Case No. UKUT-334-(LC)-UTLC-Case-Numbers:-LC-2022-88

, not dated on the copy in the bundle but said to be in response to an application made on 23 February 1993, permits “use of building as Clubhouse and use of land for caravan park” with a condition that “No caravan on the site shall be occupied between 31 January and 1 March in any year”, the reason for which is said to be “to prevent permanent residential occupation of the site”.c.SO2/1640/75, dated 21 August 2003, permits “siting of 16 caravans” and has no relevant conditions.d.SK92/1328/75/52, dated 26 October 1993, permits “use of land for caravan park” and has the same occupancy condition as SK93/0189/75/8 above.e.SK93/1200/75/47, dated 4 January 1994, permits “use of land for caravan park” and has no relevant restrictions.f.SO2/1037/75, dated 21 August 2003, permits “use of land as leisure caravan park” with no relevant conditions.g.S00/0407/75, dated 11 July 2000, permits “use of land for caravan park and has the same occupancy condition as SK93/0189/75/8 and SK82/1328/75/52 above.41.Ms Wigley KC said that none of these permissions is expressed to be granted for holiday use only, and none restricts the times of the year in which a caravan may be stationed on land for human habitation. If the relevant conditions are considered to have the effect described in section 5A (a) or (b) she maintains that there are significant parts of the site that are not subject to any such condition.42.Ms Wigley KC pointed to the DCLG Guidance for local authorities, “Mobile Homes Act 2013: a best practice guide for local authorities on enforcement of the new site licensing regime” (at www.gov.uk) which states, at paragraph 13 of its Appendix 1 “Definition of relevant protected sites”:“There are some sites where the planning permission and/or site licence permits both use for holiday and permanent residential purposes. Such sites are relevant protected sites, because the relevant consent is not exclusively for holiday purposes.”43.Tallington Lakes, she said, is just such a site. 44.She also referred to evidence that the site is used for residential purposes, including a witness statement made by Mr Morgan in other proceedings (relating to VAT) in 2005. As I said above it is not for the Tribunal to make any findings about that; the issue before me depends upon the terms of the planning permission.45.Mr Morgan argued that the 2003 licence 84/2 was expressed to be granted for holiday use only, and said that the respondent has attempted, illegitimately, to put the cart before the horse by issuing what was in effect a new licence in an attempt to turn the site into a relevant protected site rather than responding to the facts. He said that the issue of a licence for a “Mobile Home Site” did not make the site into a relevant protected site; he also referred to section 5 of the 1960 Act which sets out the types of conditions that may be imposed, pointing out that a condition that changes the use or the nature of occupation of the site is not one of them.46.Mr Morgan relied upon the DCLG Guidance at paragraph 2.2 which states:“Any licensable caravan site will be a relevant protected site unless it is specifically exempted from being so. A site is exempted if it has planning permission or a site licence for exclusive holiday use or there are restrictions preventing it from being used on a permanent residential basis”.47.Tallington Lakes, he said, has a full house of exemptions. The majority of the pitches are restricted as to when a caravan can be stationed on the land for human habitation (planning permissions b, d and g above); the site licence 84/2 was solely for static holiday caravans; all of the appellant’s sales agreement executed with its customers state that the site licence is not residential.48.At the hearing Mr Morgan went through the planning permissions. He argued that most of them (five out of seven) are either expressed to be granted for holiday use only (items a and f above, as Mr Morgan reads them, and also item b because in his view the reference to a clubhouse entails holiday use) or stipulate times of the year when caravans may not be stationed on the land for human habitation. He pointed out that according to the respondent, 258 out of 385 caravans (67% of them) are subject to seasonal occupancy conditions. In Mr Morgan’s view in assessing whether the site is a relevant protected site under section 5A of the 1960 Act the Tribunal should look at what the majority of the planning permissions do. He regarded it as a “huge leap” to take the minority of the caravans and the miniority of permissions and then conclude that this is a residential site.Mr Morgan’s further argument in closing49.As I mentioned above, Mr Morgan and Ms Wigley KC presented their cases in turn during the morning of the hearing; the Tribunal then paused for lunch and Mr Morgan made his closing submissions after lunch. At this point he took a different approach and said that the 7 Permissions were not agreed to be the relevant ones. He produced a list of planning permissions which Ms Wigley KC said had not been seen before. He relied on one in particular, which he said was for holiday use and that “on checking today it is a blanket permission for the entire site”. He renewed his argument that the matter should have been sent back to the FTT, so that there could be a hearing at which evidence