HM Courts Service. Tribunal

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1 HM Courts & Tribunals Service RESIDENTIAL PROPERTY TRIBUNAL Decision On an Application made under section 4 of the Mobile Homes Act 1983 (as amended) ('The Act') to determine questions arising under the Act or an agreement to which it applies. Case number Park Homes Site Applicants Respondent Property Date of Application Type of Application Date of Hearing Hearing Venue BIR/17W/PHC/2013/0001 Brookfield Park, Mill Lane, Old Tupton, Chesterfield, Derbyshire S42 6AF (`the Site') Tom Hartley Senior and Tom Hartley Junior Ann Wright 68 Brookfield Park 2nd January 2013 To determine the issue of whether increases in the Pitch Fee are payable in respect of the pitch fee for 2011, 2012 and 2013 and consequently whether the Respondent is in arrears. 29th April 2013 Chesterfield Magistrates Court Representation Applicants: Respondent: None Mr Andrew Wright Tribunal Mr W J Martin Chairman Mrs A Rawlence M.R.I.C.S Determination: The pitch fee of per month payable at the date of the assignment to the Respondent is the legally recoverable pitch fee and there has been no increase since that date. The Respondent is therefore not in arrears 1

2 Reasons for the Tribunal's Decision Preliminary 1 By an Application dated 2nd January 2013 (the Application') Tom Hartley Junior applied to the Residential Property Tribunal for a determination under section 4 of the Act as to whether the pitch fee increases for the years 2011, 2012 and 2013 demanded in respect of the Respondent's occupation of the pitch at 68 Brookfield Park, Old Tupton, Chesterfield S42 6AF ('the Site') are payable. 2 The Application was, with the consent of the Tribunal, amended to show both Tom Hartley Senior and Junior as the Applicants as it became clear in correspondence that the site is jointly owned by them, although the daily running of the site is in the exclusive control of Mr Tom Hartley Junior. 3 With the Application, the Applicants provided a schedule showing the amount said by the Applicants to be payable and the amounts actually paid by the Respondent, leading to a deficit, as claimed by the Applicants of at February The relevant law 4 The Application is made under section 4 of the Act. Section 4 (1) of the Act provides: 4. - (1) In relation to a protected site in England, a tribunal has jurisdiction - (a) to determine any question arising under this Act or any agreement to which it applies; and (b) to entertain any proceedings brought under this Act or any such agreement, subject to sections (2) to (6). (Subsections (2) to (6) are not applicable in respect of the Application) 5 The dispute relates to the legality of the pitch fee reviews. The Act contains, in relation to the pitch fee review, the following paragraphs in Chapter 2 Schedule 1: 16. The pitch fee can only be changed in accordance with paragraph 17, either - (a) with the agreement of the occupier, or (b) if the [residential property tribunal], on the application of the owner or the occupier, considers it reasonable for the pitch fee to be changed and makes an order determining the new pitch fee 2

3 17. (1) The pitch fee will be reviewed annually as at the review date. (2) At least 28 clear days before the review date the owner must serve on the occupier a written notice setting out the owner's proposals in respect of the new pitch fee. (3) If the occupier agrees the new pitch fee, it is payable as from the review date. (4) If the occupier does not agree the proposed new pitch fee- (a) the owner may apply to the [residential property tribunal] for an order under paragraph 16(b) determining the amount of the new pitch fee (b) the occupier must continue to pay the current pitch fee to the owner until such time as the new pitch fee is agreed or an order determining the amount of the new pitch fee is made by the [residential property tribunal] under paragraph 16 (b); and (c) the new pitch fee is payable as from the review date... (5) An application under sub-paragraph 4(a) may be made at any time after the end of the period of 28 days beginning with the review date but, in the case of an application to a protected site in England, no later than 3 months after the review date. (6) Sub paragraphs (7) to (11) apply if the owner - (a) (b) has not served a notice required by sub-paragraph (2) by the time which it was required to be served, but at any time thereafter serves on the occupier a written notice setting out the owner's proposals in respect of a new pitch fee. (7) If (at any time) the occupier agrees to the proposed pitch fee, it is payable as from the 28th day after the date on which the owner serves a notice under sub-paragraph (6)(b) (8) If the occupier has not agreed the proposed pitch fee- (a) (b) (c) the owner may apply to the (residential property tribunal] for an order under paragraph 16(b) determining the amount of the new pitch fee; the occupier must pay the current pitch fee to the owner until such time as the new pitch fee is agreed by the occupier or an order determining the amount of the new pitch fee is made by the [residential property tribunal] under paragraph 16(b); and if the [residential property tribunal] makes such an order, the new pitch fee is payable as from the 28th day after the date on which the owner serves the notice under sub-paragraph (6)(b). (9) An application under sub-paragraph (8) may be made at any time after the end of the period of 56 days beginning with the date on which the owner serves the notice under sub-paragraph (6)(b) but no later than four months after the date on which the owner serves that notice. (10) The [residential property tribunal] may permit an application under sub-paragraph (4)(a) or (8)(a) to be made to it outside of the time limit specified in sub paragraph (5) (in the case of an application under sub- ' paragraph (4)(a)) or in sub-paragraph (9) (in the case of an application under sub-paragraph (8)(a)) if it is satisfied that, in all of the circumstances, there are good reasons for the failure to apply within the applicable time limit and for delays since then in applying for permission to make the application out of time. (11) The occupier is not be treated as being in arrears- 3

