[2024] UKUT 360 (LC)

The decision to strike out the appellant’s appeal in the FTT on the ground that it was brought under section 7 instead of section 8 is difficult to understand. There is no reason to suppose, and it has not been suggested, that the FTT did not have jurisdiction if the wrong application form was used. In substance what the appellant was doing was appealing to the FTT the conditions attached to the document issued on 20 April 2017, whether that document was a new licence or not. If it was not, then the FTT could simply have treated the appeal as having been brought under section 8; the requirement for a prior application to the local authority for a change in the conditions was amply satisfied by the lengthy correspondence about the conditions that had passed between the parties. This is not a case where there has been an error or omission in following a statutory procedure prescribed for the acquisition of rights (which would engage the case law about such errors, in particular A1 Properties (Sunderland) Limited v Tudor Studios RTM Co Ltd [2024] UKSC 27); the problem, if there was one, was simply the use of the wrong application form before the FTT.

The respondent had been untroubled by the use of that form and by the framing of the appeal as one brought under section 7. I agree that it had made it clear all along that it did not regard the document as a new licence, but its case in the FTT was not that the appeal should therefore be struck out. On the contrary, the point was not taken in Ms Clooney’s witness statement and the respondent complied with the FTT’s directions and engaged in the Scott Schedule process without seeking to have the application struck out. It is very difficult to see why it was fair for it to be allowed to raise a procedural objection at the eleventh hour and on the second day of the substantive hearing. It is equally difficult to see how the striking out of the appeal was consistent with the FTT’s overriding objective to deal with cases fairly and justly by “avoiding unnecessary formality and seeking flexibility in the proceedings” (rule 3(2)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. I note that, according to the FTT, it was Mr Sunderland’s own suggestion that the application be struck out if the document was not a new licence; I do not understand why he would have made that suggestion nor why the FTT acceded to it.

As it is, the application was struck out and months have been wasted, and it seems to me that even if the FTT was right about the status of the document the striking out of the application was a very surprising response.

However and in any event the FTT in my judgment was wrong about the legal effect of the disputed document. That finding was a decision of law. I agree that the FTT’s findings about the “factual matrix” cannot be disturbed on appeal. And in any event it was clearly right to find that the respondent did not refuse the transfer application; its letter of 5 April 2023 was ambiguous, in that it required “a fresh application”, but then went on to refer to the previous correspondence about the transfer application and to remind the appellant that information the respondent had requested was still outstanding. As the respondent says, subsequent correspondence made it clear that the transfer application had not been refused. The application for a new licence was rejected on 12 May 2023. Moreover the DCLG guidance states that the appropriate response to a change in ownership where there is no boundary change and no change in the conditions is to transfer the licence.

So much for the facts. But the question is not what the respondent intended to issue, nor what the DCLG guidance says it should have issued, but what it issued. That is a question of construction of the document issued on 20 April 2023 and of the legal consequences of what the document says. And there is no possible construction of that document except as a new licence.

Had the licence in the name of Wilbrook Parks Limited been transferred, then the respondent would have provided to the appellant a copy of the previous licence, endorsed with the name of the new licence holder and with the date agreed by the transferor and transferee to be the one from which the transfer took effect, as section 10 of the 1960 Act requires. It is impossible to construe the document of 20 April 2023 as the licence issued to Wilbrook Parks Limited endorsed with those details. The failure to comply with section 10 of the 1960 Act is not, as the FTT said, an “omission” that can be rectified. This is a completely different document. It states on its face that it is a licence granted to the appellant under section 3 of the 1960 Act; it has a different reference number from the 2017 reference, and that cannot be ignored just because it is not a statutory requirement when the whole purpose of a reference number is to enable different licences to be distinguished from each other. And it refers to a planning decision that h=was not in existence when the 2017 licence was issued.

I have given consideration to the respondent’s suggestion that the document is in fact ultra vires and void, because at the date of its issue there was no valid application for a licence. But the decision in White v South Derbyshire related to a licence that could not have been granted because the purported licensee had no planning permission for the use of the site; section 3 of the 1960 Act says that a licence may be granted “if, and only if, the applicant is, at the time when the site licence is issued, entitled to the benefit of a permission for the use of the land as a caravan site granted under [the relevant town and country planning statute]”. That was not the case here, and it has not been argued that the fact that the application had been rejected made the grant of a new licence ultra vires.

Accordingly the FTT’s decision is set aside and the appellant’s application to appeal the conditions attached to the new licence issued on 20 April 2023 is reinstated.