England and Wales Lands Tribunal

[2003] EWLands LRX_30_2002 (24 September 2003)

LRX/30/2002

LANDS TRIBUNAL ACT 1949

SERVICE CHARGE – repairs to roof – whether alleged failure to repair the property by the landlords increased the specification and cost of the roof repairs – reasonableness – whether LVT in error in not considering whether appellant tenant's quiet enjoyment violated – appeal dismissed – Landlord & Tenant Act 1985, ss18, 19(1)(2)(2B)

IN THE MATTER of an APPEAL against a DECISION of a LEASEHOLD

VALUATION TRIBUNAL of the LONDON RENT ASSESSMENT PANEL

BETWEEN RAFAT ROOHANNA Appellant

and

REGIS GROUP PLC Respondents

Re: 46 Overstone Road,

London W6

Before: P H Clarke FRICS

Sitting at 48/49 Chancery Lane, London WC2A 1JR

on 28 August 2003

The appellant in person.

Miss Elizabeth Fitzgerald, instructed by Tolhurst Fisher, solicitors, for the respondents


 


DECISION OF THE LANDS TRIBUNAL

1. This is an appeal by the tenant from a decision of a leasehold valuation tribunal that it was reasonable to carry out proposed repairs to the roof, that the works were reasonable and reasonable in cost.
2. The appellant, Dr Roohanna, appeared in person and gave evidence. She also called Miss Margaret O'Mahoney. Miss Elizabeth Fitzgerald of counsel appeared for the respondents and called Mr Peter James Butler FFA FIAB.

FACTS

3. The respondents' solicitors prepared a helpful statement of facts which unfortunately was not agreed by Dr Roohanna. From this statement and the evidence I find the following facts.
4. The property which the subject of these appeals, 46 Overstone Road, Hammersmith, W6 ("the subject property "), is a mid-terrace house built in the 19^th century situated close to Hammersmith Broadway. The house is of brick construction with a slate roof discharging into a central valley gutter running from front to rear behind a parapet wall. It now comprises three flats, on the basement, ground and first floor respectively. The appellant is the long leaseholder and occupier of the ground and first floor flats (Flats B and C); the basement flat (Flat A) is let by the respondents to a regulated tenant.
5. The respondents, Regis Group Plc, are the freehold owners of the subject property. Dr Roohanna is the tenant of the ground and first floor flats. The lease of the ground floor flat (Flat B) is for a term of 99 years from 25 March 1979 at annual rents of £20, £40 and £60 for each 33-year period of the term. The lease of the first floor flat (Flat C) is for a term of 99 years from 25 March 1976 at annual rents of £15, £30 and £45 for each 33-year period of the term. The lease of Flat C does not contain a landlords' repairing covenant but otherwise the material terms of the leases for the purposes of this appeal are similar (although not identical) and are as follows.
6. Clause 2(9) requires the tenant to pay or contribute one-third "of the expense of constructing repairing cleansing building and maintaining the roof chimney stacks gutters" and other parts of the subject property used in common or in common with adjoining or neighbouring properties. This subclause in the lease of Flat B is wider than that in the lease of Flat C and includes works to the foundations and the maintenance, repair and decoration of entrance halls, passageways and staircases.
7. Clause 2(12) requires the tenant to insure the flat in the names of the lessor and lessee against "Householders Comprehensive Risks" (Flat B) or "loss or damage by fire or aircraft" (Flat C) to their full insurable value or their full value, in a nominated or approved insurance office and to rebuild the flat whenever destroyed or damaged (by fire and aircraft in respect of Flat C) and to apply the insurance monies towards rebuilding, making good any deficiency.
8. Clause 5(4) in the lease of Flat B requires the landlord to repair. This clause is not in the lease of Flat C. It provides that, subject to prior payment by the tenant of one-third of the cost, the landlord shall "construct repair cleanse build and maintain the roof chimney stacks gutters" and other parts of the subject property used in common (including foundations and walls) and provides for the maintenance, repair and decoration of the entrance halls, passageways and staircases.
9. Under clause 6 in both leases the roof and foundations of the subject property are deemed to be party matters to be maintained and repaired at the joint expense of the landlord and the tenants.
10. On 2 January 2001 Mr T Hughes BSc MRICS prepared a defects report for the respondents' managing agents. This concluded that there was ingress of water from three possible sources: through the parapet wall, between the flashing and the roof covering and through defective brickwork. The report also stated that there may be structural movement within the property. The report makes specific reference to the roof (para 2.0). It states that the galvanised steel flashings securing the perimeters seem narrow and are not dressed to the line of the slates, which could allow water to penetrate between the flashing and the slates.
11. In March and May 2001 the landlords' managing agents obtained two quotations for roof repairs. On 15 March 2001 Armour Contracts Limited gave a quotation of £2,495 plus VAT for raising scaffolding, taking off four courses of slates to either side of the lead valley gutter, stripping out the defective lead lining, supplying and fitting new code 5 leadwork and reforming the gutter and re-fixing the slates. On 15 May 2001 B J Nelson gave a quotation of £1,420 plus VAT for the removal of two courses of slates to either side of the centre valley gutter, renewing the gutter with Geotech underlay and code 6 sheet milled lead and reinstating the slates.
12. On 21 August 2001 the respondents' managing agents served on Dr Roohanna a notice under section 20 of the Landlord and Tenant Act 1985 ("the 1985 Act") proposing acceptance of the lower estimate for the roof repairs (B J Nelson).
13. On 22 August 2001 the respondents' managing agents made application to an LVT under section 19(2B) of the 1985 Act seeking determinations in respect of roof repairs as to: (i) the reasonableness of the costs to be incurred; (ii) the standard and specification of the works; and (iii) costs payable before costs are incurred. The proposed works and costs were those in the quotation of B J Nelson (£1,668.50 including VAT) plus surveyor's fees (10%) and VAT (£166.85) and management fees (10%) plus VAT (£215.66).
14. Following a hearing on 30 January 2002 the tribunal gave a decision on 8 March 2002 that:-

