19 Causeway Road,
Newcastle,
County Down, BT33 0DL
Tel: 028 4372 4400
Email: john.mccallister@btconnect.com
Draft Caravans Bill 2009
Caravans Bill
[as introduced]
LEGISLATIVE COMPETENCE
At Introduction the Member in charge had made the following statement under section 9 of the Northern Ireland Act 1998:
"In my view the Caravans Bill would be within the legislative competence of the Northern Ireland Assembly."
Contents
CONSUMER PROTECTION
2. Terms of agreements: implied terms and basic conditions
3. Power to amend implied terms
6. Offences
PROVISION FOR PROTECTION OF OCCUPIERS OF RESIDENTIAL CARAVANS
7. Protection for residential occupiers against eviction and harassment
8. Provision for suspension of eviction orders
9. Supplementary
Schedule 1 - Agreements Under Act
Draft 31.10.09
A
B I L L
TO
Make provision in respect of caravans and residential caravan sites.
| B |
E IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:
1.-(1) This Part applies to any agreement under which a person ("the occupier") is entitled to station a caravan on land forming part of a caravan site.
(2) Before making an agreement to which this Part applies, the owner of the caravan site ("the site-owner") shall give to the proposed occupier under the agreement a written statement which-
(a) specifies the names and addresses of the parties;
(b) includes particulars of the land on which the proposed occupier is to be entitled to station the caravan that are sufficient to identify that land;
(c) sets out the express terms to be contained in the agreement;
(d) sets out the terms to be implied by section 2(1); and
(e) complies with such other requirements as may be prescribed by regulations made by the Minister.
(3) The written statement required by subsection (2) must be given-
(a) not later than 28 days before the date on which any agreement for the sale of the caravan to the proposed occupier is made; or
(b) (if no such agreement is made before the making of the agreement to which this Part applies) not later than 28 days before the date on which the agreement to which this Part applies is made.
(4) Where an agreement to which this Part applies was entered into before the appointed day and is in force on the appointed day, the site-owner shall within 28 days after the appointed day give the occupier a written statement which-
(a) specifies the names and addresses of the parties as existing on the appointed day;
(b) includes particulars of the land on which the occupier is entitled to station the caravan that are sufficient to identify that land; and
(c) sets out the express terms contained in the agreement as existing on the appointed day;
(d) sets out the terms that would be implied by section 2(1) if the agreement had been made before the appointed day; and
(e) either confirms the site-owner's agreement to those terms being implied or specifies the reasons why the site-owner does not agree to any such term being implied after the appointed day.
(5) Notwithstanding subsections (3) and (4), if the occupier or proposed occupier consents in writing to the written statement required by subsection (2) or (4) being given by a date which is later than the date required by subsection (2) or (4), as the case may be, the statement must be given to the occupier or proposed occupier not later than that later date.
(6) Subject to any order made by the court under section 2(5)(b), if any express term-
(a) is contained in an agreement to which this Part applies; but
(b) was not set out in a written statement given to the proposed occupier in accordance with subsection (2) or (4);
the term is unenforceable by the site-owner or any person within section 4(1).
(7) If the site-owner has failed to give a written statement in accordance with subsections (2) to (5), the occupier may, at any time after the making of the agreement, apply to the court for an order requiring the site-owner-
(a) to give the occupier a written statement which complies with paragraphs (a) to (e) of subsection (2) or (4) as the case may be; and
(b) to do so not later than such date as is specified in the order.
(8) A written statement required to be given to a person under this section may be either delivered to the person personally or sent to the person by post.
(9) Any reference in this section to the making of an agreement to which this Part applies includes a reference to any variation of an agreement by virtue of which the agreement becomes one to which this Part applies.
(10) Regulations under this section-
(a) shall be made by statutory instrument which shall be subject to negative resolution; and
(b) may make different provision with respect to different cases or descriptions of case.
Terms of agreements: implied terms and basic conditions
2.-(1) In any agreement to which this Part applies there shall be implied-
(a) in the case of an agreement made on or after the appointed day, the terms set out in Part 1 of Schedule 1; and
(b) in the case of an agreement to which section 1(4) applies such of the terms as is stated in the written statement given under section 1(4)(e) as being agreed by the site-owner;
and this subsection shall have effect notwithstanding any express term of the agreement.
(2) Except where an agreement to which this Act applies otherwise specifies, the minimum duration of an agreement to which this Part applies and which is entered into after the appointed day is 6 months beginning on the appointed day or, if later, the day on which the agreement is made.
(3) A term of an agreement to which this Part applies and which is entered into after the appointed day which entitles a site-owner to receive from the occupier on the sale of the caravan a payment exceeding 10% of the sale price shall apply and be enforced as if such term entitled the site-owner to a payment of 10% of the sale price.
(4) The court may, on the application of either party made within the relevant period, order that there shall be implied in any agreement to which this Part applies terms concerning the matters mentioned in Part 2 of Schedule 1 to this Act.
(5) The court may, on the application of either party made within the relevant period, make an order-
(a) varying or deleting any express term of the agreement;
(b) in the case of any express term to which section 1(7) above applies, providing for the term to have full effect or to have such effect subject to any variation specified in the order;
(c) in the case of an agreement made before the appointed day-
(i) imposing any or all of the terms set out in Part 1 of Schedule 1 to this Act;
(ii) providing for that agreement to have effect subject to section 2(3) or 2(4) of this Act.
