Teignbridge District Council v Clark

Park homes – Pitch fee review – Statutory presumption – Appellant applying to First-tier Tribunal to determine new pitch fee – FTT displacing presumption of change in line with RPI and reducing proposed increase in pitch fee – Appellant appealing – Whether FTT decision irrational – Whether FTT exceeding discretion afforded by statute – Whether level of change in RPI being relevant factor – Appeal allowed The respondent lived in his mobile home at Haldon Ridge, Kennford, Exeter, a site owned by the appellant local authority. The respondent was entitled to occupy his pitch and station his mobile home there under a written agreement dated 6 December 2014. That was an agreement to which the Mobile Homes Act 1983 applied, and the provisions of that Act determined how and to what extent the pitch fee paid by the respondent could be changed. On 27 January 2023, the appellant sent to the respondent a pitch fee review notice and form, complying with the requirements of paragraph 17 of schedule 1 to the 1983 Act, proposing an increase in the pitch fee with effect from 3 April 2023 from £61.50 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. The respondent did not agree the proposed new pitch fee and the appellant applied to the FTT for a determination. The FTT concluded that there was good reason to depart from the statutory presumption of a pitch fee increase in line with the RPI because of issues relating to the condition and amenity of the site; they were not so severe as to warrant a nil increase, but the correct adjustment would be an increase of 8% rather than the proposed 13.4%. The appellant appealed. Held: The appeal was allowed. (1) Paragraph 18(1)(aa) of schedule 1 to the 1983 Act came into force in 2013 and required the FTT to have particular regard to “any deterioration in the condition, and any decrease in the amenity, of the site”. The focus was on what the occupier was paying for; the pitch fee was defined in paragraph 29 as payment “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”. Amenity was relevant to what one paid for a site, whatever the reason for it. Under paragraph 20, unless it would be unreasonable having regard to paragraph 18(1), there was a presumption that the pitch fee should increase or decrease by a percentage which was no more than any percentage increase or decrease in the RPI. If none of the matters raised in paragraph 18(1) would justify departing from the statutory presumption, then the presumption arose and the tribunal had to consider whether any “other factor” should displace it; that had to be a factor to which considerable weight attached. In deciding on a change in the pitch fee, the FTT could not simply impose what it regarded as a reasonable fee. It had to follow the reasoning process 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: Vyse v Wyldecrest Parks (Management) Ltd 2017 [UKUT] 24; [2017] PLSCS 27 applied. In the present case, the respondent’s complaint of abandoned vehicles, antisocial behaviour and dangerous dogs roaming unchecked fell squarely within amenity, and was a “deterioration in condition” of the site. (2) The FTT found that there had been no reduction in the quality of the services, as a result of the appellant, in the face of antisocial behaviour by some residents, devoting more time and energy in trying to manage the site and maintain the services than ever. However, the FTT accepted the respondent’s evidence that caretaking and maintenance had become less effective. The appellant was doing more, but it had not prevented the decrease in amenity. The statute said nothing about causation: it placed the financial consequences of externalities, whether weather conditions or antisocial behaviour or any other cause of a deterioration in the site, on the site owner rather than the occupiers. The FTT’s decision was firmly rooted in the specific words of the statute and the considerations set out in paragraph 18(1)(aa). There was nothing irrational in the fact that the FTT found that the amenity of the site had deteriorated despite the appellant having put more resources into it and maintained its services. (3) The pitch fee had not been changed since 2019, and it was apparent from the FTT’s decision that the deterioration in the site had been recent. Despite the absence of any explicit statement by the FTT that the timing requirements of paragraph 18(1)(aa) were met, it was safe to infer that the difficulties reported by the respondent had arisen since the last pitch fee review, four years before the present one; accordingly they had arisen long after the relevant statutory provisions came into force in 2013 and had not previously been taken into account. There was no authority for the level of the RPI change being taken into account in determining whether the paragraph 20 presumption should be displaced. Other decisions of the FTT might have done so but were not authoritative. It would subvert the statutory regime to take that factor into account. (4) The statutory regime used the RPI (nowadays the Consumer Prices Index) as the basis for the paragraph 20 presumption, and while an increase in line with the index was not an entitlement of the site owner, the presumption provided an easy, uncontentious and objective method of calculating the increase where nothing unusual had happened in relation to the site. That easy calculation would be made complicated, and dispute would inevitably be provoked, if the level of change in the RPI were a factor that might displace the presumption. In giving weight to the “exceptional” level of increase in the RPI, the FTT took into account an irrelevant consideration, and its decision would be set aside.  (5) It was not possible for the UT to substitute its own judgment for the FTT’s decision, because it had not heard the respondent’s evidence about the condition and amenity of the site (and could not know how much of the difference between 13.4% and 8% was due to the level of the RPI increase). The matter was therefore remitted to the FTT for the same panel to remake its decision, taking no account of the level of increase in the RPI. The appeal was determined on written representations Eileen O’Grady, barrister Click here to read a transcript of Teignbridge District Council v Clark