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

3. PROPOSAL 2 - FIT AND PROPER PERSON TEST

3.1 At present there is no formal assessment process through which a local authority can consider the suitability of applicants to hold a licence to operate a Caravan site. The second proposal involved the introduction of a Fit and Proper Person Test for each person, company or partnership applying for a site licence or to participate in the management of the site. Fit and Proper Person Tests are already used across a range of other licensing and registration regimes and allow the relevant licensing body to take into account a range of information that is appropriate to the regime being managed.

Question 4:

What key issues do you believe that the introduction of a Fit and Proper Person Test would address?

3.2 Many respondents expressed their broad support for the introduction of the Fit and Proper Person Test, with a number of respondents noting that many other licencing regimes already apply the test and that it would be appropriate to extend the practice to cover those applying for a Caravan Site licence. As with the statutory minimum application criteria, some respondents (particularly industry-related respondents) who went on to express some reservations about the proposals as they stand, noted that they supported the introduction of the Fit and Proper Person Test in principle.

3.3 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.Examples given in this respect included those who have been convicted of a violent offence or of having committed fraud. Many respondents noted that, by extension, this would help protect potentially vulnerable residents from people with this type of history owning or managing the site on which they have made their home.

3.4 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.

3.5 Other issues that respondents suggested would be addressed by the introduction of the Test included:

• The lack of clarity and consistency around who can and cannot hold a licence. This point was often associated with calls to ensure that the new Test is applied consistently across Scotland;
• Licensing authorities having insufficient information on which to make decisions regarding site licencing and having to grant a licence in the absence of that information; and
• People or companies that have a track record of non-compliance in relation to other relevant legislation being granted a site licence.

Question 5:

Do you perceive any difficulties in introducing A Fit and Proper Person Test for all applicants for a site licence based on the proposals?

3.6 Most respondents (69 out of the 98 that answered Question 5) did not perceive that there would be any difficulties in introducing A Fit and Proper Person Test for all applicants for a site licence. Most of the respondents that did perceive there could be difficulties were group respondents and included 9 local authorities.

3.7 Analysis of further comments made suggest that industry body or site owner respondents were often expressing fundamental concerns as to the feasibility and appropriateness 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.

Table 6

Question 5 - Total Responses

	Yes	No	Not answered
Group	21	9	23
Individual	8	5	8
Standard Text	0	55	0
Total	29	69	31

Table 7

Question 5 - Group Responses by Type of Respondent

	Yes	No	Not answered
Industry body	2	0	2
Local Authority	9	4	0
Other	5	1	3
Resident Group or Action group	2	3	1
Site Owners	3	1	17
Total	21	9	23

3.8 Amongst the concerns raised was that 'rogue' park operators are likely to find routes to evade a Fit and Proper Person Test and the regulations would not resolve the problems expected. As an example, it was suggested that if a park operator lost their Fit and Proper status, they would probably appeal the decision and by the time the case came to Court the park(s) in question could be owned and operated by a different limited company. In such a situation, although a new person with Fit and Proper status would be operating the park(s) it would be likely that the original operator would still be involved with, and possibly giving instructions to, the new operator. It was also pointed out that in some parts of the UK^[11] 'rogue' park operators are known to operate numerous limited companies within their operations and some have individual companies owning and operating each individual park.

3.9 It was also suggested that local authorities are not best placed to take responsibility for the applicationof the Fit and Proper Person test and would face considerable challenges when site owners own parks across a number of local authority areas. Duplication of training requirements across different local authorities was also noted by one respondent. A suggested alternative was the establishment of a team with an across-Scotland remit, as well as a national register containing information on owners' financial status and any criminal convictions. The Institution of Environmental Health Officers was suggested as an appropriate national body to host such a team.

3.10 Other issues or concerns raised included:

• England has already considered the introduction of a Fit and Proper Person Test but rejected the proposal as unworkable;
• The changes will result in more expense for park owners who trade legitimately. The majority of residential parks in Scotland have an average of 30 - 40 pitches and it would not be possible for them to absorb additional overheads in the form of administration or management costs;
• The resource implications of introducing the Test could be considerablenot only for the applicant but also for the licensing authority required to process and verify that information;
• It may take local authorities longer to process applications than under the current system and this will need to be taken into account;
• Employers could supply very little information on their employees without contravening the Data Protection Act;
• If removing a site owner's Fit and Proper status, a local authority would need to have transitional arrangements, including local authority default powers if no alternative applicant was forthcoming. This might include, for example, having a Credit Licence to allow for the sale of mobile homes and holiday caravans on finance. Otherwise, no sales requiring finance could be completed;
• Equally, larger residential parks and, to a greater extent, mixed parks often have licensed shops, bars, restaurants, amusement arcades, etc. Unless the owner has committed a serious criminaloffence, they would retain these licences and the right to operate them on the park. Most also live on their park and they could not be removed from their home. This would mean they would effectively remain on the site; and
• Some respondents were not clear how the Fit and Proper Test would be applied when a company was seeking to hold a licence and there wereconcerns that directors of companies would be able to 'circumnavigate' the Test.