(6) In subsections (4) and (5) above "the relevant period" means, in relation to an agreement made before the appointed day, the period beginning with the appointed day, or, in relation to an agreement made after the appointed day, the date on which the agreement is made and ending-
(a) 6 months after that date, or
(b) where a written statement relating to the agreement is given to the occupier after that date (whether or not in compliance with an order under section 1(7) above), 6 months after the date on which the statement is given;
and section 1(9) above applies for the purposes of this subsection as it applies for the purposes of section 1.
(7) On an application under this section, the court shall make such provision as the court considers just and equitable in the circumstances.
(8) The supplementary provisions in Part 3 of Schedule 1 have effect for the purposes of paragraphs 7 and 8 of Part 1 of that Schedule.
3.-(1) The Minister may by order make such amendments to Part 1 or 2 of Schedule 1 to this Act as the Minister considers appropriate.
(2) An order under this section-
(a) may make different provision with respect to different cases or descriptions of case;
(b) may contain such incidental, supplementary, consequential, transitional or saving provisions the Minister considers appropriate.
(3) Without prejudice to the generality of subsections (1) and (2), an order under this section may-
(a) make provision for or in connection with the determination by the court of such questions, or the making by the court of such orders, as are specified in the order;
(b) make such amendments of any provision of this Act the Minister considers appropriate in consequence of any amendment made by the order in Part 1 or 2 of Schedule 1.
(4) The first order made under this section may provide for all or any of its provisions to apply in relation to agreements to which this Act applies that were made at any time before the day on which the order comes into force (as well as in relation to such agreements made on or after that day).
(5) No order may be made under this section unless the Minister has consulted-
(a) such organisations as appear to the Minister to be representative of interests substantially affected by the order; and
(b) such other persons as the Minister considers appropriate.
(6) No order may be made under this section unless a draft of the order has been laid before, and approved by a resolution of, the Assembly.
4.-(1) An agreement to which this Act applies shall be binding on and take effect for the benefit of any successor in title of the site-owner and any person claiming through or under the site-owner or any such successor.
(2) Where an agreement to which this Act applies is lawfully assigned to any person, the agreement shall take effect for the benefit of and be binding on that person.
(3) Where an occupier who occupies the caravan as the occupier's only or main residence dies, the agreement shall take effect for the benefit of and be binding on-
(a) any person residing with such occupier at that time being-
(i) the widow, widower or surviving civil partner of such occupier; or
(ii) in default of a widow, widower or surviving civil partner so residing, any member of such occupier's family.
5.-(1) It shall be the duty of the Department to enforce the provisions of Part 1 of the Act and of any order made under Part 1 of this Act and proceedings in respect of an offence under Part 1 of this Act may be instituted by the Department.
(2) Schedule 2 to this Act shall have effect.
6.-(1) A site-owner shall be guilty of an offence if-
(a) the site-owner fails to give a proposed occupier or occupier a written statement in accordance with the requirements of section 1; or
(b) the site-owner gives a proposed occupier a written statement setting out terms or enters into an agreement with a proposed occupier containing terms which conflict with and are less favourable to the proposed occupier than those implied under Part 1 of Schedule 1 or which provides for a payment to be made to the site-owner on the sale of the caravan which exceeds 10% of the sale price.
(2) A site-owner of a caravan site within the meaning of section 12(2) who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(3) A site-owner of a caravan site within the meaning of section 12(1) who is guilty of an offence under the under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale, or to imprisonment for a term not exceeding 6 months, or to both.
PROVISION FOR PROTECTION OF OCCUPIERS OF RESIDENTIAL CARAVANS
Protection for residential occupiers against eviction and harassment
7.-(1) Subject to the provisions of this section, the site-owner shall be guilty of an offence under this section-
(a) if, during the subsistence of a residential contract, the site-owner unlawfully deprives the occupier of the occupier's occupation on the caravan site of any caravan which the occupier is entitled by the residential contract to station and occupy, or to occupy, as that person's residence thereon;
(b) if, after the expiration or termination of a residential contract, the site-owner enforces, otherwise than by proceedings in the court, any right to exclude the occupier from the caravan site or from any such caravan, or to remove or exclude any such caravan from the caravan site;
(c) if, whether during the subsistence or after the expiration or termination of a residential contract, the site-owner-
(i) does anything likely to interfere with the peace or comfort of the occupier or persons residing with the occupier; or
(ii) persistently withdraws or withholds services or facilities reasonably required for the occupation of the caravan as a residence on the caravan site,
and (in either case) knows, or has reasonable cause to believe, that that conduct is likely to cause the occupier to abandon the occupation of the caravan or remove it from the caravan site or to refrain from exercising any right or pursuing any remedy in relation to the caravan.
(2) References in this section to the occupier include references to the person who was the occupier under a residential contract which has expired or been terminated and, in the case of the death of the occupier (whether during the subsistence or after the expiration or termination of the residential contract), to any person then residing with the occupier being-
(a) (i) the widow, widower or surviving civil partner of the occupier; or
(ii) in default of a widow, widower or surviving civil partner so residing, any member of the occupier's family; or
(b) in default of any such person so residing, the person entitled to the caravan by virtue of the deceased's will or under the law relating to intestacy.
