[2024] UKUT 360 (LC)

The first licence for Wilby Park was issued in 1960 and there have been various licences to different owners of the site over the years. On 15 September 1997 a licence was issued by the Wellingborough Borough Council (the respondent’s statutory predecessor) to Mssrs Norman, Adrian, Nigel and Christopher Barney. On 1 April 2003 a licence was issued to Wilbrook Parks Limited, whose directors were listed on the face of the licence as Mr CP Barney, Mrs MY Barney and Mrs JM Barney. Neither the 1997 licence nor the 2003 licence bore a reference number.

On 1 April 2017 the Wellingborough Council issued a document headed

“Caravan Sites and Control of Development Act 1960 (s3)

Mobile Homes Site Licence

Licence Number 17/01792/EHMOB”

It set out the site name and address and stated that the council “grants this licence” to Wilbrook Parks Limited, pursuant to section 3 of the 1960 Act, subject to the attached conditions. The document concludes:

“Date of this variation: 1 April 2017

Date of original licence: 15 September 1997”

That document therefore makes clear that it is a variation of a licence already granted. The reference to variation and to an original licence indicates that it is a variation of the licence granted in 1997, and that the 2003 document was regarded as the transfer of the licence previously held by one of the directors of Wilbrook Parks Limited along with others.

On 6 August 2021 Wilbrook Parks Limited was purchased by Best Holdings Group Limited, and on 12 August 2021 an application was made by the appellant to the respondent local authority for consent to the transfer of the licence to the appellant, also a subsidiary of Best Holdings, pursuant to section 10 of the 1960 Act. The agreed transfer date was 6 August 2021. There were various problems with the application, not least that the application should have been made by Wilbrook Parks Limited; there is a dispute as to whether those problems were communicated to the appellant, but at any rate no transfer was forthcoming. On a number of occasions the appellant, through Mr Sunderland, chased the respondent about it.

Meanwhile the parties were engaged in correspondence about the licence conditions, and in December 2022 Mr Sunderland made an application to vary the conditions by removing the limit on the number of homes allowed to be stationed on the park.

In March 2023 the respondent asked for a new application form for the consent to the transfer of the licence to be completed, signed by a director of Wilbrook Parks Limited, and the appellant on 29 March 2023 returned the original form with the signature of Mr Alfie Best as such director added to it.

On 5 April 2023 the respondent wrote to the appellant an email which the appellant says was a rejection of the amended application.

On 5 April 2023 the appellant applied for a new licence for Wilby Park, albeit using the form, and paying the fee, appropriate for a transfer request and not for an application for a new licence.

On 13 April 2023 Mr Sunderland sent an email to the respondent explaining that the appellant had now applied for a new site licence and said “you don’t need to bother transferring the current licence”; and he asked for a refund of the fee.

On 20 April 2023 the respondent issued a document to the appellant; this is the document the appellant says was a new licence and the FTT found was a transferred licence. It is headed:

“Site Licence

Caravan Sites and Control of Development Act 1960 (s3)/ Mobile Homes Act 2013

Mobile Homes Site Licence

Licence Number 15/02727/EHCASI”

It sets out the site name and address, states that it is granted pursuant to section 3 of the 1960 Act subject to the attached conditions to the appellant “who has entitlement to the benefit of planning permission/ lawful development certificate number WR/68/206 for the use of [the site] as a caravan site.” It is signed by Mrs Amanda Wilcox as head of Environmental Health for the respondent, and concludes:

“Issue Date: 20 April 2023

Issue reference No: 23/00663/EHMOB.”

Conditions were indeed attached, and were identical to those attached to the document of 1 April 2017.

That document was not sent to the appellant until 18 May 2023, but it view of what it says I take it that it was issued on 20 April 2023.

On 25 April 2023 the respondent wrote to the appellant to say that it did not understand why the transfer request had been withdrawn and that the licence was in the process of being issued. That letter also said that the application for a new licence was not regarded as a valid application because there was an existing licence in place and the correct procedure was to apply for a transfer, and also because the incorrect form had been used and the wrong fee paid. On 12 May 2023 the respondent wrote to the appellant refusing the application of 5 April for those reasons.

On 16 May the respondent wrote to the appellant stating that it had not refused the transfer application and that “a licence has been produced by the administration team and is currently being checked before sending it out to you”. On 17 May the appellant made an application under section 6 of the 1960 Act to the FTT appealing the refusal to grant a licence.

On 18 May 2023 three things happened:

The FTT gave standard directions in the appeal, and the parties exchanged iterative drafts of a Scott Schedule of the disputed conditions in which they set out their positions and comment. Ms Catherine Clooney, an Environmental Protection Officer for the respondent, made a witness statement on 18 December 2023. She went through the licensing history of the site and the respondent’s correspondence with Mr Sunderland. The bulk of the witness statement is about the numerous disputed conditions, and in particular the vexed question of the number of caravans to be stationed on the site, and I do not need to go into the substance of that dispute. But three things are important to this appeal and are abundantly clear. One is that the respondent regarded the disputed document as a transfer of the existing licence, not as a new licence. Another is that Ms Clooney was aware that the appeal was brought under section 7 of the 1960 Act, and did not suggest that that was a problem. A third is that there was extensive and detailed correspondence between the appellant and the respondent about the disputed conditions.

The appellant’s statement of case in the FTT proceedings was dated 24 January 2024. It stated that the appeal was made under section 7, set out the events that had led up to the document being sent to the appellant (including what Mr Sunderland regarded as the rejection of the transfer application), and complained that the conditions replicated those attached to the previous licence without giving the appellant the opportunity to make representations. It then went on to respond to what Ms Clooney said about the conditions.

Neither Ms Clooney’s statement nor the appellant’s statement of case engaged in any discussion about whether the document issued on 20 April 2023 was a new licence or a transfer of an existing licence; it is clear that the appellant regarded it as a new licence and the respondent as a transfer but there is no indication that ether regarded the other’s perception of the document as problematic.