Tribunal Sets Pitch Fee for Mobile Home Site

1

FIRST TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

: BIR/44UE/PHI/2022/0019-31

HMCTS

: [NAME]

: [NAME], Lower Quinton, Stratford- upon-Avon, Warwickshire [POSTCODE]

Applicant

: [redacted] : [COUNSEL] [NAME] instructed by

[COMPANY]

Respondents

: [redacted] 4 [NAME] [NAME] 6 [NAME] [NAME] [NAME] [ADDRESS] –[NAME] 10 [NAME] 16 [NAME] 4 [NAME] 5 [NAME] & [NAME] 6 [NAME] & [NAME] 7 [NAME] [NAME], [NAME] [NAME] & [NAME] 10 [COUNSEL] 11 [COUNSEL]

: [COUNSEL] of Application : Pitch Fee Review under [COMPANY],

Schedule 1, Part 1, Chapter 2, para.16.

Tribunal

: [NAME] (Est Man) FRICS (Chair) Judge J.R. Morris

Date of Application : 29th June 2022 Date of Directions : 5th July 2022 Date of Hearing : 19th October 2022 Date of Decision : 13th December 2022

________________________________

DECISION _________________________________

© CROWN COPYRIGHT 2022

2

Decision

1. The Tribunal determines the Pitch Fee at £202.07 per plot with effect from 1st April 2022.

Reasons

Introduction

2. On the 29th June 2022 the Tribunal received thirteen applications for the Applicant, the [NAME] of [NAME] mobile home [NAME] (“the [NAME]”). [NAME] and [APPELLANT], of [ADDRESS], did not respond to the Applicant's application. The Tribunal sent a letter to them on 28th July 2022 requesting a response within 7 days otherwise they would be taken to no longer be in dispute. No response was received.

3. The applications are under paragraph 16 of Chapter 2 of Part 1 of Schedule 1 to the [COMPANY] ('the 1983 Act') for the determination of a new pitch fee with effect from 1st April 2011. The Respondents are the Occupiers of the thirteen pitches on the [NAME].

4. Directions were issued on 5th July 2022 in compliance with which the parties provided statements of case and supporting documents.

5. Copies of each of the Respondents’ Written Agreements were provided.

6. A copy of the Pitch Fee Review Notice for each of the Respondents was provided.

7. A copy of the Pitch Fee Review Form dated 21st February 2022 as prescribed by [COMPANY] (Pitch Fees) (Prescribed From) (England) Regulations SI 2013/1505 for each of the Respondents was provided. The Form stated that:  the Current Pitch Fee is £187.45  the Proposed New Pitch Fee is £202.07  the Review Date on which the proposed Pitch fee is to take effect if 1st April 2022.  In accordance with paragraph 20(A1) of Chapter 2 of Part 1 of Schedule 1 to the [COMPANY], the proposed pitch fee was calculated upon the percentage increase in the Retail Prices Index (RPI) over 12 months by reference to the RPI published for January 2022 which was 7.8% calculated, resulting in an increase of £14.72.

Issues

8. The Respondents did not dispute the amount of the Current Pitch Fee or the calculation of the RPI increase of 7.8% or the calculation undertaken to arrive at the increased figure of £202.07 for the Proposed Pitch Fee.

3

9. The matters disputed are:

1. The First Issue is the validity of the Pitch Fee Review Form accompanying the Pitch Fee Review Notices for the years 2020, 2021 and 2022 in that it was submitted the Forms had not been signed by the [NAME] contrary to Paragraph 17 (2A) of Chapter 2 of Part 1 of Schedule 1 of the [COMPANY] which provides that a notice under paragraph 17 (2)) which proposes an increase of pitch fee is of no effect unless it is accompanied by a document which complies with paragraph 25A of the [COMPANY]. It was submitted that, as the [NAME] is a company, to be valid, the Prescribed From must be signed by a director of the company, and they were in fact signed by [NAME] [NAME] who is not a director. Therefore, the reviews are invalid.

2. The Second Issue is there had been a reduction in the amenity of the [NAME] since 2021 and that having regard to the matters set out in paragraph 18(1) of Chapter 2 of Schedule 1 to the 1983 Act the reduction or deterioration in the [NAME] should be taken into account by a tribunal when determining a pitch fee. It was submitted that there should be no increase or a reduction for the following reasons:

a) Since 2021, the north Ditch has not been maintained;

b) Since 2021, consent must be obtained from the [NAME] to use the communal area;

c) There has been a loss of enjoyment due to the conduct of the [NAME].

Description

10. The Tribunal inspected the [NAME] on 19th October 2022 with representatives of both parties in attendance.

11. It comprises a modern [NAME] Home Development in open countryside fronting the B4632 about 5 miles south of Stratford-upon-Avon. Originally a Caravan Club certified location, it was redeveloped and expanded by the present owners around 2013 to create 47 pitches, most of which have been sold. The [NAME] has electric entrance gates, new tarmac roads, level pitches and a central community area with pergola for communal use. The Tribunal found it to be an attractive and well maintained [NAME].

