Licensing of Caravan Sites in Scotland - An Analysis of Consultation Responses

EXECUTIVE SUMMARY

1 This summary sets out the main issues to emerge from the analysis of responses to the Scottish Government's recent consultation on the Licensing of Caravan Sites in Scotland^[1]. The principal focus of the proposals is to strengthen the licensing regime to protect the welfare of permanent residents. It also included the suggested introduction of statutory minimum application criteria, the introduction of a Fit and Proper Person Test, increasing fines for non-compliance with licence conditions, giving the local authority powers to revoke a site licence and entitling local authorities to charge a fee on application for and renewal of a site licence. In addition, views were sought on the duration of a site licence and the appropriate period for renewal.

2 The consultation period ran from 21^st May to 13^th August 2012, with 129 responses received. Fifty three of these were submitted by groups or organisations and 76 by individual members of the public. Of the 76 responses submitted by individuals, 55 were submitted by residents of two park homes. Of the 53 group responses received: 13 were submitted by Local Authorities, 6 responses by Resident Groups or Resident Action Groups; 3 by Residents Group for a specific site and 3 from Resident Action Groups; 4 by bodies connected with or representing various aspects of the park home or holiday park industries; and 21 by owners and operators of park home and/or holiday sites.

3 As is often the case with public consultation exercises, those that supported the proposals often made only limited further comment and hence their views can only be reflected through the overall balance of opinion at each question. This also means that the analysis of further comments tends to focus on issued raised buy those who disagreed with the proposals, although they were often in a minority of all respondents.

Statutory Minimum Application Criteria

4 The first proposal suggested the introduction of statutory minimum application criteria. This would require information to be submitted to a local authority at the point of requesting a licence. Most respondents who made a comment identified positive benefits that could result from the introduction of statutory minimum application criteria, the principal benefit being equipping the licensing authority with sufficient, accurate and up-to-date information to inform their 'fit and proper person' determination.

5 A clear majority of respondents did not anticipate that any difficulties would arise from the introduction of statutory minimum application criteria. Among the issues raised by respondents who felt the introduction of minimum criteria would not be without its challenges was the administrative burden that would be placed on both local authorities and site owners and the importance of robust enforcement regulations being in place.

6 Most of the respondents who disagreed with the minimum criteria as currently proposed felt additional criteria were required. Suggested additions included: details of all other sites currently or previously owned or managed by the applicant; the names and addresses of all directors of any company applying for a licence; contact details for the day to day operator of the site; and various information about the site itself (such as site plans, fire certificates etc).

Fit and Proper Person Test

7 Many respondents expressed their broad support for the introduction of the Fit and Proper Person Test and even those who went on to express some reservations about the proposals as they stand, sometimes noted that they supported the introduction of the Fit and Proper Person Test in principle.

8 The main issue that respondents (including many individual and group respondents) expected a Fit and Proper Person Test to address is unsuitable people holding a licence, particularly people with relevant criminal convictions. However, a number of respondents also noted that the Fit and Proper Person Test will need to be workable, sufficient and robustly applied if it is to deter unsuitable people from remaining in or entering the sector.

9 Industry body or site owner respondents were often expressing fundamental concerns as to the feasibility of the current proposals. Local Authority, Resident Group and Other group respondents tended to raise specific, process related issues or be looking for further clarification about how the test would be expected to work.

10 Most respondents agreed with the suggested criteria to be used when the Fit and Proper Person Test is applied. Further comments tended to focus either on the principles on which the criteria should be based - such as transparency, fairness and consistency - or suggest additional criteria which should be included.

11 There was a high level of consensus that a local authority should have the power to refuse a site licence if the fit and proper criteria are not met. Suggestions as to when a local authority should be able to refuse a licence generally focused on the record on the applicant themselves - for example, if the applicant for the licence had previously acted inappropriately and in particular have an adverse record in the industry.

Duration of a Site Licence

12 The proposal to require licence holders to renew their licence on a regular basis divided respondents. Many respondents agreed with the proposition that a licence should have to be renewed every 3 years. These respondents often noted this change would bring caravan site licensing into line with many other licensing regimes.

13 However, a number of respondents expressed considerable concerns about any fixed period being applied to licences. Many of these respondents were site owners, and holiday site owners in particular, and expressed concerns that the introduction of 'fixed period' licences could undermine the viability of park businesses.

Issue of a Site Licence

14 Many of those who commented had concerns about the proposed changes to the current time limits awarded to a local authority to issue a site licence. Some respondents (generally commenting from an industry perspective) stated their basic opposition to the proposed changes, often going on to suggest that the current time limits should remain in place. It was suggested that, for straightforward applications it is reasonable to expect a time limit to be imposed.