(3) A person guilty of an offence under this section shall, without prejudice to any liability or remedy to which that person may be subject in civil proceedings, be liable
(a) on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 6 months, or to both;
(b) on conviction on indictment, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 2 years, or to both.
(4) Proceedings for an offence under this section may be instituted by the district council in whose district the caravan is stationed.
(5) In proceedings for an offence under paragraph (a) or (b) of subsection (1) of this section it shall be a defence to prove that the accused believed, and had reasonable cause to believe, that the occupier of the caravan had ceased to reside on the caravan site.
(6) In proceedings for an offence under subsection (1)(c) of this section it shall be a defence to prove that the accused had reasonable grounds for doing the acts or withdrawing or withholding the services or facilities in question.
(7) Nothing in this section applies to the exercise by any person of a right to take possession of a caravan of which that person is the owner, other than a right conferred by or arising on the expiration or determination of a residential contract, or to anything done pursuant to the order of any court.
Provision for suspension of eviction orders
8.-(1) If in proceedings brought by the site-owner of a caravan site after the expiration or termination of a residential contract the court makes an order enforcing any right as is referred to in section 7(1)(b) of this Act the court may (without prejudice to any power apart from this section to postpone the operation or suspend the execution of an order, and subject to the following provisions of this section) suspend the enforcement of the order for such period not exceeding twelve months from the date of the order as the court thinks reasonable.
(2) Where the court by virtue of this section suspends the enforcement of an order, it may impose such terms and conditions, including conditions as to the payment of rent or other periodical payments or of arrears of such rent or payments, as the court thinks reasonable.
(3) The court may from time to time, on the application of either party, extend, reduce or terminate the period of suspension ordered by virtue of this section, or vary any terms or conditions imposed thereunder, but shall not extend the period of suspension for more than twelve months at a time.
(4) In considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular-
(a) whether the occupier has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the site-owner for the management and conduct of the caravan site or the maintenance of caravans thereon;
(b) whether the occupier has unreasonably refused an offer by the site-owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;
(c) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).
(5) Where the court makes such an order as is referred to in subsection (1) of this section but suspends the enforcement of that order by virtue of this section, the court shall make no order for costs unless it appears to the court, having regard to the conduct of the site-owner or of the occupier, that there are special reasons for making such an order.
(6) The court shall not suspend the enforcement of an order by virtue of this section if-
(a) no site licence is in force in respect of the caravan site; and
(b) paragraph 11 of the Schedule to the 1963 Act does not apply;
and where a site licence in respect of the caravan site is expressed to expire at the end of a specified period, the period for which enforcement may be suspended by virtue of this section shall not extend beyond the expiration of the licence.
Supplementary
9.-(1) The power of the court under section 8 of this Act to suspend the enforcement of an order shall extend to any order made but not executed before the commencement of this Part of this Act.
(2) Section 12(1) of the 1963 Act shall have effect subject to the foregoing provisions of this Part of this Act.
10. For the definition of "caravan" in section 25 (Interpretation) of the 1963 Act there shall be substituted-
"caravan" has the meaning given by section 9 of the Caravans Act (Northern Ireland) 2009 (c. );.
11.-(1) For the purposes of this Act "caravan" means any structure designed or applied for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted but does not include-
(a) any railway rolling stock which is for the time being on rails forming part of a railway system; or
(b) any tent; or
(c) a structure which falls within subsection (2)(a) and (b) any dimensions of which, when the structure is assembled, exceeds a limit specified in subsection (3).
(2) A structure designed or adapted for human habitation which-
(i) is composed of not more than two sections separately constructed and designed to be assembled on a site by means of bolts, clamps or other devices; and
(ii) is, when assembled, physically capable of being moved by road from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer),
is not excluded from being a caravan for the purposes of this Act by reason only that it cannot lawfully be so moved on a highway when assembled.
(3) The limits referred to in subsection 9(1)(c) are-
(a) length (exclusive of any drawbar): 20 metres (65.616 feet);
(b) width: 6.8 metres (22.309 feet);
(c) overall height of living accommodation (measured internally from the floor at the lowest level to the ceiling at the highest level): 3.05 metres (10.006 feet).
(4) The Minister may by order substitute for any figure mentioned in subsection (3) such figure as may be specified in the order.
12.-(1) Subject to subsection (2) of this section, "caravan site" means any land in respect of which a site licence is required under the 1963 Act (or would be so required if paragraph 11 of the Schedule to that Act were omitted).
(2) For the purposes of Part 2 of this Act and in the definition of "residential contract" in clause 13, "caravan site" does not include land in respect of which the relevant planning permission or site licence-
(a) is expressed to be granted for holiday use only; or
(b) is otherwise so expressed or subject to such conditions that there are times of the year when no caravan may be stationed on the land for human habitation.