4 (a) where sub-paragraph (7) applies, until the 28,4 day after the date on which the new pitch fee is agreed; or (b) where sub-paragraph (8)(b) applies, until the 28th day after the date on which the new pitch fee is agreed or, as the case may be, the 28th day after the date of the [residential property tribunal] order determining the amount of the new pitch fee. 18. (1) When determining the amount of the new pitch fee particular regard must be had to (a) any sums expended by the owner since the last review date on improvements - (i) (ii) which are for the benefit of the occupiers of mobile homes on the protected site; which were the subject of consultation in accordance with paragraph 22(f) and (g); and (iii) to which a majority of the occupiers have not disagreed in writing or which, in the case of the such disagreement, the court, on the application of the owner, has ordered shall be taken into account when determining the amount of the new pitch fee; (b) any decrease in the amenity of the protected site since the last review date; and (c) the effect of any enactment which has come into force since the last review date (2) When calculating what constitutes a majority of the occupiers for the purposes of sub-paragraph (1)(a)(iii) each mobile home is to be taken to have only one occupier and, in the event of their being more than one occupier of a mobile home, its occupier is to be taken to be the first occupier whose name appears on the agreement. (3) in a case where a pitch fee has not been previously reviewed, references in this paragraph to the last review date are to be read as references to the date when the agreement commenced. 19. When determining the amount of the new pitch fee no regard may be had to: (a) any costs incurred by the owner on connection with expanding the protected site (b) any costs incurred by the owner in relation to the conduct of proceedings under this Act or the agreement 20. (1) There is a presumption that the pitch fee will increase or decrease by a percentage which is no more than any percentage increase or decrease in the retail prices index since the last review date, unless this would be unreasonable having regard to paragraph 18 (1). (2) Paragraph 18 (3) applies for the purposes of this paragraph as it applies for the purposes of paragraph 18. Submissions and Hearing 6 In accordance with the Tribunal's Directions both parties had produced written submissions as to the dispute generally and as to the anniversary in respect of the pitch fee review, which had been specifically requested 4

5 by the Tribunal. An oral Hearing was held at Chesterfield Magistrates Court on 29th April This was attended by Mr Torn Hartley Junior and Ms Joanne Harrison for the Applicants and by the Respondent in person. The Respondent was present but her husband, Mr Andrew Wright, presented the Respondent's case. 7 The Applicants' initial representations are summarised as follows: 01.The Respondent purchased the mobile home standing on pitch 68 at the Site in 2011, from the previous owner Mr Ian Wildbur and Ms J Bissell. The Applicants believed that Mr Wildbur and Ms Bissell would have told the Respondent of the then current pitch fee. 02.The situation regarding the pitch fees at the Site was a little confused at the time of the sale, because the Applicants had commenced a case in the County Court against some residents to obtain an increase in the pitch fee to take account of improvements to the electric infrastructure and the resurfacing of the road. Those who agreed were not subject to the court case and Mr Wildbur and Ms Bissell were included in this group. 3. The Applicants had always treated the pitch fee review date as 15t March for everyone on the Site. They purchased the Site in 2007 and had successfully applied RPI increases each year (with the exception of 2010/2011 when the court case was ongoing). 4. When the Respondent purchased the Mobile Home in June 2011 she at first paid the amount demanded by the Applicants. This sum was per calendar month. This was paid for five months and then the Respondent queried the amount. She said the correct pitch fee was that specified by the Applicants in 2010, ke per month. The payments were adjusted by the Respondent to take account of this. 05.The pitch fee review letter for all residents sent on 20th January 2011 indicated that the review for that year would be based on the RPI increase between December 2009 and December 2010, but that it would not be implemented until the outcome of the court case was known. 6. The Court ordered that all residents should pay 3.19 per month towards the road resurfacing costs. Those residents who had agreed to pay towards the electrical upgrade did not suffer any legal costs. The previous owners were in this group and accordingly the amount notified to Mrs Wright included both payments. These payments would have 'fallen off the rent after 10 and '15 years respectively, the same as for all the other residents. 7. As a result of the ongoing dispute with Mrs Wright, the Applicants agreed not to impose the electrical and road contributions on Mrs 5