The Law

12. The Law is set out in Annex 2 of this Decision and Reasons.

The Hearing

13. A hearing was held on 20th September 2022, which was attended by [NAME] [COUNSEL] [NAME] representing the Applicants together with [NAME] [COUNSEL] and [NAME] [NAME]. [NAME] [NAME] attended representing the

4

Respondents together with [NAME] [NAME] and [NAME] [NAME]. The Respondents had been assisted in preparing their case by [NAME] [COUNSEL] [NAME].

Issue 1 – Validity of Prescribed Form - Evidence and Submissions

14. The First Issue concerning the validity of the Prescribed Pitch Fee Review Forms involved legal argument. The Respondents were not represented at the hearing but they had received legal advice in preparing their written statement of case which raised and addressed the First Issue. The Applicant’s written statement of case was also prepared by its legal representative who gave a full response to the First Issue. The First issue was therefore not argued in detail at the hearing as the respective arguments had already been presented in the written statements of case.

Applicant’s case

15. The Applicant provided a written statement of case supported by a witness statement by [NAME] [NAME], [NAME] [NAME] and [NAME] [NAME] together with photographs and correspondence.

16. The Applicant stated in the written statement confirmed by Counsel for the Applicant at the hearing that it was denied that the Pitch Fee Reviews conducted for 2020, 2021, 2022 were invalid because the Pitch Fee Review Form was signed by [NAME] [APPELLANT]. The Applicant admitted that on 21st February 2022, [NAME] [APPELLANT] was no longer a director of [COMPANY]. It was submitted that there is no legal requirement that the pitch fee review form must be signed by a director of a [COMPANY].

17. The Applicant sated that the letter of 21st February 2022, the Pitch Fee Review Notice, was signed electronically by [NAME] [NAME], a director of [COMPANY] and the name of the company appears immediately below his name. The accompanying pitch fee review form also dated 21st February 2022, the Pitch Fee Review Form, bore the manuscript signature of [NAME] [NAME]. Beneath that signature, the name and address of the [NAME](s) for the purpose of serving notices was supplied being: “[COMPANY], [ADDRESS], [POSTCODE]".

18. The Applicant submitted that there had been compliance with the terms implied by the [COMPANY] into the Respondents’ Written Agreements and the Pitch Fee Review Regulations and the pitch fee review was valid as follows: a) [NAME] [NAME] was authorised by the [NAME] to sign the pitch fee review form on its behalf; b) The pitch fee review notice contained the name, address and details of the [NAME], and was signed by one of the directors;

5

c) On the pitch fee review form. there is no information missing that is required by the terms implied by the [COMPANY] or the Pitch Fee Review Regulations; d) The [NAME]’s signature is not explicitly required by the Pitch Fee Review Regulations or by the implied terms; e) The insertion of a signature is a purely procedural requirement: it is neither jurisdictional nor relating to the eligibility of either the [NAME] or any homeowner for a pitch fee review; f) The name and address of the [NAME] for the purposes of serving notices is in any event provided on the pitch fee review form.

19. It was further submitted that even if there had not been complete compliance with the Pitch Fee Review Regulations. the non-compliance is trivial and the pitch fee review for 2022 is still valid for the following reasons: a) Any missing information is not of critical importance in the context of the scheme. It is not required by the statute either specifically or generally; b) Any missing information is of secondary importance or merely ancillary; c) The certainty of the [NAME]'s proposals are not in doubt; d) The name and address of the [NAME] for the purposes of serving notices is provided on the pitch fee review form; e) The amount of pitch fee payable can be achieved by the process laid down by the terms implied by the [COMPANY] therefore the outcome of the dispute will itself provide certainty; f) Whilst it is correct that the [NAME] may immediately serve the documentation for another pitch fee review if the impugned pitch fee review form is invalid, there is no authority as to the correct rate of RPI to apply, nor can it have been the case that [NAME] could have intended that so minor an error could have such significant an impact on the pitch fee payable by homeowners and/or recoverable by [NAME] owners. g) No inference can be drawn to the effect that if a [NAME] does not sign the prescribed form, [NAME] must have intended a pitch fee review to be invalid.

20. In support of the above submissions the Applicant referred to [NAME]’s [NAME] v Sherwood [2015] UKUT 0194 (LC) [[NAME]], to which the Respondents also referred, in which case the wrong RPI figure was inserted into the pitch fee review form served by the owner. In that case this led to the notice being held to be invalid.

21. In contrast the Applicant referred to [NAME] v Coal Authority [2014] 1 WLR 1288 on which Sir [NAME] said:

[58] If I ask my personal assistant to type up a notice to quit in my name, and to post it, the notice is given by me, not by my personal assistant. If I ask her to sign it in my name or expressly on my behalf, and to post it, it remains a notice given by me. It is not a notice given by her.

6

[70] … it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute or contract, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties.

22. The Applicant then referred to Natt v Osman [2014] EWCA Civ 1520 to which [COUNSEL] QC referred in [NAME]’s [NAME] v Sherwood and others [2015] UKUT 0194 (LC), where the Court of Appeal at [28] considered the distinction between the validity of documents in “two broad categories": (l) those cases in which the decision of a public body is challenged, often involving administrative or public law and judicial review, or which concern procedural requirements for challenging a decision whether by litigation or some other process, and (2) those cases in which the statute confers a property or similar right on a [NAME] and the issue is whether non-compliance with the statutory requirement precludes that person from acquiring the right in question.

