Wyldecrest Parks (Management) Ltd v Marie Harper & Ors

This is an appeal from a decision of the First-tier Tribunal about the pitch fee payable in respect of four mobile homes on the appellant’s site at Tremarle Park, Cambourne, Cornwall. It has been determined under the Tribunal’s written representations procedure; the appellant has been represented by its director Mr David Sunderland, and the respondents have made their own written representations.

In 2022 the appellant purchased Tremarle Park, where the respondents live in their mobile homes under agreements that are protected by the Mobile Homes Act 1983. The provisions of the 1983 Act determine how and to what extent the pitch fee that they pay to the appellant 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”

Provisions about changing the pitch fee are made by paragraphs 16 to 20 of Schedule 1, Part 1, Chapter 2 of the 1983 Act; it 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. Paragraph 17 prescribes a notice procedure and there is no dispute that it was properly followed in this case.

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—

(i)

which are for the benefit of the occupiers of mobile homes on the protected site;

(iii)

which were the subject of consultation in accordance with paragraph 22(e) and (f) below; and

(iii)

to which a majority of the occupiers have not disagreed in writing or which, in the case of such disagreement, the [FTT], on the application of the owner, has ordered should be taken into account when determining the amount of the new pitch fee;

(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);

…”

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 been amended with effect from July 2023 to refer to the consumer prices index, but at the time relevant to this appeal the text remained as above and retail prices index (“RPI”) 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.”

I take the facts from the decision of the FTT. In February 2023 the appellant served pitch fee review notices on the four respondents, seeking an increase in the pitch fee in line with the RPI with effect from 1 April 2023. The respondents did not agree the proposed increase and so on 2 May 2023 the appellant made applications to the FTT for a determination of the new pitch fee. Proceedings were stayed pending the determination of an appeal in relation to a different site; in July 2024 the stays were lifted and the FTT gave directions. Shortly afterwards applications were made for determinations of the pitch fees for 2024 for two of the respondents, and the FTT decided both sets of fees together, but this appeal relates only to the 2023 pitch fee and I shall refer only to that one.

The FTT inspected the site; at the hearing it heard argument from the respondents that the pitch fee for 2023 should not be increased for a number of reasons, of which the only one relevant to this appeal is the water pressure in the park, which the appellants said had dropped, to the extent that at times they could not heat their homes or operate domestic appliances. Water for the site is supplied by South West Water (“SWW”); it invoices the residents directly.

Mr Sunderland told the FTT that the appellant is not responsible for the water supply or for the water pressure; however, he had been in contact with SWW which had fixed a number of leaks in January 2025 so that the problem with the water pressure had been resolved. He argued that even if the respondents’ complaints about the water pressure had any merit, the condition of the site had not changed or deteriorated since the appellant acquired it in 2022.

The FTT said this:

“83.

The evidence the Tribunal received and heard identified a significant issue with regard to water supply to the Park which has affected the Respondents for several years. The Applicant did not offer any evidence which suggested otherwise. The Tribunal accepts that the consequences of the low water pressure had a significant impact on the Respondents’ enjoyment of their homes on the Park until this was remedied in January 2025. …

98.

… The Applicant was aware of the ongoing problems with the water pressure in March 2023. The Tribunal does not know if it was aware of the problems before that date but concluded that it should have been aware of the problem, when it acquired the Park in January 2022. …

107.

Before [January 2025], the Applicant had consistently failed to respond to or address any of the Respondents’ complaints about poor water pressure and its impact on their enjoyment of their properties. The Tribunal finds that it should have engaged with SWW as soon as it received complaints to investigate the cause and identify who was responsible for resolving the problem. …

117.

The Tribunal finds, based on the evidence that it has heard, the reduced water pressure which has affected the water supply to the Park before the 2023 pitch fee review, and possibly for some time prior to that has resulted in a significant loss of amenity. It has received no evidence that the identified loss of amenity previously affected the settlement of a pitch fee review….

119.

The Tribunal finds that the presumption that the pitch fees should increase in line with RPI in April 2023 is rebutted.”

Therefore, said the FTT, the pitch fees for the four respondents would not change in 2023.

The FTT added:

“123.

The Tribunal finds that there is no merit in the Applicant’s claim that it has improved the Park because of its actions to force SWW to accept responsibility for the water pipes within the Park and to repair the leaks. It has done nothing to address the problem with the water pressure until 2025, almost two years after it received Mrs Harper’s response to the 2023 pitch fee review. The Applicant is obliged to maintain a satisfactory water supply on the Park. The evidence before the Tribunal demonstrates that it has failed to comply with this obligation for at least two years and possibly longer.”

The appellant appeals, with permission from this Tribunal, on the ground that it is arguable that a loss of amenity that was not caused by the site provider should not have any effect on the pitch fee.

In more detail, the appellant said in its grounds of appeal that the FTT found that the responsibility for maintaining the pipes was not the appellant’s but that of South West Water (which has now repaired the pipes), and that the FTT erred in finding that a reduction in amenity of the site which was caused by something which was not the responsibility or in the control of the site owner is a reason to displace the presumption of an RPI increase. The appellant also argued that the low water pressure was a long-standing problem, existing before the appellant bought the site, and (I paraphrase) that the appellant should not be penalised for what had happened before it took on the site Finally, the appellant says that the FTT should have explained how it arrived at the reduction in the pitch fee rather than simply stating that it would not increase.

I have read written representations from Mrs Marie Harper and Mrs Anne Hood, which essentially repeat their evidence to the FTT about the water pressure and other matters.

Looking first at the appeal as a matter of legal principle, I think the answer lies in the wording of paragraph 19(1)(aa) and (ab), where there is an obvious contrast between paragraph (aa) which refers simply to deterioration in the condition and decrease in the amenity of the site without reference to the site owner, while paragraph (ab) refers to a reduction in the services “that the owner supplies to the site”. I see no reason in principle why the FTT should be prevented from taking into account a deterioration in the condition or amenity of the site caused by a third party and not by the site owner.

Whether or not it is fair to do so in an individual case will depend on the facts of that case. What swayed the FTT in the present case was that the facts indicated that the appellant actually did resolve the problem with SWW, and took the view (on the basis of the factual evidence that it heard) that it could and should have done something much earlier. The FTT did not have the evidence to determine whose fault the problem was, and indeed that would have required expert evidence; but its view was based on the fact that this was a problem the appellant knew about and could have solved but did not until January 2025. That was a finding of fact with which this Tribunal will not interfere, but I would observe that it rings true; the appellant was obviously more able to persuade SWW to deal with a site-wide problem than were the individual residents. Moreover the FTT expressly found that the problem pre-dated the appellant’s purchase; I do not see that that casts any doubt on the FTT’s decision, which was based not on any suggestion that the appellant caused the problem but upon the findings of fact that it knew about it and could have resolved it much earlier.

As to the final point that the FTT should have explained its thinking rather than simply deciding that there should be no increase, I agree that another sentence or so of explanation would have been appropriate. As the Deputy President explained in Wyldecrest Parks Management Limited [2024] UKUT 55 (LC), to which Mr Sunderland referred:

“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.”

However, in the present case the FTT expressed concern over the residents’ inability to heat their homes and use their appliances, and in light of the amounts involved I think it is obvious that it took the view that the problem was so serious that no increase at all could be justified.

The appeal fails, and the FTT’s finding that the pitch fees would not increase in 2023 is confirmed.