First-tier Tribunal Orders Compensation for Overcharged Water Fees and Maintenance of Perimeter Fence

OUTCOME: Allowed

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FIRST – TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

Case Reference : CAM/12UD/PHC/2020/0001

[NAME] : [RESPONDENT], [NAME], [ADDRESS] [POSTCODE]

Park home address : 68 (& ors as below) [NAME], [ADDRESS] [POSTCODE]

Applicant : [redacted] [NAME] 32 ([NAME]), 33([NAME]), 40 ([NAME]), 36 ([NAME]), 37 ([NAME]), 60 ([NAME]), 26 ([NAME]), 27 ([NAME]), 31 ([NAME]), 29 ([NAME]), 28 ([NAME]), 44 ([NAME]), 47 ([NAME]), 25 ([NAME]), 42 ([NAME]), 39 ([NAME]), 38 ([NAME]), 14 ([NAME]), 23 ([NAME]), 19 ([NAME]), 22 ([NAME]), 21 ([NAME]), 24 ([NAME]), 34 ([NAME]), 52 ([NAME]), 11 ([RESPONDENT]), 78 ([RESPONDENT]), & [RESPONDENT] (41).

Respondent: [redacted] 1983 or agreement to which it applies

Tribunal Members : Judge Stephen Reeder

Hearing : Paper determination

Date of application : 25 February 2020

Date of Decision : 16 November 2020

__________________________________________________________________________________

[NAME] __________________________________________________________________________________

© CROWN COPYRIGHT

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DECISION

The water charges issue

1. The Tribunal determines that it is appropriate pursuant to section 231A(4) of the Housing Act 1994 when exercising the jurisdiction under the Mobile Homes Act 1983 to exercise the power to require the Respondent to pay the Applicants’ money by way of compensation or damages or otherwise in respect of the excess water charge paid by them for the leak period. The Respondent is therefore ordered to provide each Applicant with a rebate in the sum of £170 per Applicant household against the water charges levied for the period October 2018 to September 2019.

The perimeter fence issue

2. The Tribunal determines that it is the Respondent’s obligation to maintain the [NAME] perimeter or boundary fence where it is not the responsibility of any [NAME] of a mobile home. An [NAME] is only responsible for the maintenance of a section of the [NAME] boundary fence if it forms a direct and immediate boundary to a pitch such that it can properly be said to be enjoyed with that pitch.

Fees and costs

3. The Tribunal makes an order pursuant to Rules 3 and 13(2) of the Tribunal Procedure (First-tier Tribunal)([NAME]) Rules 2013 requiring the Respondent to reimburse to [NAME] [APPELLANT] as the lead applicant the whole of the application fee of £100 paid and of any other fee paid to the Tribunal in relation to these proceedings.

REASONS

The application, parties and dispute.

4. The lead Applicant, [NAME] [APPELLANT], is [NAME] of 68 [NAME], [ADDRESS] [POSTCODE] (‘the [NAME]’).

5. The application raises two issues for determination by the Tribunal –

The water charge issue

(a) a dispute as to the water charges levied for two periods during which there is said to have been a water leak at the [NAME], and

The perimeter fence issue

(b) liability for the cost of the repair and maintenance of the perimeter fence to the [NAME].

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6. The application was accompanied by a handwritten schedule listing 56 additional signatories to the application, all of whom are [NAME] of the [NAME]. This is difficult to read but, with apologies to anyone whose name is misspelled, those signatories and their corresponding property numbers at [NAME] appear to be numbers 32 ([NAME]), 33 ([NAME]), 40 ([NAME]), 36 ([NAME]), 37 ([NAME]), 60 ([NAME]), 26 ([NAME]), 27 ([NAME]), 31 ([NAME]), 29 ([NAME]), 28 ([NAME]), 44 ([NAME]), 47 ([NAME]), 25 ([NAME]), 42 ([NAME]), 39 ([NAME]), 38 ([NAME]), 14 ([NAME]), 23 ([NAME]), 19 ([NAME]), 22 ([NAME]), 21 ([NAME]), 24 ([NAME]), 34 ([NAME]), 52 ([NAME]), 11 ([NAME]), 78 ([NAME]) and [NAME] (41). The tribunal notes that the title to this schedule is “signatories to the action regarding the dispute……with regard to the two (2) disputed water charges”.