(i) the subject of the dispute was a service charge in both leases and the relevant costs were to be incurred by the landlord under section 18 of the 1985 Act;

(ii) it was reasonable for the respondents to carry out the works to the roof at the present time;

(iii) the works specified were adequate as to the works proposed to be done and reasonable in cost and should be put in hand as soon as possible;

(iv) the tenant's contribution towards the expense of repairing the roof could include surveyor's and management fees and 15% of the costs of the works is reasonable to cover both fees.

15. Dr Roohanna sought leave to appeal to this Tribunal. The application was heard by the LVT on 30 January 2002; leave was refused on 17 April 2002. On 2 May 2002 Dr Roohanna applied to this Tribunal for leave to appeal and this was granted by the President on 25 July 2002 on the grounds that "the contention that the cost of the repairs was not reasonable because they were inflated by reason of the landlord's neglect raises a matter that ought to be considered."
16. Following the decision of the LVT the respondents instructed B J Nelson to repair the valley gutter to the roof and to carry out other remedial work to the subject property. In May 2002 proceedings were commenced in Southend County Court for the recovery of service charge arrears from Dr Roohanna for the roof repairs. These proceedings are stayed pending the decision on this appeal.
17. In 1994 a crack appeared in the front external wall of the subject property and the respondents arranged for repairs to be undertaken including the fixing of a supporting strap. Following this work a dispute arose between Dr Roohanna and the respondents as to the cost of repairs to the property. In 1997 the crack reappeared and in 1998 the respondents instructed Mr T Taylor BEng MSc to carry out a structural survey. He reported on 23 November 1998 that the structure exhibits considerable settlement along the front wall line and made recommendations. As to the main roof he noted that this has been recovered with modern slate tiles and is in sound condition but that the brickwork appears loose and susceptible to water ingress.
18. Some time after the crack to the front wall reappeared Dr Roohanna contacted her insurers in relation to structural defects. On 20 August 2001 Cameron Durley Consulting (loss adjusters) wrote to Dr Roohanna enclosing a schedule of works to deal with the subsidence claim. This claim has not been settled. Dr Roohanna was unable to say how the disagreement might be resolved.
19. On 21 June 2000 the London Borough of Hammersmith and Fulham served on the respondents a notice under section 59 of the Building Act 1984 (notices regarding drainage) requiring them to clean out the guttering to the front roof, secure loose fixings, make watertight joints as necessary, and locate the blockage in the rear downpipe, clear, flush and leave to operate as designed.
20. On 29 October 2001 the London Borough of Hammersmith and Fulham served on the respondents a notice under section 80 of the Environmental Protection Act 1980 (notice to abate a statutory nuisance). This arose on a complaint by Dr Roohanna concerning penetrating dampness to the first floor rear bedroom and ground floor rear living room. The respondents were required to comply with the requirements of the Schedule to the notice which included works to the roof and rear elevation. The works required to the roof were:-

