Dennis Phillps and Royna Goddard (suing on behalf of themselves and other owners of 97 Holiday Chalets at Point Curlew, St. Merryn, Padstow, Cornwall) v Martin Francis and Another
| Jurisdiction | England & Wales |
| Judge | Justice Griggs |
| Judgment Date | 24 March 2010 |
| Neutral Citation | [2010] EWHC B28 QB |
| Date | 24 March 2010 |
| Court | Queen's Bench Division |
| Docket Number | Claim No.9 TR 90003 |
[2010] EWHC B28 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TRURO DISTRICT REGISTRY
Justice Griggs
Claim No.9 TR 90003
Mr Rawden Crozier (instructed by Wolferstans (Plymouth)) for the Claimant
Mr John Virgo (instructed by Meade King (Bristol)) for the Defendant
Hearing date: 3rd March 2010
Draft Judgment
This is a dispute between the freehold owners and estate managers of a site at Point Curlew, St Merryn, Padstow, Cornwall, the defendants, and a number of the owners of holiday chalets at that site. The dispute relates to the service charges which the defendants seek to claim under the terms of the various 999 year leases which the claimants have. I am invited to determine, as a preliminary issue, whether the matter is properly before me sitting as a deputy judge of the High Court of Justice or whether the matter is governed by the provisions of sections 18 to 30 of the Landlord and Tenant Act 1985, as amended by the Landlord and Tenant Act 1987, in which event, as a result of amendments made by the Housing Act 1996, disputes over service charges should be addressed to a Leasehold Valuation Tribunal from whose decisions an appeal lies to the Lands Tribunal.
The proceedings were issued in the High Court of Justice in the first place because the initial relief sought by the claimants was an injunction against the defendants preventing forfeiture of the leases because of non-payment of the service charges which the various claimants were challenging.
It is the claimants' case that there is concurrent jurisdiction both before a Leasehold Valuation Tribunal and the normal courts. Their reason for so asserting is because of the provisions of section 27A of the 1985 Act, as amended by the Commonhold and Leasehold Reform Act 2002, which provides at subsection 1 as follows:
"(1) An application may be made to a leasehold valuation tribunal for a determination whether a service charge is payable and, if it is, as to—
(a) the person by whom it is payable,
(b) the person to whom it is payable,
(c) the amount which is payable,
(d) the date at or by which it is payable, and
(e) the manner in which it is payable."
The submission made by Mr Rawdon Crozier, for the claimants, is that the use of the word "may" indicates that the jurisdiction of a leasehold valuation tribunal is concurrent with that of the ordinary courts of law. He referred me also to subsection (7) of section 27A which provides:
"(7) The jurisdiction conferred on a leasehold valuation tribunal in respect of any matter by virtue of this section is in addition to any jurisdiction of the court in respect of the matter."
Mr John Virgo, for the defendants, submitted that where a leasehold valuation tribunal had jurisdiction under the provisions of the statute to resolve disputes about service charges that jurisdiction was exclusive. He submitted that the ordinary courts of law retained jurisdiction to deal with those matters that were specifically so provided for by the legislation.
If Mr Crozier is right that does mean that the present application is a rather sterile and academic exercise. He has issued this application on the claimant's behalf in the High Court, and if he is right that the jurisdiction of the High Court is concurrent with that of a leasehold valuation tribunal the court could continue with the hearing even though the matter could be referred to a leasehold valuation tribunal. It would however no doubt be of assistance to know at the main hearing whether or not the restrictions and limitations imposed by the statutory provisions apply. So far as Mr Virgo's position is concerned, he argues on behalf of the defendants that the provisions of the 1985 Act, as amended, do not apply to the service charges which his clients seek to impose and therefore the dispute is one properly determined by the ordinary courts of law and is not one in which a leasehold valuation tribunal has any jurisdiction.
In my judgment if Parliament had intended to provide for the exclusive jurisdiction in this area of a leasehold valuation tribunal it would have used far clearer language than it has in fact adopted in the wording of section 27A. I find that the use of the word "may" does mean that in those cases where a leasehold valuation tribunal does have jurisdiction it is a jurisdiction which is concurrent with that of the ordinary courts. No doubt it would be more convenient in the great majority of cases for such disputes to be canvassed before a tribunal which is expert at trying such issues. But I can see no reason why, in an appropriate case which is otherwise before one of the normal courts of law, the provisions relating to service charges contained in sections 18 to 30 should not be resolved by such a court.
