DPRR/12-13/77
MOBILE HOMES BILL
Memorandum by the Department for Communities and Local
Government to the Delegated Powers and Regulatory Reform
Committee
INTRODUCTION
1.
This Memorandum sets out the provisions in the Mobile Homes Bill which
confer delegated powers on the Secretary of State; explains why the power has been
taken and the nature of, and the reason for the procedure selected.
BACKGROUND
2.
The Bill amends the Caravan Sites and Control of Development Act 1960 (“the
CSCDA 1960”), the Caravan Sites Act 1968 (“the CSA 1968”) and the Mobile
Homes Act 1983 (“the MHA 1983”). It brings the licensing regime that applies to
mobile home sites in England under the CSCDA 1960 more closely in line with other
local authority licensing regimes and also includes a power to enable the Secretary of
State to introduce by way of secondary legislation a “fit and proper” person
requirement for managers of sites. The Bill amends section 3 of the CSA 1968 by
extending the scope of the offences under that section. It amends the MHA 1983 by
removing the requirement for site owners to approve a purchaser of a mobile home (or
a person to whom a mobile home has been gifted) and makes new provisions instead
for sales, gifts and assignments under the MHA 1983. It also introduces new
requirements about site rules and provides a framework for better transparency on
pitch fee reviews.
DEVOLUTION
3.
The Bill extends to England and Wales, but it does not alter the legal position in
relation to Wales. The new provisions contained in the Bill apply in relation to
England only.
PROVISIONS CONFERRING DELEGATED POWERS
Clause 2 – local authority discretion on application to issue or transfer licence
4.
Clause 2 amends sections 3 (issue of site licences by local authorities) and 10
(transfer of site licences, and transmission on death, etc) of the CSCDA 1960. The
effect of the amendments to section 3 (the insertion of new subsections (5A) to (5F))
is to confer discretion on a local authority when deciding whether to issue a site
licence to the occupier of land who has made an application for a site licence
authorising the use of that land as a relevant protected site1 under section 3(1). The
amendments to section 10 (the insertion of new subsections (1B) to (1F)) make
‘Relevant protected site’ is defined in new section 5A of the CSCDA 1960 as inserted by subsection
(3) of clause 1 of the Bill.
1
provision about the transfer of site licences with the consent of the relevant local
authority where an existing licence holder ceases to occupy the land.
New subsections (5A) to (5F) of section 3 of the CSCDA 1960
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
5.
New subsections (5A) to (5F) confer power on the Secretary of State to make
regulations in relation to a local authority’s decision on the issue of a site licence
under section 3 of the CSCDA 1960. Under subsection (5A), provision may be
included in the regulations requiring a local authority in England to have regard to
matters prescribed by the regulations when making that decision. This is likely to
include matters such as the adequacy of any site management structure and the
financial arrangements that the applicant has in place. Under new subsections (5B) to
(5D) the regulations may also:




require a local authority, where it decides not to issue a licence, to
notify the applicant of the reasons for that decision
confer on an applicant a right of appeal to a residential property
tribunal against a decision of a local authority not to issue a site
licence
provide that no compensation may be claimed by the applicant for
loss suffered in consequence of the decision pending the outcome of
an appeal
make incidental, supplementary etc provision and different provision
for different cases or different areas.
6. It is our view that it is appropriate to make provision about the local authority’s
decision to issue a site licence in subordinate legislation since the matters which are
relevant to that decision may change over time, for example in relation to
management standards and structures. In particular, it will be necessary to change
matters relevant to a decision, if the fit and proper person provisions, in clause 8 of
the Bill are introduced, to ensure consistency between fit and proper person
registrations and matters that are applicable to holding a site licence. The power to
prescribe the matters to which local authorities must have regard in making decisions
(and to make provision about the procedural requirements which will apply to such
decisions) in secondary legislation will therefore provide flexibility, allowing the
Government to respond to changing circumstances.
7. We consider it appropriate for the regulations to be subject to the negative
resolution procedure since although they will prescribe matters to which a local
authority will have to have regard in deciding whether to issue a licence, it will still be
for the local authority to make that decision having regard to all the circumstances of
the case. Furthermore, the key procedural provisions which would be included in the
regulations are set out on the face of the Bill in subsections (5B) and (5C). For these
reasons we do not consider it would be a good use of Parliamentary time to require a
debate each and every time the powers in subsections (5B) to (5D) are exercised. In
our view the negative resolution procedure is sufficient to enable Parliament to debate
2
the content of any regulations made under those powers where that is considered (for
whatever reason) to be appropriate or necessary.
