Tribunal Rejects Pitch Fee Increase Amid Maintenance Concerns

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/40UE/PHI/2022/0131 CHI/40UE/PHI/2022/0132 CHI/40UE/PHI/2022/0133 CHI/40UE/PHI/2022/0134 CHI/40UE/PHI/2022/0135 CHI/40UE/PHI/2022/0136 CHI/40UE/PHI/2022/0137 CHI/40UE/PHI/2022/0138 CHI/40UE/PHI/2022/0139 CHI/40UE/PHI/2022/0140 CHI/40UE/PHI/2022/0141

Property

:

2, 3, 4, 5, 9, 10, 11, 16, 17, 19 & 21 [ADDRESS] [POSTCODE]

Applicant: [redacted]

Respondent

: [redacted] Mr [APPELLANT] (3) Mrs [RESPONDENT] (4) [NAME] [NAME] (5) [NAME] (9) [NAME] [NAME] (10) Mrs [NAME] (11) [NAME] [NAME] (16) Mr [NAME] (17) [NAME] [COUNSEL] (19) [NAME] [COUNSEL] (21)

Representative

: [COUNSEL] of Application

:

Review of Pitch Fee: Mobile Homes Act 1983

Tribunal members

:

Judge David Clarke Michael Ayres FRICS

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DETERMINATION AND STATEMENT OF REASONS

Determination

In the light of the factors to which the Tribunal is required to have particular regard, the Tribunal determines that the level of the pitch fee should remain unchanged in the current period and no increase is to be permitted.

Statement of Reasons

Background to the Applications 1. These eleven conjoined applications (“the Applications”) are made by [APPELLANT] [NAME] (“the [NAME]”) of [NAME], [ADDRESS], [POSTCODE]. The company owns the mobile home [NAME] known as [ADDRESS] [POSTCODE] (“the [NAME]”). The Respondents are the [NAME], respectively, of eleven mobile homes on the [NAME]. Their names and numbers of their homes are listed on the front sheet. They are all represented by [NAME] who is resident with her husband in number 21. Each of the Applications is in identical form and is by the [NAME] for a determination of a new level of pitch fee under paragraph 16 of Schedule 1 of Chapter 2 of Part 1 to the Mobile Homes Act 1983, as subsequently amended (“the 1983 Act”). The Applications were made on 22 November 2022.

2. On 2 February 2023 the Tribunal directed that the application be dealt with on the papers, the [NAME] having indicated in the Applications that it was content with such a determination. Neither party requested an oral hearing. On 23 March 2023, Directions were issued relating to the preparation of the bundle of documents. The [NAME] submitted the hearing bundle and on 27 April 2023 the Tribunal decided that the application remained suitable to be dealt with on the papers but indicated that if the Tribunal determining the case considered that a visit to the [NAME] would be of assistance, such a visit would be unaccompanied.

3. On 11 May, the Tribunal met to consider the case on the papers submitted by the parties. It decided after a full review of the bundle of documents that a visit and inspection of the [NAME] would assist in its determination and the visit took place on 25 May 2023.

The Submissions of the [NAME] 4. The [NAME] served all the occupiers of the [NAME] with Pitch Fee Review Notices dated 18 August 2022. The increase in the pitch fees was calculated by reference to the Retail Prices Index (RPI) which was issued for July 2022 which indicated an annual

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increase of 12.3%. There is no issue raised either as to the validity of the Notices or to the validity of the calculation of the amount of the increase.

5. [NAME], on behalf of the [NAME], submitted in his letter that they did not consider that there was any good reason for the [NAME] to withhold the increase in the pitch fee contending that the park had been well maintained and improvements had been made. He listed the monthly maintenance schedule, which included ‘filling in potholes’ and ‘rod drains if blocked’. He listed three ‘improvements’ over the past year, namely painting of the entrance wall, renewing a walkway between Nos 5 and 7 and installing a new traffic mirror at the park entrance to help when resident’s cars left the park.