I turn therefore to the principal issue that has been debated before the court namely whether or not the provisions contained in sections 18 to 30 of the Landlord and Tenant Act 1985, as amended, can apply to the leases of the holiday chalets in this case. Both Mr Crozier and Mr Virgo are agreed that the resolution of this issue depends upon the meaning of the word "dwelling".
The contention advanced by Mr Crozier on behalf of the claimants is that the word "dwelling" should be given its ordinary and natural meaning, namely that a dwelling is where someone resides and that it is sufficient for such premises to come within the purview of the Act if they are residential premises, as distinct from business premises. The meaning does not connote it being a principal residence. It is quite wide enough to encompass a holiday home. He submitted that the 1985 Act, as originally enacted, afforded this protection in relation to service charges to tenants of "flats". The amendment to section 18(1) of the 1985 Act by the 1987 Act which substituted the word "dwelling" for "flat", thus extended its operation to tenants of dwellings. He submitted that the legislative purpose of the amendment brought about by the 1987 Act was to extend the protection afforded to dwellers in flats in relation to service charges to all dwellings in order to prevent abuses of service charges by landlords: there was no reason to think that abuses were less likely in the case of dwellings which were holiday homes, indeed given that holiday homes were not lived in full time, the potential for abuse by landlords was greater. He submitted that by confining the word "dwelling" to meaning "primary home" that involved cutting down the ordinary natural meaning of the word and that this involved an infringement of "Lord Wensleydale's golden rule" of statutory construction, which, per Lord Simon of Glaisdale in Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231, provided as follows:
"[Y]ou are to apply statutory words and phrases according to their natural and ordinary meaning without addition or subtraction, unless that meaning produces injustice, absurdity, an anomaly or contradiction, in which case you may modify the natural and ordinary meaning so as to sort out[?] such injustice etc but no further."
He referred me to two particular cases where the provisions had been considered, namely Heron Maple House Ltd v Central Estates Ltd [2002] 1 EGLR 35, a decision of Judge Cooke sitting at Central London County Court, and Ruddy v Oakfirm Properties Ltd [2007] 3 WLR 524, a decision of the Court of Appeal where Jonathan Parker LJ gave the main judgment. Both cases were concerned with the position of mesne landlords in relation to buildings which included a number separately let flats. The legislative history was considered: the case of Horford Investments Ltd v Lambert [1976] Ch 39, where the Court of Appeal had held that the policy of the Rent Acts was to protect the tenant in his home, whether the threat was to extort a premium for the grant or renewal of his tenancy, to increase his rent, or to evict him. It was not a policy for the protection of an entrepreneur whose interest was exclusively commercial, that is to say, to obtain from his tenants a greater rental income in the rent he had contracted to pay his landlord. Both Judge Cooke and Jonathan Parker LJ considered anomalies that would arise which ever way they resolved the issues before deciding in both cases that the Horford case was to be distinguished and that mesne landlords were entitled to the protection of the 1985 legislation, as amended. Judge Cooke noted that it seemed likely that the amendment to the 1985 Act to extend its provisions to dwellings was because of the imposition of service charges following the sale of council houses. It is pertinent to set out paragraph 78 from the judgment of Jonathan Parker LJ which was as follows:
"I also reject the suggestion that there is any significant relationship between the service charge provisions and the Rent Acts. As the judgments in the Horford Investments case [1976) Ch 39 make clear … the decision in that case was materially influenced by the underlying policy of the Rent Acts. The policy underlying the service charge provisions in the 1985 Act and earlier Acts is, however, a different policy in that its emphasis is not so much on protecting the tenant in his home as on providing him with a way of challenging unreasonable charges sought to be levied by his landlord. I can, for my part, see no reason why the policy considerations which led this court in the Horford Investments case to decide that a tenancy of a block of flats is not within the protection of the Rent Acts should lead to the conclusion that a tenant of a flat in a block who happens also to be a tenant of another flat (or flats) in the...
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Richmond Park Maintenance Ltd
...as anything other than timeshare accommodation. [31]In relation to the long term lease units, reliance was placed on Phillps v Francis [2010] EWHC B28 (QB) and the decision of the Leasehold Valuation Tribunal in case no CAM/33UB/LSC/2011/0015 dated 17 August 2011 (the latter of which specif......