Tallington Lakes Limited v South Kesteven District Council

The Court of Appeal considered the proper construction and application of the Caravan Sites and Control of Development Act 1960 in the context of a disputed site licence fee under section 5A. The court held that the appellant, as freehold owner, fell within the statutory definition of "occupier" in section 1 (including subsection (3)) and that the 2003/2016 licence documentation and the planning permissions underpinning the licence did not operate to remove the land from the definition of a "relevant protected site" in section 5A(5). The Upper Tribunal was entitled to set aside the First-tier Tribunal's decision made without an oral hearing and to re-make the decision itself because it had the necessary documentary material and argument to determine whether the site was a relevant protected site. Accordingly an annual licence fee under section 5A is payable.

Background and parties. The appellant, Tallington Lakes Limited, is the freehold owner of Tallington Lakes and Leisure Park; part of the land operates as a caravan site. The respondent, South Kesteven District Council, issued a site licence and subsequently required payment of an annual fee under section 5A of the Caravan Sites and Control of Development Act 1960. The appellant did not pay and the council applied to the First-tier Tribunal for an order for payment.

Procedural history. The FTT decided preliminary issues by remote oral hearing (25 March 2021) and later decided, without an oral hearing, to order payment (17 December 2021). The appellant's permission to appeal to the Upper Tribunal was limited; the Upper Tribunal (Judge Cooke) allowed parts of the appeal, set aside the FTT decision made without a hearing but re-made the decision itself on the documentary material, and held the site was a "relevant protected site" within section 5A(5) and that the appellant was the occupier. The appellant appealed to this Court on three grounds: alleged procedural unfairness of hearings below, that the appellant was not the occupier, and that the site was not a relevant protected site.

Issues framed by the Court of Appeal.

• Whether the FTT and/or Upper Tribunal proceedings were procedurally unfair such that the Upper Tribunal erred in re-making the decision rather than remitting.
• Whether the management and trading licence created an estate or interest in land such that the manager (Lakes Leisure Ltd) rather than the freeholder was the occupier for the purposes of section 1(3) of the 1960 Act.
• Whether the site fell outside the definition of "relevant protected site" in section 5A(5) because the site licence or the relevant planning permission(s) were expressed to be for holiday use only or were subject to conditions that meant there were times of year when no caravan could be stationed for human habitation.

Reasoning and disposition. The court concluded that the Upper Tribunal was entitled to re-make the decision: the parties had been given opportunity to file the relevant documents, the respondent had produced the seven planning permissions relied on in the 2003 licence, and the appellant did not put forward the alternate planning permission until late in the hearing and failed to seek the directions that would have compelled its production. On the occupier point the management and trading agreement was a licence, not a lease: it did not confer exclusive possession and was expressed as a licence to occupy and to manage. On the relevant protected site point, at least two of the planning permissions (and the revised site licence) did not contain the express holiday-only or period-of-prohibition wording required by section 5A(5), so the land did not fall outside the statutory definition and the annual fee is payable. The appeal was dismissed.

Appeal dismissed. The Court of Appeal agreed with the Upper Tribunal that (1) the Upper Tribunal was entitled to re-make the FTT’s decision because it had the necessary material and argument to decide whether the site was a "relevant protected site"; (2) the appellant, as freehold owner, was the occupier for the purposes of section 1 of the Caravan Sites and Control of Development Act 1960 because the management and trading agreement created a licence not a lease; and (3) the site fell within the definition of a "relevant protected site" under section 5A(5) because not all of the planning permissions or the licence were expressed to be for holiday use only or subject to conditions that prevented year-round habitation, so an annual fee under section 5A is payable.

First-tier Tribunal decisions dated 25 March 2021 (preliminary issues) and 17 December 2021 (order for payment). Upper Tribunal (Lands Chamber, Judge Cooke) allowed parts of the appeal and re-made the decision ([2022] UKUT 334 (LC)). Appeal to Court of Appeal: [2024] EWCA Civ 811 (this judgment).