7. By order dated 21 April 2020 Judge Wayte stated that these signatories would be added as applicants to the dispute in relation to the water charges issue unless an objection was made to that course of action by 15 May 2020. No such objection was notified to the tribunal by that date or at all.

Accordingly, those signatories are joined as applicants to the dispute in relation to the water charges dispute.

8. The Respondent, [RESPONDENT] is the owner and operator of the [NAME] which is a permanent residential mobile home park called [NAME] and located in Wisbech. There is no dispute that [NAME] is a protected [NAME] a defined by the Mobile Homes Act 1983 as amended.

9. The application was received at the Tribunal office on 25 February 2020. Judge Hawkes made an initial directions order on the application papers on 25 February 2020. On 21 April 2020 Judge Wayte made a further directions order addressing the issue of additional applicants, whether the relevant terms of the written agreements are generic to all applicants, the quantum of the charges which are in dispute, and the filing of photographic evidence of the perimeter fence. The April 2020 directions order reflected the procedural safeguards and restrictions arising due to the Covid-19 pandemic and re-drew the directions for an inspection and hearing.

10. No party has requested an inspection. No inspection has taken place. No party has requested a remote hearing. The application has been determined on the papers in accordance with the April 2020 directions order. The tribunal office contacted the parties seeking confirmation whether any party objected to the application being determined on the documents filed by the applicant, and if so whether and what further documents were to be provided. No party objected to determination on the papers filed by the applicant. No party sought to file further documents.

11. The tribunal has been provided with a substantial documents bundle. This has not been provided with any useful index nor helpful arrangement. Nonetheless, the tribunal has considered each document before it. The bundle comprises almost 300 pages and includes –

a. The application dated 20 January 2020.

b. A 4 page schedule of signatories to the application.

c. The respondent’s statement of case dated March 2020 signed by [NAME] [NAME] as a director.

d. The Applicants’ written response dated 18 March 2020.

e. The formal witness statement of [NAME] [RESPONDENT] dated 9 April 2020 on behalf of the Respondent.

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f. The witness statement of [NAME] [RESPONDENT] of 32 [NAME] (with attached spreadsheet relating to water usage and charges) dated 30 March 2020.

g. The written statement of [NAME] [NAME] of 22 [NAME] dated 1 April 2020.

h. A copy letter from [NAME] [RESPONDENT] of 17 [NAME] to the Respondent dated 1 November 2019.

i. The letter format statement of [NAME] [NAME] [NAME] dated 3 April 2020, enclosing a copy of a letter sent to the Respondent on 31 October 2019.

j. The letter format statement of [NAME] [NAME] [NAME] dated 2 April 2020.

k. The letter format statement of [NAME] [NAME] [NAME] which is undated.

l. Written Statement of Terms between the respondent and [NAME] dated 3 September 2004.

m. A letter from the respondent to the [NAME] dated 21 January 2020 stating that it has applied to the water supplies for a leakage allowance and any awarded will be credited to future invoices.

n. A single page document excerpt titled ‘[NAME] owners repairing and maintenance liabilities.

o. A letter from the respondent to the [NAME] dated 9 August 2013 which notifies changes to the [NAME] and appends a copy of the Rules as amended.

p. A letter from the respondent to [NAME] [RESPONDENT] dated 28 January 2020 enclosing a pitch fee review notice and accompanying prescribed form.

q. Copies of the respondent’s water and sewerage charges invoices to the [NAME] dated 1 April 2018 and 1 October 2019.

r. Copies of the water and sewerage bills from the suppliers for the relevant period.

s. Party correspondence relating to the water bill issue dated 28 October 2019, November 2019, 4 December 2019, 11 December 2019, 2 January 2020 and 13 January 2020.

t. A letter from [NAME] [NAME] to the Tribunal dated 14 May 2020 responding to the Directions Order made.

u. Bar graphs said to summarise the volume of water used and the cost per household between 2015 and 2019.

v. The Ofwat Water Resale Guidance dated January 2013.

w. The Water Resale Order 2006.

x. A Citizens Advice Bureau leaflet discussing water meters (which has not been considered for the purposes of this determination as it is of not of any material evidential value).

