Decision Nº LRX 20 2011. Upper Tribunal (Lands Chamber), 17-05-2012
| Jurisdiction | UK Non-devolved |
| Judge | Her Honour Judge Walden-Smith |
| Date | 17 May 2012 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 20 2011 |
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UPPER TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [2012] UKUT 154 (LC)
UTLC Case Number: LRX/20/2011
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – reasonableness of service charges – application of the provisions of section 18, 19 and 27A of the LTA 1985 – sufficiency of reasons – the LVT as expert – reasons on refusal to grant permission to appeal – disallowing costs
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
LEASEHOLD VALUATION TRIBUNAL FOR THE LONDON
RENT ASSESSMENT PANEL
BETWEEN:
LONDON BOROUGH OF HAVERING Appellant and
GEORGE INGLIS MACDONALD Respondent
Re:Flat 48 Parkview House
Sunrise House
Hornchurch
Essex RM12 4YW
Before: Her Honour Judge Walden-Smith
Sitting at: 43-45 Bedford Square, London WC1B 3AS
on
4 May 2012
James Fieldsend instructed by the Legal and Democratic Services Department of the London Borough of Havering on behalf of the Appellant
George Inglis MacDonald acted in person
© CROWN COPYRIGHT 2012
The following cases are referred to in this decision:
Regent Management v Jones [2010] UKUT 369 (LC)
Yorkbrook Investments Ltd v Batten (1986) 19 HLR 25
Schilling v Canary Riverside Development PTD Limited LRX/26/2005
Lucie M v Worcestershire County Council and Evans [2002] EWHC 1292 (admin)
Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377
English v Emery Reimbold & Strick Ltd [2002] 1 WLR 377
Clarise Properties Limited [2012] UKUT 4 (LC)
Chelsea Properties Ltd v Earl Cadogan LRA/69/2006
R v LB of Croydon ex p Graham (1993) 26 HLR 286
Oxfordshire CC v GB [2001] EWCA Civ 1358
Arrowdale Limited v Coniston Court (North) Hove Limited LRA/72/2005
Westbourne Limited v Spink and Joshua LRX/14/2007
DECISION
Introduction
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This is an appeal by way of review from the decision of the Leasehold Valuation Tribunal (“LVT”) for the London Rent Assessment Panel dated 4 January 2011. Permission was refused by the LVT on 4 February 2011. An application was made to the Upper Tribunal (Lands Chamber) for permission to appeal by way of re-hearing.
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Permission to appeal was granted by the President on 8 April 2011 with the following observations:
“There is a realistic prospect of success. I do not think, however, that the Lands Chamber should conduct a rehearing: if the LVT decision is shown to be erroneous, the proper course would be a remission.
The appeal will be dealt with by way of review.”
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The appellant contends that the LVT erred in its decision making and that the appeal should therefore be allowed and the matter remitted to a differently constituted LVT. The respondents seeks to uphold the decision of the LVT.
The Background
4. The appellant is a local authority. The respondent is the long leaseholder of Flat 48 Parkview House, Sunrise Avenue, Hornchurch RM12 4YW (“Flat 48”). Flat 48 is one of 52 flats in Parkview House which is one of three blocks of flats on an estate comprising a total of 148 flats. The appellant is the freehold owner of the three blocks of flats including Flat 48.
5. By the lease dated 14 November 2005 the respondent was granted a term of 125 years of Flat 48 (“the lease”). The term of 125 years commenced on 18 June 1984 and the long lease was granted pursuant to the Right to Buy provisions of the Housing Act 1985, the respondent having previously been a secure tenant of the appellant residing in Flat 48. Clause 9 of the Eighth Schedule to the lease contains the service charge provisions.
The Issue before the LVT
6. The matter for determination by the LVT was the reasonableness of the service charge levied by the appellant to the respondent for the provision and maintenance of communal television and radio signals to Flat 48. The costs charged to the respondent arise from a contract entered into between the appellant and Surtees Communications Limited on 6 May 1992 for the provision and maintenance of radio and television signals. Surtees Communications Limited changed their name to Surtees Holdings Limited on 16 April 1993.