New subsections (1B) to (1F) of section 10 of the CSCDA 1960
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
8. New subsections (1B) to (1F) confer power on the Secretary of State to make
regulations in relation to a local authority’s decision on an application for consent to
transfer a site licence under section 10 of the CSCDA 1960. Under the power
conferred by subsection (1B), regulations may provide that a person applying to a
local authority for consent to transfer a site licence must give to the authority such
information as it may require in connection with the application. Under subsections
(1C) to (1F), the regulations may also include provision relating to the transfer of site
licences which is equivalent to the provision which may be included in regulations in
relation to the issue of site licences under section 3 as explained in paragraph 5 above.
9. For the same reasons mentioned in paragraphs 6 and 7 above, we consider that it
is also appropriate to make provision about a local authority’s decision on whether to
consent to the transfer of a site licence in subordinate legislation; and for that
subordinate legislation to be subject to the negative resolution procedure.
Clause 8 – requirement for manager of site to be fit and proper person
New sections 12A to 12E of the CSCDA 1960
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: affirmative
10. Clause 8 inserts five new sections (12A to 12E) into the CSCDA 1960, which
confer power on the Secretary of State to introduce – by regulations - a ‘fit and proper
person’ test and registration scheme for anyone managing a relevant protected site in
England. The scheme would be administered by local authorities in accordance with
the regulations. New sections 12A to 12E set out in detail the provision that may be
made by the regulations.
11. Regulations under section 12A (requirement for fit and proper person) may
provide that an occupier may not cause or permit any part of the land to be used as a
relevant protected site, unless the local authority in that area are satisfied that the
occupier, or person appointed by the occupier, is a fit and proper person to manage
the site. Alternatively, the local authority may, with the occupier’s consent, appoint a
person to manage the site.
12. The regulations may provide that a local authority can apply to a residential
property tribunal for an order revoking a site licence where the occupier of the site in
question contravenes the requirement for the site to be managed by a fit and proper
person. The regulations may also create a summary offence relating to the
3
contravention of the requirement for the site to be managed by a fit and proper person.
Regulations may provide that where an occupier is convicted of the offence and has
been convicted of the same offence on two or more previous occasions, the court may,
on application by the local authority in whose area the land is situated, make an order
revoking the occupier’s site licence.
13. Regulations under section 12B (register of fit and proper person) may require
local authorities to establish, publish and keep up to date a register of persons whom
they are satisfied are fit and proper persons to manage a relevant protected site in their
area.
14. Regulations under section 12C (application for inclusion in register) may make
provision enabling a local authority to grant an application unconditionally or subject
to conditions, or to reject it. The regulations may also specify details of the
application process for persons to be included in the register, including the matters to
which a local authority must have regard when considering a registration application.
The regulations may create a summary offence relating to the withholding of
information from or inclusion of false or misleading information in a registration
application, or a failure to comply with a condition subject to which a registration
application is granted.
15. Regulations under section 12D (removal from register, variation of conditions
etc) may make provision about the circumstances in which a person may be removed
from the register or a condition placed on their inclusion. The regulations may place
requirements on local authorities in relation to the exercise of this power. They may
also create a summary offence relating to a failure to comply with a condition
imposed on inclusion in the register.
16. In our view it is appropriate to make detailed provision about the fit and proper
person scheme in subordinate legislation rather than on the face of the Bill for several
reasons. Firstly, it is the policy intention that the other provisions of the Bill should
come into operation well in advance of any fit and proper person scheme, to allow
time to monitor the impact of the other provisions, before determining whether a fit
and proper persons scheme is necessary at that point in time, given that such a scheme
would impose additional regulation on the sector and is likely to be costly to
implement.
17. Secondly, it is also possible that over time it may be necessary to make changes
to the operation of the fit and proper person scheme, such as the matters to which
local authorities should have regard when considering an application for inclusion in
the register. The use of regulations to specify the details of the scheme would provide
increased flexibility to add to or change the matters to which local authorities must
have regard when determining applications, in order to be able to respond to changing
circumstances and practices within the industry.
