Tribunal Supports Site Owner’s Request to Increase Pitch Fees by RPI

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

[NAME]

:

CHI/29UK/PHI/2023/0066- 0097

Property

:

Various pitches at [NAME], [ADDRESS] [POSTCODE]

Applicant: [redacted]

:

Ms. [COUNSEL] counsel [RESPONDENT]

Respondent: [redacted]

:

Type of Application

:

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

Tribunal Member

:

Judge [NAME] [NAME] of Hearing

Date of Decision

:

:

22 September 2023

21 November 2023 Amended under Rule 50

AMENDED DECISION

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[RESPONDENT] of Respondents ([NAME])

Pitch Number Name

1 [NAME] & [NAME] 2 [NAME] [NAME] [NAME] 8 Ms [NAME] 8a Ms [NAME] 10 [NAME] [NAME] & Ms [NAME] [NAME] 11 [NAME] [NAME] & [NAME] [NAME] 12 [NAME] [NAME] [NAME] 13 Ms [NAME] & Ms [NAME] 14 [NAME] [NAME] & [NAME] [NAME] 15 [NAME] [NAME] & [NAME] [NAME] 16 [NAME] [NAME] & [NAME] [NAME] 17 [NAME] [NAME] & [NAME] [NAME] 18 [NAME] [NAME] & [NAME] [NAME] 19 [NAME] [NAME] & [NAME] [NAME] 21 [NAME] [NAME] 22 [NAME] [NAME] & [NAME] [NAME] 23 [NAME] [NAME] & [NAME] [NAME] 24 Ms [NAME] 25 [NAME] [NAME] & [NAME] [NAME] 26 [NAME] [NAME] 27 [NAME] [NAME] & [NAME] [NAME] 28 [NAME] [NAME] & [NAME] [NAME] 29 Miss [NAME] 31 [NAME] [NAME] 32 [NAME] [NAME] & [NAME] [NAME] 33 Ms [NAME] 34 Ms [NAME] 35 [NAME] [NAME] & [NAME] [NAME] 36 [NAME] [NAME] & [NAME] [NAME] 37 Ms [NAME] 38 [NAME] [NAME] & [NAME] [NAME] 40 Ms [NAME]

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Background

1. On 17 March 2023 the Applicant site owner sought a determination of the pitch fees for the pitches detailed in the [RESPONDENT] above, payable by the Respondents as from 1 January 2023.

2. Pitch Fee Review Notices dated 21 November 2022 were served on the occupiers proposing to increase the pitch fees by an amount which the site owner says represents only an adjustment in line with the Retail Price Index.

3. The Applicant states that it has served a copy of the application with attached documentation on the Respondents.

4. On 18 April 2023 [NAME] [APPELLANT] wrote to the Tribunal and the Applicant on behalf of all of the Respondents, objecting to the proposed review.

5. On 21st June 2023 further directions were issued consolidating all the claims and directing that there would be a hearing and inspection. Those directions were complied with and the Applicant has supplied an electronic hearing bundle.

6. References in [ ] are to pages within that bundle.

Inspection

7. Immediately prior to the hearing an inspection of the site took place.

8. The site is located in a rural area of Kent known as [ADDRESS] which is located between Otford and West Kingsdown. [ADDRESS] is accessed by single track roads with high hedges and it takes about 5/10 minutes from the main road at West Kingsdown or Otford to arrive at the site.

9. Upon arrival the Tribunal parked in the visitors parking area located off [ADDRESS].

10. The Tribunal met with the parties to begin the inspection at the main entranceway to the site which is located on [ADDRESS].

11. The inspection was attended by the Tribunal, Ms [COUNSEL] (counsel for the Applicant), [NAME] [COUNSEL] (director of the Applicant), [NAME] [APPELLANT] (19), [APPELLANT] (31), [NAME] [APPELLANT] (22) and Ms [NAME] (35).

