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

6. PROPOSAL 5 - ENFORCEMENT OF A SITE LICENCE

6.1 Proposal 5 considers the enforcement of a site licence and aims to give local authorities more flexibility in dealing with any breaches of licence conditions. The focus of the proposed regime is very much on allowing local authorities to deal with the failings of unlicensed or mismanaged sites, but without impact on sites that are well maintained and of a good standard.

6.2 Although local authorities currently have the power to inspect sites, for specific licence conditions, they are not required to do so either prior to the grant of a licence or at any point after a licence is granted. Proposal 5 aims to require the local authority to undertake a site inspection, with the frequency of the visits determined by the local authority as they see fit. Other elements to be included within the proposed new enforcement regime are:

• Increasing fines for non-compliance up to a maximum of £50,000;
• Giving local authorities the power to serve a Statutory Improvement Notice on the holder of a site licence;
• Allowing local authorities to revoke a site licence when other routes had not had the desired effect;
• Enabling local authorities to make an application to the court for a Management order to take over the running of a site; and
• Allowing local authorities to impose a Penalty Notice which would suspend pitch fee payments if the licence holder failed to meet licensing conditions.

Question 14:

What key issues do you believe that the introduction of (the above) enforcement tools would address?

6.3 Question 14 asked respondents to comment on the key issues that the introduction of enforcement tools could address. Both within their specific comments at Questions 14 to 17, as well as within other general comments made as part of their responses, a number of respondents stressed that effective enforcement will be critical to the success of any new licensing regime. Some respondents also suggested that the current enforcement framework - both in terms of its content and critically how it has applied -is insufficient and has allowed 'rogue operators' to remain largely unchallenged. There was a very clear consensus that change is required.

6.4 For some respondents this was not simply about the powers that are available to local authorities, but also the approach taken by the licensing authority and other statutory services (such as the police and fire services). A number of respondents - coming from both an industry and a resident perspective - felt that insufficient resources have been directed towards enforcement activity in the past and that a more consistent and robust application of available enforcement powers will be required if real change is to be achieved.

6.5 One industry-focussed respondent suggested that any changes must be supported by an education programme that ensuresall parties (purchasers, sellers, park owners, the police and local authorities):

• Have greater awareness about, and knowledge of,their rights and responsibilities; and
• Are able to share relevant information between them and are part of a multi-agency approach to resolving the problems caused by a tinyminority.

6.6 Local authority respondents were amongst those suggesting that the changes proposed would give them more effective and 'useable' enforcement powers, with some suggesting that their current powers do not allow them to take appropriate and proportionate action to ensure compliance with licence conditions. Increasing the options available without having to revert to the Procurator Fiscal was generally seen as offering a possible solution to some of the current obstacles to effective enforcement. Addressing the perceived weakness of the licensing regime was also seen as being a positive development.

6.7 Although discussed further in subsequent questions (Question 16 in particular), among the specific issues that would be addressed or improvements that would result from the introduction of the new enforcement powers, respondents identified the following:

• Residents, including those who are vulnerable, would be afforded greater protection from 'rogue' operators. These 'rogue' operators may leave the sector rather than risk action being taken against them. This was raised by Individual and Resident Group respondents in particular;
• Sites subject to licensing would receive (regular) inspections under timescales set according to perceived risk of non-compliance with licensing conditions. Local Authority respondents were most likely to see this as beneficial;
• Failure to comply with formal notices to require works to be done would become an offence and able to be considered as part of the Fit and Proper Person Test;
• The proposed fines will bring this licensing regime into line with that for offences under HMO licensing and landlord registration; and
• The management order is a good 'back-up' to protect residents.

6.8. However, some concerns were also raised, and in particular that the enforcement tools do not address the immunity from prosecution for operating an unlicensed caravan site. This was seen as a particular problem where the licence holder provides the requested information but it is unacceptable to the local authority, or the site simply does not or will not comply with the licensing conditions. As already noted above (see paragraph 5.5), the local authority can only take enforcement action if it first issues a licence, no matterhow unacceptable the applicant or site.

Question 15:

Do you think that local authorities should have the power to

(a) Revoke a site licence with or without application to the courts in certain circumstances? Or,

(b) Consider the alternative options managed through the licence conditions.

6.9 Question 15 asked respondents whether local authorities should have the power to revoke a site licence with or without application to the courts in certain circumstances or whether they should consider alternative options managed through the licence conditions. The balance of opinion is set out in the table below, although the figures do need to be viewed with some caution.Some respondents interpreted the three options proposed (without application to the court, only with application to the court and through licence conditions) as mutually exclusive, whilst others did not.

