Park homes – Administration charge – Mobile Homes Act 1983 – Respondents occupying mobile homes on “protected site” within 1983 Act – Review of pitch fees payable to appellant site owner – Whether review to take account of site licence fees payable by appellant and introduced by local authority under amendments to 1983 Act introduced prior to previous review date – Paras 18(1)(ba) and 20(A1) of Schedule 1 to 1983 Act – Appeal allowed
The appellant operated a caravan park in Bartington, Cheshire, which was a “protected site” for the purposes of the Mobile Homes Act 1983. The respondents were the occupants of mobile homes on the park, occupying pitches pursuant to agreements to which the implied terms in Schedule 1 to the 1983 Act applied. The pitch fee payable to the appellant under those agreements was subject to review in February of each year.
With effect from April 2014, the licensing regime for protected sites in England and Wales was amended by the Mobile Homes Act 2013, which introduced new provisions into the Caravan Sites and Control of Development Act 1960. These included section 5A, which enabled local authorities to require the payment of an annual licence fee by the owners of protected sites to whom they had issued a site licence; and section 10A(2), which required the local authority to prepare and publish a fees policy prior to charging such a fee.
The local authority responsible for licencing the appellant’s site did not publish their fees policy until April 2015. They required the appellant to pay a site licence fee for the first time in March 2016. On the February 2016 pitch fee review, the appellant sought an increase not just by the annual change in the retail prices index (RPI), pursuant to the presumption in para 20(A1) of the implied terms, but also by a further sum to cover the site licence fee.
The respondents argued that such an increase was impermissible. They relied on the wording of para 18(1)(ba) of the implied terms, by which the matters to which “particular regard” was to be had on a pitch fee review included any “direct effect” on the site owner’s maintenance and management costs of “an enactment which has come into force since the last review date”. They argued that the site licence fee could not be taken into account since section 5A of the 1960 Act had come into force before, not since, the previous review date in February 2015.
The appellant contended that para 18(1)(ba) should be interpreted as referring to the date on which the practical effect of an enactment was experienced by a site owner in the form of additional costs, and not the date on which the relevant enactment itself came into force.
The first-tier tribunal (FTT) found for the respondents on that issue and ruled that the pitch fee should be raised by the RPI increase only. The appellant appealed.
Held: The appeal was allowed.
(1) Under para 16(b) of the implied terms, the FTT could not alter the amount of the pitch fee unless it considered it reasonable to do so. That was not merely a pre-condition for there to be a change but instead imported a standard of reasonableness to be applied in the context of the other statutory provisions, which should guide the tribunal when it was asked to determine the amount of a new pitch fee.
(2) In every case, “particular regard” was to be had to the factors in para 18(1), but those were not the only factors which could influence the amount by which it was reasonable for a pitch fee to change. Although there were no general words expressly indicating that other matters might also be taken into account, the list of factors to which “particular regard” was to be had did not purport to be exclusive: Re Sayer [2014] UKUT 283 (LC); [2014] PLSCS 202 and Britaniacrest Ltd v Bamborough [2016] UKUT 144 (LC); [2016] PLSCS 117 applied. The imposition of a site licence fee was not within list of matters in paras 18(1A) and 19 of the implied terms which were prohibited from being taken into account. Paragraph 19(3) of the implied terms, which had been introduced under the 2013 Act, prohibited certain fees payable under the 1960 Act from being taken into account but did not refer to the annual licence fee payable under section 5A of that Act. Taken with para 18(1)(ba), that indicated a legislative intention that newly introduced annual licence fees were to be capable of being taken into account to the extent that they had a direct effect on the costs of management payable by a site owner.
(3) With the mandatory conditions of para 18(1) well in mind, the starting point was then the presumption in para 20(A1) of an annual increase or reduction by no more than the change in RPI. That was a strong presumption but was neither an entitlement nor a maximum. If one of the factors mentioned in para 18(1) made that limit unreasonable, then the result would be that the presumption did not apply.
Even if none of the factors in para 18(1) applied, some other important factor might nevertheless rebut the para 20(A1) presumption and make it reasonable that a pitch fee should increase by a greater amount than the change in RPI. The difference was that, where one of the factors in para 18(1) arose, the presumption did not apply; whereas, in the absence of any the para 18(1) factors, the presumption did apply but could be rebutted by other important factors: Vyse v Wyldecrest Park (Management) Ltd [2017] UKUT 24 (LC) applied. That had been the position under the processor to para 20(1A), and, while the amended provision introduced by the 2013 Act was differently worded, there was no indication that any substantive change was intended to the operation of the presumption itself.
(5) Applying those principles to the instant case, the FTT had correctly concluded that it was not required to take the site licence fee into account under para 18(1)(ba), because, by the previous review date, the relevant “enactment” in the form of section 5A of the 1960 Act had not yet had direct or even indirect effect on the cost of management, because no valid licence fee had yet been demanded or paid.
However, the fact that the site licence fee was not something which the FTT was obliged to take into account did not mean that it could not be taken into account at all. It was not appropriate to treat a mandatory requirement to give particular consideration to a factor if it occurred within a specified period as if it were a prohibition on considering the same factor should it occur after that period. An additional cost, which it was known would be payable by the site owner in the period during which the reviewed pitch fee would apply, was a matter capable of being taken into account in determining the amount of that pitch fee. Moreover, it was obviously the intention of parliament that the cost of the annual licence fee should be taken into account. The additional cost of the annual site licence in the first year of its introduction was a weighty factor which rebutted the presumption of an increase limited to RPI change and justified an addition to cover the site fee payable by the appellant.
David Sunderland, a director of the appellant, appeared for the appellant; Alan Savory, of the Independent Park Homes Advisory Service, appeared for the respondents.
Sally Dobson, barrister
Click here to read a transcript of Wyldecrest Parks (Management) Ltd v Kenyon and others
