United Kingdom Upper Tribunal (Lands Chamber)

UT Neutral citation number: [2015] UKUT 188 (LC)

UTLC Case Number: LRX/30/2014

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

LANDLORD AND TENANT – service charge – major works – repairs and improvements – application of section 19 of the Landlord and Tenant Act 1985 to improvements – relevance of financial impact of service charge costs on leaseholders – appeal allowed in part.

IN THE MATTER OF AN APPEAL AGAINST A DECISION

OF THE FIRST TIER TRIBUNAL (PROPERTY CHAMBER) FOR THE LONDON REGION

BETWEEN:

MISS C WAALER Appellant

and

THE LONDON BOROUGH OF HOUNSLOW Respondent

Re:  347 Summerwood Road,

Middlesex

TW7 7QP

Decision of the Upper Tribunal (Lands Chamber) made on 24^th March 2015

© CROWN COPYRIGHT 2015

Decision

1. Permission to appeal is GRANTED on the Respondent’s request dated 26^th February 2015.

2. Permission to appeal is REFUSED on the Appellant’s request dated 27^th February 2015.

Reasons

Respondent’s request

1. By an application made on 26^th February 2015, permission to appeal to the Court of Appeal from the decision of the Upper Tribunal (Lands Chamber) dated 26^th January 2015, was sought on behalf of the London Borough of Hounslow (the Respondents).

2. The Respondents’ appeal relates to the question of the correct approach to the application of the test contained in section 19 of the Landlord and Tenant Act 1985. Section 19 limits the payability of service charge costs by reference to the question of whether those costs have been reasonably incurred and where they are incurred on the provision of service or the carrying out of works, only if the service or works are of a reasonable standard.

3. The decision of the Upper Tribunal was that the approach to the test is different depending upon whether the costs relate to works of repair or works of improvement. The issue is one of significance and importance and has a potentially wide impact and therefore it is suitable for determination by the Court of Appeal.

4. The grounds of appeal also seek the Court of Appeal’s consideration of the Upper Tribunal’s decision in Garside and Anson v RFYC and BR Maunder Taylor [2011] UKUT 367. At paragraph 44 of the decision under appeal, the submissions of the Respondents were accepted and Garside was found to be limited in its ambit. In any event Garside is irrelevant to the approach to be taken to the issue of whether the costs of improvements have been reasonable incurred. Insofar as the issue is intended to form a separate ground of appeal, permission is refused.

Applicant’s Request

1. By an application made on 27^th February 2015, permission to appeal to the Court of Appeal from the decision of the Upper Tribunal (Lands Chamber) dated 26^th January 2015, was sought on behalf of Ms C Waaler (the Appellant).

2. The first ground of appeal is that the Upper Tribunal failed to consider the value of the totality of the works in deciding whether the costs were reasonably incurred for the purposes of section 19 of the Landlord and Tenant Act 1985 and that it failed to find whether or not the delay in billing the leaseholders for the costs rendered those costs unreasonable.

3. Neither of the limbs of the first ground is sustainable on appeal. The issues relate to the specific facts of the case and the decision was made on the basis of the findings of fact of the First-tier Tribunal as reviewed by the Upper Tribunal.

4. The second ground of appeal is that the Upper Tribunal failed to deal with the question of whether the First-tier Tribunal should have considered the appellant’s own arguments irrespective of the comment of her expert witness and that the Upper Tribunal was wrong to conclude that works carried out to the roof constituted repair.

5. Neither of the limbs of the second ground is sustainable on appeal. The points are dealt with at paragraph 47 of the decision under appeal.

6. The final ground of appeal is that the Upper Tribunal ought to have changed the First-tier Tribunal’s decision on section 20C of the Landlord and Tenant Act 1985.

7. The discretion under section 20C is wide and must take into account all of the circumstances. There is nothing in the ground of appeal that was not before the First-tier Tribunal and then on review by the Upper Tribunal and the matters were taken into account in the exercise of their discretion.

8. The Respondent has requested that the Upper Tribunal reviews its decision in the light of the grounds of appeal. The power to review is contained in rule 56 of the Tribunal Procedure (Upper Tribunal)(Lands Chamber) Rules 2010. The power may only be exercised in the circumstances set out in rule 56(1)(a)(b) and is a matter for the discretion of the Upper Tribunal. I do not consider that the Respondent’s grounds fall within rule 56 and I would not in any event exercise the power to review.

Siobhan McGrath

President (First-tier Tribunal) Property Chamber

24^th March 2015