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y. A print-out of a Gov.uk October 2018 press release referring to ‘rogue mobile home [NAME] owners’ (which has not been considered for the purposes of this determination as it is not of any evidential material value).

12. The tribunal has also considered photographic evidence filed by [NAME] [NAME] in accordance with the April 2020 directions order. The photographs are described as showing the rear perimeter fence (providing a boundary between the [NAME] [NAME] and adjacent land which is not part of that [NAME]), and a dividing fence (providing a boundary fence between pitches 67 and 68 [NAME]).

The Law

13. Section 1(1) of the Mobile Homes Act 1983 (as amended) (‘the 1983 Act’) provides that the Act applies to any agreement under which a person (‘[NAME]’) is entitled to station a mobile home on land forming part of a protected [NAME] and to occupy the mobile home as his only or main residence.

14. Section 1(2),(c),(d) of the 1983 Act requires that before making an agreement the owner of the protected [NAME] (“the owner) shall give the proposed [NAME] under the agreement a written statement which sets out the express terms to be contained in the agreement including any [NAME] rules, and sets out the terms to be implied by section 2(1) of the Act.

15. Section 2(1) of the 1983 Act provides that in any agreement to which the Act applies there shall be implied the terms set out in Schedule 1 to the Act, and further that this subsection shall have effect notwithstanding any express term of the agreement.

16. Paragraph 21 of Part 2 of Schedule 1 to the 1983 Act addresses [NAME]’s obligations.

17. Paragraph 21(b) provides that [NAME] shall pay to the owner “all sums due under the agreement in respect of gas, electricity, water, sewerage or other services supplied by the owner”.

18. Paragraph 21(d), (ii) provides that [NAME] shall “maintain the pitch, including all fences and outbuildings belonging to, or enjoyed with, it and the mobile home, in a clean and tidy condition.

19. Paragraph 22 of Chapter 2 of Part 1 of Schedule 1 to the 1983 Act addresses the owner’s repairing liabilities.

20. Paragraph 22(c) provides that the owner shall be responsible for repairing the base on which the mobile home is stationed and for maintaining any gas, electricity, water, sewerage or other services supplied by the owner to the pitch or to the mobile home.

21. Paragraph 22(d) provides that the owner shall be responsible for maintaining those parts of the protected [NAME] including access ways, [NAME] boundary fences and trees, which are not the responsibility of any [NAME] of a mobile home stationed on the protected [NAME].

22. Paragraph 32 of Part 2 of Schedule 1 to the 1983 Act provides that “pitch” means the land, forming part of the protected [NAME] including and including any garden area, on which [NAME] is entitled to station the mobile home under the terms of this agreement.

23. Paragraph 32 of Part 2 of Schedule 1 to the 1983 Act provides that “pitch fee” means the amount which [NAME] is required by the agreement to pay to the owner for (a) the right to station the mobile home on the pitch and for use of the common areas of the protected [NAME] and their

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maintenance, and (b) water and sewerage services, unless the same are specifically excluded from forming part of the pitch fee by the agreement, but the pitch fee does not include amounts due in respect of gas, electricity or other services, unless the agreement expressly provides that the pitch fee included such amounts.

24. Section 4(1) of the 1983 Act provides that in relation to a protected [NAME] in England, the tribunal has jurisdiction to (a) determine any question arising under this Act or any agreement to which it applies; and (b) entertain any proceedings brought under this Act or any such agreement, subject to subsections (2) to (6). Subsection (1) applies in relation to a question irrespective of anything contained in an arbitration agreement which has been entered into before that question arose.

25. Section 231A of the Housing Act 2004 (‘the 2004 Act’) provides additional powers to the tribunal and states that the tribunal exercising any jurisdiction conferred by or under the Caravan Sites and Control of Development Act 1960, the Mobile Homes Act 1983, the Housing Act 1985 or the Housing Act 2004 has, in addition to any specific powers exercisable by them in exercising that jurisdiction, the general power mentioned in subsection (2).

26. Section 231A (2) of the 2004 Act provides that the tribunal’s general power is a power to give such directions as the tribunal considers necessary or desirable for securing the just, expeditious and economical disposal of the proceedings or any issue in or in connection with them.

