First-tier Tribunal Approves Pitch Fee Increase Based on RPI

OUTCOME: Allowed

© CROWN COPYRIGHT 1

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/00HE/PHI/2022/0105

Property

:

14 [NAME], [ADDRESS] [POSTCODE] Applicant: [redacted]

: [APPELLANT]

Respondent: [redacted]

:

Type of Application

:

Review of Pitch Fee: Mobile Homes Act 1983 (as amended)

Tribunal member

:

D Banfield FRICS, Regional Surveyor Date of Decision

: 22 May 2023

DECISION

2

Background

1. On 15 August 2022 the Applicant [NAME] sought a determination of the pitch fee of £111.10 per month payable by the Respondent as from 2 June 2022. This was one of 27 pitch fee applications that were submitted together.

2. A Pitch Fee Review Notice was said to have been served on each Respondent dated 16 April 2022 proposing to increase the pitch fee by an amount which the [NAME] says represents only an adjustment in line with the Retail Price Index. The Applicant stated that the Review Date was 1 April each year.

3. The Applicant did not provide copies of the Pitch Fee Notice or Written Statement but did provide a statement of facts with a copy of a Written Statement and Pitch Fee Notice from a resident at the park. Unfortunately these copies were illegible.

4. On 7 December 2022 the Tribunal issued a Notice that it was minded to strike out the Application on the grounds that it did not have jurisdiction to deal with it. This was because as it did not possess the relevant documents to proceed and could not be satisfied that the correct process had been followed by the Applicant.

5. Representations were requested from both parties to be received by 21 December 2022.

6. On 19 December 2022 representations were received from the Respondent. It is not clear whether these were served upon the Applicant.

7. On 21 December 2022 the Applicant submitted detailed representations together with copies of two Pitch Fee Review Notices and a Review Form (subsequently received following the service of the application) and 13 Written Agreements that it had located, one of the said Written Agreements relating to this park home.

8. The Tribunal noted the Applicant’s submissions and allowed the application to proceed, issuing directions on 6 January 2023 setting out a timetable for the submission of the parties’ respective cases.

9. The directions indicated that the Tribunal considered that this application was likely to be suitable for determination on the papers alone without an oral hearing unless a party objects in writing. No objections have been received and the application is therefore so determined.

3 The parties’ cases

10. In a statement from the Respondent on 3 February 2023 it was stated that. “There has been no improvement or benefits to the area known as [NAME] since it was taken over. Although the entrance road has been resurfaced, mainly for the holiday homes he is planning. According to Park rules residents are supposed to be given 28 days notice of any work to be done on the Park. We were given 12 hours notice that the entrance road would be closed for 2 or possibly 3 days. There being no other entrance or exit we were forced to remain on the Park unable to go for collection of prescriptions or shopping. Under the Implied Terms Section 4 "The owner undertakes with the occupier as follows :- (a) To keep and maintain those parts of the park which are not the responsibility of the occupier hereunder or of other occupiers of other pitches on the park in good state of repair and condition." This has not been done with the exception to the main entrance. Since his purchase of the Park Mr [APPELLANT] has sited 5 new dwellings on the area known as [NAME] and [ADDRESS], 4 of which are occupied, and 1 is up for sale as new and is also being used by Mr [APPELLANT] and family as an occasional break home. In the area known as [ADDRESS] he has placed 5 new concrete bases and erected one new holiday home, which is on the selling market, and like the one in [NAME], it is used as a home for his senior employee when he is working on the Park. At the same time he is preparing the bottom of the Park for more holiday homes. All this construction work has entailed HGV deliveries of the new buildings and large concrete mixing lorries to empty their loads on the sites for the new homes, which has further damaged the roads making them unsafe for people of poor mobility to walk on and those with mobile scooters unable to use them. [NAME] has had one hip replaced, which was not done properly, and two knees replaced and needs two crutches to walk around. She is too frightened to walk on these roads in case of falling. Whilst preparing the updated entrance road and land adjacent to it he ripped out the flower bed the residents have tended for many years. Amongst the plants were those donated by some residents in memory of their late partners. All these were ripped out and dumped at the bottom of the park and covered by the waste he was digging up from the area. Also the Residents Association paid for many more plants to be bedded, no recompensation has been paid or offered.”

