hear the application from the local authority, and decide whether or not to appoint an interim manager. Under the 2016 Regulations a sheriff can only appoint an interim manager if the sheriff "is satisfied that the proposed interim manager has the relevant skills and experience to manage the site" ^[54] . It is therefore important that a local authority is clear about the reason(s) it believes an interim manager should be appointed, and why the person it has suggested appointed has the relevant skills and experience.

6.29. If the sheriff agrees to the local authority's application they will make an order appointing the interim manager. This order must cover "the amount of the interim manager's remuneration or the method of calculation of such remuneration" ^[55] , and under the 2016 Regulations the remuneration of the interim manager is paid out of the income from the site which the interim manager is managing ^[56] . The order must also "confer on the interim manager such powers as the sheriff considers necessary for the management of the site" ^[57] . Under the 2016 Regulations these powers can include the power to carry out the licence holder's business on the site, the power to carry out works, the power to make and receive payments, and the power to appoint and dismiss agents and staff. The range of possible powers are set out in regulation 9(2) of the 2016 Regulations. The order can also set out how long the interim manager is appointed for, and/or how the appointment can be terminated ^[58] .

6.30. The licence holder, or any person appointed by the licence holder to manage the site, must comply with any reasonable direction that the interim manager makes in the exercise of the powers the sheriff has given them. In particular they must give the interim manager such information as they reasonably require. ^[59]

6.31. Once an interim manager has been appointed the local authority should regularly monitor how they are managing the site. If an interim manager is being obstructed in performing their duties such obstruction is an offence ^[60] , and the local authority should consider taking the matter up with the local Procurator Fiscal. (See section 7 of this guidance on offences). If a local authority is not satisfied with the interim manager's performance the local authority should take the matter up with the interim manager, and can potentially use whatever arrangements the sheriff has made for terminating the appointment.

Emergency action on a site

6.32. There may be situations where a local authority considers it needs to carry out work on a site urgently (whether or not that site has a licence). Section 32Z of the 1960 Act ^[61] allows a local authority to do this when it appears to that authority that:

• the licence holder is failing, or has failed, to comply with a site licence condition and as a result of that failure there is "an imminent risk of serious harm to the health or safety of any person who is or may be on the land" ^[62] ; or
• the site has no licence and there is that same level of risk ^[63] .

6.33. If a local authority decides to use the power it must serve on the site licence holder (or, if the site has no licence the occupier of the site) an emergency action notice. This notice must:

• identify the land to which it relates;
• state that the authority intends to enter onto the land;
• describes the emergency action the authority proposes to take;
• if someone other than the local authority will be carrying out the action, the name of that person;
• specifies the powers under sections 26 and 32Z of the 1960 Act under which the authority intends to enter onto the land.

The emergency action notice may state that if entry to the land is refused then the local authority would propose to apply for a warrant under section 26(2) of the 1960 Act.

6.34. Within 7 days of beginning to carry out the emergency action on the site the local authority must serve the site licence holder, or the occupier of the site if it is unlicensed, with an emergency action report. Among other things this must describe the imminent risk of serious harm that was the cause of the emergency action, and the action that has been taken. Please see section 32Z(8) of the 1960 Act for more details on what an emergency action report must contain.

6.35. The site licence holder, or occupier if the site is unlicensed, can appeal against the emergency action ^[64] . This can be on the grounds that:

• there was, or is, no imminent risk of serious harm;
• that the action the authority has taken was not necessary, or is not necessary, to remove the imminent risk of serious harm.

6.36. This power can only be used in situations where there is an "imminent risk of serious harm". In deciding whether to use the power the local authority should consider whether the situation meets those criteria. The power gives a local authority a legal mechanism that they can use when they believe there is a real risk of serious harm to someone on the land.