18. By virtue of new section 12E(1), regulations under sections 12A to 12D which
create a summary offence may not provide for the offence to be punishable on
conviction otherwise than by a fine, which must not exceed such amount as is
prescribed by the regulations. As the regulations may only create summary offences,
the maximum amount of any fine which could currently be prescribed by the
4
regulations in relation to any of those offences would be £5000 (that being the current
maximum fine which may be imposed for any summary offence)2.
19. Under section 12E(2), regulations under sections 12A to 12D may amend any
provision of the CSCDA 1960 to take account of provision made in the regulations
implementing a fit and proper person scheme. In our view this power is necessary to
ensure that if regulations implementing a fit and proper person scheme are made, any
technical amendments which are incidental to the exercise of the regulation making
powers can be made to the Act. The power in section 12E(2) would be used to amend
any existing provision in the Act to ensure that the existing licensing provisions
contained in the Act and the regulations work together.
20. Regulations made under new sections 12A to 12D would be subject to the
affirmative procedure to allow detailed Parliamentary scrutiny of the provisions
before they are introduced.
Clause 9 – site rules
New sections 2C and 2D of the MHA 1983
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
21. Clause 9 inserts two new sections into the MHA 1983 (sections 2C and 2D)
which make provision about “site rules” (as defined in new section 2C(2)), and enable
the Secretary of State to make regulations prescribing the procedure for making,
varying and deleting site rules. Regulations under new section 2C may also:






Prescribe additional matters (in addition to the management and
conduct of the site) about which site rules may be made.
Provide that site rules are of no effect in so far as they make
provision in relation to matters prescribed by the regulations.
Make provision about the resolution of disputes in relation to the
making, varying or deleting of such rules and may confer functions
on a tribunal regarding this.
Place requirements on local authorities to keep up to date and
publish a register of site rules in respect of sites in their area.
Provide that any deposit of site rules with the local authority must be
accompanied by a fee, the amount of which to be determined by the
local authority.
Make different provision for different cases or descriptions of case,
including different provision for different areas.
22. In our view it is appropriate to make this kind of additional and detailed
provision about site rules in subordinate legislation rather than on the face of the Bill
as it is likely that some of these provisions will need to be changed over time, to
reflect changing issues and priorities relating to life on a mobile home site. For
2
On commencement of section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012, a fine of £5,000 or more will be converted into a fine of unlimited amount.
5
example, whilst the keeping of pets may currently be an important issue for mobile
home owners, which may be governed by site rules, in the future other issues could
become more significant, such as the placing of a wind turbine outside a mobile
home. It is likely that the prescribed matters may need to be altered over time, in
response to changing conditions on sites and any new restrictions that site owners
may seek to impose upon their residents. Implementation by regulations will also
enable us to consult further with interested parties on the detail of the regulations.
23. Regulations under new section 2C would be subject to the negative resolution
procedure. As the regulations would provide additional detail to that which is already
included on the face of the Bill and would make technical provision about the
procedure relating to site rules, we consider that this provides the appropriate level of
Parliamentary scrutiny.
Clause 10 – implied terms: removal of requirement for site owner consent to sale
or gift
24. Clause 10 amends Chapter 2 of Part 1 of Schedule 1 to the Mobile Homes Act
1983 by inserting into it new paragraphs 7A, 7B, 7C, 8A, 8B and 8C (into chapter 2
of Part 1) and a new paragraph A1 (into Part 3), which make provision about the sale
or gift of a mobile home. The new paragraphs make different provision in relation to
cases where the proposed sale or gift concerns an existing pitch agreement (“an
existing agreement”) and in relation to cases where the proposed sale or gift concerns
a new pitch agreement (“a new agreement”)3.
New paragraph 7A – sale of mobile home under a new agreement
New para 7A(5)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
25. Paragraph 7A(5) gives the Secretary of State power to set out in regulations the
maximum rate of commission that a new occupier may be required to pay a site owner
on the sale of a mobile home. This provision mirrors the existing provision contained
in paragraph 8(2) which enables the Secretary of State to specify, by order, the
amount of commission payable in these circumstances. We consider that subordinate
legislation continues to be the appropriate place to make such provision and that the
negative resolution procedure continues to provide the appropriate level of
Parliamentary scrutiny.
3
A new pitch agreement means an agreement which is made after the new provisions come into force,
or one which was made before but which has been assigned after they came into force (see new
paragraph 7A(3)).