6.10 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.

6.11 Analysis of further comments made suggests that those opposing local authorities having the power to revoke a site licence without application to the courts see this as being a very significant power, with misapplication having very considerable and potentially irreversible consequences. 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.

6.12 One respondent also highlighted that despite due diligence, a park owner may find themselves 'guilty' of a breach of licensing conditions despite having not contributed to the offence. Examples cited included a resident's actions placing the park owner in breach of his or her site licence conditions. Given the many and varied issues that could surround the potential revocation of a site licence, this respondent considered the process must be dealt with through the courts.

Table 18

Question 15 - Total Responses

	Without application to the courts			Only with application to the courts			Through the licence conditions
	Yes	No	N/A	Yes	No	N/A	Yes	No	N/A
Group	19	9	25	11	14	28	12	11	30
Individual	4	9	8	8	4	9	4	7	10
Standard text	55	0	0	0	55	0	6	0	49
Total	78	18	33	19	73	37	22	18	89

Table 19

Question 15 - Group Responses by Type of Respondent

	Without application to the courts			Only with application to the courts			Through the licence conditions
	Yes	No	N/A	Yes	No	N/A	Yes	No	N/A
Industry Bodies	0	2	2	2	0	2	0	0	4
Local Authorities	10	2	1	4	7	2	6	4	3
Others	4	1	4	1	4	4	2	3	4
Resident Groups or Resident Action Groups	5	0	1	0	3	3	3	1	2
Site Owners	0	4	17	4	0	17	1	3	17
Total	19	9	25	11	14	28	12	11	30

6.13 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' and might choose to fight every case on technical points of law. Some respondents also pointed out that the granting of these powers would put the arrangements for caravan licensing on a par with those which already apply to the licensing of Houses in Multiple Occupation (HMOs). Some respondents also pointed out that site owners would and should have a right of appeal to the court to have a local authority's decision overturned.

6.14 Finally at Question 15, 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' and that a range of options that allowed local authorities to respond on a case by case basis would be helpful.

6.15 Some respondents highlighted problems, however, which might result from the use of management orders. For example, it was suggested that local authority staff may not have the necessary skills and experience to manage a site and that the necessary financial arrangements to allow them to do so may not be in place. One Individual respondentalso suggested that Council management costs might be high and that this would impact directly on residents of the site.

Question 16:

Views are sought on the applicability of each of the enforcement tools identified.

(a) Increased Fine;

(b) Statutory Improvement Notice;

(c) Revocation of a Site Licence;

(d) Management Order

(e) Penalty Notice

6.16 The consultation document then went on to ask respondents for their views on the applicability of the five enforcement tools that had been identified: Increased Fine; Statutory Improvement Notice; Revocation of a Site Licence; Management Order; and Penalty Notice. Views expressed on each will be considered in turn below.

Increased Fine

6.17 The proposal was that a fine of up to a maximum of £50,000 could be imposed on a site owner convicted of non-compliance. Most respondents either stated their specific agreement with the maximum fine of £50,000 (77 respondents) or made a comment in general support of increasing fines to a level sufficient to increase compliance (8 respondents).

6.18 Only a few respondents either said they disagreed with increased fines (2 respondents) or that the £50,000 maximum was too high (1 respondent). However, a small number of respondents suggested that the fines must be proportionate to the gravity of the offence (3 respondents) or related to the size of the site (2 respondents).

Statutory Improvement Notice

6.19 The proposed new power would give a local authority the ability to serve a formal Improvement Notice on the holder of the site licence, which would require action to be taken in order to prevent or remedy a breach of licence conditions. It would be an offence to fail to comply with an Improvement Notice.

6.20 Again, while a few respondents expressed clear disagreement with this proposal, most respondents who commented at this question expressed support for Statutory Improvement Notices, which some respondents suggested would be a vital tool for local authorities seeking to improve standards on badly maintained or managed sites. Other positive features of Statutory Improvement Notices identified by respondents included that a local authority would be able to evidence its attempts to resolve issues with the site operator without resorting to court action. This can demonstrate a proportionate approach should the matter not have been resolved and it does proceed to court action or even revocation of a licence.