12. Generally the impression was of a recently completed site. It appeared to be in a generally tidy condition. The parties walked us around the roadways on the site. We started at the entrance gates and were asked

4 to take note that the height of the gate pillars and adjacent walls had been reduced and the lights were not working.

13. Inside the entranceway was a noticeboard. The Respondents asked us to note the grass behind the same was not cut.

14. The roadways had speed humps and we noted there were speed signs. We took account of the position of various lights around the site and CCTV cameras.

15. Next to pitch 28 was a drain which appeared to have standing water (it had rained heavily in the days preceding the inspection). On the roadway next to pitch 27 was some discolouration which appeared to have occurred from water running across the road.

16. We noted that there were gaps in the hedge along the Western boundary of the park which opened onto an agricultural field.

17. In the visitors’ car park we noted the lighting in place and the position of the sewage plant and propane gas tanks. The Tribunal opened and closed the 5 bar wooden gate on the access to the road. It was noted the gate did not close fully meaning the latch did not engage, paradoxically making it easier to open, being only kept in the closed position by gravity. The surface was made up of an MOT Type 1 style covering. It appeared to be relatively flat.

Hearing

18. The hearing took place, following the inspection, at Medway Magistrates Court. The Applicant was represented by Ms [APPELLANT] and [NAME] [APPELLANT] was in attendance. The Respondents were collectively represented by [NAME] [NAME], [NAME] [NAME] and Ms [NAME].

19. The below is a summary only of what was said at the hearing.

20. [NAME] [NAME] generally presented the [NAME] for the Respondents with [NAME] [NAME] and Ms [NAME] making certain submissions and representations.

21. [NAME] [NAME] explained the Respondents believed that the home owners were not getting value for money.

22. The gate and walls at the entranceway had been lowered and the lighting turned off. Supposedly this was to comply with planning requirements but in his submission this reduced the security for the site.

23. Up until November of last year the Applicant had undertaken gardening to the site but this was stopped. The [NAME] had taken over responsibility for this and had themselves made improvements such as putting up the speed signs seen at the inspection and marking on the tarmac where the speed humps were.

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24. [NAME] [NAME] suggested that the lighting on the park was key. He referred to one light having been out of operation for 124 days. Further the number of lights was in his opinion insufficient for the site and the [NAME] had set up their own solar lights such as those seen on the inspection in the visitors’ car park area.

25. Further it was suggested the drainage on the roadway does not function properly and leads to ice on the roads. The site was sold as a luxury park but in his opinion the conditions do not equate to this. He suggested their pitch fees were the highest in the area and yet they had no facilities on site or a resident manager.

26. [NAME] [NAME] suggested that he was told the visitor car park would be given a tarmac finish and fob operated gates would be fitted.

27. [NAME] [NAME] referred to a plan in the bundle [2442] which had the location of the street lights marked upon it. In his submission the front gates do not look nice and the holes in the hedge cause a security risk.

28. Ms [NAME] questioned the Respondents’ representatives as did the Tribunal.

29. The Respondents confirmed they assumed their pitch was the concrete base only.

30. Ms [APPELLANT] accepted that [NAME] [APPELLANT] (an employee of the Applicant) had lived on the site for some time to assist with the completion of the site and siting of further homes. She acknowledged he was not on the site to expressly help other home owners although he would on occasion do so.

31. Upon conclusion the Tribunal adjourned for lunch and confirmed to the Respondents that upon resumption they would check if there was anything further they wanted to say or raise.

32. Upon resumption of the proceedings [NAME] [NAME] on behalf of the Respondents confirmed there was nothing else they wished to add.

33. Ms [NAME] relied upon her skeleton argument filed in advance.

34. Ms [NAME] explained that the pitch was not just the concrete base but the garden area around each. She referred to a sample plan for pitch 8 [150] and a plan for the site [2391]. She explained that the Applicant had been arranging to mow the grass as it wished to ensure the site was attractive to secure sales of all pitches. Once all sales were concluded it ceased but there was no requirement upon it within the express or implied terms. She also explained that when [NAME] [COUNSEL] was on site his role was mainly as a representative for the site owner and he was not intended by the Applicant to be a permanent site manager.

