Decision Nº LRX 96 2010. Upper Tribunal (Lands Chamber), 20-06-2011
| Jurisdiction | UK Non-devolved |
| Judge | Mr Norman J Rose FRICS |
| Date | 20 June 2011 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 96 2010 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2011] UKUT 218 (LC)
LT Case Number: LRX/96/2010
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – service charge – whether proposed replacement of roofing tiles reasonable – held no evidence to support LVT’s conclusion that it was not – whether existence of a sinking fund a relevant consideration in determining reasonableness – held that it was – appeal upheld - Landlord and Tenant Act 1985 S.19.
IN THE MATTER OF A NOTICE OF APPEAL AGAINST A
DECISION OF THE LEASEHOLD VALUATION TRIBUNAL
FOR THE LONDON RENT ASSESSMENT PANEL
and
(1) PARMJEET TIWARI Respondents
(2) ASHOK TIWARI
Re: Flats 1-48
Southall Court
Lady Margaret Road
Southall
Middlesex
UB1 2RG
Before: N J Rose FRICS
APPEAL DETERMINED ON WRITTEN REPRESENTATIONS
The following cases are referred to in this decision:
Veena SA v Cheong [2003] 1 EGLR 175
Forcelux v Sweetman [2001] 2 ELGR 173
City of Westminster v Fleury and others [2001] UKUT 136 (LC)
Post Office v Foley [2000] IRLR 827
Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63
Paddington Basin Developments v West End Quay [2010] 1WLR 2735.
1. This is an appeal by the landlord of a block of 48 flats known as Southall Court, Lady Margaret Road, Southall, Middlesex, UB1 2RG from a decision of the Leasehold Valuation Tribunal for the London Rent Assessment Panel. The LVT determined, among other matters, that the amount payable by the tenant of each flat by way of interim service charge for the year commencing 24 June 2009 was £482.50, being the appropriate proportion of the estimated cost of proposed major works to the stairways of the block. The total service charge contribution that had been sought by the landlord was £83,885.00 plus VAT, equivalent to £2,053.43 per flat. The difference of £1,570.93 per flat between that figure and the sum awarded reflected the cost of major works to the roofs of the west and south wings of the block.
2. The appellant landlord is Southall Court (Residents) Ltd. The President granted permission to appeal, limited to the issue of roof repairs, to be determined by way of review. The only respondents to the appeal were Mrs Parmjeet Tiwari and Mr Ashok Tiwari, the lessees of flats 9 and 10. The appeal was conducted, by agreement, by way of written representations. Submissions have been received from Mr Peter Ward, a director of the appellant and from Mrs Tiwari on behalf of herself and her husband.
The LVT’s decision
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In its decision, under the heading “The Inspection”, the LVT said:
“10. The Tribunal inspected the property on the morning of 29 April 2010 in the presence of Mr Ward and a number of the tenants. The block is built around three sides of an elongated courtyard with a garage area at the back. It probably dates from between the Wars. The front is on the west side and is somewhat narrower than the north and south sides. The block is three-storeys high. Access is gained to the flats through some eight staircases…
12. The roofs of the block were conventional pitched tile. We observed the roofs from the ground with binoculars. The roof to the north side of the block had already been replaced and no further works were envisaged in relation to that block. The roofs to the west and south sides were of some age. The tiles looked to be typical of the 1950s but it is possible that they are the original pre-War covering.
13. The roof to the west side had some slipped tiles and on the eastern side of the west block there was a hole in the roof. On the north side of the south block there were some slipped tiles. The south side of the south block did not appear to be in particularly poor condition. Throughout the west and south blocks there was evidence of patch repairs having been carried out. The Tribunal did not look into the loft space.”
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The LVT then recounted the history of the dispute. It said this:
“14. Southall Court has probably been the subject of more applications to the Tribunal than any other property in the country. In most years since at least 1999 there has been at least one application of one sort or another to the Tribunal. There has also been regular recourse to the County Court.
15. One long-running problem was that there were three different sorts of leases granted of flats in the block. There was a dispute as to whether the leases permitted the creation of a sinking fund. In 2006 the Tribunal ordered that Type “A” leases should be varied to correspond with Type ‘B’ and ‘C’ leases, but in a subsequent decision in 2007, which was unsuccessfully appealed to the Lands Tribunal, it was determined that the leases (including those varied) did not permit the creation of a sinking fund. As a result the landlord applied again to vary all the leases. By order of the Tribunal of 26 November 2009, the leases were varied and a sinking fund has now been instigated with standard terms for the collection of service charges on account.
16. The roof too has been a long-running issue. As long ago as 2002 the Tribunal determined that the roof at that time did not require replacement, although (as appears from a subsequent decision in 2006 at page 204 of the bundle) the Tribunal considered that replacement of the roof within a timescale of 5-10 years was reasonable. In 2006 the Tribunal held that ‘the case for renewing the roof had simply not been made out’ (bundle page 213). Mr Lawrence gave evidence to the Tribunal then and he did to us. The Tribunal in 2006 ‘accepted that Mr Lawrence gave his evidence in good faith [but] found it extremely difficult to reconcile his expert witness report dated 14 March 2006 with his original condition survey based on inspections carried out between October and December 2004. The condition survey had been meticulous and yet it revealed no major failure of the roof covering’.
17. Nothing daunted, in 2007 the landlord again applied to the Tribunal but this time limiting its application to the roof of the north side of the block. Scaffolding had been erected so that Mr Lawrence had been able to inspect the north roof closely. His evidence there (bundle pages 237-238) was that the north roof (unlike the west and south roofs) had no sarking felt, so that there was no second line of defence if a tile slipped. The Tribunal concluded (bundle page 239) that ‘the time [had] now arrived when the roof of the north wing should be re-covered. At our inspection at roof level we were able to confirm the general degradation of the original tiles, many ill-fitting patch repairs, some chipped tiles, and tile debris in the newly installed guttering. We also saw the weatherproofing properties of the roof covering had been compromised by the need to use new and old tiles. From our inspection of the roof void we saw that daylight was visible in numerous places on both pitches’.
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The LVT then summarised the evidence in these terms:
“18. Before us Mr Lawrence gave evidence and was cross-examined by the tenants. He had prepared a report (bundle 149ff) dated 22 February 2010. In para. 5.1ff he summarises the defects which had been in the condition survey report prepared in February 2005, based on inspections carried out in October-December 2004. He summarised his observations from the scaffolding erected in 2007. In para 5.19 he said: ‘Further external surveys and internal inspections of the relevant loft spaces in September and October 2007 and the summer-autumn of 2009 revealed the following: attempted sealing of holes in the sarking felt with carpet off-cuts and binbags…; a large bowl full of (assumed) rainwater positioned below a sarking felt hole above flat 18; very damp and mouldy valley board timbers at the south wing roof change in level; mice infestation…; polythene sheeting laid out above flat 40 ceiling as (assumed) water penetration defence; missing hip irons; valley and main gutters filled with eroded tile debris’. He concluded in para. 5.20 that ‘the tiles have deteriorated sufficiently to justify 100% replacement.’
19. In cross-examination Mr Lawrence said initially that he did not know if the roof was currently leaking. When pressed, he said that, when he had visited the loft a few months before, there was evidence of historic links, but there was...
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