Park Homes – Pitch fee review – Mobile Homes Act 1983 – Respondent occupying mobile homes on “protected site” within 1983 Act – Annual review of pitch fees payable to appellant site owner – Appellant seeking to increase pitch fee in line with retail prices index (RPI) – Whether deterioration in condition and amenity of site displacing presumption of increase with RPI – Appeal dismissed
The appellant owned Meadowview Park, Little Clacton, Essex. The respondent had lived in a mobile home there since 2017. Her pitch fee was reviewed on 1 January each year.
The park was a “protected site” under the Mobile Homes Act 1983 and accordingly terms were implied into the agreement by schedule 1 to that Act.
Paragraph 16 of Chapter 2 of schedule 1 provided that the pitch fee could only be changed in accordance with paragraph 17, either with the agreement of the occupier or if the FTT on the site owner’s application considered it reasonable for the pitch fee to be reviewed.
Paragraph 18(1)(aa) stated that when the amount of the new pitch fee was determined particular regard should be had to, in the case of a protected site in England, any deterioration in the condition, and any decrease in the amenity, of the site or any adjoining land occupied or controlled by the owner.
Paragraph 20 provided that, unless it would be unreasonable having regard to paragraph 18(1), there was a presumption that the pitch fee should increase or decrease by a percentage which was no more than any percentage increase or decrease in the RPI.
The appellant sought to increase the pitch fee for 2022 reviewed in line with the RPI. The respondent refused to agree the increase and the appellant applied to the FTT for an order that the pitch fee be increased, noting that the respondent had refused to pay the increase largely on the basis that the hardstanding supporting her mobile home required repair.
The FTT refused the application, concluding that the fact that the appellant had accepted that repairing the cracked base was its responsibility and it had failed to repair it, outweighed the presumption that the pitch fee would increase by the RPI. The appellant’s appeal against that decision was determined on written representations.
Held: The appeal was dismissed.
(1) The factors which might displace the presumption were not limited to those set out in paragraph 18(1) but might include other factors. If none of the factors mentioned in paragraph 18 applied then it was necessary to consider whether any other factor displaced the presumption of an increase in line with the RPI: By definition, that had to be a factor to which considerable weight attached. It was not possible to be prescriptive. What was required was that the decision maker recognised that the other factor had to have sufficient weight to outweigh the presumption in the context of the statutory scheme as a whole: Vyse v Wyldecrest Ltd [2017] UKUT 24 (LC); [2017] PLSCS 27 applied.
(2) The FTT had not erred in fact in determining that the base supporting the mobile home had been cracked since 2018. What troubled the FTT was that the repairs had not been done properly. By January 2022, the appellant had failed to carry out proper repairs to the cracked base whether or not the actual cracks were still visible; the compliance notice stated that they had been covered by a sheet of reinforcing, and then concrete poured over, so it seemed the cracks were still present under the new surface. The appellant had failed to repair the cracking properly, and that failure was causing the respondent distress and worry.
There was no requirement in the statute that the deterioration referred to in paragraph 18 should have taken place since the previous review. Sub-paragraph (1)(aa) referred to deterioration since the provision came into force (in 2014), and which had not previously been taken into account in a pitch fee review.
The FTT did not base its decision on a finding that there had been a deterioration in the condition or amenity of the site. It found that the presumption of an RPI increase was displaced by a factor outside paragraph 18, namely the failure to get the repairs done properly.
(3) In Britanniacrest Ltd v Bamborough [2016] UKUT 144 (LC); [2016] PLSCS 117, the Upper Tribunal (UT) identified three basic principles that shaped pitch fee reviews: (i) annual review; (ii) no change without agreement unless the FTT considered it reasonable and determined the amount of the new pitch fee; and (iii) the presumption of change in line with RPI.
Those three principles gave the statutory scheme its basic structure. They did not provide a benchmark by reference to which a new pitch fee was to be determined, such as the amount which might reasonably be expected to be agreed as the pitch fee in the negotiation of a new pitch agreement in the open market. The FTT was given a very strong steer that a change in RPI in the previous 12 months would make it reasonable for the pitch fee to be changed by that amount but was provided with only limited guidance on what other factors it ought to take into account. It was clear, however, that other matters were relevant and that annual RPI increases were not the beginning and end of the determination, because paragraphs 18 and 19 specifically identified matters which the FTT was required to take into account or to ignore when undertaking a review: Britanniacrest applied.
(4) Accordingly, the FTT in the present case was right to identify the primary question as whether it was reasonable to increase the pitch fee, but then in its later discussion to focus on whether the presumption on an increase in line with the RPI was displaced. The FTT was perfectly clear that there was such a presumption and made it equally clear that it was displaced by the appellant’s failure to get the repairs done properly. The strong steer of paragraph 20 was observed but displaced. There was no error of law. To argue, as the appellant did, that the FTT failed to observe the provision that the RPI increase had to be applied unless that would be unreasonable was a misreading of the FTT’s decision; that was explicitly the reasoning the FTT undertook.
The FTT’s decision about the effect of the problem upon the respondent was one that was open to it on the basis of the respondent’s evidence. It was an evaluation of that evidence with which the UT would not interfere in the absence of some error of law or irrationality.
Eileen O’Grady, barrister
Click here to read a transcript of Wickland (Holdings) Ltd v Esterhuyse