11. The statement is summarised as;  The condition of the roads at the Park.  The short notice given to the residents on the Park of resurfacing works being carried out on the roads at the Park  Failure to consult the residents’ association  The alleged failure of the Applicants to read the electricity meters and to invoice the residents regularly.

4  Plants were pulled up that had been planted by the residents at the entrance to the Park  There have been no improvements or benefits to the Park since it was purchased.  There is no Park Manager on the Park.  Failure to arrange a meeting with all residents following the Applicants’ purchase of the Park.  The conversion of the Office and Laundrette to two holiday pods  The condition of the electrical system at the Park  No breakdown of the Pitch Fee has been given by the Applicants when requested.  The Notice Board at the Park was removed  Failure to recognise the QRA  Failure to permit the residents to turn 10% of the area at the top of the Park into a [ADDRESS] in breach of the [NAME].  The use of unqualified tradesmen  Failure to maintain the boundary walls  Failure by the Applicants to comply with their Duty of Care

12. In a statement in reply the Applicant sets out the legal position which in summary is that any increase will not exceed the increase in RPI and any adjustment for a reduction in amenity or services since the last review. Reference is made to Vyse v [COMPANY] [2017] UKUT 0024.

13. In answer to the issues raised by the Respondent the Applicant states that;

 The state of the roads; there has not been a decrease in condition since the last review.  The works were carried out as part of the overall development of the [NAME] not in response to any Council action.  The validity of the Council’s Notice is being challenged.  Delays were incurred due to the non-appearance of a contractor and finding a replacement.  The short notice given for the works is not one of the factors envisaged in “[NAME]” The Applicants directed Mr [NAME] to inform Mr [NAME] to inform other residents of the park of the resurfacing works.  The [COMPANY] has not been formally recognised as a qualifying residents association in accordance with the implied terms therefore there is no legal obligation for them to be consulted  The Respondent hasn’t particularised the failure to maintain the Park but in any event maintenance is undertaken regularly and an employee appointed since the last review.

5  There has been no change in the meter reading and is not a matter to be considered in assessing the pitch fee.  No evidence has been provided regarding the Applicants removing plants at the entrance however the Applicants acknowledge plants were removed as part of resurfacing works and the area relandscaped  The resurfacing works are an “improvement” however the application is in respect of the increase in RPI not due to any improvements made to the Park.  There has been no park manager since 2021 although Mr [NAME] acts as a point of contact.  No planning consent was required for the conversion of the Office, Laundrette and shower to two holiday pods. The Respondent has not had use of the facilities since the Applicants purchased the Park and which are located in the “camping area”  Regarding the electrical system, no evidence of it being in a dangerous state has been produced and a safety report is exhibited. There is no evidence that the condition has arisen since the last review in 2021.  The Applicants solicitors responded to the request for a breakdown by providing the relevant RPI calculation.  When notice board was removed has not been particularised and photographs of a notice board at the entrance to the Park are provided  A request for recognition of the [COMPANY] was received on 9 February 2023 and will be considered in line with paragraph 28 of the Implied Terms.  Whether failure to permit the residents to turn 10% of the area into a [ADDRESS] is a breach of the [NAME] is a matter for the Council  No evidence provided as to use of unqualified tradesmen  Failure to maintain boundary walls is denied and there has been no decrease in condition since the last review.  The Applicants’ obligation is to maintain those parts of the [NAME] which are not part of the occupier’s pitch. No breach of any duty of care has been breached.

14. Reimbursement of the £20 application fee is sought.

15. A hearing bundle was provided on 3 March 2023 the contents of which have been examined and the Tribunal is satisfied that the application remains capable of being determined on the papers without an oral hearing.

Consideration

16. [NAME] is a protected [NAME] within the meaning of the Mobile Homes Act 1983 (the 1983 Act).

6 17. The Respondents’ right to station their mobile home on the pitch at [NAME] is governed by the terms of the Written Agreement with the Applicant and the provisions of the 1983 Act.

18. The Applicant has been unable to provide a copy of a Written Statement for this pitch but has provided one relating to another pitch which it said applied to all the pitches on the Park.

19. The Applicant said that the pitch fee review date is 1 April each year. The Respondents have not disputed the accuracy of this statement.