[31] …[ADDRESS] of Appeal cases show a consistent approach in relation to statutory requirements to serve a notice as part of the process for a [NAME] to acquire or resist the acquisition of property or similar rights conferred by the statute. . . The court has interpreted the notice to see whether it actually complies with the strict requirements of the statute; if it does not, then the court has, as a matter of statutory interpretation, held the notice to be wholly valid or wholly invalid...

23. Sir [NAME] went on to state that:

[33] In cases such as the present, that is to say the acquisition of property rights by [NAME] persons pursuant to statute, the intention of the legislature as to the consequences of non—compliance with the statutory procedures (where not expressly stated in the statute) is to be ascertained in the light of the statutory scheme as a whole. In some cases, for example, the court has held in favour of invalidity where the notice or the information which is missing from it is of critical importance in the context of the scheme: see, for example, [enumeration added] a) [NAME]’s case [2002] Ch 256 (the landlord’s counter-notice under the 1993 Act was described as integral to the proper working of the statutory scheme); b) the [APPELLANT] case [2002] l EGLR 55 (the omissions in tenant’s notices under the LRA 1967 to supply information required by paragraph 6(1) of Schedule 3 were said by [NAME] J (with whom the other judges agreed) not to be mere inaccuracies in the particulars as a whole); and c) Cadogan v Morris [1999] 1 EGLR 59 (failure of tenant to state in a notice under section 42 of the 1993 Act the premium which he actually intended to pay as opposed to the one which was stated but was unrealistically low and he did not in reality intend to pay).

7

[34] By contrast, the court has held in favour of validity where the information missing from the statutory notice is of secondary importance or merely ancillary. [Enumeration added] a) In both [NAME]’s case and 7 [COMPANY] v [NAME] & [COMPANY] [2005] EGLR 53, for example, the missing particulars in the notice were not prescribed by the statute itself but by regulations made under it and were not of a kind which [NAME] could have intended should result in the invalidity of the notice. b) A broadly comparable situation was that in [NAME] case, where the omitted particulars (the addresses of the tenants signing the notice) were not specified in the relevant statutory provision in the Landlord and Tenant Act 1987 authorising the service of the notice but in the general provision in section 54(2) of that Act which required any notice served under any provision of Part I or Part III by the requisite majority to specify the names of all the persons by whom it is served and the addresses of their flats. Carnwarth LJ, who gave the only reasoned judgment, said (at para 33) that “Section 54 is not a substantive provision, but is ancillary to the various notice provisions and (at para 34) that the requirement to state addresses in the notice was merely supportive.

24. With regard to the specific issue of the validity of a notice by reason of its signatory the Applicant referred to [ADDRESS] Co [COMPANY] v [COMPANY] [2017] EWCA Civ 89 which concerned the acquisition of the Right to Manage under the Commonhold and Leasehold Reform Act 2002. Similarly, in the present case the procedure for acquiring the right to manage is set out in the Commonhold and Leasehold Reform Act 2002 which is supported by regulations, set out in the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2010 (SI 2010/825). A Right to Manage company must claim the right to manage by serving a notice on the landlord. Regulation 8(2) of the 2010 Regulations provides that claim notices shall be in the form set out in Schedule 2 to those Regulations. The prescribed form in Schedule 2 has a space for a signature. The text above it reads “Signed by authority of the company", with beneath, “[Signature of authorised member or officer]". The notice given by the [COMPANY] read thus: Signed by authority of the company [manuscript signature of [NAME] [NAME]] [NAME], Company Secretary.

25. It was not in dispute that [NAME] [NAME] was in fact authorised to sign the claim notice on behalf of the [COMPANY] and that he was a director of the [COMPANY]. It appears however to have been said by the landlord that [NAME] [RESPONDENT] signature was the signature of the company secretary, which was itself a company and that in that event, there must be compliance with section 44 Companies Act 2006.

26. On the facts, the Court of Appeal held that [NAME] [NAME] had signed the notice as a person authorised to do so by the [COMPANY] and that the notice was valid. It also held that:

8

[48] where a notice is capable of two interpretations, one of which will lead to the conclusion that it is valid, and the other to the conclusion that it is invalid, the former interpretation should be preferred.

[56] ... It does not follow that if a case falls within the second category every defect in a notice or in the procedure, however, trivial, invalidates the notice. As Sir [NAME] C pointed out even if there is no principle of substantial compliance the court must nevertheless decide as a matter of statutory construction whether the notice is wholly valid or wholly invalid.

[68] [in that case] the consequences of non-compliance are not fatal to the validity of the notice if the claim notice is signed by someone who is actually authorised by the [COMPANY] to sign it.