13.-(1) In this Act, unless the context otherwise requires-
"the 1963 Act" means the Caravans Act (Northern Ireland) 1963;
"the appointed day" means the date on which Part 1 and Schedule 1 come into operation;
"the court" means the county court for the district in which the caravan site (within the meaning given by clause 12(1) or (2) as the case may be) is situated or, where the parties have agreed in writing to submit any question arising under this Act or, as the case may be, any agreement to which it applies to arbitration, the arbitrator;
"the Department" means the Department of Enterprise, Trade and Investment;
"the Minister" means the Minister for Social Development;
"occupier" has the meaning given by section 1;
"planning permission" means permission under Part IV of the Planning (Northern Ireland) Order 1991;
"residential contract" means an agreement under which a person is entitled to station a caravan on a caravan site and occupy it as that person's residence, or to occupy as that person's residence a caravan stationed on any such caravan site;
"site licence" has the meaning given in the 1963 Act;
"site-owner" has the meaning given by section 1;
"written statement" means the statement required by section 1(2) above.
(3) In relation to an agreement to which this Act applies-
(a) any reference in this Act to the site-owner includes a reference to any person who is bound by and entitled to the benefit of the agreement by virtue of section 4(1) above; and
(b)any reference in this Act to the occupier includes a reference to any person who is entitled to the benefit of and bound by the agreement by virtue of section 4(2) or (3).
(4) A person is a member of another's family within the meaning of this Act if that person is that person's spouse, civil partner, parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece; treating-
(a) any relationship by marriage or civil partnership as a relationship by blood, any relationship of the half blood as a relationship of the whole blood and the stepchild of any person as that person's child; and
(b) an illegitimate person as the legitimate child of that person's mother and reputed father;
or if they live together as husband and wife or as if they were civil partners.
14.-(1) Except for Part 1 and Schedule 1, this Act comes into operation on Royal Assent.
(2) Part 1 and Schedule 1 come into operation at the end of 6 months after Royal Assent.
15. This Act may be cited as the Caravans Act (Northern Ireland) 2009.
Section 2. |
AGREEMENTS UNDER ACT
Terms implied by Act
Duration of Agreement
1. Notwithstanding any term in the agreement about the duration of the agreement (whether express, or implied under section 2(2), or imposed under section 2(5)(c)(ii)) and subject to paragraph 2 below, the right to station the caravan on land forming part of the caravan site shall cease if the agreement is terminated under paragraph 3, 4 or 5 below.
2.-(1) If the site-owner's estate or interest is insufficient to enable him to grant the right for an indefinite period, the period for which the right subsists shall not extend beyond the date when the site-owner's estate or interest determines.
(2) If planning permission for the use of the caravan site as a site for caravans has been granted in terms such that it will expire at the end of a specified period, the period for which the right subsists shall not extend beyond the date when the planning permission expires.
(3) If before the end of a period determined by this paragraph there is a change in circumstances which allows a longer period, account shall be taken of that change.
Termination by occupier
3. The occupier shall be entitled to terminate the agreement by notice in writing given to the site-owner not less than 4 weeks before the date on which it is to take effect.
Termination by the site-owner
4. The site-owner shall be entitled to terminate the agreement forthwith if, on the application of the site-owner, the court-
(a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and
(b) considers it reasonable for the agreement to be terminated.
5.-(1) The site-owner shall be entitled to terminate the agreement forthwith if, on the application of the site-owner, the court is satisfied that, having regard to its condition, the caravan-
(a) is having a detrimental effect on the amenity of the site; and
(b) the court considers it reasonable for the agreement to be terminated.
(2) Sub-paragraphs (3) and (4) below apply if, on an application under sub-paragraph (1) above-
(a) the court considers that-
(i) having regard to the present condition of the caravan, paragraph (a) of that sub-paragraph applies to it; but
(ii) it would be reasonably practicable for particular repairs to be carried out on the caravan that would result in sub-paragraph 1(a) not applying to it; and
(b) the occupier indicates an intention to carry out those repairs.
(3) In such a case the court may make an order setting out the repairs and adjourning proceedings on the application for such period specified in the order as the court considers reasonable to allow the repairs to be carried out.
(4) If the court makes such an order, the application shall not be further proceeded with unless the court is satisfied that the specified period has expired without the repairs having been carried out.
Recovery of overpayments by occupier
6. Where the agreement is terminated as mentioned in paragraph 3, 4 or 5 above, the occupier shall be entitled to recover from the site-owner so much of any payment made by the occupier in pursuance of the agreement as is attributable to a period beginning after the termination.
Disposal of caravan
7.-(1) The occupier shall be entitled to sell the caravan, and to assign the agreement, to a person approved of by the site-owner, whose approval shall not be unreasonably withheld.
(2) The occupier may serve on the site-owner a request for the site-owner to approve a person for the purposes of sub-paragraph (1) above.
(3) Where the site-owner receives such a request, the site-owner must, within the period of 28 days beginning with the date on which the site-owner received the request-
(a) approve the person, unless it is reasonable for the site-owner not to do so, and
(b) serve on the occupier notice of the site-owner's decision whether or not to approve the person.
(4) An approval may be made subject to conditions.
(5) If the approval is withheld, the notice under sub-paragraph (3)(b) above must specify the reasons for withholding it.
(6) If the site-owner fails to notify the occupier as required by sub-paragraph (3), (and if applicable, sub-paragraph (5) above) the occupier may apply to the court for an order declaring that the person is approved for the purposes of sub-paragraph (1) above, and the court may make such an order if it thinks fit.