27. Section 231A (4) of the 2004 Act provides that when exercising jurisdiction under the Mobile Homes Act 1983, the directions which may be given by the tribunal under its general power include (where appropriate) –

(a) directions requiring the payment of money by one party to the proceedings to another by way of compensation, damages or otherwise;

(c) directions requiring the arrears of pitch fees or the recovery of overpayments of pitch fees to be paid in such manner and by such date as may be specified in the directions;

(d) directions requiring cleaning, repairs, restoration, re-positioning or other works to be carried out in connection with a mobile home, pitch or protected [NAME] in such manner as may be specified in the directions;

(e) directions requiring the establishment, provision or maintenance of any service or amenity in connection with a mobile home, pitch or protected [NAME] in such manner as may be specified in the directions.

28. The Upper Tribunal considered the scope of the tribunal’s jurisdiction in Elleray v Bourne [2018] UKUT 0003 (LC), and held that –

“despite the apparent breadth of section 4, a power to determine questions or entertain proceedings is not the same as a power to grant specific remedies. The FTT has no inherent jurisdiction and may only make such orders or grant such remedies as Parliament has given it specific powers to make or grant. Although it is rather strangely described as part of a “general power” to “give directions”, in section 231A(4)(a) of the Housing Act 2004 Parliament has given the FTT a specific power to require the payment of money by one party to the proceedings to another. Such directions may be given where the FTT considers it necessary or desirable for securing the just, expeditious and economical disposal of the proceeding. The use of the word “directions” in this context might give the impression that section 231A(2) is concerned only with procedural matters. It is clear from section 231A(4), however, that the power to give directions is a

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power to make substantive orders, including for the payment of money, the carrying out of works, and the provision of services.”.

The written statement of terms

29. The written statement of terms provided pursuant to the Mobiles Homes Act 1983 between the respondent and [NAME] [RESPONDENT] dated 3 September 2004 contains the following terms which are implied by statute and are set out in Part 3 of the statement (adopting the numbering of the statement) –

 Clause 21(b) provides that [NAME] shall pay to the owner all sums due under the agreement in respect of gas, electricity, water, sewerage or other services supplied by the owner.

 Clause 21(d)(ii) provides that [NAME] shall maintain the pitch including all fences and outbuildings belonging to, or enjoyed with, it and the mobile home, in a clean and tidy condition.

 Clause 22(c) provides that the owner shall be responsible for……. maintaining any gas, electricity, water, sewerage or other services supplied by the owner to the pitch or to the mobile home.

 Clause 22(b)(ii) provides that the owner shall if requested by [NAME], provide (free of charge) documentary evidence in support and explanation of any charges for gas electricity, water, sewerage or other services payable by [NAME] to the owner under the agreement.

 Clause 22(d) provides that the owner shall maintain in a clean and tidy condition those parts of the protected [NAME], including access ways, [NAME] boundary fences and trees, which are not the responsibility of any [NAME] of a mobile home stationed on a protected [NAME],

 Clause 29 defines the pitch fee to mean the amount which [NAME] is required by the agreement to pay to the owner for the right to station the mobile home on the pitch and for the use of the common areas of the protected [NAME] and their maintenance, but does not include amounts due in respect of gas, electricity, water and sewerage or other services, unless the agreement expressly provides that the pitch fee includes such agreements.

30. Part 5 of the written statement of terms contains the following express terms which are agreed between the owner and [NAME] in addition to the terms implied by statute (adopting the numbering of the Statement) –

 Clause 2(d) provides that the [NAME] must do everything they reasonably do to provide and keep the services available to the pitch. However, the [NAME] will not be responsible for any temporary failure or lack of facilities and services if this is caused by something outside their control.

 Clause 3(e)(ii) provides that [NAME] must not, without the prior written consent of the [NAME] (which must not unreasonably be withheld) carry out…..the erection of any fences.

 Clause 3(h) provides that [NAME] must comply with the [NAME].

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 Clause 3(m) provides that [NAME] must, at his own expense, carry out all works in respect of the mobile home including all fences and outbuildings belonging to or enjoyed with the mobile home, which are required in order to comply with the requirements of any statute, government department, local authority or Court.