could be heard about the extent of the planning permissions and as to which were the relevant ones.50.It is not in dispute that other planning permissions have been granted for the site or parts of it; the witness statement submitted to the FTT by the respondent’s Head of Environmental, Ms Coulthard, listed the 7 Permissions which she regarded as the ones relevant to the licence and also listed a number of others, said to be for the most part expired or unimplemented. Up until this point in the hearing Mr Morgan had not suggested that the 7 Permissions referred to in the two site licences were not the correct permissions. He mentioned during the morning that there were other planning permissions for the land covered by the licence, which he did not know about off the top of his head, but he did not pursue the point other than to say that the situation was messy. There was no suggestion that the 7 Permissions were not the permissions that enabled the licence to be granted (see section 3(3) of the 1960 Act, paragraph 6 above), either in the course of argument at the hearing, or in the grounds of appeal, or in Mr Morgan’s skeleton arguments.51.Mr Morgan argued that in refusing to let him expand on his grounds of appeal after permission was granted the Tribunal had prevented him from introducing evidence about the planning permissions, all of which would have been explored had the FTT held a hearing.52.Mr Morgan had an appointment at 3 in the afternoon and so was anxious for the hearing to be brought to an end. He said that he felt that he was being treated unfairly because he was a litigant in person. Following the hearing the Tribunal wrote to Mr Morgan inviting him within 14 days to make any further representations he wished to make on behalf of the appellant about ground 3 (whether the site is a relevant protected site), and to produce any further documents needed to support his argument. No response was received to that invitation.The Tribunal’s conclusions53.I have to decide first whether in light of Mr Morgan’s new argument in the afternoon of the hearing I should remit the matter to the FTT.54.Ground 2 succeeded and resulted in the setting aside of the FTT’s decision. The Tribunal can only substitute its own decision on ground 3 if it has the material to decide it. Despite Mr Morgan’s wish for the matter to be remitted to the FTT, he did not suggest until the afternoon of the hearing that the 7 Permissions were not the correct permissions on the basis of which the site licence was granted.55.Mr Morgan never filed any evidence to that effect in the FTT; that was because he chose not to comply with the FTT’s directions to file evidence for the final determination, because he disagreed with the direction that the determination be made without a hearing. Had he been legally represented that would be the end of the matter, but as he is unrepresented I overlook that omission. 56.There is no suggestion in Mr Morgan’s grounds of appeal that the 7 Permissions are not the right ones.57.In June 2022 following the grant of permission to appeal Mr Morgan tried to file new and expanded grounds of appeal on the three grounds on which he had been given permission. His revised grounds were rejected because the Tribunal had directed, in giving permission, that he simply edit his grounds to remove the ones for which permission had not been given. He now says that the Tribunal prevented him from introducing fresh evidence at that point; and it is true that he was not allowed to file fresh evidence (the appeal being a review of the FTT’s decision) but there is no hint in the revised grounds that he tried to file of any suggestion that the 7 Permissions were not the right ones and indeed those grounds refer to the permissions in the plural. And as I have already said there was no such suggestion either in Mr Morgan’s skeleton arguments or at the hearing before lunch.58.The respondent does not deny that there have been a number of other permissions for the land in respect of which the licence was issued. It issued the licence 84/2 in 2003 on the basis that the 7 Permissions were the relevant ones, because others had expired or had never been implemented, and that was not challenged in 2003. Nor was it challenged in 2016, understandably because the list was the same.59.My very strong impression at the hearing, particularly from Mr Morgan’s words “on checking today”, was that the new argument in the afternoon was a new idea. It had never been part of Mr Morgan’s case that there was a single planning permission for the entire site covered by the licence, that was expressed to be for holiday use only, and it had never been something he had planned to argue at a hearing before the FTT. I believe that he seized at the last minute upon a planning permission which appeared to fit the bill. It would be unfair to the respondent to have the matter remitted to the FTT for a further hearing on the basis of a last minute surmise on Mr Morgan’s part. It would be particularly unfair to do so when Mr Morgan has not availed himself of the opportunity (which need not have been given to him, since it was his own appointment that meant the hearing had to finish early) to produce further argument and indeed a copy of the relevant planning permission. I conclude from the fact that he did not do so that that there is in fact no planning permission