27. With reference specifically to the reviews of 2020 and 2021 the Applicant submitted that the Respondents were estopped from submitting that there was any non-compliance with any statutory or other requirements in the Pitch fee Review Form by their conduct in paying the reviewed pitch fee throughout 2020 and 2021. This conduct unambiguously communicated their acceptance of the reviewed pitch fee to the Applicant which the Applicant relied on and therefore: (a) The Applicant did not issue fresh pitch fee review notices for either 2020 or 2021; and (b) the sums received from the Respondents were used to meet the cost of operating the [NAME]; (c) the Applicant based the proposed pitch fee review for 2021 on the 2020 pitch fee that the Respondents had represented to be the correct fee by their payment of it. It would be inequitable for the Respondents now to resile from their acceptance of the reviewed pitch fee: (a) More than two years have passed since the 2020 pitch fee review; (b) over a year has passed since the 2021 pitch fee review; (c) the Applicant has expended sums on the [NAME] on the basis that the pitch fee reviews were valid.

28. The Applicant said that, alternatively, as a consequence of their conduct in paying the reviewed pitch fee without making an application to the Tribunal under paragraph 17(4) of their agreements for a determination of the amount of the new pitch fee, the Respondents had waived the requirement that the pitch fee review forms for 2020 and 2021 be signed by the Applicant

29. In addition, if the Pitch Fee Review Notice were found to be invalid for the years 2020 and 2021 the Tribunal may by virtue of paragraph 17(12) reimburse the Respondents provided they had made an application for such reimbursement under paragraph 17(11). The Applicant submitted that none of the Respondents had made such an application.

30. In response to the Tribunal’s questions [NAME] [NAME] referred to the witness statements made by [NAME] [NAME] and himself. He said that when he and his

9

family purchased the [NAME] in 2016, they had very little experience of setting up and managing a [NAME] Home [NAME]. [NAME] [NAME] was the director of [COMPANY] and was very experienced in owning and operating both holiday and residential parks. [NAME] [NAME] and [NAME] [NAME] agreed that over the course of 2017 to 2019 [COMPANY] and [COMPANY] would work together, with [COMPANY] developing the [NAME] as a [NAME] Home [NAME] and selling the [NAME] homes on [COMPANY] behalf. [COMPANY] subcontracted the redevelopment works to [COMPANY].

31. [NAME] [NAME] and [NAME] [NAME] stated that they had personally had a working relationship with regard to the running of [NAME] and that their respective companies had worked in partnership to develop [NAME]. [NAME] [NAME] confirmed that [NAME] [NAME] had authority to sign the Pitch Fee Review Forms on behalf of [COMPANY] as the [NAME] for the years 2020, 2021 and 2022.

Respondents’ Case

32. The Respondents stated in the written statement confirmed at the hearing that the legislation to conduct pitch reviews became obligatory from 26th May 2013 through section 11 of [COMPANY] 2013 which resulted in amending the implied terms in Chapter 2 of Part 1 of §schedule 1 of the [COMPANY] relating to pitch fees. The purpose of these changes was to improve transparency of pitch fee reviews, according to paragraph 3.74 “Summary of consultation responses and next steps” October 2012

33. The Respondents said that the [NAME] is [COMPANY], Companies house number 11203723 and according to records obtained from Companies House, [NAME] [NAME] resigned as a Director from [COMPANY] on 25th March 2019. The current Directors are [NAME] [NAME] and Mrs [NAME], neither of whom have signed the Pitch Fee Review Form for 2020, 2021 or 2022. These were signed by [NAME] [NAME]. The Respondents submitted that the Pitch Fee Review Form is invalid as it is not completed by the [NAME], nor the director, as required by [COMPANY] (Pitch Fees) (Prescribed Form) (England) Regulations 2013/1505. Reference was made to Paragraph 17 (2A) of Chapter 2 of Part 1 of Schedule 1 of the [COMPANY] which provides that a notice under paragraph 17 (2)) which proposes an increase of pitch fee is of no effect unless it is accompanied by a document which complies with paragraph 25A of the [COMPANY].

34. In support of this submission the referred the tribunal to the Upper Tribunal's decision in [NAME]’s [NAME] v Sherwood and others [2015] UKUT 0194 (LC) where [NAME], Deputy President at paragraphs 32-33 stated as follows:

[32] In its recent decision in Natt v Osman [2014] EWCA Civ 1520, which concerned the validity of a notice under s. 13 of the Leasehold Reform, Housing and Urban Development Act 1993, the Court of Appeal considered the modern approach to the consequences of non- compliance with the process or procedure laid down by a statute for the

10

exercise or acquisition of some light in relation to property conferred by that statute. The Chancellor, with whom Lord Justice Patten and Lady Justice Gloster agreed, emphasised that the proper approach in such cases (in contrast to cases involving challenges to the decisions of public bodies, or compliance with procedural rules in litigation) is not to ask whether there had been substantial compliance or to consider the particular circumstances of the recipient of the notice or the degree of prejudice which may or may not have been caused by the non- compliance. On the contrary (at [31]):

“[ADDRESS] of Appeal cases show a consistent approach in relation to statutory requirements to serve a notice as part of the process for a [NAME] to acquire or resist the acquisition of property or similar rights conferred by the statute. In none of them has the court adopted the approach of “substantial compliance" as in the first category of cases. The court has interpreted the notice to see whether it actually complies with the strict requirements of the statute; if it does not, then the Court has, as a matter of statutory interpretation, held the notice to be wholly valid or wholly invalid.”

