A Guide to the “Fit and Proper Person Test” for Residential Parks
On 1 July 2021 new regulations are coming into force in England, which require managers of most residential caravan parks in England to be registered as a “fit and proper person”. All local authorities are required to keep a public register of people who are considered “fit and proper” to manage the parks in their area. The name and business contact details of the manager, as well as the name and address of the site and whether any conditions have been attached to their appointment, are all shown on the register.
The Regulations come into force in two parts. The first part (which enables applications to be made) comes into force on 1 July 2021. The second part (which makes it a legal requirement for a site owner or manager to be a “fit and proper person”) comes into force on 1 October 2021 and is backed up with potentially serious sanctions for non-compliance.
Are there any exceptions?
Holiday parks, and residential parks which are defined as a “non-commercial family occupied site” (i.e. one which is only occupied by members of the owner’s family and is not being run on a commercial basis), are not included in the Regulations. All other residential parks are included.
What must the site owner do, and when?
Between 1 July and 30 September 2021, the owners of all non-exempt residential parks in England must submit an application to the local authority to be included on the register of “fit and proper persons”. As yet, no form for such an application has been published but it is likely local authorities will prepare their own standard application forms. The Regulations set out the information which must be included in an application.
What happens if a site owner fails to apply by 1 October 2021?
Under the Regulations, a residential park owner who fails to submit a “fit and proper” application to the local authority by 1 October 2021, or who continues to operate a residential park after such an application has been refused by the Council, commits a criminal offence. No offence is committed while the Council is still considering the application, as long as the application was made before 1 October 2021, or where a Council’s decision is being appealed in the Tribunal.
What are the penalties for non-compliance?
The penalties for anyone operating a residential caravan site in breach of the Regulations include an unlimited fine, or potentially the revocation of the operator’s site licence. It is also an offence to give misleading or false information on the application form.
What does “fit and proper” mean?
The Regulations do not give a definition of “fit and proper”. However, they do set out certain matters which the local authority must take into account when deciding whether an applicant meets the test.
These are whether the applicant:
- Has the experience, ability and financial resources needed to run and manage the site
- Has committed any offence involving fraud or other dishonesty, violence, arson or drugs or certain sexual offences
- Has contravened any provision of the law relating to housing, caravan sites, mobile homes, public health, planning or environmental health or landlord and tenant law
- Has contravened the Equality Act 2010 in relation to its business
- Has harassed any person in, or in connection with, the carrying on of any business
- Is, or has been within the past 10 years, insolvent
- Is, or has been within the past 10 years, disqualified from acting as a company director
- Has the right to work in the United Kingdom; and
- Is a member of any scheme for dealing with complaints about the management of the site.
Where the applicant is a company or partnership, it must provide this information in respect of (i) the individual who the applicant intends to appoint to manage the site on a day to day basis, and (ii) a director or partner of the applicant, if the site manager is not a director or partner of the applicant.
If an applicant fails to meet one of more of the above requirements it is not automatic that they will not be considered “fit and proper”, but it makes it more likely that their application will be refused.
In addition, the Regulations allow the local authority to take into account “the conduct of any person associated or formerly associated with the applicant” as well as “any other relevant matters” when considering whether an applicant is “fit and proper”. Councils therefore have a very wide discretion as to whether or not to regard an applicant as “fit and proper”.
What happens after the application is submitted?
The local authority will consider the application and may either:
- Grant the application unconditionally;
- Grant the application subject to conditions; or
- Refuse the application.
Before refusing or applying conditions to an application, the Council must first serve the applicant with a “preliminary decision notice” setting out its preliminary decision and the Council’s reasons for it. The applicant then has 28 days to respond and make any representations to the Council if they wish to challenge the decision. After the end of this period, the Council must then issue its final decision “as soon as reasonably practicable” and send this to the applicant.
Can the decision be challenged?
An applicant whose application has been refused or granted subject to conditions (after making representations) may then appeal to the First Tier Tribunal. Surprisingly, no period for appealing is specified in the Regulations. The sanctions imposed by the Regulations do not have effect while a valid appeal is ongoing.
What happens if the park is unable to appoint a “fit and proper” manager?
If both the local authority and site owner agree, the local authority may appoint a person who meets the fit and proper person test to manage the site on behalf of the site owner.
How long can someone be included on the register?
A person can be on the register for up to 5 years. However, this can be reduced.
Can a local authority charge a fee for the application?
Yes, local authorities can charge site owners a fee for applying to be included on the register. The fees must be published by the relevant authority.
How IBB can help
We have set up a simple, quick and cost-effective process designed to help park owners deal with “fit and proper person” applications.
Stage 1 – For an initial fixed fee, we will let you know what information is needed, prepare the necessary application form, submit this to the relevant local authority, and deal with any telephone or email enquiries from you or the local authority up to receiving their initial decision.
Stage 2 – if the local authority decides to refuse consent or to impose conditions, for a further fixed fee we will prepare and submit representations to the Council as to why the application should be accepted unconditionally.
Stage 3 – if the Council’s final decision is to refuse the application or to impose conditions, then we will act for you on any appeal to the First Tier Tribunal. if you have already used IBB for stages 1 and 2, you will be entitled to a discount of 10% against our standard hourly rates for Tribunal claims.
For more information, or to instruct IBB to manage your application to the Council, please contact our residential parks team today on 03456 381381, or email firstname.lastname@example.org.