[2024] UKUT 00279 (LC)

Mr Clark is entitled to occupy his pitch and station his mobile home at Haldon Ridge under a written agreement dated 6th December 2014. It is not in dispute that this is an agreement to which the Mobile Homes Act 1983 applies. The provisions of that Act therefore determine how and to what extent the pitch fee paid by Mr Clark can be changed.

The “pitch fee” is defined in paragraph 29 of Schedule 1, Part 1, Chapter 2, to the Mobile Homes Act1983, as:

“...the amount which the occupier is required by the agreement to pay to the owner for the right to station the mobile home on the pitch and for use of the common areas of the protected site and their maintenance, but does not include amounts due in respect of gas, electricity, water and sewerage or other services, unless the agreement expressly provides that the pitch fee includes such amounts”

The provisions about changing the pitch fee are in paragraphs 16 to 20 of Schedule 1, Part 1, Chapter 2 (to which I refer from now on just as “the Schedule”). The pitch fee can only be changed by following the procedure set out in paragraph 17 of the Schedule, and then only with either the agreement of the occupier or if the FTT, on an application by the site owner, considers it reasonable for the fee to be changed and makes an order determining the amount of the new fee..

On 27 January 2023 the appellant sent to Mr Clark a pitch fee review notice and form, complying with the requirements of paragraph 17, proposing an increase in the pitch fee with effect from 3 April 2023 from £61.5 to £69.74, an increase of 13.4% in line with the increase in the RPI in December 2022. The form noted that the pitch fee was last reviewed on 1 April 2019.

Mr Clark did not agree the proposed new pitch fee and therefore the appellant applied to the FTT for a determination.

As to the level of the new fee, paragraph 18 of the Schedule says this (so far as relevant):

“(1)

When determining the amount of the new pitch fee particular regard shall be had to—

(a)

any sums expended by the owner since the last review date on improvements— …

(aa) in the case of a protected site in England, 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 since the date on which this paragraph came into force (in so far as regard has not previously been had to that deterioration or decrease for the purposes of this subparagraph);

(ab) in the case of a protected site in England, any reduction in the services that the owner supplies to the site, pitch or mobile home, and any deterioration in the quality of those services, since the date on which this paragraph came into force (in so far as regard has not previously been had to that reduction or deterioration for the purposes of this subparagraph);

…

(1A) But, in the case of a pitch in England, no regard shall be had, when determining the amount of the new pitch fee, to any costs incurred by the owner since the last review date for the purpose of compliance with the amendments made to this Act by the Mobile Homes Act 2013.

Paragraph 20 says this (again, omitting irrelevant passages):

“(A1)  In the case of a protected site in England, unless this would be unreasonable having regard to paragraph 18(1) , there is a presumption that the pitch fee shall increase or decrease by a percentage which is no more than any percentage increase or decrease in the retail prices index calculated by reference only to—

(a)

the latest index, and

(b)

the index published for the month which was 12 months before that to which the latest index relates.”

That provision has now been amended to refer to the consumer prices index, but at the time relevant to this appeal the text remained as above and the retail prices index is the relevant index for the purposes of this appeal.

The effect of those provisions taken together is that if the FTT decides that it is reasonable for the pitch fee to change, then there is a presumption that it shall increase or decrease in line with the latest change in the RPI, unless the FTT decides that that would be unreasonable having regard to paragraph 18(1). Paragraph 18(1) requires the FTT to have regard “in particular” to certain factors, which of course means that other factors can also be taken into account. In Britanniacrest Limited v Bamborough [2016] UKUT 0144 (LC) the Tribunal (the Deputy President, Martin Rodger QC and Mr Peter McCrea FRICS) said:

“31.

…The fundamental point to be noted is that an increase or decrease by reference to RPI is only a presumption; it is neither an entitlement nor a maximum, and in some cases it will only be a starting point of the determination.”

In Vyse v Wyldecrest Parks (Management) Ltd 2017 [UKUT] 24, Tribunal (HHJ Alice Robinson) explained that if none of the matters raised in paragraph 18(1) of the statutory implied terms applies and would justify departing from the statutory presumption, then the statutory presumption arises and the Tribunal must consider whether any “other factor” should displace it. The Upper Tribunal held that : - “...by definition, this must be a factor to which considerable weight attaches...”

What the FTT can not do in deciding on a change in the pitch fee is to simply impose what it regards as a reasonable fee. It must follow the reasoning process set out in the statute and determine whether it would be reasonable for the current fee to change and if, following paragraphs 18 and 20, by how much.