[2024] UKUT 55 (LC)

I was not shown the terms of occupation of pitches on either of the parks, but it was not suggested in either case that any individual agreement for the occupation of a pitch gave the occupiers a right to park in a particular parking space or generally in one of the car parks which was later removed. Nor was it suggested that the residents of Penwortham Park had a contractual right, in their written agreements, to have the Green preserved as an open space.

Mr Sunderland pointed out that there was nothing in the site licences or planning permissions for either of the parks which prevented Wyldecrest from taking the two car parks and the Green out of use for their original purpose and turning them instead into additional pitches. The number of pitches on each of the parks, after the changes, was still within the levels permitted by the site licence.

In those circumstances, Mr Sunderland argued that as there was no right to the enjoyment of the amenities which had been withdrawn, the change brought about by their withdrawal should not be regarded as a “decrease in the amenity” of the park or of any individual pitch. In his written argument Mr Sunderland submitted that: “it cannot reasonably be argued that this results in a loss, given that there was no right to have this in the first place, it was simply a change of arrangements.” Without a decrease in amenity, he suggested, there was no reason not to apply the RPI presumption.

In the Penwortham Park case the FTT adopted as a working definition of “amenity” that it “refers to the quality or character of an area and elements that contribute to the overall enjoyment of an area”. In the Willow Park case the RPTW did not feel it necessary to offer a definition. An amenity is anything which is a desirable or useful feature or facility of a building or place. There was no dispute before the tribunals below or on appeal that a car park and a large open green space were capable of being amenities. The only issue is whether it is necessary that there should have been some right to a particular amenity before it can be said to have decreased.

I do not accept Mr Sunderland’s submission.

Paragraph 18(1)(aa) of the implied terms identifies “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” as matters to which “particular regard shall be had” when determining a new pitch fee. There is no express requirement that the amenity must be one to which the occupier has a contractual right, either through the terms of their pitch agreement or as a matter of licensing. Nor is there anything in the context which would justify reading such a requirement in to the implied terms. It would be very unusual for an agreement to specify features of a park which were to be guaranteed for the duration of the agreement. As Mr Sunderland pointed out in relation to a different part of the argument, a park may have numerous features which can be described as amenities, all of which contribute to the setting and environment, or the facilities, available to residents, without these being listed in an agreement. Paragraph 18(1)(aa) is not confined to amenities on the park, but includes features of adjoining land provided it is occupied or controlled by the owner. It would be even more unusual for a pitch agreement to give the occupier a right to a facility which was located off the park itself.

There is no reason to add any additional requirement to paragraph 18(1)(aa) along the lines suggested by Mr Sunderland. An amenity can be enjoyed without any right to its preservation, and the decrease of such an amenity would be capable of making a park a less attractive place to live. It is therefore perfectly understandable that the implied terms specify such a decrease as a factor to which consideration should be given, whether or not the decrease is an infringement of a legal right or a contravention of a site licence or planning control.