[2024] UKUT 375 (LC)

The 2023 pitch fee review at the Park was commenced by notices given by the appellant to each occupier or resident on 25 May stating that from 1 July their own pitch fee would increase by 11.4%, in line with the increase in RPI since the pervious review. Each notice was accompanied by the information required by paragraph 25A of Chapter 2 of Schedule 1 to the 1983 Act which explains that if the increase is not agreed, the owner must apply to the relevant tribunal for the new pitch fee to be determined.

In England the relevant tribunal is the FTT and on 23 August 2023 the appellant filed applications seeking the FTT’s determination in respect of 53 pitches where the resident had not yet expressly agreed to the proposed increase. By the time the applications came on for hearing the appellant had reached agreement with a number of these residents and the FTT was asked to consider the pitch fees for 40 pitches.

The FTT gave directions for the management of the proceedings which were delivered to every resident. These included a request that any resident who wished to oppose the application should complete a form of reply giving contact details and, if they wished, nominating a representative. Further directions were given after initial responses from residents had been received, but only to those who had already responded.

The applications were listed for hearing and the FTT conducted an inspection of the Park immediately before that hearing. A large group of residents nominated one of their number, Mr Clifton, as their representative. Nine residents had no representative and did not attend the hearing. Those same nine residents had not responded to the FTT’s initial directions. They are the respondents to this appeal.

At the hearing evidence was given by Mr Clifton on behalf of the residents whom he represented. No evidence was given on behalf of those who had not responded. In his response to the appeal, Mr Gallagher has explained that he had had not participated in the FTT proceedings due to ill health but that he had always objected to the proposed increase.

In its decision the FTT dealt with an argument presented by Mr Mullin on behalf of the appellant that, in the case of the applications to which no response had been received the FTT was obliged to approve the proposed RPI increase and was not permitted to take into account evidence which it had seen and heard from others who had participated or even matters which it had observed for itself on its site inspection. For it to do otherwise would be to take sides; it was for each resident to make a case for a departure from the presumption of an RPI increase and if they chose not to participate the Tribunal should not make a case for them.

The FTT rejected that suggestion, and gave the following reasons:

“[W]here a park home owner has not agreed the pitch fee review, the site owner is required to make an application to the Tribunal. On such an application, the Tribunal must be satisfied that the proposed increase is reasonable. Its own observations might well displace the presumption. Its own observations might be informed by the evidence it has heard from other park home owners. The Tribunal is not a rubber-stamp; it has to be satisfied that the presumption should be given effect. We are satisfied that accords with Judge Rodger KC’s observations in Sayer. We do not consider that is a question of ‘descending into the arena’, but rather a proper exercise of our jurisdiction as enacted.”