Park homes – Pitch fee review – Decrease in amenity – Appellant park owner appealing against tribunal decisions that pitch fees on sites not to increase on review – Whether presumption of RPI/CPI increase displaced by decrease in amenity – Whether contractual entitlement to enjoyment of amenity required in assessment of new pitch fees – Whether assessment of impact on individual pitches required – Appeals allowed
Two appeals, heard together, both concerned the determination of new pitch fees on protected park home sites. In one appeal the site was in Penwortham Park on the outskirts of Preston in England and governed by the Mobile Homes Act 1983. The other was in Wales at Willow Park, Mancot, in Flintshire to which the Mobile Homes (Wales) Act 2013 applied.
In each appeal the relevant tribunal determined that the amenity of the site had been reduced significantly by the withdrawal of car parking areas to accommodate pitches for additional homes and, in the English case, by the conversion of a large area of open green space to provide further new pitches.
Each tribunal decided that the reduction in amenity at the site was sufficiently substantial to displace the statutory presumption that pitch fees should increase annually by an amount equal to the increase in the retail prices index (England) or the consumer prices index (Wales). They decided that the pitch fees for both pitches should not increase at all.
The appellant owner of both parks appealed. It argued that the tribunals were wrong in principle to take the withdrawal of parking or green space into account because in neither case were the occupiers entitled to the continuation of those amenities under the terms of their agreements, not did either site licence require parking facilities or green space to be maintained at the same level.
Held: The appeals were allowed.
(1) Since the English appeal started first, the tribunal would refer principally to the English legislation. There was only one relevant difference in the substance of the applicable law: at the relevant time, the inflation index used for sites in England was the retail prices index (RPI), while in Wales it was the consumer prices index (CPI).
The 1983 Act governed the terms on which someone might station a mobile home on land and occupy it as their only or main residence. It did so by implying standard terms into every agreement entitling the occupier to station their home on the pitch (section 2). Those terms were amended in 2013 and regulated every important aspect of the relationship between owner and occupier.
When a site owner and an occupier first agreed a fee for the right to station a home on a pitch, there was no restriction on the amount agreed. The only relevant implied terms were concerned with the annual review of the pitch fee and not with its original determination; market forces governed that bargain, but any subsequent increase was limited by the statutory implied terms.
(2) Paragraphs 18-20 of schedule 2 to the 1983 Act explained what was to be taken into account in determining a new pitch fee. Paragraph 18(1)(aa) of the implied terms identified “any deterioration in the condition, and any decrease in the amenity, of the site or any adjoining land which is occupied or controlled by the owner” as matters to which “particular regard shall be had” when determining a new pitch fee. There was no express requirement for the amenity to be one to which the occupier had a contractual right, either through the terms of their pitch agreement or as a matter of licensing. Nor was there anything which would justify reading such a requirement into the implied terms.
Paragraph 16 provided that, if the parties could not agree, the pitch fee might only be changed by the First-tier Tribunal if it considered it reasonable to do so and made an order determining the amount of the new pitch fee. The obvious inference was that the new pitch fee was to be the fee which the tribunal considered to be reasonable: Re Sayer [2014] UKUT 283 (LC); [2014] PLSCS 202, Britaniacrest Ltd v Bamborough [2016] UKUT 144 (LC); [2016] PLSCS 117 and Vyse v Wyldecrest Parks (Management) Ltd [2017] UKUT 28 (LC); [2017] PLSCS 26 considered.
(3) Where it was said that the statutory presumption of an RPI/CPI increase did not apply, because of a factor falling within paragraph 18(1), or because it had been displaced by some other weighty factor, the tribunal would need to consider whether the factor which justified a higher or lower increase than RPI/CPI affected all pitches equally. If it did not, it was likely to be necessary to determine what was the reasonable pitch fee for each pitch, rather than adopt a blanket approach.
In the present case, both the tribunals were entitled to find that the presumption of an RPI/CPI increase did not apply but neither gave an indication of its thinking in reaching its decision. Both decisions had to be set aside, either because of an error of law in treating an RPI/CPI increase or a nil-increase as the only available options, or for a failure in each case to provide a sufficient explanation of the tribunal’s reasons for allowing no increase at a time of unusually high inflation.
(4) From 26 May 2013 in England, and 1 October 2014 in Wales, the change in the wording of the implied term had made a real difference to the treatment of adverse changes. Previously the only type of change which was within the paragraph was a “decrease in the amenity of the protected site”. Now particular regard also had to be had to a “deterioration in the condition” of the site. Additionally, a deterioration in the condition of adjoining land occupied or controlled by the owner, or a decrease in the amenity of such adjoining land, had been added as factors to which particular regard had to be had.
The point of reference had become “the date on which this paragraph came into force” (25 May 2013 in England and 1 October 2014 in Wales). Any deterioration or decrease since that date had to be taken into account, unless that deterioration or decrease had previously been taken into account when determining a new pitch fee.
The exception applied only where the relevant deterioration or decrease had previously been taken into account. The personal characteristics of a particular occupier had nothing to do with the pitch and were not part of what the fee was paid for.
Both appeals would be remitted to the relevant tribunal for reconsideration.
The parties appeared by their representatives.
Eileen O’Grady, barrister
Click here to read a transcript of Wyldecrest Parks (Management) Ltd v Whiteley and others
