Southern Country Parks Ltd v Bird and others

Park homes – Pitch fee – Review – Appellant proposing increase in pitch fees in line with RPI increase – Respondent pitch owners objecting – Flooding causing intermittent deterioration or loss of amenity – First-tier Tribunal determining new pitch fees – Appellant appealing – Whether presumption of RPI increase displaced by decrease in amenity – Whether FTT obliged to provide reasons – Appeal allowed in part The appellant owned Hillbury Park, Alderholt, Hampshire, a protected site under the Mobile Homes Act 1983. It initiated an annual review of pitch fees from 1 July 2023 by serving notices in respect of all 72 pitches on the park proposing an increase of 11.4%, in line with the increase in the retail prices index for the year to April 2023. The appellants were occupiers of four pitches who refused to agree those increases and the owner applied to the First-tier Tribunal for a determination of the new pitch fees for those pitches. The FTT determined that there should be no increase in the pitch fees for two of the pitches and that the increase for the other two should be 5.7%. Paragraph 18(1) of Chapter 2 of schedule 1 to the Mobile Homes Act 1983 specified that, when determining the amount of the new pitch fee, particular regard should be had to a number of matters including, by paragraph 18(1)(aa), any deterioration in the condition, and any decrease in the amenity, of the site or any adjoining land occupied or controlled by the owner. The FTT decided that the localised and intermittent inundation or waterlogging of individual pitches or difficulties of access had all got worse and were a “decrease in the amenity of the site” within the meaning of paragraph 18(1)(aa) of the statutory implied terms on which the pitches were occupied. The appellant appealed. The appeal in respect of one pitch was discontinued. Held: The appeal was allowed in part. (1) Where none of the factors in paragraph 18(1) were present, and no other factor of sufficient (considerable) weight could be identified to displace the presumption of an RPI increase, the tribunal had to apply the presumption and increase the pitch fee in line with inflation. Where one of the factors was present, or where some other sufficiently weighty factor applied, the presumption did not operate or was displaced. Then the task of the tribunal was more difficult, because of the absence of any clear instruction on how the pitch fee was to be adjusted to take account of all relevant factors. The only standard mentioned in the implied terms, and which might be used as a guide by tribunals when they determined a new pitch fee, was what they considered to be reasonable. The purpose of disapplying the presumption of an RPI increase where there had been a loss of amenity was to set a new pitch fee which properly reflected the changed circumstances. Those changed circumstances obviously included the reduction in amenity, but would also include any change in the value of money, ie, inflation since the last review took place. For there to be no change in the pitch fee, it would be necessary for factors justifying a reduction to (at least approximately) cancel out inflation and any other factors justifying an increase: Wyldecrest Parks (Management) Ltd v Whitley [2024] UKUT 55 (LC); [2024] PLSCS 43 considered. (2) It was not every deterioration in the condition of the site or deterioration in its amenity which would displace the presumption of an RPI increase; the deterioration or decrease had to be sufficient (when considered together with any other relevant factors in paragraph 18(1)) to make it unreasonable for the presumption to apply (see paragraph 20(A1)).  The implied terms left it to the FTT to determine whether any particular deterioration or decrease was sufficiently serious to have that effect. Therefore, the FTT was entitled in this case to find that there had been a relevant decrease in amenity for specific plots and to rely on that decrease as displacing the presumption of an RPI increase. Any deterioration or decrease might be relevant for the purpose of paragraph 18(1)(aa), provided it was considered by the FTT to be sufficient to make it unreasonable for the presumption to apply. The fact that the amenity of the site might only be affected intermittently by a particular problem would be relevant in answering that question, but there was no threshold of permanence, frequency or intensity which had to be met before a deterioration or decrease could in principle be taken into account. The only measure of seriousness was set by the words of paragraph 20(A1) itself, “unless this would be unreasonable having regard to paragraph 18(1), there is a presumption …”. (3) The tribunal’s task was to determine by how much it would be reasonable for the fee which the parties originally agreed to be further increased. The 1983 Act gave no guidance on how that should be done, other than (it could be inferred) that the new fee should be the one which the tribunal considered to be reasonable for the pitch.  Tribunals would be justified in adopting a relatively simple approach and should not feel obliged to differentiate between different pitches unless they were affected to a materially different degree by a relevant loss of amenity. However, it was still essential that the FTT explained what it was doing and why. It was incumbent on the FTT to explain why it considered that increases in the reasonable pitch fee in this case were cancelled out by the problems of intermittent flooding of the road and inundation of the pitches themselves. The tribunal was not satisfied that the FTT had explained its decision adequately. (4) The FTT was entitled to freeze the pitch fees or restrict the increase if it considered that the impact the drainage problems had on the pitches reduced their value by 11.4% or 5.7% respectively. But it could only reach that conclusion after taking account of all relevant matters, including the impact of inflation on the value of money and the improvements and changes which had been made to the park.  The tribunal was not confident that that was done in the present case and so it was necessary to set aside the FTT’s determination of the increase and remit the applications so that it might reconsider its figures. The only matter for reconsideration and explanation was the amount of any increase and it should not be necessary to reconsider the FTT’s original conclusion that the presumption of an RPI increase had been displaced. Victoria Osler (instructed by Apps Legal Ltd) appeared for the appellant; the respondents did not appear and were not represented Eileen O’Grady, barrister Click here to read a transcript of Southern Country Parks Ltd v Bird and others