The Submissions of the Respondents 6. These are made by [NAME] on behalf of all the Respondents. She indicates that the withholding of the pitch fee increase is a ‘last resort’ because no action had been taken by the [NAME] in response to concerns. These concerns are as follows:

1. The road around the [NAME] has not been maintained and needs resurfacing. The requests for work to be done have been declined and the [NAME] has only filled in the worst potholes by loosely filling and tapping down with tarmac. A request for complete resurfacing was made on 8 August 2020 on the basis that the road surface was breaking up, was powdery in some areas and posed a possible trip hazard. The response on 17 August 2020 was that this would only be actioned if the total costs were spread across the pitch fees and borne by the [NAME]. A further request was made in 2021 but did not elucidate a response. [NAME] also says that water seeps into the broken and uneven surface posing a risk in winter from the water freezing and creating a sheet of ice. The Respondents maintain that they should not have to pay the costs of resurfacing as maintenance of the roadway is the [NAME]’s responsibility. 2. [NAME] complain about the state of the sewerage drains, stating that they get noxious fumes and flow back into their toilets. The [NAME] states that this is the responsibility of [NAME], but the Respondents submitted as evidence a letter from [NAME] dated 23 March 2023 stating that the maintenance and repair of sewers and drains on the [NAME] are the responsibility of the owner.

3. The soak away drains are a concern. Evidence in correspondence submitted shows that one such soak away was blocked but instead of actioning repair the [NAME] decided to block up the drain.

4. The [NAME] had, for many years, the amenity of a regular shopper’s bus from the [NAME]. This was discontinued in November 2019. A rock salt bin for use in icy conditions has been taken away. No reduction in the pitch fee was offered in either case.

The Response of the [NAME]

7. The response by [RESPONDENT] to the Respondent’s submissions was very brief. He confirmed the shopper’s bus had been discontinued but said that this was because of lack of use and did not occur in the present review period. He acknowledged that the [NAME] had to maintain the roads and ‘we do, with regular maintenance’. With regard to the issue of the drains, ‘[APPELLANT] did not report this because you pay your

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water charges direct to [NAME] and when I spoke to the [NAME] who attended he confirmed that this was the correct protocol’.

Inspection of the [NAME] 8. [ADDRESS] is a small [NAME] of 21 homes in an attractive rural location. On all three sides of the triangular [NAME] there are views over fields and the countryside. It is quite compact, but all the homes have a been given a very substantial degree of permanence by their [NAME] and both the homes and the gardens give the appearance of being maintained with pride.

9. There is relatively little space used in common on the [NAME] so that apart from the boundary hedges and fences and the access roads, and a few paths, most of the [NAME] is occupied by the 21 pitches. The observations of the Tribunal on inspection were as follows.

1. Roads. The short main access road, at the base of the ‘triangle’ of the [NAME], is in good condition. However, the photographs supplied with the bundle were all taken of the one-way road through the rest of the [NAME] which gives vehicular access to most of the pitches. The Tribunal found a road surface that has obviously deteriorated over many years and was at the end of its useful life. In places the surface was rough and uneven with crazing and cracking; in others it was breaking up completely into stones and bits of broken surface. Recent attempts had been made to cover over some small areas, which the Tribunal took to be former potholes filled in, a matter mentioned by both the [NAME] and the Respondents. There was also evidence of older piecemeal maintenance.

2. Drains and Sewers. There was no evidence of problems from what could be seen, but this was to be expected when the inspection was unaccompanied.

3. Soakaways. The covers of a few soakaways in the roadway showed some signs of weakness or were ill-fitting. The inspection was on a fine dry day but the paucity of soakaways to drain the road may cause problems in heavy rain.

4. Bus service. The Tribunal noticed the rural location of the [NAME], described above, with the public road being a very narrow lane which is not conducive to safe pedestrian access to and from the [NAME].

Factors relevant to the determination of the Pitch Fee 10. The Tribunal is required to determine the amount of the pitch fee in accordance with the provisions of the 1983 Act, as amended. Paragraph 18 of Part 1, Chapter 2, Schedule 1 of the 1983 Act requires a tribunal to pay particular regard to a number of matters. The relevance of each of these matters is considered in turn.

11. The first such matter is any sums expended by the owner on improvements since the last review date. [NAME] listed three ‘improvements’ over the past year, stated to be painting of the entrance wall, renewing a walkway between Nos 5 and 7 and installing a new traffic mirror at the park entrance to help when leaving the park. The Tribunal cannot take any of these matters into account. Not only are the first two matters clearly issues of repair or maintenance, not improvements (and the third might be if the ‘new’ mirror was a replacement), but improvements can only be taken into account if they

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have been the subject of a consultation with the [NAME] occupiers in advance (see paragraphs 18 (a) and 22(c) of Part 1, Chapter 2, Schedule 1 of the 1983 Act. There is no suggestion that such a consultation took place.