(7) It is for the site-owner-
(a) if the site-owner served a notice as mentioned in sub-paragraph (3) (and, if applicable, sub-paragraph (5)) and the question arises whether the site-owner served the notice within the required period of 28 days, to show that the site-owner did;
(b) if the site-owner did not give approval and the question arises whether it was reasonable for the site-owner not to do so, to show that it was reasonable.
(8) A request or notice under this paragraph:
(a) must be in writing, and
(b) may be served by post.
(9) This paragraph is subject to any term of the agreement which entitles the site-owner to receive a payment on the sale of the caravan which does not exceed the amount specified in section 2(3) or has effect in accordance with that section.
8.-(1) The occupier shall be entitled to give the caravan, and to assign the agreement, to a member of the occupier's family approved by the site-owner, whose approval shall not be unreasonably withheld.
(2) Sub-paragraphs (2) to (8) of paragraph 7 above shall apply in relation to the approval of a person for the purposes of sub-paragraph (1) above as they apply in relation to the approval of a person for the purposes of sub-paragraph (1) of that paragraph.
(3) The site-owner may not require any payment to be made (whether to the site-owner or otherwise) in connection with the gift of the caravan, and the assignment of the agreement, as mentioned in sub-paragraph (1) above.
9.-(1) Paragraphs 7 and 8 above shall not apply to the devolution of the ownership of the caravan or to the devolution of the benefit of the agreement on the death of the occupier.
(2) The agreement may not contain:
(a) a term preventing the devolution of the ownership of the caravan or of the benefit of the agreement on the death of the occupier; and
(b) a term requiring any payment to be made to the site-owner or otherwise by the person to whom the ownership of the caravan or of the benefit of the agreement devolves on the death of the occupier.
(3) Notwithstanding sub-paragraph (2)(a) above and subject to section 4, the agreement may contain a term stipulating that the devolution of the agreement on the death of the occupier shall not occur without the prior approval of the site-owner, whose approval shall not be unreasonably withheld.
10.-(1) The site-owner shall be entitled to require that the occupier's right to station the caravan is exercisable for any period in relation to another pitch forming part of the caravan site ("the other pitch") if (and only if)-
(a) on the application of the site-owner, the court is satisfied that the other pitch is broadly comparable to the occupier's original pitch and that it is reasonable for the caravan to be stationed on the other pitch for that period; or
(b) the site-owner needs to carry out essential repair or emergency works that can only be carried out if the caravan is moved to the other pitch for that period, and the other pitch is broadly comparable to the occupier's original pitch.
(2) If the site-owner requires the occupier to station the caravan on the other pitch so that he can replace, or carry out repairs to, the base on which the caravan is stationed, he must if the occupier so requires, or the court on the application of the occupier so orders, secure that the caravan is returned to the original pitch on the completion of the replacement or repairs.
(3) The site-owner shall pay all the costs and expenses incurred by the occupier in connection with his caravan being moved to and from the other pitch.
(4) In this paragraph and in paragraph 13 below, "essential repair or emergency works" means-
(a) repairs to the base on which the caravan is stationed;
(b) works or repairs needed to comply with any relevant legal requirements; or
(c) works or repairs in connection with restoration following flood, landslide or other natural disaster.
Quiet enjoyment of the caravan
11. The occupier shall be entitled to quiet enjoyment of the caravan together with the pitch during the continuance of the agreement, subject to paragraphs 10, 12, 13 and 14.
Site-owner's right of entry to the pitch
12. The site-owner may enter the pitch without prior notice between the hours of 9 am and 6 pm-
(a) to deliver written communications, including post and notices, to the occupier; and
(b) to read any meter for gas, electricity, water, sewerage or other services supplied by the site-owner.
14. Unless the occupier has agreed otherwise, the site-owner may enter the pitch for a reason other than one specified in paragraph 12 or 13 only if the site-owner has given the occupier at least 14 clear days' written notice of the date, time and reason for the site-owner's visit.
15. The rights conferred by paragraphs 12 to 14 above do not extend to the caravan.
The pitch fee
16. The pitch fee can only be changed in accordance with paragraph 17, either-
(a) with the agreement of the occupier, or
(b) if the court, on the application of the site-owner or the occupier, considers it reasonable for the pitch fee to be changed and makes an order determining the amount of the new pitch fee.
17.-(1) The pitch fee shall be reviewed annually as at the review date.
(2) At least 28 clear days before the review date the site-owner shall serve on the occupier a written notice setting out the site-owner's proposals in respect of the new pitch fee.
(3) If the occupier agrees to the proposed new pitch fee, it shall be payable as from the review date.
(4) If the occupier does not agree to the proposed new pitch fee-
(a) the site-owner may apply to the court for an order under paragraph 16(b) determining the amount of the new pitch fee;
(b) the occupier shall continue to pay the current pitch fee to the site-owner until such time as the new pitch fee is agreed by the occupier or an order determining the amount of the new pitch fee is made by the court under paragraph 16(b); and
(c) the new pitch fee shall be payable as from the review date but the occupier shall not be treated as being in arrears until the 28th day after the date on which the new pitch fee is agreed or, as the case may be, the 28th day after the date of the court order determining the amount of the new pitch fee.
(5) An application under sub-paragraph (4)(a) may be made at any time after the end of the period of 28 days beginning with the review date.