Guidance in the prescribed Pitch Fee Review Form

31. A letter from the respondent to [NAME] [RESPONDENT] dated 28 January 2020 enclosed the most recent pitch fee review notice and accompanying form. The content of that Pitch Fee Review Form is prescribed by paragraph 25A(1) of Chapter 2 of Part 1 of Schedule 1 to the Mobile Homes Act 1093 the Mobile Homes (Pitch Fees)(Prescribed Forms)(England) Regulations SI 2013/1505.

32. That Prescribed Form records that paragraph 22(c) and (d) of the Chapter 2 of Part 1 of Schedule 1 to the 19183 Act sets out the owner’s repairing liabilities and provides that the owner shall be responsible for repairing the base on which the mobile home is stationed and for maintaining any gas, electricity, water, sewerage or other services supplied by the owner to the pitch or to the mobile home, and further that the owner shall be responsible for maintaining those parts of the protected [NAME] including access ways, [NAME] boundary fences and trees, which are not the responsibility of any [NAME] of a mobile home stationed on the protected [NAME].

33. That Prescribed Form states in terms that “examples of such repairs and maintenance that fall within paragraph 22 may include repair and maintenance of pipes, conduits, wires, structures, tanks or other equipment provided by the [NAME] and of the parts of the [NAME] that are under the control of the [NAME], including access ways, roads, pavements, street furniture and lighting, boundary fences, buildings in common use, drains and any drainage system and any open spaces or facilities in common”.

The [NAME]

34. A letter from the respondent to the [NAME] dated 9 August 2013 notifies changes to the [NAME] for [NAME] and appends a copy of the Rules as amended. Rule 2(c) is unamended and provides that “[NAME] shall be responsible for the trimming and maintenance of any boundary hedge of the Park which forms a boundary to the Pitch”. Rule 2(g) is amended to provide that “hedges are not permitted to be grown on the Park”.

The Ofwat Water Resale Guidance

35. The Ofwat Water Resale Guidance dated January 2013 directly addresses (page 24) the issue “There are leaks on the [NAME] and I think I’m paying for leaked water. What should I do?”. It states “Your reseller is normally responsible for fixing leaks on the [NAME]’s pipe works. If you think there are leaks, you should discuss this with your reseller. If there is significant leakage on a [NAME], your local water company may ask the reseller to fix any leaks.”

Issues, discussion and determinations

The water charges issue

36. The lead applicant [NAME] [APPELLANT], together with the additional 28 signatories to the application on this issue identified as parties at the head of this Decision, claim that they have been overcharged in relation to water charges in respect of two periods during which there was a water leak at the [NAME]. The nature and scope of this issue is set out in the application and subsequent letter dated 14 May 2020 from [NAME] [NAME].

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37. The Applicants claim that they have been overcharged by the Respondent in respect of the water bills for the periods October 2018 to March 2019, and April 2019 to September 2019.

38. The Applicants’ case is that during this period there was a leak to the mains water pipe below the road surface on the [NAME]. Their evidence is that the Respondent should have noticed the sudden increase in the October 2018 to March 2019 water charge which then continued for the following period April 2019 to September 2019. They further state that the previous [NAME] [NAME] had notified the Respondent of its concerns about a sudden increase in water supply and had offered to investigate this but that the Respondent had declined that offer. They further state that, in any event, [NAME] complained of that sudden increase. Those evidential assertions are relied upon to argue that the Respondent was on notice that there was a problem. The Applicants’ evidence is that despite being on notice of the sudden increase in water charges from [NAME] the Respondent took no action to identify the cause and remedy the leak which was subsequently found to be the cause for 8 months from March 2019.

39. The signed statement of [NAME] [NAME] in behalf of the Applicants states in terms that he complained on the sudden increase in charge when he received the March 2019 bill from the Respondent and that he raised it with the park manager and with the Respondent’s office. He further states that the park manager confirmed that monthly meter readings (there are a number of references in evidence to an [NAME]’s water meter located at the entrance to the [NAME]) were provided to the Respondent and that [NAME] [RESPONDENT] provided the Respondent with a monthly invoice of water used. He obtained water bills for the period April 2015 to March 2019 and has extracted the relevant figures in to a spreadsheet to show the substantial and sudden increase in water supplied by [NAME] in the relevant period, and so support the calculation of the excess water charge referable to wasted water caused by the leak.

