First-tier Tribunal Upholds Pitch Fee Increase Based on RPI

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/00HE/PHI/2022/0102

Property

:

[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

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Background

1. On 15 August 2022 the Applicant [NAME] sought a determination of the pitch fee of £111.19 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 20 December 2022 representations were received from the Respondent together with copy correspondence from the Cornwall Licensing Compliance Team. 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. Within those representations, the Applicant stated that the copy Pitch Fee Notice provided with the original application (which was redacted) related to [NAME]. Further a copy of one of the written statements provided also related to the Respondents’ 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.

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The parties’ cases

10. The Respondent’s statement dated 3 February 2023 is summarised as;  The park has deteriorated in the last 3 years  After 18 months of the Residents Association complaining about the state of the roads to the Licensing Compliance Team, Cornwall Council served a Section 9A Compliance notice.  The [COMPANY] was told to give the residents at least 14 days’ notice when the work was to start but we had about 12 hours. The road was tarmac on the 22Nov/23Nov with this little notice with no letter of start times.  Under the Mobile Home Regulations 2013 OWNER’S obligation 22 (d) 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 the protected [NAME], The owner use anybody to cut the grass and hedges and do not know if they are insured or not and the work is not well done. 22(f) Consult a qualifying residents association about all matters which relate to the operation and management of, or improvement to, the protected  The Electric meter should be read on the 1st of the quarter e.g. (Jan Apr Jul Oct) or within a reasonable time but sometimes it might be a fortnight late then we might have to wait a month or more for the bill. We are still waiting for our electric bill as the meter was read on the 10th January 2023.  There are errors in the schedule of Respondents  The Written Statement is wrong being for a previous owner and different to the original one that he has.  Contrary to the Mobile Home Act Quiet which entitles the [NAME] to quiet enjoyment of the mobile home during the summer we had to close our windows because of an argument between the owner and his sister with a lot of abusive language which we do not want to hear.  [NAME] have right of entry under certain circumstances between 9am and 6pm it is being exercised outside of those hours and after dark to the concern of residents.  In other circumstances unless the [NAME] has agreed otherwise, the owner may enter the pitch only if he has given the [NAME] at least 14 clear days ‘written notice of the date, time, and reason for is visit.  The Mobile Homes (Pitch Fee review Notice Form) gives the last review date as 2021 but does not state what date in 2021.  In the Application by the [NAME] it is stated that no money has been spent on improvements which is why the park has gone down from what it used to be and why they are withholding the rent rise.

4 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.

12. 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 and the Respondent acknowledges that resurfacing works have been carried out.  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” and occurred after the pitch fee Notice was served. The Applicants directed Mr [NAME] to inform Mr [NAME] to inform other residents of the park of the resurfacing works.  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 [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 Respondents have failed to particularise incidents contrary to Paragraphs 12,13 and 14 of the Implied Terms.  The Respondents have failed to provide evidence of how the alleged altercation has unduly restricted their use of the pitch.  The written statement is that provided when the Applicant purchased the [NAME] and as the Respondent has only provided 2 pages of his copy it is not possible to cross compare to identify any differences. The Applicants do not dispute that the Respondents mobile home is sited on the pitch pursuant to the terms of the Mobile Homes Act 1983.  It is acknowledged that the Pitch Fee Review Form does not specify which month in 2021 the review occurred. It is averred that this is a minor omission as the residents were aware when the review took place and the pitch fee review for 2022 was proposed to take effect later than the review date of 1 April i.e. 12 months later than the last review date.

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

5 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. [ADDRESS] is a protected [NAME] 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 [ADDRESS] is governed by the terms of the Written Agreement with the Applicant and the provisions of the 1983 Act.

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 [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."

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.

6 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 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] [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”

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 [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.

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 [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.

30. 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

7 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.

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 £111.19 with effect from 2 June 2022.

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.