[2023] UKUT 147 (LC)

The appellant says that the FTT mis-stated the test. It was wrong to set off at its paragraph 12 (quoted above) on the basis that it must first determine whether the pitch fee was reasonable and then determine the new pitch fee. On the contrary, there is a presumed increase unless that it unreasonable.

In assessing this argument I start with paragraph 16 of Chapter 2, Schedule 1, which says:

“The pitch fee can only be changed in accordance with paragraph 17, either—

(a)

with the agreement of the occupier, or

(b)

if [the FTT] , on the application of the owner or the occupier, considers it reasonable for the pitch fee to be changed and makes an order determining the amount of the new pitch fee.”

The precise relationship between paragraph 16 and paragraph 20 is not stated in the Schedule. Paragraphs 18 and 19 set out factors to which particular regard is to be had, and also factors that are not to be taken into account in determining the amount of the new ptch fee (not in determining whether there should be an increase). Then paragraph 20 says:

“(A1)  In the case of a protected site 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.”

In Wyldecrest Limited v Vyse the Tribunal referred to Britanniacrest Limited v Bamborough [2016] UKUT 0144 (LC), where the Tribunal (the Deputy President, Martin Rodger QC, and Mr Peter McCrea FRICS) “identified three basic principles that shape pitch fee reviews: annual review, no change without agreement unless the FTT considers it reasonable and determines the amount of the new pitch fee and the presumption of change in line with RPI.”

At paragraph 22 in Britanniacrest the Tribunal expanded on those three principles and elucidated the relationship between paragraphs 16 and 20:

“These three principles (annual review; no change without agreement unless the FTT considers it reasonable and determines the amount of the new pitch fee; and a presumption of a change in line with the variation in RPI) give the statutory scheme its basic structure. They do not provide a benchmark by reference to which a new pitch fee is to be determined, such as the amount which might reasonably be expected to be agreed as the pitch fee in the negotiation of a new pitch agreement in the open market. The FTT is given a very strong steer that a change in RPI in the previous 12 months will make it reasonable for the pitch fee to be changed by that amount, but is provided with only limited guidance on what other factors it ought to take into account. It is clear, however, that other matters are relevant and that annual RPI increases are not the beginning and end of the determination, because paragraphs 18 and 19 specifically identify matters which the FTT is required to take into account or to ignore when undertaking a review.”

Accordingly the FTT in the present case was right, at its paragraph 12, to identify the primary question as whether it was reasonable to increase the pitch fee, but then in its later discussion to focus on whether the presumption on an increase in line with the RPI was displaced. The FTT was perfectly clear that there was such a presumption, and made it equally clear that it was displaced by the appellant’s failure to get the repairs done properly. The “strong steer” of paragraph 20 was observed, but displaced. There was no error of law. To argue, as the appellant does, that the FTT failed to observe the provision that the RPI increase must be applied unless that would be unreasonable is a misreading of the FTT’s decision; that was explicitly the reasoning the FTT undertook.

As to whether the FTT placed too much weight on the failure to repair the hardstanding properly, the appellant argues that there was insufficient evidence for the FTT to conclude that the failure properly to repair the hardstanding was causing Ms Esterhuyse distress and worry. I disagree. The FTT’s decision about the effect of the problem upon Ms Esterhuyse was one that was open to it on the basis of Ms Esterhuyse’s evidence. It was an evaluation of that evidence with which the Tribunal will not interfere in the absence of some error of law or irrationality.

Finally the appellant says that the alleged distress and worry does not establish a deterioration in the condition or amenity of the site. That is the fallacy identified at paragraph 24 above: the FTT did not find that the presumption was displaced by paragraph 18(1)(aa).