Jastrzembski v Westminster City Council
HH Judge Karen Walden-Smith and Mr Andrew J Trott FRICS
Landlord and Tenant – Service charge – Major works – Consultation requirements – Sections 20 and 20ZA of Landlord and Tenant Act 1985 – Appellant disputing liability to contribute to cost of works on ground that required notice not served on him by respondent landlords – LVT not determining that factual issue and instead reaching decision on liability on grounds not raised by parties – Whether LVT’s decision vitiated by procedural irregularity – Whether valid notice served on appellant – Appeal allowed in part – Respondents’ cross-appeal allowed
The appellant was the long lessee of a flat in a building owned by the respondent council. In 2009, the respondents served a notice, under section 20 of the Landlord and Tenant Act 1985, notifying lessees of their intention as landlords to carry out major works to the building and three others. They later sought to recover £9,199 from the appellant as his estimated contribution to the cost of those works. The appellant applied to the leasehold valuation tribunal (LVT), under section 27A of the 1985 Act, for a determination as to the reasonableness of that estimated charge and his liability to pay it. The appellant contended that he was not liable to pay because the 2009 notice had not been served on him and the respondents had therefore failed to comply with the consultation requirements under the Act and the Service Charges (Consultation Requirements) (England) Regulations 2003. The respondents maintained that the notice had been so served.
The LVT did not resolve that dispute of fact between the parties but instead determined the application on other grounds. It held that: (i) the 2009 notice was invalid because it invited observations on the works to be sent to a person who was no longer involved in the project; but (ii) an earlier section 20 notice, served on the appellant in 2007 in respect of works under a different contract reference relating to a greater number of buildings, was a valid notice with regard to the relevant works; and (iii) even if it were wrong on that point, it was appropriate to grant dispensation from the consultation requirements pursuant to section 20ZA of the Act.
The appellant appealed against the LVT’s conclusions on the latter two points. The respondents cross-appealed on the first point. They contended that the LVT had been guilty of procedural irregularity in holding the 2009 notice to be invalid on a ground that had not been raised by the parties, and on which they had been given no opportunity to make submissions; they further submitted that the LVT’s conclusion on that point was wrong in law.
Held: The appeal was allowed in part; the cross-appeal was allowed.
(1) The LVT’s decision was vitiated by procedural irregularity so far as it had decided a point, as to the validity of the 2009 notice, which had not been raised in the appellant’s application and which the LVT had raised of its own motion for the first time at the hearing, with the consequence that respondents were not prepared to deal with that point and were denied the opportunity to call evidence as to any arrangements that might have been in place to ensure that they received observations sent to the address given in the notice: Regent Management Ltd v Jones [2010] UKUT 369 (LC), Birmingham City Council v Keddie [2012] UKUT 323 (LC); [2012] 3 EGLR 53; [2012] 49 EG 71, Arrowdell Ltd and Coniston Court (North) Hove Ltd [2007] RVR 39 and Beitov Properties Ltd v Martin [2012] UKUT 133 (LC); [2012] 3 EGLR 21; [2012] 35 EG 74 applied.
(2) As a matter of law, the 2009 notice was not invalidated by naming a party who was no longer involved in the project as the person to whom observations were to be sent. The consultation requirements in relation to the works were those under Part 2 of Schedule 4 to the 2003 Regulations. Regulation 1 required the notice to set out, in general terms, the works to be carried out and the reasons for those works; to invite comments, specifying the address to which observations could be sent; and to specify that there was a relevant period for sending those observations, identifying when that period ended. Although the omission of any address for observations would amount to an error in the notice, there was no requirement as to what the address should be; it did not, for example, have to be the address of the landlord, the landlord’s managing agent, or the project manager, but was simply an address for service of the observations. The respondents had provided such an address. The LVT had no evidence before it to suggest that any observations made by the appellant, or other consultees, would not reach the respondents.
(3) Since the respondents had not contended that the 2007 notice remained valid for the purpose of the 2009 works, the appellant could not have been expected to deal with that argument and had not been given the opportunity to call any evidence on the issue. Further, the proper conclusion was that the 2007 notice was not valid for that purpose. The works described in the 2007 notice, relating to a different contract reference in respect of works to a greater number of buildings, could not be said to describe the 2009 works. Moreover, while the 2003 regulations specified no time limit between the date of service of the notice and the commencement of the works, an indication of the appropriate time period could be derived by reference to the time specified in the notice for providing observations or suggestions for contractors. Where the notice gave a period of 30 days for that purpose, that suggested periods of months rather than years were contemplated for the works to be undertaken. In light of the passage of time between 2007 and 2009, combined with the change in the works caused by the removal of several buildings from the contract, the 2007 notice was not valid for the purpose of the 2009 works.
(4) If the respondents had failed to serve the 2009 notice on the appellant, it would be appropriate to grant dispensation from the consultation requirements pursuant to section 20ZA of the 1985 Act. The failure to serve was a technical oversight that had caused no relevant prejudice to the appellant. Even without the service of the notice, the respondents had in fact consulted with the appellant and he had had the opportunity to make observations on the proposed works and nominate a contractor, those being the very matters that the initial section 20 notice was designed to deal with: Daejan Investments Ltd v Benson [2013] UKSC 14; [2013] 1 WLR 854; [2013] 1 EGLR 34; [2013] 6 EG 106 applied.
The appellant appeared in person; Nicola Muir (instructed by Judge & Priestley LLP, of Bromley) appeared for the respondents.