6.21 Some respondents (including some of those who expressed broad support for the introduction of the Notices), did raise issues or make specific suggestions as to how the Notices should operate. Points raised included the following:

• Local authorities will need to be pro-active with regard to these Notices if owners are not to be able to use them as part of a 'delaying tactic';
• The involvement of an independent 'arbiter' - possibly a trade organisation - should be required;
• Local authorities should be prohibited from going straight to prosecution and should be required to serve a notice of remedy first and give owners the chance to comply;
• The Statutory Improvement Notice would need to be served on both the site owner and the site - this would remove the incentive to change company name or licence holder;
• A suitable level of fine for non-compliance must be identified and specified. It should be of similar magnitude to that for operating without a licence to ensure there is sufficient deterrent for failure to comply with a notice. This is important where large sites are concerned and significant investment in infrastructure may be required to comply;
• There should be a minimum period to comply by default in order to accommodate an appeals mechanism. Both 14 and 21 days were suggested as the minimum period. Consideration should be given to whether an appeal will suspend the notice and to the provision of a 'non-suspension' clause;
• Local authorities should require authority from a court before being able to do works either in default or in an emergency. However, there should also be a way for local authorities to act immediately in response to imminent danger to the health and safety of individuals;
• Funding of works in default of a statutory notice is currently a problem for many local authorities, with concern over the ability to recover expenses. Pursuing the 'polluter pays' principle, local authorities should be able to recover their reasonable costs and this must be legislated for.
• To reduce the risk of local authorities being left to cover costs of work stipulated in an Improvement Notice by not then carried out by the licence holder, the local authority should have the power to impose a charging order on the property. This could be registered against title deeds for the property to reduce the risk of non-payment in the event of a company or partnership changing its name or identity;
• Legislation should include a requirement for local authorities' costs and expenses to be 'reasonable' and transparently presented;
• It should be established that local authorities should not be able to reclaim costs from park owners where their costs have been incurred as a result of unjustified, vexatious complaints, possibly from residents or due to local authority incompetence; and
• In the interests of fairness, there should also be a mechanism for challenge or appeal.

6.22 As noted earlier, a small number of respondents disagreed with the proposedchange, considering it to be a blunt and disproportionate instrument. It was also suggested that existing powers under the 1960 Act (Act 9 (3)) adequately cover this issue, but are not used by local authorities, and that this proposal is 're-inventing the wheel'.

Revocation of a Site Licence

6.23 The revocation of a Site Licence is proposed when other routes of enforcement activity have not had the required impact. Again those respondents that commented tended to express support, although oftenwith certain reservations or caveats. 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. Some respondents suggested that other approaches, including changes in management or an 'enforced take-over', would offer a more constructive way forward.

6.24 Further points made about the revocation of Site Licences included the following:

• Issues around the ownership of the land would need to be resolved. Once a licence has been revoked, the licence holder should not be able to return to the site and family members, partners, fellow directors or linked companies should not be allowed to assume responsibility for the site. The local authority should attain control with ownership of the land by compulsory purchase, funded perhaps by government funding using an extension of the Land Reform Act;
• It is essential therefore that costs are recoverable through the pitch fee. Revocation would only work if pitch fees and all other sources of income were diverted away from the now, ex-licence holder; and
• Revocation could also include conviction for operating a site without a licence. This will encourage operators of multiple sites to ensure all are correctly licensed and create awareness that localised poor practice has the potential to adversely affect the rest of the business.

Management Order

6.25 This proposal would enable local authorities to make an application to the courts for a Management Order to take over running of a site. If the site licence holder is deemed not fit and proper or has been convicted of a breach of licence conditions, depending on the severity of the circumstances the licensing authority could consider three options: 1) order that a managing agent is appointed to manage the site; 2) remove the site owner's right for contact with the residents, or 3) apply to the Courts for a Management Order to take over the running of the site.

6.26 Those respondents that commented tended to agree with the proposals, although only a small proportion of all respondents went on to make substantive further comments and some referred back to their comments made at Question 15 (see analysis presented at paras 6.9-6.15 above). Additional points made at Question 16 included the following:

• The introduction of management orders would ensure that residents were not left without a manager in place. This might alleviate some of the concerns of local authorities which considered enforcement action to be necessary;
• Whereresidential parks are mortgaged, failure to pay the mortgage interest would result in the park going into administration or some similar insolvency procedure. The effect of a management order may be to force the sale of the park. Could this be considered to contravene park owners' human rights?
• If the use of management orders were to go ahead it would need to be considered in the light of plans for park owners' 'fit and proper' status. If a park owner's 'fit and proper' status were to be called into question this will undermine their status across all parks in that ownership. Therefore in addition to the proposed measures, there should be a duty on local authorities to identify other parks in that ownership;
• There are liable to be significant funding implications when such a situation arises. Whilst some may come from pitch fees (for which a related provision is required), this may be insufficient to deal with legacy or backlog operational, infrastructure or maintenance issues. Consideration should be given as to how funds belonging to the site licence holder might be accessed to allow improvements to be undertaken to bring the site back into compliance with the site licence conditions; and
• Clarity is required on the situation where ownership and site licence holder are different bodies. Does operation of the site default to the site owner and would this always be desirable? It could in some circumstances be worked to a site owner's benefit, particularly where owner and operator are two related organisations.

