Tallington Lakes Limited v South Kesteven District Council

For caravan-site licensing, the Caravan Sites and Control of Development Act 1960 treats as occupier the person entitled to possession by virtue of an estate or interest. A management agreement granting use to operate a business, but not exclusive possession, does not transfer that status from the freeholder. A site is outside the annual-fee regime only where the site licence or relevant planning permission is expressly for holiday use only, or contains conditions ensuring that at some times no caravan may be stationed for human habitation. Where several permissions cover the licensed land, the exclusion must operate across the whole site. Silence is insufficient. An appellate tribunal may remake a decision where the material and opportunity for argument are sufficient.

The appellant owned a leisure park containing a caravan site. The respondent local authority had issued a site licence and sought an order requiring payment of annual licence fees. The appellant argued that an associated management company was the occupier and that the land was not a relevant protected site.

The First-tier Tribunal determined preliminary issues and later ordered payment without an oral hearing. The Upper Tribunal set aside that decision because a hearing had been required, but remade the decision itself. It held that the appellant was the occupier and that the site was a relevant protected site: [2022] UKUT 334 (LC). The Court of Appeal considered whether the Upper Tribunal should have remitted the matter, who was the statutory occupier, and whether the annual fee was payable.

1. Disposition. The Court of Appeal dismissed the appeal. Lewis LJ gave the principal judgment. Bean LJ agreed with both judgments, and Underhill LJ agreed with the result and Lewis LJ’s reasons, subject to further observations.
2. Remaking the decision. The Upper Tribunal was entitled under section 12 of the Tribunals, Courts and Enforcement Act 2007 to remake the decision rather than remit it. It had the site licence, the relevant planning permissions and the parties’ arguments. The appellant had been directed to produce relevant documents and had not produced, or sought an order for production of, the alleged alternative planning permission. Its late assertion did not require a further hearing.
3. Occupier. Under section 1(3) of the Caravan Sites and Control of Development Act 1960, the freeholder was entitled to possession by virtue of its freehold estate. The management and trading agreement did not confer exclusive possession. Its language, purpose and fee structure confirmed that it was a licence, not a lease. Applying the principles in Street v Mountford [1985] AC 809 and Arnold v Britton [2015] UKSC 36, Lakes Leisure Ltd was not the statutory occupier.
4. Relevant protected site. Section 5A(5) requires the holiday-use or seasonal human-habitation restriction to apply across the land covered by the site licence. The 2016 licence was not expressed to be for holiday use only and contained no relevant seasonal restriction. At least two planning permissions also imposed no such restriction. Silence did not satisfy the statutory proviso. The validity of the 2016 conditions had not been challenged when issued and was not open for determination on this appeal.
5. Obiter observation. Lewis LJ considered that the 2003 reference to static holiday caravans described the caravans permitted rather than restricting their use, although he stated that this was unnecessary to decide. Underhill LJ expressed uncertainty about that view. The annual licence fee was nevertheless payable.

1. Court of Appeal (Civil Division). Dismissed the appeal from the Upper Tribunal.
2. Upper Tribunal (Lands Chamber). In [2022] UKUT 334 (LC), set aside the First-tier Tribunal’s decision because it had proceeded without an oral hearing, but remade the decision. It held that the appellant was the occupier and that the site was a relevant protected site.
3. First-tier Tribunal. Decided preliminary issues in March 2021 and later ordered payment of the annual site licence fees in December 2021 without an oral hearing.