[2024] UKUT 360 (LC)

The appellant argues that by 20 April 2023 the appellant’s application for a transfer had been rejected and that therefore the document issued must have been a new licence for which the appellant had applied. Moreover, the respondent was aware of the appellant’s case in the FTT and took no point about the application under section 7 until three-quarters of the way through the hearing after the proceedings had been on foot for 10 months, and that was too late in the process for the respondent to change its case. The document itself, says Mr Sunderland, is not an existing licence endorsed as required by section 10 of the 1960 Act; it is a new licence with a new number, and its date is not the date of transfer agreed by the appellant and Wilbrook Parks Limited (which was 6 August 2021). It referred to a certificate of lawful development issued in 2021, after the issue of the 2017 licence.

The respondent’s position is that the FTT was correct; moreover it points to its letter of 16 May 2023 which can have left the appellant in no doubt that its application for a transfer had not, as the appellant contended, been rejected. The transfer application, by contrast, was expressly rejected. Mr Datta argued that the FTT’s finding about the document was a finding of fact which the FTT made in light of the “factual matrix”, and that on the usual principles the Tribunal should be slow to interfere with that finding. Moreover, guidance given by DCLG in 2015 states that a new licence is required only where there has been a boundary change, or where there has been a change of ownership and the local authority wants to add new conditions, neither of which was the case here. The appellant was aware of the guidance. Any refusal of a transfer application must set out clear reasons, and none were given here because the transfer application was not refused.

As to the form of the document, Mr Datta argued that either the omission of the material required by section 10(2) of the 1960 Act can be added by way of correction of an error, or the document is ultra vires and a nullity, as in the case of White v South Derbyshire DC [2012] EWHC 3495 (Admin) – an unattractive conclusion that the FTT was right to avoid. The different licence number is not material because the Act does not require licences to have a number. The date of 20 April 2023 was also an error and could be rectified as the FTT suggested.

Finally Mr Datta maintained that the respondent did not change its position; it was clear throughout that the respondent took the view that the previous licence had been transferred and that the disputed document was not a new licence.