(6) Sub-paragraphs (7) to (10) apply if the site-owner-
(a) has not served the notice required by sub-paragraph (2) by the time by which it was required to be served, but
(b) at any time thereafter serves on the occupier a written notice setting out the site-owner's proposals in respect of a new pitch fee.
(7) If (at any time) the occupier agrees to the proposed pitch fee, it shall be payable as from the 28th day after the date on which the site-owner serves the notice under sub-paragraph (6)(b).
(8) If the occupier has not agreed to the proposed pitch fee-
(a) the site-owner may apply to the court for an order under paragraph 16(b) determining the amount of the new pitch fee;
(b) the occupier shall continue to pay the current pitch fee to the site-owner until such time as the new pitch fee is agreed by the occupier or an order determining the amount of the new pitch fee is made by the court under paragraph 16(b); and
(c) if the court makes such an order, the new pitch fee shall be payable as from the 28th day after the date on which the site-owner serves the notice under sub-paragraph (6)(b).
(9) An application under sub-paragraph (8) may be made at any time after the end of the period of 56 days beginning with the date on which the site-owner serves the notice under sub-paragraph (6)(b).
(10) The occupier shall not be treated as being in arrears-
(a) where sub-paragraph (7) applies, until the 28th day after the date on which the new pitch fee is agreed; or
(b) where sub-paragraph (8)(b) applies, until the 28th day after the date on which the new pitch fee is agreed or, as the case may be, the 28th day after the date of the court order determining the amount of the new pitch fee.
18.-(1) When determining the amount of the new pitch fee particular regard shall be had to-
(a) any sums expended by the site-owner since the last review date on improvements-
(i) which are for the benefit of the occupiers of caravans on the caravan site;
(ii) which were the subject of consultation in accordance with paragraph 22(e) and (f) below; and
(iii) to which a majority of the occupiers have not disagreed in writing or which, in the case of such disagreement, the court, on the application of the site-owner, has ordered should be taken into account when determining the amount of the new pitch fee;
(b) any decrease in the amenity of the caravan site since the last review date; and
(c) the effect of any enactment, other than an order made under paragraph 8(2) above, which has come into force since the last review date.
(3) In a case where the pitch fee has not been previously reviewed, references in this paragraph to the last review date are to be read as references to the date when the agreement commenced.
19. When determining the amount of the new pitch fee, any costs incurred by the site-owner in connection with expanding the caravan site shall not be taken into account.
20.-(1) There is a presumption that the pitch fee shall increase or decrease by a percentage which is no more than any percentage increase or decrease in the retail prices index since the last review date, unless this would be unreasonable having regard to paragraph 18(1) above.
(2) Paragraph 18(3) above applies for the purposes of this paragraph as it applies for the purposes of paragraph 18.
Occupier's obligations
21. The occupier shall-
(a) pay the pitch fee to the site-owner;
(b) pay to the site-owner all sums due under the agreement in respect of gas, electricity, water, sewerage or other services supplied by the site-owner;
(c) keep the caravan in a sound state of repair;
(d) maintain-
(i) the outside of the caravan, and
(ii) the pitch, including all fences and outbuildings belonging to, or enjoyed with, it and the caravan,
in a clean and tidy condition;
(e) if requested by the site-owner, provide the site-owner with documentary evidence of any costs or expenses in respect of which the occupier seeks reimbursement; and
(f)remove the caravan from the caravan site on the termination of the agreement, except in the case of a residential contract (unless the court has made an order authorising the caravan's removal from the caravan site) outlining the caravan's removal from the caravan site.
Site-owner's obligations
22. The site-owner shall-
(a) if requested by the occupier, and on payment by the occupier of a charge of not more than £30, provide accurate written details of-
(i) the size of the pitch and the base on which the caravan is stationed; and
(ii) the location of the pitch and the base within the caravan site;
and such details must include measurements between identifiable fixed points on the caravan site and the pitch and the base;
(b) if requested by the occupier, provide (free of charge) documentary evidence in support and explanation of-
(i) any new pitch fee;
(ii) any charges for gas, electricity, water, sewerage or other services payable by the occupier to the site-owner under the agreement; and
(iii) any other charges, costs or expenses payable by the occupier to the site-owner under the agreement;
(c) be responsible for repairing the base on which the caravan is stationed and for maintaining any gas, electricity, water, sewerage or other services supplied by the site-owner to the pitch or to the caravan;
(d) maintain in a clean and tidy condition those parts of the caravan site, including access ways, site boundary fences and trees, which are not the responsibility of any occupier of a caravan stationed on the caravan site;
(e) consult the occupier about improvements to the protected site in general, and in particular about those which the site-owner wishes to be taken into account when determining the amount of any new pitch fee; and
(f)consult a qualifying residents' association, if there is one, about all matters which relate to the operation and management of, or improvements to, the caravan site and may affect the occupiers either directly or indirectly.
23. The site-owner shall not do or cause to be done anything which may adversely affect the ability of the occupier to perform his obligations under paragraph 21(c) and (d) above.
24. For the purposes of paragraph 22(e) above, to "consult" the occupier means-
(a) to give the occupier at least 28 clear days' notice in writing of the proposed improvements which-
(i) describes the proposed improvements and how they will benefit the occupier in the long and short term;
(ii) details how the pitch fee may be affected when it is next reviewed; and
(iii) states when and where the occupier can make representations about the proposed improvements; and
(b) to take into account any representations made by the occupier about the proposed improvements, in accordance with paragraph (a)(iii), before undertaking them.
