First-tier Tribunal Upholds Pitch Fee Increase Based on RPI

OUTCOME: Allowed

© CROWN COPYRIGHT 1

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/00HE/PHI/2022/0103

Property

:

6 [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 £119.92 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 and 20 December 2022 representations were received from the Respondent. It is not clear whether these were also served on 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.

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

10. In a statement from the Respondent on 28 January 2023 it was stated that. “Please note, the pitch review notice from Mr [APPELLANT] was

3 addressed incorrectly and the pitch address was also incorrect. Later documents supplied by “[NAME] " were also addressed incorrectly and the pitch address was also incorrect. The documents were returned to "[NAME]" with a note explaining the errors. I emailed "[NAME]" on the 24th September 2022. Copies of the documents were received on the 18th November, however they appear to be copies of the original as they still contain the original errors. In the applicants "statement of case" they have made reference to items within the "Written Statement", however we are unable to respond as the copy, supplied, is illegible. Our reasons for witholding the Pitch Fee increase; We have complained on numerous occasions, to Mr [APPELLANT], regarding the general condition of the park. One of our main concerns have been the condition of the roads in to and around the park, mainly the entrance road. As our complaints were ignored we wrote to Cornwall Council. The, resurfacing, of the main entrance road has now be completed, Please see copies of communications with Cornwall Councill in Section A below. During the summer of 2022 a local company were engaged to carryout maintenance works on the park. The resulting work was a vast improvement over previous attempts. Folowing appx 3 weeks, of grounds maintenance, the company refused to continue working for Mr [APPELLANT] due to non payment of invoice. There has been very little park maintenance since. In the summer of 2021 a new home was stationed on an adjacent pitch. During the preparations, for the new home, our side garden and retaining wall was completely destroyed, please see photo's in section B below. Employees of Mr [APPELLANT] had removed numerous plants and shrubs, no notice had ben given to us. When questioned regarding the "un authorised" removel of our plants we were offered compensation. To date no compensation has been offered. Further to the arrival of the new home Mr [APPELLANT] authorised the construction of a "garage", no planning permission was sought or approved. The construction also contains "flammable" material contrary to "[NAME] licence" conditions. Further to this construction, "[NAME] licence" (section C para C) conditions dictate that " no construction is permitted within 4.5 meteres of an adjacent property. This construction is within 3 meteres of our property. A further, 12x.6 foot store has been approved and installed. This store is manufactured of a combustable material, contrary to "[NAME] license" conditions (section M para i) Copies of "License" conditions refered to are contained in Section D, below

4 On April 19th 2022 an electrical safety inspection was carried out (EICR) by a [NAME] from Skegness. The inspection was completed on the 22nd April 2022 having taken 4 days, however there is no record, by our Neighbour Hood Watch of any body attending [NAME] during that time Subsequently a condition report was posted in our notice board that the Electrical condition was satisfactory. Please see Section C images 1&2. The condition of these distribution points had been previously reported in 2017 and again during an inspection, when WPH aquired the park, in 2019 when the entire electrical installation was condemded by a local contractor. No remedial work has been carried out. We have raised numerous complaints regarding the inadequate park lighting to no avail and subsequently resorting to Cornwall Council Our continual complaints to [COMPANY] go un answered, to document them all over the last 4 years would require an abundance of paper. Phone calls to their office are never answered like wise any emails are never responded to. Our electrical consumption is individually metered. Meters are read when the owner can be bothred, and when the meters are read and accounts delivered they are rarely correct requiring us to do our own reading and calculations and forwarding them to the WPH office. Our latest reading for the "quarter" ending September 30th took place at the end of October and our accounts dated November 18th 2022 were hand delivered on the 6th December 2022.

11. Correspondence with Cornwall Council in November 2022 was attached together with undated photographs of a cleared area of ground identified as the side garden of no 6 and two photos of a meter box said to be taken in September 2022.

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 “Vyse”

5  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.  There has been no change in the meter reading and is not a matter to be considered in assessing the pitch fee.  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.  The Applicant acknowledges that damage was caused to a small wall which has now been rebuilt. There is no recollection of any correspondence regarding damage to plants and it is denied that any offer of compensation was made.  Such damage is not a “weighty factor” within the meaning of [APPELLANT] and the Applicant avers that the damage occurred prior to the 2021 pitch review  Breaches of [NAME] licence are a matter for the Council  Regarding the electrical points a report confirming their condition is exhibited, the location of the points complained of have not been identified and there is no evidence that the condition has arisen since the last review in 2021.  The Applicant acknowledges that correspondence was sent to Mr and Mrs [NAME] and not Mr and Mrs [NAME] which is correct.

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

15. A hearing bundle was provided on 8 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. [ADDRESS] is a protected [NAME] within the meaning of the Mobile Homes Act 1983 (the 1983 Act).

17. The Respondents’ right to station their mobile home on the pitch at [ADDRESS] 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

6 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 [NAME] 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.

27. In Vyse, HHJ Alice Robinson 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] 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”

7 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]. 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 [NAME]. The Tribunal accepts that the damage caused to the wall must have been annoying as too the loss of any plants however once again it is not one of those factors that the Tribunal must consider in this review.

33. The Tribunal, therefore, confirms the increase. 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 £119.92 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

8 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.