40. The signed statement of [NAME] [NAME] dated 1 April 2020 also refers to his own discussion with the park manager highlighting the increases who it is said confirmed that he had relayed the concerns to the Respondent. [NAME] [RESPONDENT] states that no adequate steps were taken to investigate and remedy the issue until August/September 2019 when “professional engineers” attended, located and remedied a failed joint in the pipework below the service road on the park.

41. A letter from [NAME] [NAME] dated 2 April 2020 states that he too raised the issue with the park manager but also informed the Respondent by telephoning its office and speaking to a named employee.

42. The Applicants’ estimate that the leak resulted in an excess water charge per [NAME] household of approximately £100 for the period October 2018 to March 2019, and approximately £70 for the period April 2019 to September 2019.

43. The Applicants’ therefore seek an order to rebate the sum of £170 per Applicant household.

44. The Respondent’s statement of case expressly accepts that “there was a water leak on the park but that does not affect the Company’s entitlement to make the charges it did in accordance with OFWAT’s guidance” and states that the charges were calculated in accordance with that guidance for an unmetered supply be a re-seller. The Respondent contends that the charges are due in the full sum invoiced by [NAME] pursuant to the express terms requiring the Applicants to pay water charges which is said to be consistent with the statutory implied term that “ an [NAME] shall pay to a park owner all sums due under an occupation agreement for water and other services supplied by the owner”. The witness statement of [NAME] [RESPONDENT] for the Respondent adopts this same argument. [NAME] [RESPONDENT] adds that “the company is currently in discussions with [NAME] [[NAME]] as to the level of its charges and if the charges are reduced the full reduction will be passed on to [NAME]”.

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45. This dispute, and the parties’ respective positions and arguments, had already been set out in some detail in pre-litigation correspondence which is included in the documents bundle provided to the tribunal and so only summarised for the purposes of this Decision. On 1 April 2019 the Respondent sent the [NAME] an invoice for the period October 2018 – March 2019 charging £229.81, being £8.48 per week. On 28 October 2019 the Respondent wrote to the [NAME] enclosing a bill from the [NAME] together with an invoice for charges to 1 October 2019. This acknowledged that an increase in the water bills had been noted and that the Respondent “subsequently discovered and rectified a leak”. It states that the Respondent calculated the excess charge above the average of previous bills and that, whilst it is entitled to charge the [NAME] the full amount of the [NAME] bill, on this occasion it proposes to split the excess 50/50 with the [NAME] so that the charge is capped at £7.50 per household per week. An undated reply from [NAME] [NAME] responds to this stating that the [NAME] should not be made liable to pay excess [NAME] charges caused by the water leak. [NAME] [RESPONDENT] then sends further correspondence to the Respondent on 4 December 2019, 11 December 2019 and 2 January 2020 in which he requests a response and also states that an application to this Tribunal may follow unless agreement can be reached. On 13 January 2020 the Respondent provided a substantive response stating that the re-charges are made in accordance with the Water Resale Order 2006 and so the Respondent (as re-seller) can charge the actual charge made by the [NAME] (as [NAME]) providing that this does not exceed the average charge by that [NAME] to its own domestic customers. It states that as the charge of £426.06 for October 2018 – September 2019 is less than the [NAME]’s (Anglia Water) domestic customer charge for water and sewerage of £509.25, it is not willing to review the charge made to the [NAME]. It further states that it is entitled to levy a 1.5% administration charge under the Resale Order but does not do so.

46. The Tribunal notes that part 3 of the Written Statement of Terms contains an implied term at clause 22 (c) which provides that the Respondent as owner shall be responsible for maintaining any water supply by it to the pitch or to the mobile home, and a further implied term at clause 21(b) which provides that the Applicants as occupiers shall pay to the Respondent as owner all sums due under the agreement in respect of water supplied by it. The tribunal considers that the terms are clear and unambiguous. The tribunal determines that the obligation contracted by the Applicants is to pay for water supplied to the pitch or mobile home. This does not require the Applicants to pay for ‘wasted’ water resulting from a leak in sub-ground service supply pipework on the Park which is the Respondent’s responsibility. Water leaking from that pipe cannot properly be construed to be supplied to the pitch or mobile home.

