[2024] UKUT 197 (LC)

The FTT found that the condition of the Park had been “pristine” while it was under its previous ownership and that it had deteriorated from that condition in the period of less than three years since Wyldecrest had taken over. When it visited the Park it made detailed findings about its current condition, but the following summary is sufficient to set the scene for the second ground of appeal:

Mr Payne submitted that the FTT had erred in law in considering a change in the condition of the Park from “pristine” to “by no means dreadful” to be a “deterioration” for the purpose of paragraph 18(1). He did not challenge the FTT’s findings of fact that there had been a negative change, but instead focussed on the standard of maintenance which he submitted it ought to have had in mind when considering if there had been a deterioration.

Mr Payne referred to paragraph 22 in the implied terms of the pitch agreement which oblige the owner to “maintain in a clean and tidy condition those parts of the protected site, including access ways, site boundary fences and trees, which are not the responsibility of any occupier of a mobile home stationed on the protected site.” An owner which kept a site in a clean and tidy condition would satisfy its contractual obligation and, Mr Payne suggested, occupiers of pitches on the site were not entitled to expect any higher standard. In maintaining the Park in pristine condition, Wyldecrest’s predecessor had therefore gone beyond what was required of it by the pitch agreements. When considering whether there had been a deterioration in the condition of a site, Mr Payne submitted that the FTT should have asked itself only whether the Park had fallen below the minimum contractual standard of cleanliness and tidiness which the occupiers were entitled to. Only a deterioration below that standard should be taken into account. Additionally, he suggested, changes which were not changes in standards of cleanliness or tidiness should be ignored. To the extent that the FTT had taken into account wider matters of condition, or a deterioration of the Park from a previous pristine state to a merely contractually compliant state it had been in error and its assessment should be reconsidered.

I reject these submissions. Paragraph 18(1)(aa) is quite clear. Regard must be had to “any deterioration in the condition, and any decrease in the amenity, of the site”. The only relevant considerations are: first, whether the site was previously in a superior condition from which it has deteriorated since the paragraph came into force in 2013; secondly, whether that deterioration has been taken into account in a previous pitch fee determination; and, if not, thirdly, whether it would be unreasonable to implement the usual RPI increase in view of that deterioration. The proper comparison is between the current condition of the site and its previous condition, and not between its current condition and some notional minimum compliant standard.

Although no submission to that effect was developed by Mr Payne it was implicit in his argument on this issue that Wyldecrest considers that the contractual obligation to maintain the Park “in a clean and tidy condition” does not require it to undertake work to trees, shrubs and landscaped areas, or that it requires only minimal work to these features. If that is Wyldecrest’s view, it is not one with which I agree. Trees are specifically mentioned in the maintenance obligation and there is no reason why, as a matter of language, the proper maintenance of plants and landscaped areas should not be regarded as keeping them in a clean and tidy condition. Quite apart from the scope of the site owner’s obligations, a reduction in garden maintenance might amount to a reduction in the services the owner provides to the site, which might in turn be a matter falling within paragraph 18(1)(ab).

This issue does not arise out of the FTT’s decision, but Mr Payne made submissions on it and it may assist the parties and the FTT in future if I express the views I have provisionally formed.

In its decision the FTT referred to the possibility that the reduction in pitch fee which it imposed might be reversed in future (although it also suggested that this might amount to an improvement on which consultation would be required). Mr Payne sought confirmation that such a reversal would be possible. What he had in mind was that, if the condition of the Park was improved so that it reached the minimum standard required by the implied terms, the pitch fee might then be increased at a future review to restore it to the level it would have reached had the 2023 review not resulted in a reduction. That restored level would then form the base level for the next RPI increase.

In principle, a temporary reduction in amenity or deterioration in condition ought to be capable of being remedied and, when it is, any previous curtailment of the pitch fee should no longer have effect if that is reasonable. If a pitch fee was reduced in one year because of a deterioration in the condition of a site or its amenity, and that deterioration was cured in whole or in part in a subsequent year, I do not see why the FTT could not adjust the pitch fee to take account of the change by awarding an above RPI increase. That approach has been applied by the FTT in at least one other case involving Wyldecrest, and it is a permissible one.

The amount of any adjustment would be a matter for the FTT, asking itself what would be a reasonable pitch fee in all the circumstances. I do not think it likely that simply catching up on work which had previously been neglected would amount to an improvement requiring consultation (or which would justify an increase related to expenditure in its own right). But in this case, even if Wyldecrest is right that the former pristine condition was more than the occupiers were entitled to under their agreements, it is likely that the full amount by which the pitch fee was reduced in January 2023 could only be retrieved by a permanent restoration of the Park to its previous very high standard.