[2025] UKUT 00018 (LC)

The terms which govern the review of pitch fees are found in paragraphs 16 to 20 of Chapter 2 of Schedule 1 to the Mobile Homes Act 1983 which are implied into every agreement for the occupation of a pitch on protected sites in England. The Park is a protected site.

Paragraph 16 provides that the pitch fee may only be changed by agreement or, in the absence of agreement, by the FTT if it "considers it reasonable for the pitch fee to be changed and makes an order determining the amount of the new pitch fee."

Pitch fees can be reviewed annually under the procedure in paragraph 17 by the owner giving notice of its proposed increase at least 28 days before it is due to take effect. If the occupier agrees to the proposal the new fee becomes payable. If the occupier does not agree, the owner may apply to the FTT for an order determining the amount of the new pitch fee.

Paragraphs 18, 19 and 20 provide guidance on the factors which may be taken into account when a pitch fee is reviewed. Paragraph 18(1) specifies that, when determining the amount of the new pitch fee “particular regard” shall be had to a number of matters including, by paragraph 18(1)(aa):

“(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);”

Paragraph 18(1) came into force on 25 May 2013. Paragraph 19 identifies certain costs which may not be taken into account in determining a new pitch fee. Finally, paragraph 20 creates a statutory presumption that unless it would be unreasonable to do so having regard to paragraph 18(1), the pitch fee will increase or decrease by not more than the percentage increase or decrease in the retail prices index for the previous 12 months (with effect from 2 July 2023 the relevant index became the consumers prices index).

The Tribunal has given guidance on the application of these provisions in many cases to which it is not necessary to refer. The effect of this guidance was recently summarised in Wyldecrest Parks (Management) Ltd v Whitley [2024] UKUT 55 (LC), at [28]:

“In summary, where none of the factors in paragraph 18(1) is present, and no other factor of sufficient (considerable) weight can be identified to displace the presumption of an RPI increase, the task of the tribunal is to apply the presumption and to increase the pitch fee in line with inflation.  Where one of the factors in paragraph 18(1) is present, or where some other sufficiently weighty factor applies, the presumption does not operate or is displaced.  Then the task of the tribunal is more difficult, because of the absence of any clear instruction on how the pitch fee is to be adjusted to take account of all relevant factors.  The only standard which is mentioned in the implied terms, and which may be used as a guide by tribunals when they determine a new pitch fee, is what they consider to be reasonable.  Paragraph 16 provides that, if the parties cannot agree, the pitch fee may only be changed by the FTT if it "considers it reasonable for the pitch fee to be changed and makes an order determining the amount of the new pitch fee." The obvious inference from paragraph 16 is that the new pitch fee is to be the fee which the tribunal considers to be reasonable.”

The Tribunal has often made it clear that the determination of a new pitch fee involves a judgment about what the reasonable increase should be in all the relevant circumstances. Where the presumption of an RPI increase applies the task is usually straightforward, but where the presumption has been displaced by any of the factors in paragraph 18(1), including a decrease in the amenity of the site, the FTT’s job is more difficult. But an assessment must still be made, as I explained in Wyldecrest v Whitley, at [46]:

“Nothing in paragraphs 18 or 20A of the implied terms provides that the pitch fee must either increase by a rate equal to the change in RPI/CPI or stay the same, with no other outcome being possible.  The purpose of disapplying the presumption of an RPI/CPI increase where there has been a loss of amenity is not to punish the park owner for reducing amenities (which they may have been entirely within their rights to do) but to set a new pitch fee which properly reflects the changed circumstances.  Those changed circumstances obviously include the reduction in amenity, but they will also include any change in the value of money i.e. inflation since the last review took place.  For it to be appropriate for there to be no change in the pitch fee at all it would be necessary for factors justifying a reduction to (at least approximately) cancel out inflation and any other factors justifying an increase.”