12. Paragraph 18 (1) (aa) of Part 1, Chapter 2, Schedule 1 of the 1983 Act is the most relevant matter applicable to the concerns of the Respondents. It reads as follows: ‘(A)ny deterioration in the condition, and any decrease in the amenity of the [NAME] or any adjoining land which is occupied or controlled by the owner since the date on which this paragraph came into force (in so far as regard has not previously been had to that deterioration or decrease). In the view of the Tribunal, the condition of the one-way road around the [NAME] has clearly deteriorated very significantly over many years (the copy Agreements of the eleven Respondents provided to the Tribunal date from 1986) and has now reached the stage when complete resurfacing of the roadway is the only way to provide for safe and proper access to the pitches and to restore the condition of the road surface. The evidence before the Tribunal shows that the [NAME] have been complaining about the state of the road surface for some years but the [NAME], while in the papers acknowledging its responsibility, has not only taken no steps to make a proper repair to the road surface but has indicated that it will not do so unless the [NAME] agree to pay for the cost.

13. If there are problems with the sewers on the [NAME] providing a link to the public sewers of [NAME], then any responsibility to repair and restore the ‘amenity’ lies with the [NAME]. However, the [NAME] has sought to pass its responsibility to [NAME] when it is clear to the Tribunal that any sewers within the [NAME] are private sewers and the responsibility of the [NAME].

14. Similarly, any issues with soakaways and drainage from the roadways are equally the responsibility of the [NAME]. The Tribunal notes that when a problem was identified, the [NAME] chose to block off the soakaway that was not working rather than effect a repair.

15. Finally, paragraph 18 (1) (ab) of Part 1, Chapter 2, Schedule 1 of the 1983 Act provides that the Tribunal shall have particular regard to any reduction in the services that the owner supplies to the [NAME]. This applies to any such reduction since the date that that provision came into force (which was before the bus service was discontinued in 2019). The submission of the [NAME], therefore, that the service was discontinued before the current year and so is inapplicable is not correct.

Determination 16. In the light of the factors to which the Tribunal is required to have particular regard, the Tribunal determines that the level of the pitch fee should remain unchanged in the current period and no increase is to be permitted.

17. The Tribunal makes that decision for the following reasons. The most significant is the condition of the roadway. This requires complete resurfacing. Maintenance of the roadway currently involves ad hoc repairs to the road surface such as filling of potholes. There is evidence of significant crazing and cracking which indicates a partial or total

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failure of the road surface. The continuous patching of localised defects is not sustainable and will no longer prevent further significant deterioration and therefore a complete resurface needs to be undertaken as soon as possible. The attitude of the [NAME] has been to acknowledge that work is required but remains unwilling to do any major work unless the [NAME] are prepared to pay the full cost of the work. If the [NAME] had responded to the Respondent’s concerns with an acknowledgement of its full responsibility and presented a plan and timetable for work to be done, then it may have been possible to agree for a partial increase in the pitch fee until the work was complete. However, that is not the case. It is therefore appropriate for there to be no increase in the pitch fee until the [NAME] accepts its responsibilities in this regard and remedial work to the road is undertaken.

18. If the only complaint of the Respondents related to the state of the sewerage drains, and the occurrence of noxious fumes and flow back into their toilets, then the Tribunal would have been unable to deny an increase in the pitch fee on that ground alone. That is because the Respondents merely stated in [NAME] written submission that there was or had been such a problem. Apart from that statement, they did not provide any or sufficient evidence relating to that matter. Thus, there was no indication as to which pitches were affected, or details of when and in what circumstances the problems arose. Statements from the [NAME] impacted providing such details would be needed. This would permit the [NAME] to be able to respond. However, the [NAME] cannot simply disclaim responsibility for any such future incidents. The condition of the private sewers under the [NAME] is its responsibility and problems with flow back to toilets on a [NAME] are very serious and must be attended to promptly.

19. The soakaways do need some attention and the unwillingness of the [NAME] to accept its responsibility in that regard is a matter to which the Tribunal also has regard.

20. The withdrawal of the bus service is quite clearly a reduction in the services that the owner supplies. It may be that, with prior consultation and discussion before the service was withdrawn, an agreement could have been reached with [NAME], or a majority of them, that the service was no longer required. But to withdraw the service without such consultation means that it is also a factor in the Tribunal’s decision.

21. The [NAME] asked for a refund of the application fees paid in each case of £20. In view of the decision of the Tribunal, such a refund is inappropriate.

Right of Appeal

22. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case ([EMAIL] ). 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.

23. 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

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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.

24. 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 that the party who is making the application for permission to appeal is seeking.

31 May 2023