London Borough Of Newham v Hannan & Ors, Court of Appeal - Lands Tribunal, October 07, 2011,  UKUT 406 (LC)
|Resolution Date:||October 07, 2011|
|Issuing Organization:||Lands Tribunal|
|Actores:||London Borough Of Newham v Hannan & Ors|
© CROWN COPYRIGHT 2011
UT Neutral citation number:  UKUT 406 (LC)
UTLC Case Number: LRX/1/2010
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT - service charges - consultation requirements for qualifying works - failure to serve ``public notice'' requirement in time - application for dispensation - prejudice to tenants - appeal against LVT's refusal of dispensation allowed - Landlord and Tenant Act 1985 s20, 20ZA - The Service Charge (Consultation Requirements) (England) Regulations 2003 paragraph 1(2)(d) of Schedule 2
IN THE MATTER OF AN APPEAL AGAINST THE DECISION OF
THE LONDON LEASEHOLD VALUATION TRIBUNAL
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH Appellant
MR H HANNAN, MRS A NESSA AND OTHERS Respondents
Re: Various tall blocks in the London Borough of Newham
Before: His Honour Judge Gerald
Sitting at: 43-45 Bedford Square, London WC1B 3AS
on 28 September 2011
The following cases are referred to in this decision:
Daejan Investments Limited v Jack Benson and others (LT) LRX/148/2008
Daejan Investments Limited v Jack Benson and others (CA)  EWCA Civ 38
Eltham Properties Limited v Kenny and others LRX/161/2006
LB of Camden v The Leaseholders of 37 flats at 30-40 Grafton Way LRX/185/2006
This is an appeal against the decision (``the Decision'') of the Leasehold Valuation Tribunal (``LVT'') made on 15th September 2009 refusing the Appellant's application dated 21st July 2007 (``the Application'') for dispensation of with the consultation requirements of paragraph 1(2)(d) of Schedule 2 to The Service Charge (Consultation Requirements) (England) Regulations 2003 (``the Regulations'') pursuant to section 20ZA of the 1985 Landlord and Tenant Act (``the 1985 Act'').
The determination took place without an oral hearing and was based solely upon the various written Statements of Case and exhibited documentary evidence. Neither the Appellant nor the Respondents submitted any skeleton arguments or authorities to the LVT.
Before this Tribunal, the Appellant was represented by Counsel. The Respondents, who had filed a Statement of Case settled by Counsel, had hoped to be represented by Counsel under the pro bono scheme but, unfortunately, he was unavailable on the day of the hearing. Instead the Respondents were ably represented, with the leave of the Tribunal, by Mr Beville who is a resident of the City of Westminster but plainly well-versed in these sort of matters. No application was made to the Tribunal on the day of the hearing to adjourn.
Facts before the LVT
The Application was to dispense with the consultation requirement imposed by section 20 of the 1985 Act and paragraph 1(2)(d) of Schedule 2 to the Regulations in relation to three qualifying long term agreements (``QLTAs'') to carry out various buildings works to 71 tall buildings within the London Borough of Newham.
The factual background to the Application is brief. On 21st June 2006, the Appellant advertised three proposed contracts for building works in the Official Journal of the European Union (``OJ''). The deadline for submission by contractors of a Pre-Qualification Questionnaire was 1st August 2006.
On 21st September 2006 a Notice of Intention to enter into QLTAs in respect of the building works was served on all relevant tenants in the borough. This allowed the tenants a 30 day period within which to make observations on ``the relevant works.'' There were only two responses: one asking ``what does the Notice of Intention mean'', the other observing ``this is a general notice covering all works but does not address specific works and cost to my property''.
The short listing of contractors and the issue of Invitation to Tender documentation was completed in April 2007. The Invitation to Tender documentation was therefore only finalised after expiry of the 30 day consultation period following service of the Notice of Intention. 25 contractors responded to the OJ advertisements. 10 were invited to tender in April 2007. Nine responded.
On 6th September 2007, a Notification of Landlord's Proposal to enter into QLTAs in respect of the building works was served on all tenants, which identified the three contractors to whom it was intended to let the contracts. This allowed the tenants a 30 day period within which to make observations on the proposal - by 6th October 2007. The Application states that QLTAs were entered into with those three contractors ``with effect from'' 30th September 2007.
At some stage, the Appellant realised that the Regulations had been breached because the Notice of Intention had been served after notice of the contract had been published in the OJ whereas it should have been the other way around as required by paragraph 1(2)(d) of Schedule 2 to the Regulations.
The Appellant therefore applied on 21st July 2010 for dispensation of this requirement. The Application concludes by submitting ``that it would be reasonable in all of the circumstances to [dispense with the paragraph 1(2)(d) requirement] as no prejudice will occur to the Respondent by such dispensation.''
Twenty tenants replied objecting to the Application on various grounds. Many were pro forma objections, some made general assertions of prejudice but none descended into any particularity relating to the ``public notice'' point or explained why they had been prejudiced by the fact that the notice had already been published in the OJ at the time of the Notice of Intention.
At the time of the Decision, works had been completed or started in relation to 13 of the 71 tall buildings. As a result of the Decision, I was informed that the Appellant effectively abandoned the QLTAs in relation to the other 58 tall buildings and has since gone through the whole statutory consultation procedure again.
The practical position, therefore, is that this Appeal will only affect those 13 tall buildings and will affect only one of the 20 Respondents as it is only Mrs Buksh whose home is within one of those buildings. All other objectors are tenants of the other 58 tall buildings. The Appellant has also stated that it will not be seeking recovery of any of the costs related to the Application or this appeal via the service charges provisions of the leases.
The other point relates to the Notification of Landlord's Proposal. Counsel for the Appellant accepted that, on the basis of the information before the LVT, it would appear that the 30 day consultation period had been curtailed by six days as the QLTAs were entered into ``with effect from'' 30th September 2007 which, if correct, would require a further application for dispensation under section 20ZA of the 1985 Act.
However, without objection from the Respondents, the Appellant adduced evidence which indicated that what that somewhat Delphic phrase ``with effect from'' meant was that the QLTAs were signed sometime after the 6th October 2007 but had a contractual provision that they take...
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