Sheffield City Council & Anor v Oliver, Court of Appeal - Lands Tribunal, August 18, 2008, [2008] EWLands LRX_146_2007

Resolution Date:August 18, 2008
Issuing Organization:Lands Tribunal
Actores:Sheffield City Council & Anor v Oliver

LRX/146/2007 LANDS TRIBUNAL ACT 1949 LANDLORD AND TENANT service charges landlord's covenant to repair structure and exterior of premises whether external windows part of structure and exterior held that they were Landlord and Tenant Act 1985 s27A; Housing Act 1985 Sch 6 para 14(2) IN THE MATTER OF AN APPEAL FROM THE LEASEHOLD VALUATION TRIBUNAL FOR THE NORTHERN RENT ASSESSMENT PANEL BETWEEN SHEFFIELD CITY COUNCIL Appellant and HAZEL ST CLARE OLIVER Respondent Re: 128 Cliff Street Sheffield S11 8FA Before: The President Sitting at Sheffield Combined Court Centre, The Law Courts, 50 West Bar, Sheffield, S3 8PH on 12 August 2008 Christopher Baker instructed by Leigh Hall for Sheffield City Council The respondent in person © CROWN COPYRIGHT 2008 The following cases are referred to in this decision: Irvine v Morgan [1991] 1 EGLR 261 Ibrahim v Dovecorn Reversions Ltd [2001] 2 EGLR 46 Marlborough Park Services Ltd v Rowe [2006] 2 EGLR 27 Quick v Taff Ely Borough Council [1986] 1 QB 809 Ball v Plummer, The Times 17 June 1879; 23 SJ 656 Pearlman v Harrow School [1979] QB 56 Boswell v Crucible Steel Co [1925] 1KB 119 DECISION

1. This is an appeal by the landlord, Sheffield City Council, against a decision of the Leasehold Valuation Tribunal for the Northern Rent Assessment Panel on an application made to it by the tenant, Ms Oliver, under sections 27A and 20C of the Landlord and Tenant Act

1985. Ms Oliver is the tenant of a maisonette, 128 Cliff Street, Sheffield, under a lease for 125 years from 25 September 1989 which was acquired by Ms Oliver and her late mother under the right to buy provisions of the Housing Act 1985. The application under section 27A related to two service charge matters. The first was the proposed installation by the council of double- glazed windows, and the second was the reasonableness of the general service charge for the year to 30 September 2006. It is in relation to the first of these that this appeal arises.

2. On 28 July 2006 Sheffield Homes Ltd, which I take to be the agency through which the council exercises its functions as landlord, wrote to Ms Oliver giving notice of its intention to carry out works to her maisonette. It said: "Under the terms of the Lease for your flat or maisonette, the City Council is responsible for repairs and improvements to the structure and exterior of your flat/maisonette, and to the building in which it is situated, together with communal facilities used by the occupants... The work we are planning to carry out to your block, (78-130), is to:- · Remove all existing windows and replace new PVC-u double glazed windows including all associated work. · Remove existing front door and frames and replace with new PVC-u door and doorframes including all associated work. Please note that the composite door and UPVc door listed in your estimate are not compulsory. It is down to your own discretion if you want any of these doors replacing. A representative from Lovell's contractors will contact you shortly to discuss your decision. Please note however, that any existing windows will be replaced as part of this scheme. Details of this can be found within your lease. The reasons for carrying out the work are as follows:- See attached Landlords Reasons. Your estimated proportioned cost in connection with the proposed work is £6,147.59."

3. The attached Landlord's Reasons gave as the reason for considering it necessary to carry out the proposed works to the windows: "Windows the existing single glazed metal windows are prone to warping and causing draughts. In addition they are a source of condensation (black mould) and allow heat to escape from the property. By replacing the windows with double glazed UPVC units the thermal comfort of the home will be improved and will lower heating costs." Subsequently the council in a letter to Ms Oliver said that the cost of the works for the windows alone would be £4,532.33.

4. In her application to the LVT Ms Oliver said that she would like the tribunal to find that the council were unreasonable in: "1) Not allowing me to have the windows replaced privately, at an affordable cost. Another leaseholder on the estate (Club Garden Rd) had their windows replaced privately - precedent set. 2) Deciding that we cannot opt out of the scheme to have our windows replaced by council/Sheffield Home Contractors. Some leaseholders at Hawley Street could not afford and did not have their windows replaced. Precedent set. Contrary to what the council claim, Cllr Jillian Creasey informed me that those window frames are wooden and rotten. Our window frames are iron and, though slightly warped, still intact."

5. In its decision, the LVT noted that the lease was "in a usual form" and made provision for a service charge in relation to the council's obligations, which included "keeping in repair and improving the structure and exterior of the demised premises and the building." Having quoted part of the habendum and referred to the lessee's repairing obligations and the definition of "The building", it said: "It is clear, therefore that the windows and frames are part of the demised premises. They are the responsibility of the lessee. They are excluded from the definition of the Building. They are separate and distinct from the exterior. On the face of it, the service charge section of the lease, read in conjunction with the definition provisions, does not include the windows and...

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