First-tier Tribunal Upholds Pitch Fee Increase Based on RPI

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : MAN/00DB/PHI/2023/0283

Property : 9 [NAME], [ADDRESS], [POSTCODE]

Applicant: [redacted]

Respondent: [redacted]

: [NAME]

Mr [RESPONDENT] of Application : Determination of new pitch fee: Mobile Homes Act 1983 Schedule 1, chapter 2, paragraph 16

Tribunal : Tribunal Judge Caroline Hunter Tribunal Member [NAME] of Decision : 12 December 2023

DECISION

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Summary Decision 1. The pitch fee payable by the Respondent, Mr [RESPONDENT], from 1 March 2023 is £36.85 per week.

Application 2. On or about 31 January 2023 the Applicant, Mrs [APPELLANT], served a Pitch Fee Review Form on the Respondent, Mr [RESPONDENT]. The pitch is subject to the Mobile Homes Act 1983 (the 1983 Act). The Pitch Fee Review Form advised the Respondent that with effect from 1 March 2023 his pitch fee was to be increased by 13.4%, being the increase in the Retail Prices Index (RPI) over the previous 12 months. The current weekly pitch fee of £32.50 was to be raised to £36.85.

3. Mr [APPELLANT] objected to the new pitch fee. Mrs [APPELLANT] sought a determination as to the correct pitch fee to be paid. The Tribunal directed that an inspection and a hearing should take place.

4. The inspection took place on 24 November 2023. The hearing followed at the Wakefield Civil and Family Justice Centre. Mrs [APPELLANT] was represented by counsel, Mr [COUNSEL] [NAME]. Mr [COUNSEL] was in-person.

The Law 5. Under s.2 of the 1983 Act any agreement to the Act has the implied terms set out in Schedule 1 of the Act. Paragraphs 16 to 20 of the implied terms govern pitch fees. The pitch fee shall be reviewed annually as at the review date (Para 17(1)). The owner serves on the occupier a written notice setting out the proposed new pitch fee (Para 17(2)). If it is agreed, the new pitch fee is payable from the review date (Para 17(3)). If it is not agreed, the owner (or an occupier on a protected site) may make an application to the Tribunal to determine the new pitch fee (Para 17(4)). Once decided, the new pitch fee is payable from the review date (Para 17(4)(c)).

6. As Mr [NAME] helpfully set out in his skeleton the relevant law. The amount of the pitch fee is covered in paras. 18 and 20. So far as relevant they read: 18(1) When determining the amount of the new pitch fee particular regard shall be had to (a) any sums expended by the Owner since the last review date on improvements; (i) which are for the benefit of the occupiers of mobile homes on the protected site;….. (aa) any deterioration in the condition, and any decrease in the amenity of the site or any adjoining land since [26th May 2013] (insofar as regard has not previously been had to that deterioration or decrease for the purposes of this sub-paragraph);……

20(A1) Unless this would be unreasonable having regard to paragraph 18(1), there is a presumption that the pitch fee shall increase or decrease by a percentage which is no more than any percentage increase or decrease in the RPI.

7. In Vyse v [COMPANY] [2017] UKUT 24 (LC) the court was concerned with an appeal regarding the determination of pitch fees and set out the considerations that a tribunal should take into account when determining the fee.

8. Paragraph 48 of the judgment stipulates that the starting point is ‘there is a presumption of change in line with RPI “unless this would be unreasonable…”’ having particular regard to the factors as set out in paragraph 18(1).

9. HHJ Robinson then continues at paragraph 50 and states that, in relation to a “weighty factor” i.e. not one of the factors to have particular regard to ‘…the presumption arises and it is necessary to consider whether any ‘other factor’ displaces it. By definition, this must be a factor to which considerable weight attaches. If it were a consideration of equal weight to RPI, then, applying the presumption, the scales would tip the balance in favour of RPI. Of course, it is not possible to be prescriptive as to precisely how much weight must be attached to an ‘other factor’ before it outweighs the presumption in favour of RPI. This must be a matter for the FTT in any particular case. What is required is that the decision maker recognises that the ‘other factor’ must have sufficient weight to outweigh the presumption in the context of the statutory scheme as a whole.’ [emphasis added]

10. The recent large increases to RPI have not led to any Upper Tribunal decisions than we are aware of. However, but Tribunal did direct the parties to a first-tier decision: [NAME] ([COMPANY] v [NAME] 13 October 2023 CAM/22UH/PHI/2023/0022/0020/0025/0024/0023 and CAM/22UH/PHI/2023/0002/0004/0021/53/0001. In that case the Respondents objected to a raise of 12.6% that was the RPI in September 2022.

11. The Tribunal decided that a raise of 10% appropriate. In reaching that decision the Tribunal stated: ‘51. The RPI for September 2022 was unusually high. This high level was to a significant degree due to the large increase in the price of fuel as a consequence of the war in Ukraine. In the past Tribunals have referred to the modest increases in pitch fees due to being tied to the annual increase in RPI. Clearly 12.6% cannot be described as a modest increase.

52. The Tribunal accepts that the various incidents relating to street lights not working, pitches used for part completed homes for long periods and storage of associated building materials and mud on the road are in

themselves transitory. However, taken together they produce a picture of a site regularly in flux. This must have an adverse effect on the general amenity of the [NAME].