"Strip out the defective valley gutter to central complete; examine exposed timbers and replace those found to be defective with sound treated members to leave structurally sound with valley boards smooth and even. Lay underfelt and reline valley gutter with appropriate materials in accordance with current Codes of Practice. Dress lower end of gutter and make to discharge to rainwater outlet."

21. The Council wrote to Dr Roohanna on 11 August 2003 that it took the view that it cannot enforce this notice; Regis have sought to comply but have not proceeded with the works due to a dispute over the service charge. In these circumstances it would not be reasonable for the Council to seek enforcement by prosecution or the carrying out of works and recovery of costs.

STATUTORY PROVISIONS

22. It will be convenient to set out here the relevant statutory provisions relating to this appeal. Sections 18-30 of the Landlord and Tenant Act 1985 (as amended) deal with service charges in respect of residential property. Section 18 and 19 are relevant to this appeal.
23. Section 18 sets out the meaning of "service charge" and "relevant costs":-

"(1) In the following provisions of this Act 'service charge' means an amount payable by a tenant of a dwelling as part of or in addition to the rent –

(a) which is payable, directly or indirectly, for services, repairs, maintenance or insurance or the landlord's costs of management, and

(b) the whole or part of which varies or may vary according to the relevant costs.

(2) The relevant costs are the costs or estimated costs incurred or to be incurred by or on behalf of the landlord, …, in connection with the matters for which the service charge is payable.

(3) For this purpose -

(a) 'costs' includes overheads, and

(b) costs are relevant costs in relation to a service charge whether they are incurred, or to be incurred, in the period for which the service charge is payable or in an earlier or later period."

24. Section 19(1) provides for the limitation of "relevant costs" in a service charge by reference to two tests: whether the costs are "reasonably incurred" and whether the services or works are "of a reasonable standard". This subsection is as follows:-

"Relevant costs shall be taken into account in determining the amount of a service charge payable for a period –

(a) only to the extent that they are reasonably incurred, and

(b) where they are incurred on the provision of services or the carrying out of works, only if the services or works are of a reasonable standard;

and the amount payable shall be limited accordingly."

25. Subsection (2) of section 19 applies where a service charge is payable before the relevant costs are incurred and limits the amount payable by the test of reasonableness. It is as follows:-

"Where a service charge is payable before the relevant costs are incurred, no greater amount than is reasonable is so payable, and after the relevant costs have been incurred any necessary adjustment shall be made by repayment, reduction or subsequent charges or otherwise."

26. Subsections (2A) and (2B) of section 19 then set out provisions for application to be made to an LVT by landlord or tenant to determine the reasonableness of a service charge. Subsection (2A) deals with the position where the costs have been incurred at the time of application and is not relevant to this appeal. Subsection (2B) deals with an application before costs are incurred (as in this appeal) and is as follows:-

"An application may also be made to a leasehold valuation tribunal by a tenant by whom, or landlord to whom, a service charge may be payable for a determination –

(a) whether if costs were incurred for services, repairs, maintenance, insurance or management of any specified description they would be reasonable,

(b) whether services provided or works carried out to a particular specification would be of a reasonable standard, or

(c) what amount payable before costs are incurred would be reasonable."

Subsections (2C) and (3) of section 19 place limitations on the making of an application to an LVT but are not relevant to this appeal.

ISSUES

27. The issues in this appeal can be broadly stated as two questions:-

(1) Did the respondents fail to repair or have they neglected to repair the subject property so that:-

(i) the proposed repairs to the roof are greater than would otherwise have been the case and not therefore of a reasonable standard under section 19(2B)(b) of the 1985 Act; and/or

(ii) the costs are greater that would otherwise have been the case and are therefore not reasonable under section 19(2B)(a) of the 1985 Act?

(2) Were the LVT in error in not considering whether the appellant's right to a peaceful and quiet enjoyment of her flat has been repeatedly violated by the respondents?