[33] This stricter approach has the great advantage of certainty in relation to property rights. It seems to me to be applicable to the procedures, statutory in origin, for initiating a review of pitch fees under agreements to which the 1983 Act applies. Perhaps more importantly, paragraph 17(6A) of Chapter 2 of Part 1 of Schedule 1 to the Act is explicit in prescribing that a notice which proposes an increase in the pitch fee “is of no effect unless it is accompanied by a document which complies with paragraph 25A”. That express statement of the consequences of non—compliance removes any doubt, and leaves no room for considerations of whether any prejudice has been suffered as a result of the non—compliance. The only relevant question is therefore whether the first review form complied with paragraph 25A.

35. An up-to-date [NAME] licence was been provided confirming that [COMPANY] is the [NAME] licence holder.

36. The Respondents submitted that the invalid Pitch fee Review Form made the Notice of Increase ineffective and that proposed pitch fee for 2022 was not payable.

37. It was also submitted by [NAME] [NAME], [NAME] [NAME] and Mrs [NAME], [NAME] [NAME] and Mrs [NAME] and [NAME] [NAME] that the arguments regarding [NAME] [NAME] signature rendered the review undertaken in 2020 and 2021 also invalid. Therefore, the increase from £2,160.00 per annum to £2,218.32 for 2020 should be reimbursed by the [NAME], amounting to £58.32 and the increase from £2.218.32 per annum to £2,249.40 for 2021 should be reimbursed amounting to £31.08 for each of the Respondents except [NAME] [NAME].

38. At the hearing the Respondents also submitted that the Notice of Review was invalid as the Notice included the name of [COMPANY] as well as [COMPANY]. However, this was not a document that had been put in issue by the Respondents.

Issue 1 – Validity of Prescribed Form - Decision

39. The Tribunal considered all the evidence and submissions of the parties.

40. In Natt v Osman [2014] EWCA Civ 1520 the Court of Appeal held that the identification of statutory provisions as being mandatory or directory was unsatisfactory. [ADDRESS] identified two broad categories of cases. This case, like that which was the subject in [NAME] v [NAME], is in the second category of those cases in which the statute confers a property or similar right on a [NAME] and the issue is whether non-compliance with the statutory requirement precludes that person from acquiring the right in question. In such cases the courts have not adopted the approach of “substantial compliance”. The statutory requirements have either been complied with or not. If not then, in this case, the document giving effect to the right is either invalid or valid. If it is invalid because it does not comply with the statutory requirements then the tribunal must look to the act to see what the effect of invalidity is. In the present case, the term implied into the Respondent’s Written Agreement by paragraph 17(2A) of Chapter 2 of Part 1 of Schedule 1 to the 1983 Act is explicit in prescribing that a notice which proposes an increase in the pitch fee “is of no effect unless it is accompanied by a document which complies with paragraph 25A” as stated in [NAME]’s [NAME] v Sherwood and others [2015] UKUT 0194 (LC).

41. Therefore, the question for the Tribunal was whether the Pitch Fee Review Form was compliant or not. The parties agreed that the only part of the Form which was being disputed as not being compliant was Section 6: Signature of [NAME]. The parties agreed that the signature was that of [NAME] [APPELLANT]. The dispute was that the Applicant said that a person who was not a director of a [COMPANY] could be authorised to sign the Pitch Review Form whereas the Respondents contended that the Form had to be signed by a director of the company.

42. The Tribunal found that the legislation did not preclude an authorised person signing on behalf of the [NAME], nor was there a requirement that where the [NAME] was a company the Pitch Fee Review Form had to be signed by a director or officer of the company. The Tribunal considered the reason for including section 6 on the form and found it was to inform the occupiers of the name and address of the [NAME] for the purposes of serving notices, to give a date for the Form and, by way of the signature, to verify that the [NAME] is responsible and liable for the contents of the Pitch Fee Review Form.

43. Unlike a document such as a testamentary instrument, a power of attorney or a Land Registry transfer where legislation sets out specific provisions as to the signatories, the Pitch Fee Review Form has no such requirements. The Tribunal saw no reason why a [NAME], whether a company or an individual, could not authorise another to sign on the [NAME]’s behalf for reasons of commercial expediency, provided the other information required by section 6 were included.

12

44. The Tribunal therefore determined that the Pitch Fee Review Forms were compliant with the statutory provisions and valid.

Issue 2 - Reduction in [NAME] and Submissions

Applicant’s Case

45. The Applicant referred the Tribunal to paragraph 20(A1) of the implied terms which states that unless it 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 of decrease in the Retail Prices Index calculated by reference to - (a) The latest index: and (b) The index published for the month which was 12 months before that to which the last index relates.

46. The Applicant said referred to [NAME] v [APPELLANT] [2017] UKUT 24 (LC) in which the Upper Tribunal considered the operation of the provisions in paragraphs 16 to 20 of the implied terms and the appropriate approach to be taken. It was held that: (1) The starting point is that there is a presumption that a pitch fee shall not increase or decrease by more than the relevant RPI percentage unless it is unreasonable to do so. (2) The presumption operates unless it is displaced by other competing matters which renders an increase unreasonable. (3) Particular regard must be had to the matters at paragraph 18(1) of the schedule, but other "weighty matters" may also displace the presumption.