47. The tribunal notes that part 5 of the Written Statement of Terms contains an express term at clause 2(d) which provides that the [NAME] must do everything they reasonably can do to provide and keep the services available to the pitch, and further that the [NAME] will not be responsible for any temporary failure or lack of facilities and services if this is caused by something outside their control. The unchallenged evidence of the Applicants establishes that the Respondent did not adequately respond to the reports of increased water charges and concerns raised about a leak during the relevant period and so did not comply with the clause. Further, this clause does not entitle to the Respondent to charge the Applicants for the ‘wasted’ water resulting from the leak which was not as a matter of fact supplied to the Applicants.

48. The Respondent seeks to rely on the Water Resale Order 2006 in support of its contention that it is entitled to charge for the leaked water. The position and rights and obligations of the water [NAME], the Respondent and the Applicants are clear having regard to section 52(1) of the Water Industry Act 1991, the terms of the Water Resale Order 20006 and the evidence and information before the tribunal. The water [NAME] has the statutory duty to supply water to domestic premises and to maintain the connection between [NAME]’s water main and the service pipe by which that supply is provided to the domestic premises. The Respondent is the [NAME] who provides to the purchaser a supply of piped water which the water [NAME]

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has supplied, directly or indirectly to the re-seller. The Respondent is the consumer who is liable to pay charges to the water [NAME] in respect of the supply pursuant to section 93(1) of the 1991 Act and can enforce the domestic supply duty pursuant to section 54(1) of the 1991 Act. There is no suggestion that any provision has been made to the contrary by an agreement to which [NAME] is a party. The Applicants are the purchaser as they occupy a dwelling supplied with water and buy that water from the Respondent as re-seller in accordance with the Written Statement of Terms provided pursuant to the Mobiles Homes Act 1983. The tribunal notes that this position is confirmed by the decision of Morgan J in Moss v Royal Borough of Kingston upon Thames and Moss [2019] EWHC 3261 (Ch). It follows that the Applicants have no legal relationship with [NAME] relevant to this dispute. The Respondent as consumer is liable to pay [NAME]’s charges for the supply of water and can enforce the supply duty against [NAME]. If the cause of the water leak and resulting ‘wasted’ water which is not supplied to the Applicant as occupiers is [NAME]’s failure to maintain its main or the connection between [NAME]’s water main and the service pipe by which that supply is provided to the domestic premises, the remedy against [NAME] lies solely with the Respondent which is consumer and re-seller.

49. The Tribunal determines that it is appropriate pursuant to section 231A(4) of the 1994 Act when exercising the jurisdiction under the 1983 Act to exercise the power to require the Respondent to pay the applicant’s money by way of compensation or damages or otherwise in respect of the excess water charge paid by them for the leak period.

50. The Applicants’ estimate that the leak resulted in an excess water charge per [NAME] household of approximately £100 for the period October 2018 to March 2019, and approximately £70 for the period April 2019 to September 2019. This appears to be supported by the figures submitted by them and is not disputed by the Respondent. The Respondent is therefore ordered to provide each Applicant with a rebate in the sum of £170 per Applicant household against the water charges levied for the period October 2018 to September 2019.

The perimeter fence issue.

51. [NAME] [APPELLANT] is the sole Applicant on this issue. In the application he states that “some [NAME] have been advised that it is their responsibility for repairs to the perimeter fence and associated costs”. He argues that the Respondent is responsible for the costs of repair and maintenance to the perimeter fence of the [NAME].

52. The Respondent argues that both the express and statutory implied terms require a [NAME] “to keep his pitch and all fences and his garden in a clean and tide condition” and that “these provisions are consistent with one another, and…..clearly include any perimeter fence or hedge”. It further relies upon paragraph 2(c) of the [NAME] in support of this argument. The Respondent further states that “in any particular case, who would be responsible for any work required on a perimeter fence or hedge would depend on the nature of the work needed and its cause.

53. The Tribunal is mindful that section 4(1) of the Mobile Homes Act1983 Act provides that in relation to a protected [NAME] in England, it has jurisdiction to (a) determine any question arising under this Act or any agreement to which it applies. The written statement of terms provided pursuant to the Mobiles Homes Act 1983 between the respondent and [NAME] [RESPONDENT] dated 3 September 2004 is an agreement to which the Act applies. The Tribunal may determine disputed interpretations of that agreement.