6 Wright, thus making her the sole exception on the Site. However, the Applicants insist that she pays the RPI increases for 2011, 2012 and 2013 and request an order from the Tribunal that she pays at the current rate, settles the arrears and pays interest and the Applicant's costs of the proceedings. 8 The Respondent produced a properly signed witness statement by Mrs Wright and a skeleton argument was provided on her behalf by Mr Wright. Mr Wright, who told the Tribunal that he used to practise as a solicitor, also made oral submissions at the Hearing. The Respondent's submissions are summarised as follows: 1. Despite the requirements of the Directions, the Applicants have not produced a properly signed witness statement. Therefore, no credence should be given to the unsigned and undated statement by Mr Wildbur and Ms Bissell, 2. The review date is 1st February. The Written Statement under the Act governs all matters between the Site Owner and whoever is the occupier. In this case the Written Statement is dated 13 th September 2002 and is made between the initial occupiers, Mr and Mrs Durrant and the then Site owners, M F and J Bartlett. The provisions for review of the Pitch Fee are contained in Express Term 7(a), which commences 'On the review date namely the first day of February in each year...'. There is no evidence of this having been changed by written agreement. 03.The Act provides in paragraph 17 of Chapter 2 of Schedule 1 that, in order to secure a review of the Pitch Fee the Owner must serve on the Occupier a written notice setting out the Owner's proposals in respect of the new Pitch Fee not less than 28 days before the review date and that the prevailing pitch fee remains payable notwithstanding the notice unless the occupier agrees an increase or a Tribunal (formerly the Court) orders an increase on the application of the Owner. 04.The Respondent purchased the property in June If the 2010 notice was valid, that was the last review procedure prior to the purchase and the prevailing fee at that time was per month, which is the amount paid by the Respondent. 05.The Applicants did not actually serve a proposal for increase for 2011 either on the previous occupiers or on the Respondent afterwards. The letter dated 20th January 2011 (referred to in paragraph 7 05 above) says 1.. we shall be putting forward a formal pitch fee review proposal once the Court has made its decision...'. In the event no formal proposal was put forward to the Respondent and therefore there is no legal basis for a pitch fee increase for On 18th January 2012 the Applicants served a notice setting out the Applicant's proposals for an increase in the pitch fee for