In addition Dr Roohanna raised in her grounds of appeal specific objections to the decision of the LVT which I will consider separately.

28. The burden of proof is on Dr Roohanna to show that the decision of the LVT is wrong. That decision stands unless it is shown to be wrong by the evidence at the hearing before this Tribunal or by a review of the LVT's decision.

APPELLANT'S CASE

Evidence

29. Miss O'Mahoney said that on New Year's Eve 2000 it rained very heavily. She telephoned Dr Roohanna who told her that water was pouring through her bedroom ceiling. The next day she visited Dr Roohanna and saw containers to catch the water and plastic sheeting to cover furniture, etc. A friend inspected the roof and Miss O'Mahoney saw that it was a mess with several old repair patches. The loft was wet. In October 2001 she visited Dr Roohanna and rainwater was dripping from the ceiling onto the landing. A few days later Mr Nelson went on to the roof with a bucket and brush and in less than 30 minutes said that he had "patched things up". The roof continued to leak. Miss O'Mahoney referred to other disrepair, including a downpipe which separated from the wall.
30. Dr Roohanna said that the costs of repairs have spiralled because the respondents have neglected the property and refused to carry out repairs. She gave details of past repair costs included in her service charge.
31. The roof has leaked for many years. The respondents have ignored her pleas for repair which she first made in 1994. This was one of the reasons why she complained to the Council. The respondents would not accept, or ignored, the letters sent to them by the Council.
32. As evidence of past neglect Dr Roohanna referred to a visit by a plumber who did only cosmetic repairs and pulled a weed from the rear wall but did not fill the gap. The weed has since re-grown and is like a tree. Dr Roohanna also referred to the section 80 notice: she would not have complained to the Council if the respondents had repaired the property. The respondents have behaved unreasonably and have created problems for Dr Roohanna, particularly rain penetration which has caused damage and distress.
33. In cross-examination Dr Roohanna made the following concessions. The crack in the front wall in 1994 and the fixing of the strap did not affect the valley gutter on the roof. A blocked sink in November 2002 did not affect the valley gutter but, she said, is evidence of neglect by the respondents. Dr Roohanna could not say how the cost of roof repairs has escalated and was unable to say how much lower the cost would have been if proper repairs had been executed in the past, but repairs should have been carried out from 1994. Dr Roohanna did not know whether the valley gutter had reached the end of its life but expressed the opinion that the whole building needed to be repaired before the roof is repaired.
34. In answer to questions from me Dr Roohanna said that agreement has not been reached on her insurance claim for subsidence and she was unable to say how this disagreement will be resolved. She does not know whether the resolution of this dispute is delaying repairs to the front wall of the subject property. As to repairs to the roof, Dr Roohanna could not say by how much the cost would be reduced if the respondents had carried out their repairing obligations. She also could not say to what extent the scope of the roof repairs would be reduced if the respondents had not neglected the building.
35. I should record here that I refused leave for Dr Roohanna to put in evidence a large batch of photographs showing the alleged disrepair at the subject property. Miss Fitzgerald objected to the late admission of this evidence. It is the practice of the Tribunal to require a full exchange of evidence before the hearing so that neither party is taken by surprise and put at a disadvantage by the late admission of evidence which cannot adequately be considered during the hearing. On 26 June 2003 I gave directions, following the allocation of this appeal to me, including a requirement that Dr Roohanna should lodge any further documents by 25 July. She lodged further documents but not the photographs. It would, I think, be wrong to allow Dr Roohanna to introduce this further evidence at the hearing, to the disadvantage of the respondents and in disregard of the June direction.

Submissions

36. Dr Roohanna's case, as it emerged during the hearing, rested on three grounds of appeal against the LVT's decision. First, that the neglect as to the repair of the subject property by the respondents affected the roof repairs. Second, that this neglect inflated the cost of the repairs. Third, that the LVT failed to take into consideration that Dr Roohanna's right to a peaceful and quiet enjoyment of her flats has been repeated violated by the respondents.
37. She said that if repairs had been properly carried out in the past, the roof would not have leaked. It is self-evident that neglect to repair by the respondents has led to the need to repair the roof and to excessive costs. All repairs in the past have been inadequate. Dr Roohanna said that the fact that she had to seek help from the London Borough of Hammersmith and Fulham shows neglect by the respondents. The fact that the respondents were unable to deal with other excessive repair costs included in past service charges at the LVT hearing is proof of overcharging. Dr Roohanna said that she is not required to pay a service charge under her leases.
38. Dr Roohanna's grounds of appeal refer to specific parts of the decision of the LVT and their later decision refusing leave to appeal. I will deal with these grounds in my decision below and do not reproduce them again here.

