Wyldecrest Parks (Management) Ltd v Alan Whitley & Ors

A decrease in the amenity of a protected park home site is relevant to a pitch-fee review under Mobile Homes Act 1983, Schedule 2, paragraph 18(1)(aa), even where residents have no contractual right to the amenity and its removal is lawful under planning and site-licensing controls.

Once a decrease in amenity prevents the inflation presumption from operating, the tribunal must determine the reasonable fee for each pitch, or for groups of pitches affected to the same extent. It is not confined to a choice between a full RPI/CPI increase and no increase. A prior agreed review does not amount to the statutory taking into account of an earlier loss of amenity; that exception requires a tribunal determination.

These conjoined appeals concerned annual pitch-fee reviews at two protected park home sites owned by Wyldecrest Parks (Management) Ltd: Penwortham Park in England and Willow Park in Wales.

The First-tier Tribunal and the Residential Property Tribunal (Wales) found that the conversion of parking areas, and at Penwortham the conversion of a substantial green space, into additional pitches had reduced site amenity. Each held that the relevant RPI or CPI presumption was displaced and permitted no increase in pitch fees.

The owner appealed. It contended that no relevant amenity had been lost without a contractual entitlement to its preservation, that the earlier agreed reviews prevented reliance on the changes, and that the tribunals should have assessed individual pitches and considered an intermediate increase.

1. The appeals were allowed and remitted. The tribunals were entitled to find that the removal of parking and open space reduced site amenity and prevented the statutory RPI/CPI presumption from operating. However, their reasons did not show that they had determined a reasonable new fee for the individual pitches, or groups of equally affected pitches, rather than treating the available outcomes as a full inflation increase or no increase.
2. Under paragraph 18(1)(aa) of Schedule 2 to the Mobile Homes Act 1983, an amenity may be enjoyed despite the occupier having no legal right to its preservation. The provision contains no requirement that the amenity be guaranteed by the pitch agreement, site licence or planning permission. Its loss may make the site less attractive and must therefore receive particular regard when a new fee is determined.
3. Where a relevant factor affects pitches differently, the tribunal will ordinarily need to determine the reasonable fee for each pitch or each equally affected group. A common adjustment remains permissible if the tribunal finds, and explains, that all relevant pitches are equally affected.
4. Disapplication of the inflation presumption does not punish the owner. It requires a reasonable fee reflecting both the loss of amenity and inflation. A nil increase is possible only where the countervailing loss approximately cancels the factors supporting an increase.
5. The amended provisions require regard to a deterioration or decrease occurring since their commencement unless it has previously been taken into account in a tribunal determination. An agreed RPI/CPI increase is not such a determination. The fee is for the pitch, not the particular occupier; personal characteristics of residents are irrelevant. The Tribunal declined to impose a rigid allocation or averaging method, holding that the tribunal should use a simple method which produces the reasonable fee.
6. The cases were remitted to the respective tribunals for redetermination. Wyldecrest was directed to seek further directions within six weeks.

• Upper Tribunal (Lands Chamber): allowed both appeals, set aside the decisions on the new pitch fees, and remitted them for reconsideration.
• First-tier Tribunal (Property Chamber): on 27 March 2023, determined the Penwortham Park pitch-fee reviews and allowed no increase.
• Residential Property Tribunal (Wales): on 19 June 2023, determined the Willow Park pitch-fee reviews and allowed no increase.