Penalty Notice

6.27 The proposed Penalty Notice would allow a local authority to impose a suspension of pitch fee payments should the site owner fail to apply for a site licence and meet the licensing conditions within a set period of time. This would continue for the period to which the penalty notice is applied and/or the issue resolved and the site licenced.

6.28 Most respondents who commented on PenaltyNotices offered their support for the basic principle, sometimes commenting that it would be a useful addition to the enforcement tools available to local authorities. Amongst the further comments made by those who saw Penalty Notices as having merit were the following:

• Penalty Notices could offer a better alternative to revocation of site licences andshould also apply where a site has a licence but fails to address breaches of licence conditions;
• There could be implications for residents who may be undera lawful agreement to pay the site owner the agreed fees. The Notice would require the release ofresidents from these payments and ensure that they would not be liable to make back payments to the site owner when the matter is resolved; and
• A variation in favour of the local authority (or their appointees) is needed to provide a funding stream to support the operation of the site in the event of a Management Order being required.

6.29 Not all respondents agreed with the proposal for the introduction of Penalty Notices. Along with calling for greater detail as to how the Penalty Notice system would be expected to work, among the specific questions were posed by those who disagreed. For example:

• What precisely would constitute 'failing to apply for a site licence'?;
• What would happen if compliance with site licence conditions was rendered impracticable; if for example, despite the park owner's best efforts, a resident's actions placed the park owner in breach of site licence conditions?
• Who would determine what 'a set period of time' should be and upon what criteria would that decision be made?

Question 17:

Do you think there should be a minimum inspection interval? If so, should it be statutory?

6.30 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 (87 out of the 99 that answered this question) agreed that there should be a minimum inspection interval, with most then also going on to agree that it should be a statutory minimum (81 out of the 89 that answered this question). Half of those disagreeing with a minimum inspection interval were groups and half were individual respondents.

Table 20

Question 17 - Total Responses

	Minimum Inspection Interval			Should it be statutory
	Yes	No	N/A	Yes	No	N/A
Group	24	6	23	17	7	29
Individual	7	6	8	8	1	12
Standard text	55	0	0	55	0	0
Total	86	12	31	80	8	41

Table 21

Question 17 -Group Responses by Type of Respondent

	Minimum Inspection Interval			Should it be statutory
	Yes	No	N/A	Yes	No	N/A
Industry Bodies	0	2	2	0	0	4
Local Authorities	11	2	0	8	5	0
Others	5	0	4	3	1	5
Resident Groups or Resident Action Groups	6	0	0	5	0	1
Site Owners	2	2	17	1	1	19
Total	24	6	23	17	7	29

6.31 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. It was also suggested that to set a mandatory minimum inspection interval would, in practice, contradict the sensible proposal that visits should be determined by the local authority following a transparent risk-based assessment and hence the frequency of site inspections must not be prescribed in law.

6.32 The resource implications of requiring local authorities to carry out potentially unnecessary inspections were also raised and, on a connected point, it was suggested that at-fault businesses should rightly pay for local authorities' enforcement work. A specific suggestion made was that there may be the opportunity to achieve improved licensing work and reduce costs, through the Primary Authority Scheme, if it is to operate in Scotland through the Enterprise and Regulatory Reform Bill, published on 25 May 2012.

6.33 Those respondents who supported statutory minimum inspection periods often suggested that their introduction would be the best way to ensure that inspections were actually carried out and sufficient local authority resources made available to the inspection function. However, respondents who supported a statutory minimum often suggested that a risk-based approach to inspection should trigger earlier or additional inspections as and when required.

6.34 Irrespective of whether they supported a statutory minimum inspection period or not, those respondents who made further comment very often agreed that the priority should be to focus attention and inspection activity on poorly performing sites. Some respondents also called for national standards and guidance to support consistent practice across Scotland.

Summary of Views on Enforcement of a Site Licence

• 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 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.
• 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'.
• 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.
• 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.
• 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.
• 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-based approach, prioritizing sites with poor compliance and a history of justified complaints.