Landlord and Tenant Act 1985 – Consultation – Notices – Service Charges (Consultation Requirements) (England) Regulations 2003 – Appellant landlord serving consultation notices on respondent leaseholders pursuant to section 20 of 1985 Act and Schedule 1 to 2003 Regulations – Whether notices invalid for failure to specify period of 30 day period for making of observations “beginning with the date of the notice” – Whether date of notice that of posting or receipt – Appeal dismissed
The appellant landlord owned several residential properties containing flats, eight of which were let on long leases to the respondents. The appellant proposed to enter into a qualifying long-term agreement (QLTA) in respect of the flats, of a type that engaged the consultation requirements in section 20 of the Landlord and Tenant Act 1985 and Schedule 1 to the Service Charges (Consultation Requirements) (England) Regulations 2003. The appellant purported to serve consultation notices on the respondent pursuant to Schedule 1 to the 2003 Regulations; those notices bore the date 11 March 2011 but were posted several days later on 16 March, using the private carrier TNT. The notices specified that the statutory 30-day consultation period, during which the respondents could make observations on the appellant’s proposals, ended on 15 April 2011.
The leasehold valuation tribunal (LVT) was subsequently asked to determine whether the appellant had complied with the consultation requirements and, if it had not, whether dispensation from those requirements should be granted under section 20ZA of the 1985 Act. The LVT found that the consultation notices did not comply with Schedule 1 since they would have arrived on 18 March 2011 and the period of consultation was therefore less than the required 30 days. The LVT refused to grant dispensation from the consultation requirements.
The appellant was given permission to appeal in relation to the validity of the notices but not in relation to the refusal of dispensation. The central issue on the appeal was the meaning of regulation 2 of Schedule 1 to the 2003 Regulations, so far as it provided that the relevant period of consultation was to be the period of 30 days “beginning with the date of the notice”. The appellant contended that the 30-day consultation period began on the date when the notice was posted, not when it was received, and that its notices were valid accordingly.
Held: The appeal was dismissed.
The fundamental purpose of a notice was to inform the recipient of certain matters. A piece of paper headed “notice” was therefore of no value to a recipient before it was given to the recipient. It followed that the expression “the date of the notice” in regulation 2 of Schedule 1 to the 2003 Regulations could not be taken as a reference to the date that the written notice document happened to have printed on it. Nor did it refer to the date when the notice was posted. Unless there was evidence that the postal service achieved a same-day delivery to the recipient, the date of posting was necessarily earlier than the date on which the vital function of a written notice was performed, namely the notifying of the recipient of certain information. The correct interpretation of the regulations was that reference to the date of the notice was a reference to the date on which the notice performed its crucial function, namely notifying the recipient of the contents of the notice. That was the date on which the notice was given to the recipient, meaning the date of service, whether deemed or actual, or of receipt, not the date of posting: Moscovitz v 75 Worple Road RTM Co Ltd [2010] UKUT 393 (LC); [2011] L&TR 4; [2011] 1 EGLR 95; [2011] 13 EG 108 applied.
The date when the notice was given was not affected by any statutory provisions regarding deemed service, so far as these deemed service to occur when the letter would be delivered in the ordinary course of post: see section 196 of the Law of Property Act 1925 and section 7 of the Interpretation Act 1978. Assuming, without deciding, that section 20 of the 1985 Act and the 2003 Regulations authorised or required the notice to be served by post and that the use of a commercial postal carrier such as TNT constituted posting the document, the appellant still faced the difficulty that no evidence had been produced as to TNT’s service standards regarding delivery times. Accordingly, neither section 196 of the 1925 Act nor section 7 of the 1978 Act assisted with any deemed date for the giving of the notice because there was no evidence to the time at which the notice would be delivered in the ordinary course of TNT’s postal service.
There were no were no grounds for disagreeing with the LVT’s finding that it was reasonable, in the light of the other facts that it had found, to assume that the letters arrived on the second day after posting, namely 18 March 2011, which was accordingly the date of the notice for the purpose of Schedule 1 to the 2003 Regulations. The period of 30 days beginning with 18 March 2011 ended on 16 April 2011. Since the notice given by the appellant specified that the consultation period ended on 15 April 2011, it failed to comply with the regulations because it gave one day too short a period for the making of observations.
Robert Darbyshire (instructed by Devonshires Solicitors) appeared for the appellant; the respondents did not appear and were not represented.
Sally Dobson, barrister