47. The Applicant noted that the Respondents assert that they do not agree to an increase because of an alleged “decrease in the amenity of the [NAME]", and that the RPI presumption should be displaced because: (1) The north ditch has not been maintained since 2021 (2) Since 2021 consent for using the communal area must be obtained by the [NAME] before using this area; (3) The Respondents have suffered examples of loss of enjoyment due to the behaviour and/or intimidation/trespassing on their pitch from the [NAME].

48. The Applicant submitted that even if the allegations were proven on the facts, the above matters would not render an increase in line with RPI unreasonable.

The North Ditch

49. With regard to the North Ditch the Applicant stated that it was not within the boundaries of the [NAME] and therefore its condition could not amount to a decrease in amenity. It was admitted in written statements that it was part of other land owned by the Applicant adjacent the '[NAME]' and although grass in the ditch had not been cut over the summer of 2022, it only needed cutting after 1st April 2022, the date of the pitch fee review.

13

50. The Applicant referred to the First Tier Tribunal's decision in [APPELLANT] v [NAME]/43UB/PHI/2020/0046, 0047, 0048, 0049 where it was stated that:

[118] In order for there to be a deterioration in the condition or amenity of the [NAME], that would have to mean changes which are long lasting or permanent and affect the ‘fabric’ of the [NAME], rather than temporary matters such as an accumulation of litter for a brief period, the presence of vehicles for works or bonfires.

[135] For the purposes of the 1983 Act, the issue is not the actual condition of the [NAME], nor indeed the actual amenity of the [NAME]. Even if the Tribunal was to accept that the [NAME] has not always been maintained to a standard which the Respondents might reasonably expect, it has to consider whether there has been any deterioration/decrease in the condition or amenity of the [NAME] in the relevant period, i.e. since 26 May 2013, and, if it did so find, whether it would thereby be unreasonable for the pitch fees to be increased on the basis of the sum requested lower [than the agreed increase in the retail prices index] (in this case the [NAME] had sought to increase the pitch fee by an amount which was lower than the relevant RPI amount).

The Communal Area

51. The Applicant denied that [NAME] [APPELLANT] informed [NAME] in conversation that the [NAME] were prohibited from using this area without the [NAME]'s permission. [NAME] are permitted to use this communal area. None of the Respondents or any of the [NAME] on the [NAME] have ever been denied the use of this area. They can and should continue to use it.

Loss of Enjoyment due to [NAME]’s Behaviour

52. The Applicant stated that none of the Respondents’ complaints came within paragraph 18(1) regarding decrease in amenity.

Respondents’ Case

53. The Respondents referred the Tribunal Britaniacrest Limited v [NAME] [2016] UKUT 0144 (LC): [24] First, paragraph 18(1) (ab) requires the FTT to have regard to any reduction in services which the owner supplies to the [NAME], the pitch or an individual home. That is consistent with the pitch fee being payment for a package of rights provided by the owner to the [NAME], including the right to station a mobile home on the pitch and the right to receive services. Where such services are reduced, or the quality diminishes, the Act requires that reduction or deterioration to be taken into account (presumably as a factor justifying either a reduction in the pitch fee or a smaller increase than would otherwise be allowed).

14

54. The Respondents submitted that the pitch fee increase is unreasonable and should be negated and/or reduced based on the following reasons: (1) The north ditch has not been maintained since 2021. (2) Since 2021 consent for using the communal area must be obtained by the [NAME] before using this area. (3) The Respondents have suffered examples of loss of enjoyment due to the behaviour and/or intimidation/trespassing on their pitch from the [NAME], examples have been provided.

The North Ditch

55. The North Ditch is owned the [NAME] and not the [NAME] therefore, the [NAME] were not permitted to maintain the area due to health and safety reasons. As a result, since July 2021, the ditch has not been maintained by the [NAME] and consequently the area has become overgrown and is an unpleasant eyesore. This is extremely disagreeable for the [NAME] and also lowers the standard of the [NAME].

56. Furthermore, the Respondents said that they are extremely concerned from the perspective of health and safety and also hygiene, as this area would be perfect for attracting vermin [Betts1.p177]- This is supported by information found on specialist pest control website, “Rentokil” whereby an “unkept ditch” can be classed as perfect “nest-building material” providing “easy access to food and water”.

The Communal Area

57. There is only one communal area on [NAME], since moving onto the [NAME], the [NAME] have used this area as a recreational space for their pastimes, for example, bowls was often played there. However, in mid—2021. the [NAME] [NAME] (the father and/or agent of [NAME] [NAME]) informed [NAME], in conversation. that the [NAME] were prohibited from using this area without the [NAME]’s prior consent. Consequently, they were no longer permitted to enjoy the unused spot.

58. It is submitted that any unrestricted or unmarked areas should be treated as communal (paid for by pitch fees) and no such consent should be required from the [NAME]. Reserving the use of this area, unless granted permission by the [NAME], is simply unjustified. This has prevented the [NAME] from enjoying the communal areas freely. It is submitted that having a requirement for the Respondents to request permission from the [NAME] for use of this area is in fact a preventative measure whereby they are unable to use this area freely.