7. The agreement dated 6 May 1992 was subject to two subsequent variations in writing: one on 28 September 1997 and one on 10 January 2001. The purpose of these variations was purportedly to upgrade the services provided. In the first variation of September 1997, Surtees Holdings Limited added the reception of additional satellite signals; added Channel 5 reception; and assumed the maintenance of the communal antenna systems in the Borough. That variation provided for an increase in the sums payable under the agreement. The second variation of January 2001 provided for the phased upgrade of the communal antenna systems to accept digital television signals. That second variation also allowed for an increase in the sums payable under the agreement and for an extension of the original term.
8. The cost of the provision of television and radio signals is charged to the respondent as part of the service charge payable under the terms of the lease (clause 9 of the Eighth Schedule to the lease). The service charge year runs from 1 April to 31 March (clause 13 of the Fourth Schedule). Section 20 of the Landlord and Tenant Act 1985 and the Service Charges (Consultation Requirements)(England) Regulations 2003 do not apply as the sum payable by each tenant falls below the annual threshold of £100 so that the agreement of 1992, subject to the variations of 1997 and 2001, are not subject to the statutory consultation requirements.
9. The cost charged to the respondent for the period 1 April 2008 to 31 March 2009 was £66.56 and for the period 1 April 2009 to 31 March 2010 was £70.20.
10. The respondent challenged the reasonableness of the cost of the provision of the radio and television signals to Flat 48 by an application made on 10 October 2010 pursuant to the provisions of section 27A of the Landlord and Tenant Act 1985. The respondent is plainly extremely cross about the charges levied by Surtees Holdings Limited and, as he sees it, the failures of the appellant to negotiate a contract which provided good value for money. The respondent, in his submissions before me, indicated that he had been challenging these figures for some 6 years or more.
11. The respondent did not challenge the appellant’s entitlement to recover the cost through the service charge provisions, but he did contend that it was not reasonable for him to pay for the cost of a satellite signal as it was his case that he neither sought nor received such a signal and, indeed, to receive such a signal would, he contends, have been illegal as he had no agreement with a provider of satellite television services.
The Procedural History
12. The application to the LVT had been made by the respondent on 10 October 2010. On 25 October 2010, a procedural chairman (Mrs TI Rabin JP) had given directions including, at paragraph 6 of the order, a direction with respect to reimbursement of fees and to an application for an order under section 20C of the Landlord and Tenant Act 1985.
13. The respondent’s statement of case was set out in a document referred as being a “background” document and a “conclusion” document, together with a series of annotated attachments. The appellant’s statement of case was set out in a Statement of Reply which referred to a report by the appellant’s former director of finance, Rita Greenwood, with respect to the costs of the provision and maintenance of signals and the costs and charges made by other local authorities with respect to communal signals.
14. The hearing took place on 21 December 2010 and the decision was promulgated on 4 January 2011. The respondent appeared in person and the appellant was represented by counsel with both the Housing Management Organisation’s Director of Finance and Resources and the Stock Options Manager in attendance.
The Decision of the LVT
15. The decision of the LVT was promulgated on 4 January 2011. The conclusions of the LVT were that it was satisfied that the cost of providing and maintaining the signals was recoverable under the terms of the lease (paragraph 6 of the decision) but that the costs charged to the respondent were unreasonable (paragraph 18) and that “the top of the range reasonable charges” for the years 2008/2009 and 2009/2010 was £26 per annum (paragraph 21). The LVT further found that it was “just and equitable” to make an order under section 20C of the Landlord and Tenant Act 1985 and for the reimbursement of the respondent’s fees to the LVT pursuant to the provisions of regulation 9 of the Leasehold Valuation Tribunal (Fees)(England) Regulations 2003 (paragraph 21).
16. The reasoning of the LVT is set out in paragraphs 14 to 21 of the decision. The LVT found that the evidence contained in the Rita Greenwood Report was hearsay but was accurate and they therefore found the contents therein as facts. The LVT further found that the...
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