RESPONDENTS' CASE

Evidence

39. Mr Butler is a Regional Director of Property Management for Equity Asset Management Limited (formerly MAS), the respondents' managing agents.
40. He said that for some years Dr Roohanna has complained of dampness. There is a dispute as to the responsibility for the cost of repair works. Dr Roohanna refuses to accept that she is required under her leases to contribute to the costs of remedial works to the subject property.
41. In November 1998 Mr T Taylor carried out a structural survey: no particular defects were noted in the roof. Dr Roohanna continued to complained and in January 2001 the respondents commissioned a survey from Mr T Hughes. His report stated that there was water ingress in three possible places. Between March and May 2001 the respondents obtained two quotations for roof repairs and served notice under section 20 on Dr Roohanna selecting the lower quotation.
42. When the section 80 was received in October 2001 Mr Butler telephoned the Council about the difficulties with Dr Roohanna and the application to the LVT. They agreed to suspend the notice. On 7 November 2001 Mr Butler wrote to the Council explaining that the question of repairs to all parts of the subject property other than the roof was the subject of a current building insurance claim for subsidence damage. The responsibility for insuring rests on Dr Roohanna under her leases and she is prosecuting the claim. He did not wish to prejudice that claim while Dr Roohanna was disputing the findings of the loss adjusters. It was for this reason that the section 20 notice was limited to roof repairs. Dr Roohanna has complained to the ombudsman about the Council's handling of this matter.
43. Following the LVT's decision Mr Butler instructed B J Nelson to repair the valley gutter to the roof and to carry out other remedial works covered by the section 20 notice. Mr Butler has sought to prepare a full schedule of works required under the statutory notice but Dr Roohanna has refused access to her flats to enable a specification for a further section 20 notice to be prepared unless a charge of £200 per hour is paid to her.
44. Mr Butler said that he was advised by Mr Hughes and Mr Monk, in his view correctly, that work to the roof could, and should, be carried independently from the work required to the rest of the subject property. As soon as the respondents became aware of the necessity for roof repairs, steps were taken towards the carrying out of these works, culminating in the decision of the LVT.

Submissions

45. Miss Fitzgerald said that the decision of the LVT is correct. The appeal is misconceived and raises issues which are not pertinent to the application. Dr Roohanna's first ground of appeal relates to poor workmanship, unnecessary works and unreasonable costs. The LVT were concerned with the reasonableness of proposed works under section 19 (2B) and not with works to the property as a whole nor with poor workmanship. Other works are not connected to the roof works.
46. Miss Fitzgerald referred to Dr Roohanna's second ground of appeal (an offender may not benefit from his misdeeds) and said that there has been no delay or neglect by the respondents in relation to works to the roof. The respondents have not inflated the cost by their neglect. Other works have been delayed pending Dr Roohanna's claim against her insurers. This delay has not affected the condition of the roof. The LVT were aware of the background and considered all relevant matters, including Dr Roohanna's contention that it was not cost effective to repair the roof until other necessary works had been completed. The LVT correctly decided that there would be a minimum of duplication of work and that the roof repairs should be carried out immediately and in isolation.
47. Dr Roohanna relies on the section 80 notice but this was sent following an inspection after service of the section 20 notice and after estimates had been obtained for the roof repairs. The section 80 notice is not proof of neglect by the respondents.
48. The works carried out to the front wall in 1994 are not connected to the roof works and it was not relevant for the LVT to consider whether or not the 1994 works were adequate.
49. In 1998 the respondents commissioned a structural survey which did not disclose any defects in the valley gutter. Following complaints by Dr Roohanna the respondents commissioned a defects report which referred to water ingress on the roof. Following further investigation it was discovered that the valley gutter was the problem and estimates were obtained and the section 20 notice served. The gutter repairs have not been the subject of delays. There was no evidence before the LVT as to any delay nor evidence suggesting that delay in carrying out other repairs has affected the condition of the gutter. The LVT were right to find that it was reasonable to carry out repairs to the roof.
50. Dr Roohanna has asserted that the LVT erred in finding that her leases required her to pay two-thirds of the cost of the repairs as a service charge. She contends that this is a contribution towards maintenance and not a service charge. The LVT correctly found that Dr Roohanna's contributions were a service charge within section 18 of the 1985 Act.
51. Dr Roohanna's ground of appeal regarding quiet enjoyment is not a matter within the jurisdiction of the LVT.

