[2024] UKUT 180 (LC)

The FTT’s decisions that the pitch fee review notice and pitch fee review form were invalid, and that that invalidity meant that there could be no change in the pitch fee, have been set aside; so has its alternative decision that it was not reasonable for the pitch fee to be changed. The Tribunal can either substitute its own decision, or remit the matter to the FTT.

Several difficulties stand in the way of my substituting the Tribunal’s own decision.

The first is the number of unanswered questions left by the FTT’s decision. I do not understand why the FTT found that the appellant was the site owner, when there were other lessees with apparently a better right to possession (the “occupational leases” subject to which the appellant’s lease was granted; paragraph 6 above). I do not understand why the appellant was entitled to collect the pitch fee when, in respect of agreements made with the respondents subsequent to the grant of its own lease, it could not be said to be claiming through or under the site owner (section 3 of the 1983 Act) (first because Wyldecrest, the grantor of the agreements was on the appellant’s own case not the site owner at the time the agreements were made, and second because they were made on a date after the grant of the appellant’s lease). Mr Sunderland was not able to offer an explanation of either of those points and even though the FTT’s findings have not been appealed by the respondents I cannot simply ignore them since they are points relating to jurisdiction. Evidence and explanation are required.

Second, the respondents’ own arguments have not been properly addressed. I agree with the FTT that it cannot change the pitch fee agreed between the parties at the start of the agreement; but the FTT did not explain why the respondents’ concern that the pitch fee was at the review date disproportionately high, having been set apparently in consideration of the surrender of an agreement with only seven or eight years to run, is not relevant on a review of the pitch fee (being the first review since the fee was set).

Third, since the FTT made its decision in October 2023, a differently constituted panel of the FTT made a decision, on 19 February 2024 in the matters CHI/45UC/PHC/2023/0004 and CHI/45UC/PHC/2023/0005, about the service charges under the agreements on Beechfield Park and another site. All but two of the respondents were party to those proceedings, as were the appellant, Wyldecrest, Best Holdings (UK) Limited, Silver Lakes Property Investment Limited, Silk Tree Properties Limited, and three other companies. The FTT in that case decided that the appellant is not the site owner of Beechfield Park. It noted the previous finding to the contrary, in the decision now appealed, but because there were more parties now involved it felt able to make a different decision.

It also decided that neither the appellant nor any other person is entitled to receive the service charges reserved by the occupiers’ agreements, because no others were party to those agreements and none can claim to have become entitled to the benefit of the agreements under the Mobile Homes Act 1983.

As to that latter finding, the FTT in the February 2024 case focused on a point that the FTT in the decision presently appealed did not mention: that in order to collect sums due under the occupiers’ agreements it is not enough to be the owner of the site as defined in the statute. It is also necessary to be entitled to the benefit of the agreement. The pitch fee is defined in the 1983 as “the amount which the occupier is required by the agreement to pay to the owner” (paragraph 10 above). If the appellant is not entitled to the contractual service charge, it follows that it cannot be entitled to receive the pitch fee, which is equally a payment due under the contract (as the FTT noted itself, in paragraph 137 of the February decision).

Those findings by the FTT in February 2024 remain unappealed. Mr Sunderland explained that the “occupational leases” subject to which the appellant’s own lease had been granted were created in an attempt to have each pitch licensed as a separate site, which did not find favour with the local authority (unsurprisingly, one might add). It had been decided that instead of appealing the decision the better way forward would be to surrender those leases so that they did not stand in the way of the appellant’s being the site owner as defined in the statute. He said that that had been done; he was of course speaking on instructions and not giving evidence, and the respondents did not accept that that had been done.

On the face of it the FTT’s decision of 19 February 2024 creates an issue estoppel between the appellant and all but two of the present respondents (the two being Mr Simon and the estate of Mrs Rose); an “issue estoppel” means that the point has already been decided between the two parties and the FTT could not make a different decision later. But if what Mr Sunderland says is accurate, then it may be the case that some at least of the factual basis of the FTT’s decision has changed so that there would no longer be an issue estoppel.

None of this can be disentangled without evidence, from the parties and probably from others as well. The FTT’s decision of October 2023 is set aside in its entirety and the appellant’s applications are remitted to the FTT. They are to be determined by a panel different from the ones who made the decision in October (the appealed decision) and in February. The appellant should apply to the FTT for directions, which should make provision for the parties to call evidence.

It would greatly assist the parties themselves, and the FTT, if they all had legal representation in view of the legal and practical complexity of this case. I urge the respondents in particular to take legal advice, perhaps by contacting Advocate (Advocate: Finding free legal help from barristers (weareadvocate.org.uk).