Loss of Enjoyment due to [NAME]’s Behaviour

59. The Respondents referred to three occasions when they had felt intimidated and/or concerned by the [NAME]’s actions.

15

a) [NAME] [RESPONDENT], had walked into a Respondent's mobile home without consent or invitation. Entering into this individual's home, unauthorised, caused alarm, distress and inconvenience to the elderly, vulnerable individual. Reference was made to the witness statement of [NAME] [NAME].

b) Mrs [NAME] was intimated over a situation relating to permission to move a box, whereby the [NAME]’s father, [NAME] [NAME] sent her a text making her feel extremely intimated and vulnerable. A copy of the text from [NAME] [NAME] to Mrs [NAME] was provided.

c) A letter was posted through [NAME] and Mrs [NAME] letterbox after 9 pm. [NAME] [NAME] in his Witness statement outlines that this correspondence alleged that [NAME] [NAME] was running a business when in fact [NAME] [NAME] was simply helping neighbours to improve their [NAME] homes. The fact that the letter was posted through [NAME] and Mrs [NAME]‘s letter box after 9 pm is contrary to the implied terms which state that post can only be posted between 9 am and 6 pm as per paragraph 12(a) of chapter 2 of Part 1 of Schedule 1 of the [COMPANY]. This caused worry and anxiety to both [NAME] and Mrs [NAME].

60. For the reasons submitted above, the Tribunal was asked to exercise its powers to determine whether a reduction in the pitch fee level was justified.

Issue 2 - Reduction in [NAME] Ditch 61. From the Tribunal's own knowledge and experience the ditch is considered to be a watercourse and habitat subject to environmental legislation. It adjoins the protected [NAME] and could potentially come within paragraph 18(1)(aa) of the Implied Terms as adjoining land owned by the [NAME] and any deterioration in its condition or decrease in amenity could be taken into account by the Tribunal.

62. The Tribunal was presented with photographic evidence showing the North Ditch overgrown in 2022 [Respondent bundle 174] which the Tribunal finds to be deterioration in its condition, but there was no evidence to show it had been overgrown at the date of review on 1st April 2022 and had in any case been temporary as it had been cleared by the date of Tribunal inspection on 19th October 2022 . While the Tribunal finds it a deterioration in condition, it was insufficient to displace the presumption of increase in paragraph 20(A1) of the Implied Terms.

Communal Area 63. When the Tribunal inspected the [NAME] there was nothing to prevent anyone gaining access, no locks on the gates and no signage to that effect. There had clearly been an issue between some [NAME] and the [NAME] regarding the identity of parties using the area, but unless [NAME] had been actively prevented from using the land it cannot be regarded as loss of amenity within the ambit of paragraph 18(1)(aa) of the Implied Terms.

16

Loss of Enjoyment due to [NAME]’s behaviour 64. It is unfortunate that [NAME] [NAME] felt her privacy had been invaded by the [NAME] gaining access to her home without consent or invitation and the Tribunal has sympathy with this view, but bearing in mind the constraints of the statutory provisions, the Tribunal is unable to find there has been any deterioration in the condition or loss of amenity of the [NAME].

65. Equally, the [NAME]'s father, [NAME] [NAME] text to Mrs [NAME] refusing consent to a box by the [NAME] office for storing second hand books was unfortunate but does not represent a 'loss of amenity' within the Implied Terms. The [NAME] had never been given permission to instal items such as a box for second hand books around the [NAME] however well intentioned, and refusal to give permission for such items cannot be regarded as 'loss of amenity'.

66. The Tribunal finds the letter delivered to [NAME] & Mrs [NAME] after 9.00 pm was an infringement of the [COMPANY] 1, Chapter 2, paragraph 12(a), but this was insufficiently detrimental to displace the presumption of a pitch fee increase in paragraph 20.

Summary

67. Having inspected the [NAME], considered the parties' written submissions and oral evidence at the Hearing, the Tribunal finds the points raised by the Respondents insufficient to over-turn the presumption of fee increase in the [COMPANY] 1, Chapter 2, paragraph 20, and accordingly determines the pitch fee at £202.07 per plot with effect from 1st April 2022.

[NAME] B.Sc.(Est.Man.) FRICS Chair

APPENDIX 1 - RIGHTS OF APPEAL

1. If a party wishes to appeal the decision to the Upper Tribunal (Lands Chamber) then a written application for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application for permission to appeal must arrive at the Regional Office within 28 days after the Tribunal sends written reasons for the decision to the person making the application.

3. If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.

17

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates (i.e., give the date, the property and the case number), state the grounds of appeal, and state the result the party making the application is seeking.