25. For the purposes of paragraph 22(f) above, to "consult" a qualifying residents' association means-
(a) to give the association at least 28 clear days' notice in writing of the matters referred to in paragraph 22(f) which-
(i) describes the matters and how they may affect the occupiers either directly or indirectly in the long and short term; and
(ii) states when and where the association can make representations about the matters; and
(b) to take into account any representations made by the association, in accordance with paragraph (a)(ii), before proceeding with the matters.
Site-owner's name and address
26.-(1) The site-owner shall by notice inform the occupier and any qualifying residents' association of the address in Northern Ireland at which notices (including notices of proceedings) may be served on him by the occupier or a qualifying residents' association.
(2) If the site-owner fails to comply with sub-paragraph (1), then (subject to sub-paragraph (5) below) any amount otherwise due from the occupier to the site-owner in respect of the pitch fee shall be treated for all purposes as not being due from the occupier to the site-owner at any time before the site-owner does so comply.
(3) Where in accordance with the agreement the site-owner gives any written notice to the occupier or (as the case may be) a qualifying residents' association, the notice must contain the following information-
(a) the name and address of the site-owner; and
(b) if that address is not in Northern Ireland, an address in Northern Ireland at which notices (including notices of proceedings) may be served on the site-owner.
(4) Subject to sub-paragraph (5) below, where-
(a) the occupier or a qualifying residents' association receives such a notice, but
(b) it does not contain the information required to be contained in it by virtue of sub-paragraph (3) above,
the notice shall be treated as not having been given until such time as the site-owner gives the information to the occupier or (as the case may be) the association in respect of the notice.
(5) An amount or notice within sub-paragraph (2) or (4) (as the case may be) shall not be treated as mentioned in relation to any time when, by virtue of an order of any court or tribunal, there is in force an appointment of a receiver or manager whose functions include receiving from the occupier the pitch fee, payments for services supplied or other charges.
(6) Nothing in sub-paragraphs (3) to (5) applies to any notice containing a demand to which paragraph 27(1) below applies.
27.-(1) Where the site-owner makes any demand for payment by the occupier of the pitch fee, or in respect of services supplied or other charges, the demand must contain-
(a) the name and address of the site-owner; and
(b) if that address is not in Northern Ireland, an address in Northern Ireland at which notices (including notices of proceedings) may be served on the site-owner.
(2) Subject to sub-paragraph (3) below, where-
(a) the occupier receives such a demand, but
(b) it does not contain the information required to be contained in it by virtue of sub-paragraph (1),
the amount demanded shall be treated for all purposes as not being due from the occupier to the site-owner at any time before the site-owner gives that information to the occupier in respect of the demand.
(3) The amount demanded shall not be so treated in relation to any time when, by virtue of an order of any court or tribunal, there is in force an appointment of a receiver or manager whose functions include receiving from the occupier the pitch fee, payments for services supplied or other charges.
Qualifying residents' association
28.-(1) A residents' association is a qualifying residents' association in relation to a caravan site if-
(a) it is an association representing the occupiers of caravans on that site;
(b) at least 50% of the occupiers of the caravans on that site are members of the association;
(c) it is independent from the site-owner, who together with any agent or employee of his is excluded from membership;
(d) subject to paragraph (c) above, membership is open to all occupiers who own a caravan on that site;
(e) it maintains a list of members which is open to public inspection together with the rules and constitution of the residents' association;
(f)it has a chair, secretary and treasurer who are elected by and from among the members;
(g) with the exception of administrative decisions taken by the chair, secretary and treasurer acting in their official capacities, decisions are taken by voting and there is only one vote for each caravan; and
(h) the site-owner has acknowledged in writing to the secretary that the association is a qualifying residents' association, or, in default of this, the court has so ordered.
(2) When calculating the percentage of occupiers for the purpose of sub-paragraph (1)(b) above, each caravan shall be taken to have only one occupier and, in the event of there being more than one occupier of a caravan, its occupier is to be taken to be the occupier whose name first appears on the agreement.
Repairs and maintenance
29. Except in an emergency, the occupier shall give the site-owner 2 days' notice if the occupier wishes to arrange for repairs and/or maintenance to be carried out to the caravan, which notice shall include the name and contact details of the person who the occupier intends to carry out such repairs and/or maintenance ("the contractor").
30. On request, the contractor shall provide the site-owner with such contractor's qualifications and evidence that such contractor is a member of a trade association covering the type of repairs and/or maintenance such contractor is to carry out.
31. The site-owner may refuse to allow the occupier to let the contractor in respect of whom the information described in paragraph 30 above has been requested carry out the repairs and/or maintenance if the contractor fails to provide such information forthwith.
Interpretation
32. In this Schedule-
"pitch fee" means the amount which the occupier is required by the agreement to pay to the site-owner for the right to station the caravan on the pitch and for use of the common areas of the caravan site and their maintenance, but does not include amounts due in respect of gas, electricity, water and sewerage or other services, unless the agreement expressly provides that the pitch fee includes such amounts;
"retail prices index" means the general index (for all items) published by the Office for National Statistics or, if that index is not published for a relevant month, any substituted index or index figures published by the Office for National Statistics;
"review date" means the date specified in the written statement as the date on which the pitch fee will be reviewed in each year, or if no such date is specified, each anniversary of the date the agreement commenced.