that will assist his case.60.Accordingly I determine the matter on the basis of the parties’ arguments made before the lunch break on the day of the hearing and in their written material before that.61.First, was the 2003 licence 84/2 expressed to be granted for holiday use only, so that the site was not a protected site in 2016 before the change of conditions? I agree with the respondent that it was not. It is a licence for use of the land as a caravan site (paragraph 7 above). The conditions limit the number of static holiday caravans that can be stationed there, but do not restrict the use of the site to holiday use only. The condition leaves open the possibility of other caravans being stationed on the site, and does not prevent residential occupation of the holiday caravans.62.Second, I agree with Mr Morgan’s arguments that neither the terms of the 2016 licence 84/3 for a “Mobile Homes Site” nor the new conditions attached to the licence in 2016 can change the nature of the site. The respondent does not say they do. 63.Third, Mr Morgan’s reliance upon the sales agreements between the appellant and its customers does not assist the appellant, because the statutory definition sets out the exceptions in terms of the licence and the planning permissions only, Restrictions imposed by the appellant upon itself are not relevant.64.Next I turn to the DCLG guidance, upon which both parties relied. It would of course be expected to be consistent with the law although it is not itself the law. Mr Morgan quotes paragraph 2.2, which is introductory and phrased in general terms. It does refer to a site being “specifically exempted”, and the terms of the specific exemption have to be applied. Appendix A to the guidance is about the definition of a relevant protected site; its paragraph 13 (paragraph 41 above) is consistent with section 5A(5), the effect of which is that if the licence or the planning permission(s) for a site state that it is for holiday use “only” or provide that there are times of the year when caravans cannot be stationed on the site for human habitation, then it is not relevant protected site. It does not allow for an exemption when only part of the site is subject to those restrictions, and therefore a site whose licence or planning permission(s) permit mixed use is, as this paragraph states, a relevant protected site.65.That takes us to the planning permissions, some of which are ambiguous. I take them one by one:a.SK75/1668/87/2895, dated 8 March 1988, permitted “use of land for siting of 34 static caravans for leisure homes”, and the only condition relates to the date the development must begin. This is ambiguous but could be construed as referring to holiday use since the caravans are identified as “leisure caravans”. b.SK93/0189/75/8 not dated on the copy in the bundle but said to be in response to an application made on 23 February 1993, permits “use of building as Clubhouse and use of land for caravan park” with a condition that “No caravan on the site shall be occupied between 31 January and 1 March in any year”, the reason for which is said to be “to prevent permanent residential occupation of the site”.The reference to a clubhouse is not a reference to holiday use, and I disagree with Mr Morgan on that point.There is no restriction on the stationing of caravans, only on their occupancy, but I agree with Mr Morgan that the condition means that during February the caravans may not be “stationed on the land for human habitation”.c.SO2/1640/75, dated 21 August 2003, permits “siting of 16 caravans” and has no relevant conditions.This permission has no relevant restrictions.d.SK92/1328/75/52, dated 26 October 1993, permits “use of land for caravan park” and has the same occupancy condition as SK93/0189/75/8 above.I make the same observations on this condition as above.e.SK93/1200/75/47, dated 4 January 1994, permits “use of land for caravan park” and has no relevant restrictions.This permission has no relevant restrictions.f.SO2/1037/75, dated 21 August 2003, permits “use of land as leisure caravan park” with no relevant conditions.Arguably this is a restriction to holiday use.g.S00/0407/75, dated 11 July 2000, permits “use of land for caravan park and has the same occupancy condition as SK93/0189/75/8 and SK82/1328/75/52 above.h.I make the same observations on this condition as above.66.Arguably, therefore, two of the permissions restrict the site to holiday use. Three of the others restrict the times in the year when caravans can be stationed there for human habitation. Two of the permissions are wholly unrestricted.67.I agree with Ms Wigley’s construction of section 5A(5): in order for the land the subject of the licence to fall outside the definition of a relevant protected site either the licence or the planning permission – which means the permission or permissions that cover the site and by virtue of which the licence is granted – must be expressed to be for holiday use only, across the whole site, or must be on terms that “that there are times of the year when no caravan may be stationed on the land for human habitation” across the whole site. Where the licence and planning permissions allow mixed use that includes residential, the site is a relevant protected site.68.The site is a relevant protected site as defined in section 5A(5) of the 1960 Act and the appeal fails on ground 3.