7 This refers to a review date of 1st March 2012, However, as the review date is 1st February, the notice was too late to constitute a notice under paragraph 17 (2) of Chapter 2 of the Schedule 1 to the Act. Mr Wright, however, conceded that it could be considered as a notice under paragraph 17 (6) (b) in which case any revised pitch fee would take effect 28 days after the date of the notice. However, for any such increase to take effect one of two things must have happened. Either the Respondent must have agreed to the increase, or a residential property tribunal must have ordered it, on the application of the Applicants. The Respondent has not agreed the increase and the Applicants did not make an application to a tribunal within the period of 4 months as required by paragraph 17 (6) (9). Accordingly there is no legal basis for an increase for The Applicants have served a notice containing their proposals for the year 2013 on 15th January Once again, this is too late to constitute a notice under paragraph 17 (2) but could be considered a notice under paragraph 17 (6) (b). However, the Respondent has not agreed to the proposal and as yet no application to a tribunal has been made, 08, Accordingly the pitch fee paid by the Respondent of is the correct sum (assuming the 2010 increase was itself valid) and there is therefore no question of the Respondent being in arrears, 9 The above is a summary of the Respondent's contentions as revealed by the written material submitted by the Respondent prior to the Hearing. However, at the Hearing, Mr Wright expanded his argument to suggest that none of the notices served by the Applicants since 2007 are valid was the first year after the Act was amended by the Mobile Homes Act 1983 (Amendment of Schedule 1) (England) Order 2006). His reasoning is that the wording of the notices themselves is not in accordance with the Act, as none of them contain the words 'the Owner's proposals for the new pitch fee' but simply state that the review will take place and what the new pitch fee will be. The letter sent to residents on 28th January 2008, as an example, says: 'Dear Resident As it is customary, this time of the year the annual pitch fee review takes place in accordance with the Written Statement under the Mobile Homes Act As usual, we have endeavoured to keep the increase in pitch fee to a minimum, therefore under the terms of your agreement from Friday 712` March your new pitch fee payments will be per week exclusive of all services. This will mean a monthly pitch fee due of Could you therefore arrange to amend your records/standing order details with your banks before the aforementioned effective date.' 10 As can be seen from the above, there is no 'proposal' for the resident to respond to, The fact that the residents have all complied with the 7

8 Applicants' demands and amended their standing orders does not mean that there has been a valid increase in accordance with the provisions of the Act. These provisions are designed to give the residents an opportunity to either agree or disagree with the owners' proposals, and if there is no agreement for the matter to be settled by a residential property tribunal upon the application of the owners. 11 Mr Wright therefore invited the Tribunal to find that in the case of the Respondent the legally collectable pitch fee remains at the level contained in the 2006 notice dated 27th January 2006, namely per week. 12 In his closing remarks, Mr Hartley said that much of what had been said by Mr Wright was 'assumption'. The way the letters of increase were sent out is pretty standard procedure in the Park Home industry. All of the other residents have happily paid their increases. After investigation it did seem that no second letter was sent to Mrs Wright in However, Mrs Wright was told what the pitch fee was when she purchased and paid the amount requested for 5 months. Mr Hartley did not agree that the pre 2010 letters were not legitimate, and in any case related to a period before Mrs Wright purchased her property. On questioning from the Tribunal as to why, after 2010 the notices refer to the Owners' proposals, whereas before then none of them appear to, Mr Hartley replied that this was down to the different ways successive secretaries worded the letters, rather than on legal advice. On the question of the pitch fee review date, the Tribunal was invited to find that the date had been amended by common consent of the Owners and the Occupiers, including number 68, as evidenced by the fact that Mr Wildbur and Ms Bissell had paid the increases prior to the sale to the Respondent. The Tribunal should apply the same principles as another tribunal did in case BIR/44UG/PHI/2012/0005 (Severn Bank Park'), where it was found that a written date could be varied by usage and the conduct of the parties. The Tribunal's determination 13 The Tribunal finds that the pitch fee review date is 1't February. This is clearly set out in the Written Statement. There is no evidence that the Tribunal can use to establish that Mr Wildbur and Ms Bissell had by their actions agreed to the date being amended. There is a signed but undated statement provided by the Applicants, which purports to be a Statement of Fact, and which does say that the 'pitch fee was always adjusted on 1st March' and that this was 'customary and statutory'. However this statement is not in the form required by the Tribunal's Directions of 251h January 2013 which clearly sate that any such witness statements of fact should contain a statement to the effect: believe the facts stated in this witness statement are true'. 8

