First-tier Tribunal Upholds Pitch Fee Increase Based on RPI

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/00HE/PHI/2022/0120

Property

:

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

: [APPELLANT]

Respondent: [redacted]

:

Type of Application

:

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

Tribunal member

:

[NAME], Regional Surveyor Date of Decision

: 22 May 2023

DECISION

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Background

1. On 15 August 2022 the Applicant site owner sought a determination of the pitch fee of £105.98 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 site owner 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.

The parties’ cases

3 10. In a statement from the Respondent on 28 January 2023 it was stated that.  “For 2022/2023. This is due to the steady decline of conditions of sections of the park since WPH took over, ie getting repairs done such as water leaks and lighting etc, which seem to be done as and when instead of being prioritised for the health and safety of residents and other users. Another is the road onto the park and along the front of our property which has steadily got worse over the past year or so, not only unsightly but awful to drive on.  At the end of 2021 and beginning of 2022 new curb edges and speed humps were installed on some sections of the park, again damage being done to the road surface and not repaired properly making the road break up further and leaving it all looking unsightly. We were told again and again new tarmac would be laid. Since I originally wrote this letter (a few weeks ago) and now an email, the road onto the park has had tarmac laid and a large hole in front of our property has been filled in. This is nearly a year on and we've had to put up with these conditions all this time.  Back in January 2022 on the 18th as my wife was heading out to work at 6:10 am, she tripped over the edge of the newly installed speed hump badly injuring herself in the process and having to have time off work. A letter of the incident, please see below, was given to [COUNSEL] a representative of [APPELLANT] on the park at the time and to our park association which subsequently got passed onto Cornwall Council.  At the time of this event the street light in that vicinity had not been working for at least a week, so that whole area was in total darkness, so with that and the fact there were no signs or cones around that area as the works weren't fully completed at that point, all added to the incident happening. Wow, how quickly 2 cones appeared after the fact!  [COMPANY] took ownership of [NAME] there has been some work to the residential side of the park but there does however seem to be more effort being put into developing the questionably planned holiday home section. We get very little or no information as to any work being carried out, an example of this was being told verbally 24 hours or so before the recent tarmac work was to be carried out! Jobs that are started tend to be left an age before being completed as several can be on the go, surely better to start and complete one job rather than have several left uncompleted. This creates an eyesore for residents and visitors alike. We feel we had to make a stand against the practices of [APPELLANT]/WPH and to see considerable upgrades/improvements to our surroundings to which we pay a pitch fee to live on the site, surely not too much to ask for, instead of this steady decline in conditions and safety factors of our living area.”

11. 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.

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12. In answer to the issues raised by the Respondent the Applicant states that;  The Applicant acknowledges that they received a letter regarding the [NAME] Respondent’s fall but aver that the necessary safety measures were in place.  The state of the roads; there has not been a decrease in condition since the last review.  The Respondents acknowledge that resurfacing works have been carried out.  The works were carried out as part of the overall development of the site 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.  Undated photographs of the road resurfaced in November 2022 and where the surface had been spot repaired were appended.  The short notice given for the works is not one of the factors envisaged in “[NAME]”  The lighting is unchanged since 2019 when they purchased the park and at the last pitch fee review in 2021.  New lights have been provided as part of the development for holiday use which also benefit the Park.  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 There has been no change in the meter reading and is not a matter to be considered in assessing the pitch fee.  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.

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

14. 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

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

16. 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.

5 17. 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.

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

19. 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.

20. 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.

21. 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.

22. 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 site 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."

23. 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.

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

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

26. 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

6 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 site owners 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”

27. 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.

28. The Applicant submitted that there had been no deterioration of the site and that the site 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.

29. 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 site and the manner in which the site was managed. The Respondent did not suggest there had been a reduction in the amenities or services provided.

30. The Tribunal accepts that the Respondents are dissatisfied with the current state of the site 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 site has deteriorated. Whilst evidence has been submitted identifying shortfalls in the condition of the site 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.

31. The Tribunal, therefore, confirms the increase.

Decision

32. 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 £105.98 with effect from 2 June 2022.

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33. 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.