6 35. The Respondents, in their documents, had taken issue that a bus service supplied by the local authority had ended. At the time the homes were sold this was in existence but the local authority had ceased funding the same. This was not a matter the Applicant site owner had control over.

36. Ms [APPELLANT] suggested that the surface of the visitors’ car park and the gate all were completed to a reasonable standard and were in keeping with the rural location.

37. In respect of the lighting on the site she suggested the lighting was in line with the plan [2442] referred to earlier. All lighting was as per the plan provided when people acquired their pitches. If this is not sufficient (and she made no admission) that is a matter for the site licence and not relevant to this determination. The position was the same in respect of the provision of CCTV cameras.

38. In her submission the issue of the drainage is not new. She suggests improvements have been undertaken by the Applicant. She suggested given the recent heavy rain, including the night prior you would have expected to see more evidence of pooling and the like if there was an issue.

39. The Respondents were given opportunity to question [NAME] [NAME].

40. The Respondents were then given opportunity to reply.

41. [NAME] [NAME] stated that the service levels are not at the right level.

42. Ms [NAME] stated that it is only now living on the site that one can tell certain things are not suitable for the site such as the level of lighting. In her view there has been a decrease in the service they as [NAME] receive.

43. [NAME] [NAME] stated that works had been done to the site to make it look good for the inspection. Generally, it was for the [NAME] to do everything for themselves.

Decision

44. The Tribunal thanks all the parties for their helpful submissions.

45. We are satisfied that the Pitch Fee Notices served are all valid and in accordance with the statutory requirements. Copies of each of the notices are within the bundle and by way of example the notice for Pitch 1 is at [55-64]. The bundle also includes copies of the written statements for each pitch. The relevant review date is 1st January 2023 and the notices are dated 21st November 2023.

46. Each of the notices, save in respect of pitch 33, seeks to increase the pitch fee by RPI giving a figure of £308.68. In respect of pitch 33 it is to

7 raise the pitch fee by RPI giving a figure of £291.21. No challenge to the calculation itself has been made. We are satisfied that this increase reflects the RPI figure of 14.2% being the figure last published before the review date. A copy of the relevant table is at [2484].

47. We have considered carefully the various matters raised by the Respondents and will set out our findings and determination in respect of each in turn. In so doing we rely on all the documents within the bundle of 2484 pages even where we do not make specific reference to the same.

48. Bus service: it is correct that this has now ceased. We accept that when purchasing [NAME] were told that a bus service existed. At that point that was true. This was never a service provided by the Applicant site owner. The Applicant has no control over such provision funded by the local authority. The loss of this service is not in our opinion a weighty factor.

49. The Respondents challenged the failure to install smart meters. Again it seems at time in the past a suggestion was made that smart meters may be installed. This is generally now not taking place. The fact that this has not happened cannot in our judgment be said to be a decrease in amenity as these were not in place. If it is suggested that people were persuaded to purchase their homes on the basis of such promises then that is not a matter for this Tribunal to adjudicate upon and the parties must rely upon their own advice.

50. Visitors’ car park: we are satisfied that this is appropriately surfaced and the combination padlock is suitable security. Further we are satisfied that the gate could be opened relatively easily and was fit for purpose. We do believe the lighting in the area is inadequate. However, the site plan only refers to one light in this car parking area. That is provided. Any question of the inadequacy of this is a matter for the site licence although we find that there has not been any loss of amenity in this area. To the contrary it appears the parking area has now been completed and made good since the previous pitch fee increase.