6
New para 7A(7)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
26. Paragraph 7A(7) enables the Secretary of State, by regulations, to prescribe
procedural requirements that must be complied with by the parties to the sale. As the
regulations will specify procedural requirements and it is likely that a high level of
detail will need to be included, some of which may need to be changed over time, we
consider that it is appropriate for such provision to be contained in subordinate
legislation and that the negative resolution procedure provides the appropriate level of
Parliamentary scrutiny.
New paragraph 7B - sale of mobile home under an existing agreement
New para 7B(5)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
27. Paragraph 7B(5) allows the Secretary of State to set out in regulations the
information that must be included in a notice of proposed sale (which is a notice
served on the site owner by the occupier, that the occupier proposes to sell the mobile
home and assign the agreement to the person named in the notice). For the reasons
mentioned in paragraph 26 we consider that it is appropriate for this provision to be
made by subordinate legislation and for the negative resolution procedure to apply.
New para 7B(7)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
28. Paragraph 7B(7) provides the Secretary of State with power to prescribe in
regulations the grounds upon which an application for a refusal order may be made by
the site owner. This is an application that the site owner can make to a tribunal
seeking to prevent the occupier from selling the mobile home and assigning the
agreement to the proposed occupier.
29. The grounds are likely to include, for example, that a proposed occupier does
not meet site rules by reason of their age, or that they intend to keep pets of a certain
description that are prohibited from being kept on the site. We consider that
subordinate legislation is appropriate here because this provides more flexibility to
amend the grounds in response to changing circumstances on mobile homes sites. As
mentioned previously, whilst the keeping of pets may currently be a significant issue
on sites, in the future site owners and residents may have other concerns, which would
need to be incorporated into the grounds. Again we consider the negative resolution
procedure to provide the appropriate level of scrutiny.
7
New para 7B(8)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
30. Paragraph 7B(8) gives the Secretary of State power to set out in regulations the
maximum rate of commission that a new occupier may be required to pay a site owner
on the sale of a mobile home. This mirrors the provision in paragraph 7A(5) for sales
under new agreements, and for the same reasons mentioned in paragraph 25 we
consider that it is appropriate for this provision to be made by subordinate legislation
and for the negative resolution procedure to apply.
New para 7B(10)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
31. Paragraph 7B(10) provides that the Secretary of State may prescribe by
regulations procedural requirements to be complied with by the parties to the sale.
This mirrors the provision in paragraph 7A(7) for sales under new agreements; and
for the reasons already mentioned in paragraph 26 we consider that it is appropriate
for this provision to be made by subordinate legislation and for the negative resolution
procedure to apply.
New paragraph A1 – Sale pursuant to paragraph 7A or 7B: provision of
information
New para A1(2)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative procedure on first exercise of power
32. Paragraph A1(2) provides that the Secretary of State may prescribe in
regulations the documents and other information to be provided to a proposed
occupier not later than 28 days before the completion of the sale of a mobile home.
The Secretary of State may also prescribe the form in which such information may be
provided. Sub-paragraph (4) contains examples of the documents and other
information that may be prescribed in the regulations, such as, for example, a copy of
the site rules.
33. Regulations made under paragraph A1(2) may make different provision for
different cases or descriptions of case, including different provision for different
areas. They may also contain incidental, supplementary, transitional or saving
provisions.
8
34. The first set of regulations made under this paragraph will be subject to the
negative procedure. It is proposed that the regulations will set out a list of documents
and other relevant information, examples of which are already provided on the face of
the Bill in sub-paragraph (4), as mentioned above. We consider that it is appropriate
for the first exercise of the power to be subject to some scrutiny, so that Parliament
can see the type of documents and information in question. However, given the
nature of the information to be included in these regulations, and the fact that any
future changes are likely to be very minor or at a level of some detail, we consider
that further Parliamentary scrutiny would not be necessary.
New paragraph 8A - gifting of a mobile home under a new pitch agreement
New para 8A(3)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
35. Paragraph 8A(3) provides that where a mobile home is being gifted under a new
agreement, the Secretary of State may specify in regulations the ‘relevant evidence’
that an occupier must supply to a site owner to show that the person to whom the
mobile home is being gifted, is a member of the occupier’s family. We consider that
subordinate legislation is appropriate here as it is likely that over time changes may
need to be made to the specified evidence which is considered acceptable as a way of
proving that a person is a member of an occupier’s family, to reflect wider changes in
society. We consider that the negative resolution procedure provides the appropriate
level of Parliamentary scrutiny.