Matters concerning which terms may be implied by court
1. The sums payable by the occupier in pursuance of the agreement and the times at which they are to be paid.
2. The provision or improvement of services available on the caravan site, and the use by the occupier of such services.
3. The preservation of the amenity of the caravan site.
Supplementary Provisions
Duty to forward requests in respect of a disposal of the caravan
1.-(1) This paragraph applies to-
(a) a request by the occupier for the site-owner to approve a person for the purposes of paragraph 7(1) of Part 1 (see paragraph 7(2)), or
(b) a request by the occupier for the site-owner to approve a person for the purposes of paragraph 8(1) of Part 1 (see paragraph 7(2) as applied by paragraph 8(2)).
(2) If a person ("the recipient") receives such a request and the recipient-
(a) though not the site-owner, has an estate or interest in the caravan site, and
(b) believes that another person is the site-owner (and that the other person has not received such a request),
the recipient owes a duty to the occupier to take such steps as are reasonable to secure that the other person receives the request within the period of 28 days beginning with the date on which the recipient receives it.
(3) In paragraph 7(3) of Part 1 of this Schedule (as it applies to any request within sub-paragraph (1) above) any reference to the site-owner receiving such a request includes a reference to his receiving it in accordance with sub-paragraph (2) above.
Action for breach of duty under paragraph 1
2.-(1) A claim that a person has broken the duty under paragraph 1(2) above may be made the subject of civil proceedings in like manner as any other claim in tort for breach of statutory duty.
(2) The right conferred by sub-paragraph (1) is in addition to any right to bring proceedings, in respect of a breach of any implied term having effect by virtue of paragraph 7 or 8 of Part 1 of this Schedule, against a person bound by that term.
Section 5. |
Enforcement
Power to enter premises and inspect and seize goods and documents
1.-(1) A duly authorised officer of the Department may, at all reasonable hours and on production, if required, of such officer's credentials, exercise the following powers, that is to say-
(a) such officer may, for the purpose of ascertaining whether any offence under this Act has been committed, inspect any goods and enter any premises other than premises used only as a dwelling;
(b) if such officer has reasonable cause to suspect that an offence under this Act has been committed, such officer may, for the purpose of ascertaining whether it has been committed, require any person carrying on a trade or business or employed in connection with a trade or business to produce any books or documents relating to the trade or business and may take copies of, or of any entry in, any such book or document;
(c) such officer may, for the purpose of ascertaining whether any offence under this Act has been committed, require any person carrying on a trade or business or employed in connection with a trade or business, require such person to produce in a visible and legible documentary form any information which is contained in a computer and take copies of it;
(d) if such officer has reasonable cause to believe that an offence under this Act has been committed, such officer may seize and detain any goods for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed;
(e) such officer may seize and detain any goods or documents which such officer has reason to believe may be required as evidence in proceedings for an offence under this Act;
(f)such officer may, for the purpose of exercising such officer's powers under this paragraph to seize goods, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made thereunder are duly observed, require any person having authority to do so to break open any container and, if that person does not comply with the requirement, such officer may do so.
(2) An officer seizing any goods or documents in the exercise of such officer's powers under this paragraph shall inform the person from whom they are seized.
(3) If a resident magistrate or lay magistrate, on sworn information in writing-
(a) is satisfied that there is reasonable ground to believe either-
(i) that any goods, books or documents which a duly authorised officer has power under this paragraph to inspect are on any premises and that their inspection is likely to disclose evidence of the commission of an offence under this Act: or
(ii) that any offence under this Act has been, is being or is about to be committed on any premises; and
(b) is also satisfied either-
(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this subsection has been given to the occupier; or
(ii) that an application for admission, or the giving of such a notice, would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await the occupier's return,
the resident magistrate or lay magistrate may by warrant under such resident magistrate or lay magistrate's hand, which shall continue in force for a period of one month, authorise an officer of the Department to enter the premises, if need be by force.
(4) An officer entering any premises by virtue of this paragraph may take with such officer such other persons and such equipment as may appear to such officer necessary; and on leaving any premises which such officer has entered by virtue of a warrant under the preceding subsection such officer shall, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured against trespassers as such officer found them.
(5) If any person who is not a duly authorised officer of the Department purports to act as such under this section such person shall be guilty of an offence.
(6) Nothing in this paragraph requires a person to produce, or authorises the taking from a person of, a document which that person would not be compelled to produce in civil proceedings before the High Court.
Obstruction of authorised officers
2.-(1) Any person who-
(a) wilfully obstructs an officer of the Department acting in pursuance of this Act; or
(b) wilfully fails to comply with any requirement properly made to such person by such an officer under paragraph 1; or
(c) without reasonable cause fails to give such an officer so acting any other assistance or information which such person may reasonably require of such person for the purpose of the performance of such person's functions under this Act.
shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 6 months, or to both.
(2) If a person in giving any such information as is mentioned in the preceding sub-paragraph, makes any statement which such person knows to be false, or recklessly makes a statement which is false in a material particular, such person shall be guilty of an offence.
(3) Nothing in this paragraph shall be construed as requiring a person to answer any question or give any information if to do so might incriminate such person.