20. The Applicant further stated that it served the Respondents with the prescribed pitch review form proposing the new pitch fee effective from 2 June 2022 on 16 April 2022 which was more than 28 days prior to the effective review date and that the Application to the Tribunal to determine the pitch fee was made on 15 August 2022 which was within the period starting 28 days to three months after the review date of 2 June 2022. The Applicant explained that it applied the RPI of 7.8 per cent as published in February 2022 being the last index published for the year to January 2022.

21. Having regard to its findings above the Tribunal is satisfied that the Applicant had complied with the procedural requirements of paragraph 17 of Part 1 of Schedule 1 of the 1983 Act to support an application for an increase in pitch fee in respect of the pitch occupied by the Respondents.

22. The Tribunal is required to determine whether the proposed increase in pitch fee is reasonable. The Tribunal is not deciding whether the level of pitch fee is reasonable.

23. Pitch fee is defined in paragraph 29 of Part 1 of Schedule 1 of the 1983 Act as:

"The amount which the occupier is required by the agreement to pay to the owner for the right to station the mobile home on the pitch and for use of the common areas of the protected [NAME] and their maintenance, but does not include amounts due in respect of gas, electricity, water, sewerage or other services, unless the agreement expressly provides that the pitch fee includes such amounts."

24. The Tribunal is required to have regard to paragraphs 18, 19 and 20 of Part 1 of Schedule 1 of the 1983 Act when determining a new pitch fee. Paragraph 20(1) introduces a presumption that the pitch fee shall increase by a percentage which is no more than any percentage increase or decrease in the RPI since the last review date.

25. The Applicant has restricted the increase in pitch fee to the percentage increase in the RPI.

26. The Applicant referred to the decision of the Upper Tribunal: Vyse v [COMPANY], [2017] UKUT 24 (LC), where the increase sought was above RPI.

7 27. In Vyse, [NAME] said as follows: “There are a substantial number of mobile home sites in England occupied pursuant to pitch agreements which provide for relatively modest pitch fees. The legislative framework for determining any change in pitch fee provides a narrow basis on which to do so which no doubt provides an element of certainty and consistency that is of benefit to [NAME] and pitch occupiers alike. The costs of litigating about changes in pitch fee in the FTT and in the Tribunal are not insubstantial and will almost invariably be disproportionate to any sum in issue. I accept the submissions…that an interpretation which results in uncertainty and argument at many pitch fee reviews is to be avoided and that the application of RPI is straightforward and provides certainty for all parties”

28. The Applicant replied to the Respondent’s assertions in paragraph 10 above in particular that the test was whether there had been a deterioration since the last pitch fee review.

29. The Applicant submitted that there had been no deterioration of the [NAME] and that the [NAME] had remained in the condition that it has always been in. The Applicant argued that it would be reasonable for the Tribunal to approve the proposed increase in line with RPI.

30. The Tribunal’s starting point is that the pitch fee should be increased in line with RPI. In determining whether the presumption applies, the Tribunal must have regard to the matters identified in paragraphs 18 and 19 Part 1 of Schedule 1 of the 1983 Act. In this case paragraph 19 did not apply because there was no evidence that the increase in the pitch fee included costs which were specifically excluded by that paragraph. Similarly, the Applicant was not including costs of any improvements within the proposed increase. It appears to the Tribunal that the Respondent’s case rested on whether there had been a deterioration in the condition of the [NAME] and the manner in which the [NAME] was managed. The Respondent did not suggest there had been a reduction in the amenities or services provided.

31. The Tribunal accepts that the Respondents are dissatisfied with the current state of the [NAME] and wish for improvements to be carried out. The issue I must consider however is if, in the period between the current review of 2 June 2022 and the previous review, the condition of the [NAME] has deteriorated. Whilst evidence has been submitted identifying shortfalls in the condition of the [NAME] the Tribunal is not satisfied that it falls within the period at issue and sufficient to displace the presumption that the pitch fee should be increased in line with RPI.

32. The Tribunal agrees that any breach of [NAME] licence conditions is a matter for enforcement by the Council and not a “weighty factor” as referred to in Vyse.

33. The Tribunal, therefore, confirms the increase.

8

Decision

34. Given the above the above circumstances the Tribunal determines that the proposed increase in pitch fee is reasonable. Further the Tribunal determines a pitch fee of £111.10 with effect from 2 June 2022.

35. The Respondents have participated in the proceedings and raised matters of assistance to the Tribunal’s determination. As such the Tribunal refuses the Application for reimbursement of the Application fee of £20.00

RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application by email to [EMAIL] to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.