Sally Dobson, barrister
Landlord and Tenant – Service charge – Major works – Consultation requirements – Sections 20 and 20ZA of Landlord and Tenant Act 1985 – Appellant disputing liability to contribute to cost of works on ground that required notice not served on him by respondent landlords – LVT not determining that factual issue and instead reaching decision on liability on grounds not raised by parties – Whether LVT’s decision vitiated by procedural irregularity – Whether valid notice served on appellant – Appeal allowed in part – Respondents’ cross-appeal allowedThe appellant was the long lessee of a flat in a building owned by the respondent council. In 2009, the respondents served a notice, under section 20 of the Landlord and Tenant Act 1985, notifying lessees of their intention as landlords to carry out major works to the building and three others. They later sought to recover £9,199 from the appellant as his estimated contribution to the cost of those works. The appellant applied to the leasehold valuation tribunal (LVT), under section 27A of the 1985 Act, for a determination as to the reasonableness of that estimated charge and his liability to pay it. The appellant contended that he was not liable to pay because the 2009 notice had not been served on him and the respondents had therefore failed to comply with the consultation requirements under the Act and the Service Charges (Consultation Requirements) (England) Regulations 2003. The respondents maintained that the notice had been so served.The LVT did not resolve that dispute of fact between the parties but instead determined the application on other grounds. It held that: (i) the 2009 notice was invalid because it invited observations on the works to be sent to a person who was no longer involved in the project; but (ii) an earlier section 20 notice, served on the appellant in 2007 in respect of works under a different contract reference relating to a greater number of buildings, was a valid notice with regard to the relevant works; and (iii) even if it were wrong on that point, it was appropriate to grant dispensation from the consultation requirements pursuant to section 20ZA of the Act.The appellant appealed against the LVT’s conclusions on the latter two points. The respondents cross-appealed on the first point. They contended that the LVT had been guilty of procedural irregularity in holding the 2009 notice to be invalid on a ground that had not been raised by the parties, and on which they had been given no opportunity to make submissions; they further submitted that the LVT’s conclusion on that point was wrong in law.Held: The appeal was allowed in part; the cross-appeal was allowed.(1) The LVT’s decision was vitiated by procedural irregularity so far as it had decided a point, as to the validity of the 2009 notice, which had not been raised in the appellant’s application and which the LVT had raised of its own motion for the first time at the hearing, with the consequence that respondents were not prepared to deal with that point and were denied the opportunity to call evidence as to any arrangements that might have been in place to ensure that they received observations sent to the address given in the notice: Regent Management Ltd v Jones [2010] UKUT 369 (LC), Birmingham City Council v Keddie [2012] UKUT 323 (LC); [2012] 3 EGLR 53; [2012] 49 EG 71, Arrowdell Ltd and Coniston Court (North) Hove Ltd [2007] RVR 39 and Beitov Properties Ltd v Martin [2012] UKUT 133 (LC); [2012] 3 EGLR 21; [2012] 35 EG 74 applied.(2) As a matter of law, the 2009 notice was not invalidated by naming a party who was no longer involved in the project as the person to whom observations were to be sent. The consultation requirements in relation to the works were those under Part 2 of Schedule 4 to the 2003 Regulations. Regulation 1 required the notice to set out, in general terms, the works to be carried out and the reasons for those works; to invite comments, specifying the address to which observations could be sent; and to specify that there was a relevant period for sending those observations, identifying when that period ended. Although the omission of any address for observations would amount to an error in the notice, there was no requirement as to what the address should be; it did not, for example, have to be the address of the landlord, the landlord’s managing agent, or the project manager, but was simply an address for service of the observations. The respondents had provided such an address. The LVT had no evidence before it to suggest that any observations made by the appellant, or other consultees, would not reach the respondents.(3) Since the respondents had not contended that the 2007 notice remained valid for the purpose of the 2009 works, the appellant could not have been expected to deal with that argument and had not been given the opportunity to call any evidence on the issue. Further, the proper conclusion was that the 2007 notice was not valid for that purpose. The works described in the 2007 notice, relating to a different contract reference in respect of works to a greater number of buildings, could not be said to describe the 2009 works. Moreover, while the 2003 regulations specified no time limit between the date of service of the notice and the commencement of the works, an indication of the appropriate time period could be derived by reference to the time specified in the notice for providing observations or suggestions for contractors. Where the notice gave a period of 30 days for that purpose, that suggested periods of months rather than years were contemplated for the works to be undertaken. In light of the passage of time between 2007 and 2009, combined with the change in the works caused by the removal of several buildings from the contract, the 2007 notice was not valid for the purpose of the 2009 works.(4) If the respondents had failed to serve the 2009 notice on the appellant, it would be appropriate to grant dispensation from the consultation requirements pursuant to section 20ZA of the 1985 Act. The failure to serve was a technical oversight that had caused no relevant prejudice to the appellant. Even without the service of the notice, the respondents had in fact consulted with the appellant and he had had the opportunity to make observations on the proposed works and nominate a contractor, those being the very matters that the initial section 20 notice was designed to deal with: Daejan Investments Ltd v Benson [2013] UKSC 14; [2013] 1 WLR 854; [2013] 1 EGLR 34; [2013] 6 EG 106 applied.The appellant appeared in person; Nicola Muir (instructed by Judge & Priestley LLP, of Bromley) appeared for the respondents. Sally Dobson, barrister