DECISION

52. The burden of proof in this appeal is on Dr Roohanna. She must show that the decision of the LVT is wrong. She has sought to do this in two ways. First, by putting forward evidence which I believe was intended to show that the respondents have neglected to repair the subject property; that this has caused or increased the repairs to the roof; and that the costs of other repairs have been excessive; so that Dr Roohanna should not be required to contribute towards the cost of repairs to the roof. Second, by making specific criticisms of the LVT's decision, as set out in her grounds of appeal.
53. I look first at the evidence. I am concerned with reasonableness under section 19(2B) of the 1985 Act. Only if the specification of roof repairs is not to a reasonable standard and/or their cost is not reasonable can Dr Roohanna succeed under section 19(2) in avoiding or limiting her obligation to pay her contribution under clause 2(9) in her leases. I should therefore ask myself four questions:-

(i) Was the subject property in disrepair?

(ii) If so, did that disrepair affect the extent of the roof repairs so that the specification was not of a reasonable standard and/or the cost was not reasonable?

(iii) Were other repair costs incurred by the respondents excessive?

(iv) If so, are those excessive costs proof that the cost of the roof repairs is unreasonable?

54. As to the first question, the existence of disrepair at the subject property, I do not think that it is in dispute that other repairs were, and still are, required to be carried out. This is seen in the respondents' application to the LVT, which refers to essential repairs to the roof as the first stage of extensive remedial works; in the reports of Mr Taylor and Mr Hughes; in the section 80 notice; and in the evidence of Dr Roohanna and Miss O'Mahoney.
55. My second question therefore must be answered: did that disrepair affect the specification for the roof repairs and/or their cost? Dr Roohanna's case rests on the proposition that the disrepair must have caused or increased the extent of the roof repairs and their cost. This was, she said, self-evident. I do not agree. It is a matter of evidence, particularly expert evidence, as to whether the disrepair in the building, whether roof or elsewhere, increased the scope and cost of the roof repairs, the subject of this appeal. This evidence, showing a causal connection between disrepair and the extent and the cost of the roof repairs, is entirely absent in this appeal. Dr Roohanna was unable to say what other repairs have increased the extent of roof repairs or by how much their cost would have been reduced if the respondents had carried out their other repairing obligations. This is not surprising. Dr Roohanna is not a building surveyor or architect. It would require reasoned evidence from one of these professionals to persuade me that other items of disrepair had affected the specification for the roof repairs and/or their cost.
56. I can take questions 3 and 4 together. Even if the other repair costs incurred by the respondents were excessive it does not automatically follow that the cost of the roof repairs is also excessive and unreasonable. Again, this needs to be proved by expert evidence and this evidence was not given at the hearing.
57. I now consider the works to the roof, as to the specification (would the works be of a reasonable standard) and cost (would it be reasonable).
58. The evidence shows that in 2001 the roof was in need of repair. The evidence of Dr Roohanna and Miss O'Mahoney is that the roof was leaking badly. The report of Mr Hughes concluded that there were three possible sources of water penetration, two relating to the roof. The two surveyor members of the LVT inspected the roof on 13 January 2002 and concluded that the valley gutter had reached the end of its useful life. The section 80 notice required extensive roof repairs (see para 20 above). On grounds of need the repairs carried out to the roof clearly cannot be said to be unnecessary and therefore unreasonable.
59. As to the extent of the roof repairs (the specification), I have no evidence to show that the works were more or less extensive than were necessary. The repairs in the application to the LVT, later carried out by B J Nelson, were less extensive than those included in the quotation from Armour Contracts. They are similar to those required under the section 80 notice. My conclusion on the evidence is that the roof repairs which are the subject of this appeal are of a reasonable standard under section 19(2B)(b) of the 1985 Act.
60. I turn now to the cost of those repairs. I received no evidence from Dr Roohanna to indicate that the cost was unreasonable, other than the unsupported statement, which I have rejected, that the costs of other repairs were excessive and therefore the cost of the roof repairs was inflated and excessive. Dr Roohanna could have put forward expert evidence to show that the costs was excessive or she could have obtained an alternative quotation from another roofing contractor. She did not do so. The respondents obtained two quotations and accepted the lower figure (by a considerable margin). I am not persuaded that this cost is excessive. I conclude on the evidence that the cost of the roof repairs was reasonable under section 19(2B)(a) of the 1985 Act.
