Decision Nº LRX 87 2012. Upper Tribunal (Lands Chamber), 22-11-2013
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Nicholas Huskinson |
| Date | 22 November 2013 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 87 2012 |
|
UPPER TRIBUNAL (LANDS CHAMBER) |
|
|
UT Neutral citation number: [2013] UKUT 0581 (LC)
LT Case Number: LRX/87/2012
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
landlord and tenant -- service charges -- Service Charges (Consultation Requirements) (England) Regulations 2003 schedule 1 -- calculation of period to be specified for the sending of observations
IN THE MATTER OF AN APPEAL AGAINST A DECISION
OF THE LEASEHOLD VALUATION TRIBUNAL FOR THE
NORTHERN RENT ASSESSMENT PANEL
and
-
LOUISE RUBINSTEIN
-
SAID FARID AHMED WARDAK
-
WONG WAI TANG
-
FAZIL AHMAD SEDIQI
-
AMIN ULLAH KASHIFY
-
EMMA CAIREEN NICOLA RICE
-
KATHARINE SUSAN GREGORY
-
RAFFAELA DI SIPIO Respondents
Re: Various properties at Bold Street,
Old Trafford,
Manchester
M15 4BA
Before: His Honour Judge Huskinson
Sitting at 45 Bedford Square, London, WC1B 3AS
on 7 November 2013
Robert Darbyshire, instructed by Devonshires Solicitors on behalf of the appellant
The respondents did not appear and were not represented
The following cases are referred to in this decision.
Birmingham City Council v Keddie [ 2012] UKUT 323(LC)
Moscovitz v 75 Worple Road RTM Company Limited [2010] UKUT 393 (LC); [2011] L&TR 4)
Chiswell v Griffon Land and Estates Ltd [1975] 1 WLR 1181
Daejan Investments Limited v Benson [2013] UKSC 14
1. This is an appeal from a decision of the Leasehold Valuation Tribunal for the Northern Rent Assessment Panel ("the LVT") dated 27 March 2012 whereby the LVT gave an interim determination upon the question of whether there had been compliance by the appellant with the consultation requirements contained in section 20 of the Landlord and Tenant Act 1985 as amended and in the Service Charges (Consultation Requirements) (England) Regulations 2003 in respect of the entry by the appellant into a qualifying long-term agreement (“QLTA”) concerning extensive residential premises at Bold Street, Old Trafford.
2. The appellant is the owner of various properties at Bold Street. Most of the occupants hold their respective flats otherwise than on long leases. There were however, so I understand, eight properties held by long leaseholders, namely the above-mentioned eight respondents. The appellant wished to enter into a QLTA of such a type as would engage the consultation requirements in schedule 1 of the Regulations (i.e. a QLTA where public notice was not required). The appellant served (or purported to serve) on the respondents a consultation notice dated 16 March 2011 in accordance with schedule 1.
3. The following issues arose for the LVT:
(1) Were these notices served by the appellant on the long leaseholders (i.e. on the respondents)?
(2) If so, were these notices compliant with the requirements of the Regulations?
(3) If not, should dispensation be granted under section 20ZA of the Act in respect of the relevant requirements which had not been complied with?
4. In summary the decision of the LVT upon these points was as follows:
(1) The notices dated 16 March 2011 were served upon the long leaseholders who were resident in their flats, namely Mrs Rubinstein, Mr Wardak, Mr Tang and Mr Sediqi and also upon Mr Kashify who, although not resident in his flat, had returned at the relevant period such that service at the flat was good service upon him; however the notices were not served upon Ms Rice, Ms Gregory and Mr Di Sipio.
(2) These notices were not compliant with Regulations because they failed to allow a sufficient period of consultation. The notices were dated 16 March 2011; the LVT found that they would have arrived on 18 March 2011; the notices specified that the period for consultation ended on 15 April 2011; and therefore the period for consultation specified was less than the required 30 days.
(3) Dispensation should not be granted under section 20ZA.
5. The LVT granted permission to the appellant to appeal in respect of point (2) above but refused permission in respect of points (1) and (3). The appellant applied to the Upper Tribunal for further permission to appeal. The Upper Tribunal granted permission on point (1) but refused it upon point (3) in the following terms:
“Fundamental to the LVT’s conclusion that Ms Gregory had not been served was its acceptance of her evidence that she had provided Mr Roache with a forwarding address but this had not been recorded by the Trust. Although it does not appear that the Trust suggested at the hearing that this evidence should not be accepted without it being given an opportunity to verify the assertion, the fact that the assertion had not been foreshadowed in Ms Gregory’s witness statement in my view justifies permission to appeal being given so as to enable the Trust to call evidence from Mr Roache. Since the LVT’s conclusion in relation to Ms Gregory affected its conclusions in relation to Ms Rice, permission should extend to the challenge in respect of her also.
Permission is refused in relation to the contention that the LVT wrongly failed to grant dispensation under section 20ZA. There is nothing in my view to suggest that its decision in this respect was outside the scope of its discretion. In the event of the appeal being allowed on either of the grounds on which permission has been granted and the case being remitted, however, it would need to re-take its decision on this matter.
Since evidence will be needed in relation to the ground on which I am now granting permission, the appeal, limited to the two grounds, will be by way of rehearing.”
6. None of the respondents appeared or was represented at the hearing. Leaving aside Mr Sediqi the other respondents either did not serve a respondent's notice or did serve such a notice but subsequently withdrew from the proceedings. As regards Mr Sediqi he remained a respondent but he notified the Tribunal that he would not be attending the hearing. He made no representations to the Tribunal in respect of the merits of the appeal.
7. I was told that there have been negotiations between the appellant and various of the respondents which has led to the appellant having bought out the long leases of all of the respondents except for those of Mr Sediqi, Mr Di Sipio and Mr Kashify.
8. By a letter to the Tribunal dated 31 October 2013 the appellant's solicitors informed the Tribunal that the appellant did not seek to challenge the LVT's finding that the notice of 16 March 2011 was not served on Mr Di Sipio and that, bearing that fact in mind and bearing in mind also the settlements which the appellant had reached with various other of the respondents, there was no longer any dispute about the receipt of the notices. It was stated that the sole remaining dispute in the appeal concerned when the 30 day notice period commenced (and therefore whether the notice was compliant with the Regulations). The appellant indicated it did not intend to call any evidence.
9. Having regard to the terms in which permission to appeal was granted by the Upper Tribunal and to the fact that it was thereby indicated the appeal would proceed by way of rehearing, it was open to the appellant to call evidence at the appeal before me. In fact the appellant chose not to call any such evidence and the hearing proceeded solely by way of legal submissions. No submissions were advanced to me to the effect that I could or should reverse the findings of the LVT that the appellant had failed to serve the notice of 16 March 2011 on Ms Rice Ms Gregory and Mr Di Sipio. In the absence of any evidence and any submissions upon this point the only conclusion I can reach is that the appeal against the LVT's finding that these three lessees were not served with the notice must be dismissed. It follows that in any event, and quite apart from what may be decided upon whether the notice (which was served upon the other respondents) was compliant with Regulations, there was a failure to comply with the Regulations by reason of this failure to serve the relevant notice upon these three lessees.
10. It may be observed that the LVT in its decision made adverse comments in respect of certain other parts of the procedure adopted by the appellant, see paragraphs 33 to 36 of its decision. Mr Darbyshire told me at the hearing that the actions of the appellant which were the subject of these comments did not form part of the statutory consultation process and that therefore...
To continue reading
Request your trial