54. The agreement contains the following terms which are relevant to this issue –

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55. The documents bundle includes a letter dated 9 August 2013 from the Respondent to the [NAME] attaching new [NAME] which it has determined to adopt. Paragraph 2(c) provides that “[NAME] shall be responsible for the trimming and maintenance of any boundary hedge of the Park which forms a boundary of the Pitch”.

56. A letter from the respondent to [NAME] [RESPONDENT] dated 28 January 2020 enclosed the most recent pitch fee review notice and accompanying form. The content of that Pitch Fee Review Form is prescribed by paragraph 25A(1) of Chapter 2 of Part 1 of Schedule 1 to the Mobile Homes Act 1093 the Mobile Homes (Pitch Fees)(Prescribed Forms)(England) Regulations SI 2013/1505. That Prescribed Form records that paragraph 22(c) and (d) of the Chapter 2 of Part 1 of Schedule 1 to the 19183 Act sets out the owner’s repairing liabilities and provides that the owner shall be responsible for repairing the base on which the mobile home is stationed and for maintaining any gas, electricity, water, sewerage or other services supplied by the owner to the pitch or to the mobile home, and further that the owner shall be responsible for maintaining those parts of the protected [NAME] including access ways, [NAME] boundary fences and trees, which are not the responsibility of any [NAME] of a mobile home stationed on the protected [NAME]. That Prescribed Form states in terms that “examples of such repairs and maintenance that fall within paragraph 22 may include repair and maintenance of pipes, conduits, wires, structures, tanks or other equipment provided by the [NAME] and of the parts of the [NAME] that are under the control of the [NAME], including access ways, roads, pavements, street furniture and lighting, boundary fences, buildings in common use, drains and any drainage system and any open spaces or facilities in common”.

57. The Tribunal considers that the written agreement, read within the context of the statutory scheme and with the [NAME], is clear and unambiguous as it relates to fences. [NAME]’s responsibility is to the maintain all fences “belonging to or enjoyed with” the pitch and the mobile home. The [NAME] impose a similar obligation in relation to any hedge which “form a boundary to the pitch”. The owner’s obligation is to maintain “[NAME] boundary fences…..which are not the responsibility of any [NAME] of a mobile home”. No [NAME] boundary fence will belong to any [NAME]. Any section of a [NAME] boundary hedge which forms a direct connected boundary to a pitch may arguably be enjoyed with that pitch. Any section which does not cannot properly be said to enjoyed with that pitch. The photographic examples filed with the court do not show any section of [NAME] boundary hedge which forms a direct connected boundary to and can properly be said to be enjoyed with the pitch. The Tribunal has not been provided with details of the relationship between the [NAME] boundary fence and all pitches on the Park and so makes no wider determination beyond that which relates solely to the pitch and boundary fence seen in the photographs filed in evidence.

Fees and costs

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58. Having regard to the determinations made the Tribunal considers that it is just and equitable to make an order pursuant to Rules 3 and 13(2) of the Tribunal Procedure (First-tier Tribunal)([NAME]) Rules 2013 requiring the Respondent to reimburse to [NAME] [APPELLANT] as the lead applicant the whole of the application fee of £100 paid and of any other fee paid to the Tribunal in relation to these proceedings.

59. Having regard to section 29(2) of the Tribunals, Courts and Enforcment Act 2007 and Rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal)([NAME]) Rules 2013 read against the overriding objective in Rule 3 of the 2013 Rules, and mindful of the guidance given by the Chamber President and Deputy President in [ADDRESS] [COMPANY] v [NAME], [NAME] v [NAME], [NAME] v [NAME] Rd Management [COMPANY] [2016] UKUT 0290 (LC) no order for costs is made. No party may seek to recover the costs of these proceedings against another party.

Stephen Reeder Judge of the First Tier Tribunal, [NAME]

16 November 2020

RIGHTS OF APPEAL

a. Pursuant to Rule 36(2) of the Tribunal Procedure (First-tier tribunal)([NAME]) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have.

b. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case.

c. The application for permission to appeal must arrive at that regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application.

d. If the application is not made within the 28 day time limit, such application must include a request for an extension of time and the reason for not complying with the 28 day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.

e. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal, and state the result the party making the application is seeking.

f. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber) and any such right will be notified in the permission decision of the First-tier Tribunal.

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