In some circumstances, Arun DC can specify that the individual for the fit and proper person test will only be successful if certain condition(s) are met. If these condition(s) are satisfied, the local authority can grant an application subject to those condition(s). The local authority can also grant an application for less than five years.
Arun DC may decide to include the person on a register subject to condition(s), if it would only be satisfied that the person would meet the fit and proper requirement if the condition(s) were complied with. An applicant will be able to appeal against the decision to attach (or vary) any condition to an entry on the register. It is therefore imperative for Arun DC to ensure clear and justifiable reason for attaching any condition(s) and that any condition(s) imposed can be enforced.
Conditions will need to be clearly stated for the applicant’s understanding and this will allow Arun DC to ensure that the condition(s) are enforceable. An example of the requirements is included in Table 1.
Table 1
Table 1 example requirements
Specific |
The specific condition(s) a site owner is being requested to address. |
Measurable |
The condition(s) required and the outcome(s) expected. |
Achievable |
The applicant should be reasonably expected to be able to achieve the condition(s). For example, it may not be reasonable to expect an owner of one small site to have the same resources to introduce the same procedures as a larger company. |
Realistic |
The applicant should have a clear understanding of how the required outcome(s) can be reached and that there are no circumstances or factors which would make the achievement of the outcome impossible or unlikely. |
Timebound |
A clear timescale in which the required outcome must be completed. |
To what can a condition relate?
The fit and proper person test is aimed at ensuring that the person managing the site is competent and any conditions should relate directly to the person’s ability to secure the proper management of the site.
Where a person has contravened legislation or committed offences set out above, it is not recommended that conditions are set in relation to those matters. Such a condition would be unlikely to meet the tests set out above; for example, if a person has committed fraud or violence, that exact incident cannot be reversed by requiring the person to perform a specific task.
In cases where the person has committed those listed offences or contravened legislation, Arun DC will consider these breaches in tandem with all the other information available to reach a preliminary decision.
Conditions can relate to any factors which are relevant to the person’s competence to manage the site, the management structure, or funding arrangements for the site, an associated person’s influence, and any other relevant factors. An example of a suitable condition could relate to the payment of an annual fee. A condition can also be set with respect to ensuring the relevant person has the ability to secure the proper management of the site.
Example 1
A local authority has evidence of a site owner’s failure over a certain period of time to address residents’ complaints. This is an example of poor management which could be resolved by the site owner implementing an adequate complaints procedure. A condition could be attached requiring the site owner to ‘implement an effective and accessible three stage complaints process for residents by xxx date and provide the LA with quarterly reports of complaints and outcomes, from that date and for the first year’.
If the condition is met within the specified time frame, the local authority can record this in the register. If, at a future date, it is found that the site owner failed to implement a complaints procedure, a further opportunity to comply may be given and this could include a new condition of the site owner providing quarterly reports of 10/16 complaints and outcomes for each year. The site owner could also be expected to complete a relevant ‘CPD customer service/Dealing with complaints’ course by a certain period. Should the local authority consider the actions as unlikely to achieve the desired outcome, however, the site owner could be removed from the register.
Example 2
If, when considering an application, certain documents or information are unavailable to the applicant, because of delays from third parties, the local authority may wish to attach a condition to the entry on the register that the site owner ‘is to provide the authority by registered post, with the original xx document by xx date’.
Example 3
An associated person has been visiting the park and through their action xxx, has caused distress to the residents, impacting their well-being and security. A condition could be attached to the register requiring the site owner to ‘put measure(s) in place by xxx date preventing the associated person, or any other person, from carrying out action xxx on the site’.