[2023] UKUT 147 (LC)

Ms Esterhuyse has lived at Meadowview Park since 2017. Her agreement with the appellant provides for her pitch fee to be reviewed on 1 January each year. The park is a “protected site” under the Mobile Homes Act 1983 and accordingly terms are implied into the agreement by Schedule 1 of that Act. The provisions of that Schedule relating to England are contained in Chapter 2 of the Schedule.

Paragraph 16 of Chapter 2 provides that the pitch fee can only be changed in accordance with paragraph 17, either with the agreement of the occupier or if the FTT on the site owner’s application considers it reasonable for the pitch fee to be reviewed and so orders. Paragraph 17 sets out the procedure for reviewing the pitch fee.

Paragraph 18 states (so far as relevant) that when the amount of the new pitch fee is determined “particular regard shall be had to –

“(1)

... (aa) in the case of a protected site in England, any deterioration in the condition, and any decrease in the amenity, of the site  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 for the purposes of this subparagraph).”

Paragraph 20 provides:

“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 ...”

The applicant seeks to increase the pitch fee for 2022 reviewed in line with the RPI, and therefore by 6% from £193.32 per month to £204.92. There is no dispute that the applicant followed the procedure prescribed by paragraph 17. Ms Esterhuyse refused to agree the increase and in June 2022 the appellant applied to the FTT for an order that the pitch fee be increased by 6%, noting in its statement of case that Ms Esterhuyse had refused to pay the increase “largely on the basis that the hardstanding supporting her mobile home requires repair”. Ms Esterhuyse made written representations to the FTT. Neither party asked for a hearing and the FTT made its decision on the papers.

I pause there to say that there were contested issues of fact between the parties; Ms Esterhuyse complained of damp condensation, mould and a leaking pipe, which the appellant says either was not true or her own responsibility. So the FTT’s decision to determine the application without a hearing was surprising.

However, as will be seen, the FTT made its decision on the basis of facts that were not in dispute. The parties’ accounts of one aspect of their dealings was consistent; it it is agreed that shortly after she took up residence at the park Ms Esterhuyse became aware of cracks to the hardstanding beneath her mobile home. This was repaired by the appellant. Ms Esterhuyse regarded the repair as unsatisfactory, and complained to the local authority .As she later said in her statement of case to the FTT:

“In 2018 Cement base repaired but as a botched backyard job using the Gardener of our Park, working on his own. I asked questions and took photos. I was unhappy. My home was moving and shifting and not levelled and has caused damage that was on going. I asked our Council for assistance.”

The local authority agreed with her, and on November 2019 it served on the appellant a Compliance Notice, alleging breach of one of the conditions of the appellant’s licence to operate the protected site. The Notice required the appellant to employ a fully qualified structural engineer to inspect the hardstanding thoroughly and to carry out works to guarantee the structural integrity of the hardstanding.

By January 2022 when the pitch fee review notice was served the appellant still had not caried out that work; the appellant’s statement of case to the FTT in June 2022 stated that the work had been delayed due to the pandemic and because of Ms Esterhuyse’s ill-health but was due to commence on 10 July 2022. She was going to have to move out because her mobile home would need to be moved, and the appellant was going to fund accommodation for her because there were no spare pitches on the site.