New para 8A(6)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
36. Paragraph 8A(6) provides the Secretary of State with power to prescribe in
regulations procedural requirements to be complied with by the parties in connection
with the gifting of a mobile home and assignment of the agreement.
37. This mirrors the provision in paragraph 7A(7) for sales under new agreements
(and 7B(10) for existing agreements); and for the reasons already mentioned in
paragraph 26 we consider that it is appropriate for this provision to be made by
subordinate legislation and for the negative resolution procedure to apply.
9
New paragraph 8B - gifting of a mobile home under an existing pitch agreement
New para 8B(5)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
38. Paragraph 8B(5) sets out that the Secretary of State may prescribe in regulations
such information that must be included in a notice of proposed gift (which is a notice
served on the site owner by the occupier, setting out that they propose to gift the
mobile home to the proposed occupier). As mentioned in paragraph 26 above, as the
regulations will specify procedural requirements to be followed, we consider that it is
appropriate for such provision to be contained in subordinate legislation and that the
negative resolution procedure provides the appropriate level of Parliamentary
scrutiny.
New para 8B(7)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
39. Paragraph 8B(7) contains equivalent provision to that in paragraph 7B(7) in
relation to sales enabling the Secretary of State to prescribe in regulations the grounds
upon which an application for a refusal order may be made by the site owner. For the
same reasons mentioned in paragraph 29 we consider that it is appropriate for this
provision to be made in subordinate legislation and for the negative resolution
procedure to apply.
New para 8B(9)
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative
40. Paragraph 8B(9) provides that the Secretary of State may prescribe in
regulations procedural requirements to be complied with by the parties in connection
with the gifting of the mobile home and assignment of the agreement. This mirrors
the powers in paragraphs 7A(7), 7B(10) and 8A(6); and for the reasons already
mentioned in paragraph 26 we consider that it is appropriate for this provision to be
made by subordinate legislation and for the negative resolution procedure to apply.
10
Clause 11 – implied terms: pitch fees
Subsection (6) – new paragraph 25A(1)(a) of Chapter 2 of Part 1 of Schedule 1 to
the MHA 1983
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: negative procedure on first exercise of the power
41. Under the amendments made to paragraph 17 of Chapter 2 of Part 1 of Schedule
1 to the MHA 1983, a pitch fee review notice which proposes an increase in the pitch
fee payable by the occupier of a mobile home will have no effect unless accompanied
by a document which complies with new paragraph 25A. New paragraph 25A(1)(a)
confers a power on the Secretary of State to prescribe, by regulations, the form of that
document.
42. This power is required to enable the Secretary of State to provide site owners
with a standard, prescribed form which they can use at a pitch fee review which
contains the information that they are required to give to the occupier under subparagraphs (b) to (f) of new paragraph 25A(1).
43. The first set of regulations made under paragraph 25A(1)(a) will be subject to
the negative procedure. No procedure will apply to subsequent regulations made
under the power. The Government considers that this is appropriate since the
regulations will simply prescribe the form of the document, the information required
to be included in that document being set out on the face of the Bill.
Clause 15 – Commencement, transitional etc. provision, extent and short title
Subsections (2) and (4) – power to commence by order and to make transitional etc
provision
Power conferred on: Secretary of State
Power exercised by: order
Procedure: none
44. Clause 15 (which was amended by a non-Government amendment at Commons
Report stage) enables the Secretary of State to appoint, by order, the day on which
clauses 8, 13 and 14 of the Bill shall come into force.
45. Whilst commencement dates for the other clauses of the Bill are, as a result of
the amendment, set out on the face of the Bill, providing the Secretary of State with
power to determine the date that clause 8 (requirement for manager of site to be fit
and proper person), clause 13 (increase in penalties for certain offences under 1960
Act) and clause 14 (offences by bodies corporate under the 1960 Act) shall come into
force will allow for a more flexible approach. This is particularly important for the fit
and proper person provisions, where the policy intention is to monitor the impact of
the rest of the provisions in the Bill before determining whether it is necessary to
introduce a fit and proper person scheme.
11
46. Subsection (4) contains standard provision enabling the Secretary of State, by
order, to make transitional, transitory or saving provision in connection with the
coming into force of any provision.
47. As is usual for powers of commencement, the exercise of these powers is not
subject to any Parliamentary procedure.
12