61. I turn now to a review of the LVT's decision related to Dr Roohanna's grounds of appeal.
62. The LVT commenced their decision by describing the subject property and the provisions in Dr Roohanna's leases relating to the payment of a maintenance or service charge, the landlord's repairing covenant and insurance. The tribunal then set out the facts regarding the works in 1994 and 1997, the leaking roof, the report prepared by Mr Hughes and the quotations for the repair of the roof (paras 2-4). Dr Roohanna's first ground of appeal refers to alleged errors of fact in para 2. She says that the critical issue is that the respondents carried out the fixing of a support strap to the front wall in 1994 without her consent. It was the opinion of the builders that this work was inappropriate, insufficient or a very poor repair. She objected to the work. In all the circumstances, she says, the negligence, refusal or failure to properly maintain the premises amounted to a nuisance, which seriously endangered her health and safety and caused pain, suffering and loss. In my judgment, even if these allegations are correct, I cannot find that they affected the scope or cost of the roof repairs. This appeal is not concerned with the works carried out in 1994 or 1997 unless they affected (as I have found that they did not) the roof repairs. I reject this ground of appeal.
63. The decision of the LVT then went on to deal with the section 20 notice and past repair costs, some of which related to previous repairs to the valley gutter and the prevention of dampness. These works did not form part of the application but the LVT invited the parties to allow the tribunal to determine the reasonableness of these repairs. The respondents were not able to do so and these works are therefore outside the scope of this appeal. In para 6 the LVT then referred to the section 80 notice. Dr Roohanna's next ground of appeal is that this notice is evidence of the respondents' failure to repair the subject property. The LVT failed, she said, to properly consider this point or at all. In this paragraph the LVT were mainly setting out further facts (the heading for this part of the decision is "background"). I cannot criticise them for not taking this matter further. The section 80 notice, as I have said, is evidence of the need for repairs to the roof and supports the need for, and reasonableness of, the repairs undertaken. This ground of appeal is rejected.
64. The LVT continued their recital of background facts by referring to Mr Butler's response to the section 80 notice and Dr Roohanna's complaint to the local government ombudsman (para 7). They then set out briefly Dr Roohanna's case (para 8) and the issues which arose in the application (para 9). Dr Roohanna's next ground of appeal relates to these issues. The LVT, she says, failed to consider her evidence that the works to the roof and to the whole property were of poor workmanship, unnecessary and the costs unreasonable and not recoverable. In my judgment, this ground of appeal is misconceived. The application in this appeal is not concerned with past works but with future works. The question of standard of workmanship does not arise. I am concerned with the reasonableness of the specification for future works and the reasonableness of their cost. This ground of appeal is also rejected. I am satisfied that the LVT correctly identified the issues for their determination.
65. Next, the LVT set out the result of their inspection (to which I have referred) and gave their decision. Surprisingly, there are no grounds of appeal relating to the various parts of the LVT's decision which I have summarised in para 14 above. I agree with the conclusions reached by the LVT on the various issues and am not persuaded by Dr Roohanna's grounds of appeal that these conclusions are wrong.
66. Dr Roohanna's grounds of appeal also refer to the decision of the LVT on 17 April 2002 refusing leave to appeal. Strictly speaking this decision does not now have relevance in this appeal, having been superseded by the President's decision giving leave to appeal, but I will consider these two grounds in order to deal with all of Dr Roohanna's grounds of appeal.