15 Other respondents, including some local authorities, were concerned that the current proposals lack clarity and detail and, for example, there is no consideration given to the quality or acceptability of information provided by the applicant on request from the local authority. Although some respondents were critical of the proposals, others did see advantages in the changes, including ensuring that an applicant has a clear incentive to provide any requested information in a timely manner.

16 Some respondents stated that once the standard set of application and Fit and Proper criteria had been met and planning permission obtained, it should be possible to issue a licence in all cases. Others suggested specific circumstances under which a licence could reasonably be refused - for example if appropriate planning permissions were not in place on the applicant for the licence had not passed the Fit and Proper Person Test.

Enforcement of a Site Licence

17 A number of respondents stressed that effective enforcement will be critical to the success of any new licensing regime and some also suggested that the current enforcement framework - both in terms of its content and critically how it has been applied - is insufficient and has allowed 'rogue operators' to remain largely unchallenged. There was a very clear consensus that change is required, with Local authority respondents amongst those suggesting that the changes proposed would give them more effective and 'useable' enforcement powers.

18 Most respondents, including standard text respondents, favoured local authorities having the power to revoke a site licence without application to the courts. Local Authority and Resident Groups or Resident Action Group respondents tended to favour this option, whilst Industry Bodies and Site Owners tended to favour application to a court being required. Respondents who took this view often suggested that application to the court would help ensure that due process, fairness and transparency underpinned the licensing authorities' use of its enforcement powers. However, respondents who supported local authorities being able to revoke a site licence without application to the courts were often concerned that site owners might use the court process as a 'delaying tactic'.

19 Those that offered support for the use of alternative arrangements through management conditions sometimes suggested this was their preferred option, whilst others suggested that it should be an option that sits alongside powers to revoke a site licence. Those that supported the potential use of management conditions often suggested it offered 'one more possible option'. However, it was suggested that local authority staff may not have the necessary skills and experience to manage a site.

20 There was strong support for the proposal to increase fines for non-compliance with licence conditions up to a maximum of £50,000. Most respondents who commented also supported the introduction of Statutory Improvement Notices and enabling giving Local Authorities to make an application to the court for a Management Order. There was also support for giving Local Authorities the powers to revoke a Site Licence, although those respondents that commented often had reservations or caveated their support. Most frequently, respondents stressed that the revocation of a site licence must only be used as a last resort and that the considerable implications for both site owners and residents must be taken into account.

21 Most respondents who commented on Penalty Notices offered their support for the basic principle, sometimes commenting that it would be a useful addition to the enforcement tools available to local authorities. However, some respondents did have reservations and were keen to have further information as to how a penalty notice system would work in practice.

22 The final question under Proposal 5 asked respondents whether they agreed with a minimum inspection interval, and if so whether it should be statutory. Most respondents agreed that there should be a minimum inspection interval, with most then also going on to agree that it should be a statutory minimum. Those respondents who disagreed with a minimum inspection period generally suggested that inspections should be carried out as required and/or that the interval between inspections should be based on a transparent risk approach, prioritising sites with poor compliance and a history of justified complaints.

Ability of the Licensing Authority to Charge a Fee

23 A clear majority of respondents who answered this question were in agreement with entitling local authorities to charge on application for a licence and at the renewal stage. Those that supported the principle of charging tended to focus their comments on similarity with other licensing regimes. Those that disagreed with fees being chargeable - at application, renewal or both stages - generally focused on additional costs being imposed on reputable and well-established businesses for what was seen as an unnecessary change.

24 The overall majority of respondents thought that site owners should not be able to recover these costs through pitch fees, although a clear majority of group respondents thought they should. Differences of opinion on this issue appeared to stem from how respondents viewed the relationship between running costs and pitch fees. Respondents who suggested that licensing costs should be recoverable through pitch fees often noted that licensing costs would form part of any park's legitimate running costs and hence would be eligible for consideration in the pitch fee review process. Those who suggested that licensing costs should not be recoverable suggested that this meant they should not be recoverable through pitch fees.

25 Most respondents disagreed that local authorities should have the power to exempt certain sites from licensing fees. However, a majority of group respondents, including a majority of local authorities, thought that local authorities should be given these powers.

Additional Considerations

26 The majority of respondents that answered the specific question about which types of sites should remain within the scope of the reformed licensing regime considered that all types of sites (Permanent Residential, Protected and Holiday Sites) should be covered under the new licensing regime. However, a number of respondents - including Site Owners and Industry Bodies made comments which clearly stated that holiday parks should be excluded.

27 Respondents who wished to see holiday sites excluded often suggested that the proposals are aimed at improving standards for permanent residents of caravan sites and that no evidence has been presented to suggest that the welfare of occupants of holiday sites is at risk under the current system of licensing. The financial consequences of the proposed changes for holiday and touring park businesses, and by extension Scottish tourism more widely, were also raised.