51. Entrance gates and walls: it is accepted that these were lowered by two courses following enforcement action by the local authority. Although the gates now stand higher than the capping stones of the wall, this was barely noticeable and we are satisfied following our inspection that the removal of the two courses was undertaken in a sensitive way to ensure the cosmetic look was maintained. We also note that the lights have been permanently turned off at the request of the local authority.

52. It was suggested this reduction in the height amounts to a security risk.

53. We are not satisfied there is any loss of amenity. Even if two courses higher we are satisfied that a reasonably physically fit person would be able to climb over the wall, and there are lower parts of the wall or gaps in hedges nearby which would also provide access points. On balance

8 we are not satisfied on the evidence we saw and heard that there is any loss of amenity.

54. Lighting to the site: again we refer to our inspection and note that we saw in place lights in all the positions marked on the plan [2442]. We were told whilst there was a delay in one light working it was now working. We have great sympathy with the Respondents. The level of lighting around the site is limited. It is suggested by the Applicant that this is partly due to the requirements of the local authority who due to the rural location are keen to minimise light pollution. The lights provided are in accordance with what each and every Respondent thought would be on the site. If this is inadequate then this may be a matter for the site licence.

55. CCTV: we are satisfied that the provision of CCTV cameras at the site is in accordance with what each Respondent was led to believe. The Respondents appear to take issue with the fact that the CCTV feeds are not made available to them. The Applicant states they have a clear GDPR policy as required and will supply pictures to the police and the like. We are satisfied that this does not amount to a reduction in amenity or a weighty factor of which we should have regard.

56. Drainage: the Respondents looked to rely upon certain undated photographs which appear to have been used in the challenge to the previous year’s pitch fee. We remind ourselves we need to look at whether the amenities significantly deteriorated since the last pitch fee increase. We do not appear to have any such evidence. Whilst we saw some minor issues we were not satisfied these were so serious as to amount to a reduction in amenity which would be a significantly weighty factor which we should have regard to.

57. Grounds maintenance: overall from our inspection we are satisfied that this is a well maintained site. There is an issue that the Applicant had been undertaking some ground maintenance. This was explained that as a gesture of goodwill the Applicant provided such service whilst selling the remaining pitches, and the brochure said the pitch fee covered general maintenance to communal areas. We are satisfied that it appears almost all grassed areas are demised to pitches in accordance with the plan referred to. As a result there is not an obligation upon the Applicant to undertake any works other than to communal areas and we find there is no loss of amenity.

58. The Respondents suggest that the initial pitch fee was already high for the location of the park. We record that we have no jurisdiction to challenge the matter of the initial pitch fee, this being a matter of negotiation by the parties. Our jurisdiction relates purely to the level of increase to be applied.

59. Various other issues have been raised by the Respondents within their written submissions. We have considered all and the evidence but are not satisfied that any amount to a weighty factor which may rebut the

9 presumption of an RPI increase. We have also gone on to consider if when considered in the round all such matters amount to a factor which would rebut the presumption and we are not so satisfied.

60. The RPI percentage for October 2022 was high at 14.2% but that is the mechanism that Parliament choose to adopt as the measure for increases. We are satisfied that upon our finding there is no weighty factors which rebut the presumption that the Applicant is entitled to an increase in line with RPI and having determined the notices served are valid that the Applicant is entitled to the pitch fees sought.

61. We find that the pitch fee for each Respondent, save pitch 33, increased from 1st January 2023 to £3086.68 and the fee for pitch 33 increase from 1st January 2023 to £291.21.

62. The Applicant also seeks an order that they may recover from each Respondent the fee paid of £20 per application.

63. The recovery of such fees are within the discretion of the Tribunal. We have not heard any representations from the Respondents. Generally, in circumstances such as this we would order that the Respondents should pay to the Application the application fee. We are satisfied that this is such a [NAME] where an order for payment of the fee should be made. If, however, the Respondents wish to make representations objecting they must do so within 28 days of this decision. In default of such representations the fee will be payable by each Respondent to the Applicant. If representations are made we will consider and issue further determination.

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]

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.

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