67. First, the LVT noted that Dr Roohanna contended that she should not be liable to pay for any of the works because she considered that the respondents' neglect had made them necessary. Dr Roohanna said that the LVT erred in law when they failed to uphold her argument that an offender should not be allowed to benefit from his misdeeds. I reject this ground of appeal. I have found that there is no proof that any neglect by the respondents to repair the subject property has rendered the roof repair works unreasonable or made the cost unreasonable. The legal maxim that a man may not profit from his own wrong is unlikely to have application to a determination of reasonableness under section 19(2B). This is not concerned with wrong but with the tests of reasonableness of works and reasonableness of costs. An investigation of wrongdoing by the respondents would be out of place in this appeal. It is not my function to allocate blame but to determine reasonableness.
68. Second, the LVT said that they were aware of Dr Roohanna's contentions about the overall state of the subject property and its cause, but these were not matters before them and questions of payment were not within their jurisdiction. Dr Roohanna says that this was in error. The tribunal were also in error, she says, in stating that she is required to pay a two-thirds service charge. Dr Roohanna says that she is required under her lease to pay a maintenance charge but not a service charge.
69. I reject these grounds of appeal. I have dealt with the overall state of repair of the subject property and its lack of relevance to the scope and cost of the roof repairs. I agree with the LVT that they had no jurisdiction over questions of payment of a service charge (I deal below with the jurisdiction of an LVT and this Tribunal on appeal in service charge applications and appeals). I agree with the LVT that, for the purposes of their jurisdiction, Dr Roohanna's payments under clause 2(9) of her leases are service charges within section 18 of the 1985 Act and it is immaterial that they are not described as such in that clause. Section 18 defines a service charge for the purposes of the Act as including an amount payable by a tenant in addition to the rent for repairs and maintenance, which may vary according to the costs. Dr Roohanna's obligations under clause 2(9) of her leases bring that subclause within the definition of a service charge under section 18 and the LVT correctly decided that they had jurisdiction to determine the respondents' application.
70. Finally, I consider Dr Roohanna's ground of appeal regarding quiet enjoyment. She says that by reason of the statutory nuisance caused by the respondents, which necessitated the section 80 notice, her right to a peaceful and quiet enjoyment of her flats has been repeatedly violated by the respondents. The LVT were in error, she says, in not considering this issue.
71. The leases of Flats B and C both contain a landlords' covenant to give quiet enjoyment (clause 5(1)). But this issue is outside the jurisdiction of the LVT and of this Tribunal on appeal. LVTs and the Lands Tribunal are statutory tribunals and only have the jurisdiction given to them by Parliament under statute. This does not include matters between landlord and tenant regarding quiet enjoyment. These are matters for the courts.
72. The jurisdiction of the LVT in this appeal arises out of section 19 (2B) of the 1985 Act, which allows application to be made by landlord or tenant for a determination as to the reasonableness of future service charge expenditure. The application was made by the respondent landlords. Section 19(2B) does not give the LVT the power to determine whether or not the respondents were in breach of their covenant of quiet enjoyment. In my judgment the LVT acted correctly in not considering this issue. The appellate jurisdiction of this Tribunal from decisions of an LVT in service charge applications is given by section 31A(5) of the 1985 Act, applying the general appeal provisions in paragraph 2 of Schedule 22 to the Housing Act 1980, subject to leave to appeal under section 31A(6). Under section 31A(7) the Lands Tribunal may exercise any power available to the LVT in relation to the original matter. An order of the Lands Tribunal may be enforced in the same way as an order of the LVT. Thus, the Lands Tribunal has, in effect, the same powers as the LVT and is limited in its jurisdiction to the question of reasonableness of the service charge. Like an LVT this Tribunal cannot deal with matters of quiet enjoyment under a lease.
73. In summary, I am not persuaded by the evidence nor by Dr Roohanna's specific criticisms of the LVT's decision that their decision dated 8 March 2002 was wrong. The appeal is dismissed.
74. No restriction on costs was imposed when leave to appeal was granted. This decision concludes my determination of the substantive issues in this case. It will take effect as a decision when the question of costs has been decided and at that point, but not before, the provisions relating to the right of appeal in section 3(4) of the Lands Tribunal Act 1949 and order 61 rule 1(1) of the Civil Procedure Rules will come into operation. The parties are invited to make submissions as to the costs of this appeal and a letter accompanying this decision sets out the procedure for submissions in writing.

DATED: 24 September 2003

(Signed) P H Clarke