9 14 The statement has clearly been prepared by the Applicant as it is in capital letters throughout in exactly the same way as most of the other submissions by the Applicant to the Tribunal are. Had it contained a proper endorsement as to truth, or had Mr Wildbur or Ms Bissell given evidence in person at the Hearing the Tribunal might have concluded that they had by their actions agreed to the change in the review date, which could have bound the Respondent as assignee. In these circumstances the Tribunal might also have concluded that the pitch fee review date had been amended to 1st March, in a manner analogous to that found by the Tribunal in Severn Bank Park. However, in the present case there is insufficient allowable evidence for the Tribunal to reach such a conclusion 15 However, the Tribunal also agrees with Mr Wright that, despite the review date having been missed, the two notices actually served on the Respondent, on 16th January 2012 and 15th January 2013, are valid notices under paragraph 17 (6) of Chapter 2 of Schedule 1 to the Act. As Mr Wright also acknowledges, both of these notices refer to the Owners' `proposals' and therefore cannot be said to in any way contravene the provisions of paragraph It is also true that in neither case has the Respondent agreed to the proposals, and accordingly, for a pitch fee increase to be payable by the Respondent, the Applicants were obliged to apply for a determination by a residential property tribunal within the time limits set out in paragraph 17 (9) (i.e. after 56 days from the date of the notice, but no later than 4 months after such date although the tribunal does have a discretion to extend such period (see paragraph 17 (10)). 17 The Applicants have not made an application to a tribunal in respect of either the 2012 notice or the 2013 notice, and accordingly at the date of the Hearing there can be no pitch fee increase for either year. It also follows that there can be no increase for 2011, because it is acknowledged that no notice was served upon the Respondent in respect of It remains for the Tribunal to consider the further arguments put forward by the Respondent at the Hearing, as set out above in paragraphs 9 to 11 above. 19 The Tribunal rejects the assertion that the most recent pitch fee increase notice which is valid is that served on 27th January 2006 for the following reasons: 01,The Tribunal should not in any case entertain arguments only put forward at the Hearing and not before. As a former 9

10 s, solicitor, Mr Wright ought to be aware that the purpose of the Directions is to ensure that the opposing party is not surprised at the Hearing with fresh arguments he has not had the chance to consider. There was nothing in the Respondents written submissions which could have lead the Applicants to conclude that the pre 2010 increases were to be challenged and accordingly Mr Hartley was unprepared. in view of the relatively small amounts at stake it would have been disproportionate for the Tribunal to have adjourned the proceedings to allow Mr Hartley time to prepare a response. The Tribunal has largely disallowed the purported evidence of Mr Wildbur and Ms Bissell because of incomplete compliance of the Tribunal's Directions, and it would not be even handed of the Tribunal allow the Respondent's late submissions. 02.1n any case, there must be doubt as to the whether the Respondent has locus standii to challenge notices served upon her predecessor. 03. No evidence was put forward as to any negotiations between Mr Wildbur and Ms Bissell (or indeed any predecessors of theirs) and the Applicants, but it is clear that the increases demanded were in fact paid and thus 'agreed to'. 04.The duty of the Tribunal is to determine the Application. The Application (although initially unclear) has been clarified by the Applicants to require a determination as to whether the pitch fee increases since 2010 are payable. The Tribunal does not consider that it is within its powers to consider matters not raised by the Application, but if do so were in its discretion, it would decline to do so for the reasons given above. 05.The Respondent wrote to the Applicants on 28th August The second paragraph of that letter reads: 'Please also let me know the dates and amounts of all increases you say have increased the pitch fee since the 2010 increase was accepted by the then occupier? Also what events prompted those increases? The Tribunal finds that this letter is an admission that the Respondent acknowledged that the 2010 increase had been accepted_ As an assignee of the Agreement she must as a matter of law be bound by what her assignor had previously agreed. 06. The Respondent makes it clear in her written statement of 25th February 2013 that she accepts that the legally recoverable pitch fee is This is the amount that she has consistently paid since the assignment to her, and she ought not to be now permitted to argue that the sum she ought to be paying is less than this sum. 10

11 12 The determination of the Tribunal, therefore, is as follows: (a) The pitch fee review date is 1st February (b) The pitch fee payable at the date of the assignment was per calendar month. (c) No notice of increase was served in 2011 (d) The notice served on 18th January 2012 is a valid notice under paragraph 17 (6) of Chapter 2 of Schedule 1 to the Act, but the Respondent did not agree the proposals in it and, as there has been no application to a tribunal, therefore the existing pitch fee of remains the legally recoverable fee. (e) The same is true in respect of the notice served on 15th January (f) The Respondent is not in arrears with the pitch fee. (g) No interest or costs are payable by the Respondent. 13 In making its determination the Tribunal had regard to the submissions of the parties, the relevant law and its knowledge and experience as an expert tribunal, but not any special or secret knowledge. 14 If either party is dissatisfied with this decision they may apply for permission to appeal to the Upper tribunal (Lands Chamber). Any such application must be made within 21 days of this decision (regulation 44 (4) (c) of the Residential Property Tribunals Procedures and Fees (England) Regulations 2011) W J Martin - Chairman Date of Issue 13 MAY