3.11 Finally, a number of (principally industry-related) respondents also stated clearly that, if introduced, the Fit and Proper Person Test should not apply to holiday park owners. Issues relating to the suitability of the various proposals for different types of sites will be discussed in greater detail within Chapter 8 of this report.

Question 6:

Do you agree that the criteria as set out at under proposal 2 are appropriate? If 'no', please provide additional or alternative suggestions.

3.12 Moving on to consider the appropriateness of the specific criteria which could be considered in applying the test, most respondents (79 out of the 97 respondents that answered this question) agreed with the suggested criteria. These included, for example, whether the applicant has any spent/unspent convictions for certain types of offences or has practiced unlawful discrimination.

3.13 As with previous questions, it was group respondents that were more likely to disagree, although those that disagreed came from a range of different types of organisation.

Table 8

Question 6 - Total Responses

	Yes	No	Not answered
Group	18	11	24
Individual	6	7	8
Standard Text	55	0	0
Total	79	18	32

Table 9

Question 6 - Group Responses by Type of Respondent

	Yes	No	Not answered
Industry body	0	1	3
Local Authority	10	3	0
Other	5	1	3
Resident Group or Action group	2	3	1
Site Owners	1	3	17
Total	18	11	24

3.14 Further comments tended to focus either on the principles on which the criteria should be based or offered specific alternative criteria. Turning first to principles that should underpin the criteria it was suggested that they should be: objective, fair, transparent and clearly defined; consistently applied across the industry; and start with the assumption that an individual is 'fit and proper' unless there is evidence to the contrary. It was also suggested that where an individual has been shown to fail to meet those criteria, the consequence in terms of revocation of the site licence should be applied across all parks within the individual's control and any parks that the individual seeks to manage in the future.

3.15 Specific suggestions made, largely by Local Authority or Resident group respondents, included that:

• All directors (or partners in the case of a partnership) should be subject to individual Fit and Proper Person checks.
• There should be a requirement on the applicant or current licence holder to disclose full details of all other sites that they own across Great Britain. This would allow local authorities to cross-reference with other relevant local authorities to establish whether the applicant or licence holder has breached other licence conditions or contravened any law relating to any other site;
• Wherever possible, the proposed 'Fit and Proper Person' test criteria should be tied to those in the Antisocial Behaviour (Scotland) Act 2004, Section 85 as amended. This is to help ensure refinements made are automatically incorporated into the caravan site licensing regime, keeping it up to date and relevant;
• Applicants should be required to disclose any history of bankruptcy or loss of directorships; and
• Failure to comply with the following should be taken into account:
  • Fire Safety Requirements - the Fire Authority should be a statutory consultee in respect to the Fit and Proper test;
  • Health and Safety requirements of the Health and Safety at Work etc Act 1974 and regulations made thereunder; and
  • Improvement Notices etc.

Question 7:

Should there be a duty for companies and partnerships to notify a local authority of changes in directors or partners?

3.16 When considering whether there should be a duty for companies and partnerships to notify a local authority of changes in directors or partners, there was a high degree of consensus, with all but 4 respondents that answered this question (all 4 being group respondents) in agreement.

Table 10

Question 7 - Total Responses

	Yes	No	Not answered
Group	27	4	22
Individual	12	0	9
Standard Text	55	0	0
Total	94	4	31

Table 11

Question 7 - Group Responses by Type of Respondent

	Yes	No	Not answered
Industry body	1	1	2
Local Authority	13	0	0
Other	5	1	3
Resident Group or Action group	6	0	0
Site Owners	2	2	17
Total	27	4	22

3.17 Further comments made by respondents that disagreed with the proposal included that an updateat the time of renewal or by request of the Local Authority would be adequate and that if a company holds a licence it is the company being assessed not each individual director.

Question 8:

Do you agree that a local authority should have the power to refuse a site licence if the fit and proper criteria are not met?

3.18 There was a similarly 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. Again, all but 4 respondents that answered this question were in agreement, in this case 2 group respondents and 2 individual respondents.

