[2023] UKUT 147 (LC)

In light of the statutory provisions set out above the FTT had to decide whether it was reasonable for the pitch fee to be increased, and whether the presumption of an increase in line with the RPI was displaced, having particular regard to the factors mentioned in paragraph 18. As the FTT put it at its paragraph 12:

“Upon application, the Tribunal must determine two things. Firstly, that a change in the pitch fee is reasonable and, if so, it must determine the new pitch fee.”

The FTT at its paragraph 32 directed itself to consider whether there had been a deterioration in the condition or amenity of the park and said that if it so found then:

“33.

… it must decide whether it would be unreasonable for the pitch fees to be increased on the basis of the increase in the retail prices index (RPI).”

At paragraph 34 the FTT noted Ms Esterhuyse’s evidence of cracking of the base on which her home stood, and said that there were other issues between the parties. It said no more about the “other issues” but went on to mention the Compliance Notice and observed that the site owner accepted that the hardstanding required repair and had so required since 2019. The FTT referred to the decision of the Tribunal (HHJ Alice Robinson) in Vyse v Wyldecrest Limited [2017] UKUT 24 (LC) where it was said at paragraph 45:

“the factors which may displace the presumption are not limited to those set out in paragraph 18(1) but may include other factors …

The FTT also quoted part of paragraph 50, Judge Robinson explained that if none of the factors mentioned in paragraph 18 applied then it is necessary to consider whether any other factor displaces the presumption of an increase in line with the RPI:

“By definition, this must be a factor to which considerable weight attaches … it is not possible to be prescriptive … What is required is that the decision maker recognises that the ‘other factor’ must have sufficient weight to outweigh the presumption in the context of the statutory scheme as a whole.”

The FTT concluded:

“38.

In this case, notwithstanding the responsibility for the other defects complained of, the landlord has accepted that repairing the cracked base is their responsibility. As at 1 January 2022 they had failed to repair it. It is clearly causing Ms Esterhuyse distress and worry and goes to the heart of her occupation of the park.

39.

The tribunal finds that this is a factor to which, in this case, considerable weight attaches and outweighs the presumption that the pitch fee will increase by the RPI.”

The appellant has three grounds of appeal.