53. Moreover, the impact of the block paving has affected the efficiency of the drains since the paving has increased the area of non permeable land within the [NAME]. Whilst it is accepted that this has been going on for a number of years, the extent of hard surfacing eventually results in a tipping point whereby the existing soakaway drainage is no longer sufficient to cope with heavy rainfall which can no longer be soaked away in the drains plus the original small gardens. We accepted [NAME] evidence that her pitch had been flooded. She has lived on the [NAME] since 2013: she was able to give evidence that this represents a change in the amenity which is permanent without improvements to the drainage.

54. There was no evidence that this gradual deterioration in the amenity of the [NAME] had been reflected in past pitch fees since the evidence before the tribunal was that this was the first time any of the residents had challenged the increase.’

The Inspection 12. The Tribunal inspected [COMPANY] on 24 November 2023 in the presence of Mr [APPELLANT] and his wife and the respondent, Mrs [APPELLANT] and [NAME]. It was a sunny day and generally the site was well-maintained.

13. We saw the base to the pitch. We noted the Fire Point box that had been by the pitch had been moved to the other side of the road.

14. There were two electric operated barriers to the site, one at the entrance of whole site (including the holiday pitches) and one at the entrance to the residential site. Both were demonstrated to be working. We noted there is a separate access directly onto the A1 going south.

The matters in dispute 15. The Mr [NAME] case was summed up in the letter he and his wife wrote to the applicant objecting to increase, dated 28 February 2023. This made four points about a deterioration in the services on the [NAME]: a. Mr [NAME] had undertaken his own repairs to the base of the pitch which fell under the Site Owner’s Repairing and Maintenance Liabilities; b. The Fire Point box was in disrepair. At the hearing, Mr [NAME] stated that it had leaked. He also stated that it restricted car access to his driveway; c. Both sets of gates to the sites are not operating correctly and this caused inconvenience. On occasion he and his wife have had to use the direct onto the south A1;

d. At the time of the time of the letter, there was no warden on site and this had been the case since before Christmas.

16. The letter concluded: ‘We would also point out that the RPI is the maximum proposed increase. This years RPI reflects a massive increase in energy and food process and therefore is not relevant to the service for which we pay out ground rent’. At the hearing Mr [NAME] indicated that it was the main reason that had motivated his objection. He agreed that the site was in good order.

17. In response Mr [NAME] made the following submissions: a. The base was not a matter of disrepair. As the survey report that was in Mrs [APPELLANT]’s bundle and correspondence in March 2013 shows, the base was non-existent when Mr [APPELLANT] took on the assignment. The Applicant has a duty to maintain or repair pursuant to paragraph 22(c) of the Agreement but this cannot apply to an installation or improvement that the Respondent himself has carried out. At the time of the Agreement the base was mixed-rubble on a field. As such, it cannot be a factor when determining pitch fees as to whether the [NAME] owner has not maintained an improvement or repair that the resident themselves has increased or installed. Mr [NAME] distinguished the case [COMPANY] v Enterhuyse [2023] UKUT 147 (LC) when the cracks in the base of the resident’s home constituted a weighty factor. b. Mrs [APPELLANT]’s denied any disrepair on the fire box. Further it had been moved. Mr [NAME] pointed the first-tier decision in [COMPANY] v Muggeridge & Ors CHI/43UB/PHI/2020/0046/0047/0048/0049, a deterioration must be long-lasting and affect the ‘fabric’ of the [NAME]. This simply cannot amount to that standard. c. Mrs [APPELLANT] recognised there have been some for issues with the gates. However, as Mr [NAME] put it, there is a contingency in place whereby the residents inform the [NAME] office and the matter is quickly resolved. This issue was not long-lasting nor does it affect the fabric of the [NAME]. A gate may, at times, malfunction and it is quickly resolved. d. On the warden, Mrs [APPELLANT]’s case was that the [NAME] had a momentary period of time where the previous wardens had given their notice and she was engaged in the hiring of new wardens. The issue is now resolved and the new wardens are on hand 24/7. In any event, Mrs [APPELLANT] is also contactable.

18. In conclusion Mr [APPELLANT] submitted that the cost of living cannot be a valid ‘weighty’ factor. Further Mrs [APPELLANT] as owner suffered from the same increase.

19. Mr [NAME] also sought to distinguish the [NAME] ([COMPANY] v [NAME]. First only one occupier had objected, while in [NAME] a number had. Second

in Simes there were major issues on the site and thirdly they were long-time. That was not present in this case.

The Tribunal’s findings and reasons 20. Turning to the issues raised: a. The works undertaken by Mr [NAME] to the base is not a matter of breach of repairing obligation; b. Whatever the repair of the firebox, it has now been moved. If there was any disrepair it was not long-lasting nor did it affect the fabric of the [NAME] as to meet to standard for para.18(aa) deterioration in the condition of the site; c. We take the same view on the issue of the gates; d. Although there was a short period when there was no warden, again this was only short-term.

21. We concur with Mr [NAME] submission that none of the issues raised by Mr [NAME] are sufficient to overturn the presumption of change in line with RPI.