Table 12

Question 8 - Total Responses

	Yes	No	Not answered
Group	28	2	23
Individual	11	2	8
Standard Text	55	0	0
Total	94	4	31

Table 13

Question 8 - Group Responses by Type of Respondent

	Yes	No	Not answered
Industry body	0	1	3
Local Authority	13	0	0
Other	6	0	3
Resident Group or Action group	6	0	0
Site Owners	3	1	17
Total	28	2	23

3.19 Respondents who agreed with the proposal and who went on to make further comment often suggested that if a local authority did not have the power to refuse a site licence if the Fit and Proper criteria were not met, there would be little point in introducing the Test in the first place. Other points or suggestions made by those supporting the proposal include thattransparent internal governance and appeal structures must be in place within the licensing authority and that, as with other licencing regimes, an applicant refused a licence should have a right of appeal to the Sheriff.

3.20 Respondents who disagreed with local authorities having the power to refuse a licence were generally concerned that the licensing authority would not be required to act in a reasonable manner and would be given too great a power which if exercised could seriously damage a park business. As an example, the potential for a licence being refused based on a technical regulatory breach was cited.

3.21 Another keyissue raised by one respondent concerned about the current proposal focussed on the differences between the Test being applied when a new park is being developed as opposed to being applied when there is an existing park with privately owned park homes in situ. The respondent noted that in the case of a 'new' park, the 1960 Act requires local authorities to issue a site licence to applicants where the proposed site has the benefit of planning permission. Upon achieving planning consent, a site licence should be issued with appropriate conditions, although if the applicant does not meet the licensing authority's reasonable conditions then refusal of a personal licence may be appropriate. However, the situation would be very different for an existing park, with the respondent suggesting that licence refusal at renewal must be a last resort, come with a right of appeal and be accompanied by fully formed proposals as to how the local authority would deal with the aftermath of refusing a licence.

Question 9:

Are there any other reasons a local authority should be able to refuse a site licence?

3.22 Question 9 asked respondents if there are any other reasons for which a local authority should be able to refuse a site licence. The response rate at this question was low compared to many others within the consultation, in large part because only one of the standard text responses answered this question. The largest group of respondents suggesting there were other reasons for which local authorities would be able to refuse a licence, were local authorities themselves.

Table 14

Question 9 - Total Responses

	Yes	No	Not answered
Group	23	5	25
Individual	6	6	9
Standard Text	0	6	49
Total	29	17	83

Table 15

Question 9- Group Responses by Type of Respondent

	Yes	No	Not answered
Industry body	0	0	4
Local Authority	11	1	1
Other	6	0	3
Resident Group or Action group	4	2	0
Site Owners	2	2	17
Total	23	5	25

3.23 A range of suggestions were made as to when a local authority should be able to refuse a licence. Individual, Standard Text and Resident Group respondents generally focused on the record on the applicant themselves - for example, if the applicant for the licence hadan adverse record in the industry, including previous breaches of site licence conditions or not acting when criminal behaviour had occurred on their site.

3.24 Further specific suggestions put forward by one or more respondent included the following:

• When there is no valid planning consent or when there is a breach of planning consent which is, or may be, subject to investigation and enforcement under planning legislation;
• When the proposed caravan type(s) are not consistent with the terms of the planning consent;
• If the number of residents on a site would exceed one third of the total number of residents in the surrounding area;
• If the applicant has failed to provide the requested information or acceptable responses to questions posed;
• If at the time of the licence application the site does not comply with the site licence conditions in place under the existing / preceding occupier or does not or will not comply with the draft site licence conditions proposed;
• If the site infrastructure does not or will not comply with the site licensing conditions and no evidence can be provided that site infrastructure completed before issue of the licence does or will comply with licensing conditions, relevant legislation, or British or European standards;
• In particular, until the site can show it complies/can comply with licence conditions/model standards and the model standards should be revised, and in particular clarify the fire safety requirements and the role of the fire authority and fire safety legislation; and
• When a copy of the site rules has not been lodged with the application.

3.25 Finally, and in relation to applications from parks which are being newly developed at a green/brown field site with no park homes already sited, one respondent found it difficult to imagine the circumstances in which a site licence would be refused. This respondent suggested that to grant planning consent and then deny a site licence would be unjust and before granting planning permission the local authority will have carried out the usual enquiries as to the appropriateness of the site for the establishment of a park. This respondent suggested that, before any amending legislation is drafted, it is important that there is a full understanding of the relationship between planning and site licensing law.

Summary of Views on the Fit and Proper Person Test

• 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.
• 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.
• 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.
• 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.
• 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.