APPENDIX 2 – THE LAW

The Law

1. Section 2 of the [COMPANY] (“the Act”) provides that the terms of Part 1 of Schedule 1 to the Act shall be implied and shall have effect notwithstanding the express terms of the Agreement. Paragraphs 16 to 20 of Chapter 2 of Schedule 1 to the Act were introduced by the [COMPANY] (Amendment of Schedule 1) (England) Order 2006. The relevant provisions of the legislation that apply to this decision given the issues raised are as follows:

2. Paragraph 16 provides:

The pitch fee can only be changed in accordance with paragraph 17, either— (a) with the agreement of the [NAME], or (b) if the court, on the application of the owner or the [NAME], considers it reasonable for the pitch fee to be changed and makes an order determining the amount of the new pitch fee.

3. Paragraph 17 provides:

(1) The pitch fee shall be reviewed annually as at the review date.

(2) At least 28 clear days before the review date the owner shall serve on the [NAME] a written notice setting out his proposals in respect of the new pitch fee.

(2A) In the case of a protected [NAME] in England, a notice under subparagraph (2) which proposes an increase in the pitch fee is of no effect unless it is accompanied by a document which complies with paragraph 25A.

(3) If the [NAME] agrees to the proposed new pitch fee, it shall be payable as from the review date.

(4) If the [NAME] does not agree to the proposed new pitch fee— (a) the owner or (in the case of a protected [NAME] in England) the [NAME] may apply to the court for an order under paragraph 16(b) determining the amount of the new pitch fee; (b) the [NAME] shall continue to pay the current pitch fee to the owner until such time as the new pitch fee is agreed by the [NAME] or an order determining the amount of the new pitch fee is made by the court under paragraph 16(b); and (c) the new pitch fee shall be payable as from the review date but the [NAME] shall not be treated as being in arrears until the 28th

18

day after the date on which the new pitch fee is agreed or, as the case may be, the 28th day after the date of the court order determining the amount of the new pitch fee.

(5) An application under sub-paragraph (4)(a) may be made at any time after the end of the period of 28 days beginning with the review date.

Sub- Paragraphs (6) to 10 are not applicable to this case

(11) Sub-paragraph (12) applies if a tribunal, on the application of the [NAME] of a pitch in England, is satisfied that— (a) a notice under sub-paragraph (2) or (6)(b) was of no effect as a result of sub-paragraph (2A) or (6A), but (b) the [NAME] nonetheless paid the owner the pitch fee proposed in the notice.

(12) The tribunal may order the owner to pay the [NAME], within the period of 21 days beginning with the date of the order, the difference between— (a) the amount which the [NAME] was required to pay the owner for the period in question, and (b) the amount which the [NAME] has paid the owner for that period.

4. Paragraph 18 provides:

(1) When determining the amount of the new pitch fee particular regard must 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 [NAME]; (ii) which were the subject of consultation in accordance with paragraphs 22(f) and (g); and (iii) to which a majority of the occupiers have not disagreed in writing or which, in the case of such disagreement, the court [tribunal] on the application of the owner, has ordered should be taken into account when determining the amount of the new pitch fee; (aa) in the case of a protected [NAME] in England, any 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 [26th May 2013] (in so far as regard has not previously been had to that deterioration or decrease for the purposes of this subparagraph); (ab) in the case of a protected [NAME] in England, any reduction in the services that the owner supplies to the [NAME], pitch or mobile home, and any deterioration in the quality of those services, since the date on which this paragraph came into force (in so far as regard has not previously been had to that reduction or deterioration for the purposes of this subparagraph);

19

(b) in the case of a protected [NAME] in Wales any decrease in the amenity of the protected [NAME] since the last review date; (ba) in the case of a protected [NAME] in England, any direct effect on the costs payable by the owner in relation to the maintenance or management of the [NAME] of an enactment which has come into force since the last review date;

(1A) But, in the case of a pitch in England, no regard shall be had, when determining the amount of the new pitch fee, to any costs incurred by the owner since the last review date for the purpose of compliance with the amendments made to this Act by [COMPANY] 2013

5. Paragraph 20 provides that:

(A1) In the case of a protected [NAME] in England, 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 retail prices index calculated by reference only to— (a) the latest index, and (b) the index published for the month which was 12 months before that to which the latest index relates.

(A2) In sub-paragraph (A1), “the latest index”— (a) in a case where the owner serves a notice under paragraph 17(2), means the last index published before the day on which that notice is served; (b) in a case where the owner serves a notice under paragraph 17(6), means the last index published before the day by which the owner was required to serve a notice under paragraph 17(2)

6. Paragraph 25A (1) stipulates that:

(1) The document referred to in paragraph 17(2A) [and (6A)] must -

(a) be in such form as the Secretary of State may by regulations prescribe.

(b) specify any percentage increase or decrease in the Retail Prices Index calculated in accordance with paragraph 20(A1).

(c) explain the effect of paragraph 17,

(d) specify the matters to which the amount proposed for the new pitch fee is attributable.

(e) refer to the [NAME]’s obligations in paragraph 21 (c)to (e) and the owner's obligations in paragraph 22(c) and (d). and

(f) refer to the owner’s obligations in paragraph 22(e) and (f) (as glossed by paragraphs 24 and 25).

20

(2) Regulations under this paragraph must be made by statutory instrument.

7. The Regulations in paragraph 25A (2) are [COMPANY] (Pitch Fees) (Prescribed Form) (England) Regulations 2013/1505.