Neutral Citation Number:  UKUT 150 (LC)
Case No: LRX/103/2017
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT - breach of covenant - sufficiency of reasons - F-tT failing to set out rival evidence - burden of proof - reconsideration of evidence - held tenant in breach of covenant not to maim cut alter wall without consent by making a hole in wall to replace connection to old toilet-appeal allowed.
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
MS SHAYNE TRIMNELL-RICHARD Appellant
MS MELLISA TUFFLEY
Re: 58a Collingbourne Road,
London W12 OJQ
Before: His Honour John Behrens
Royal Courts of Justice, Strand, London WC2A 2LL
19 April 2018
Mr Mark Loveday for the Appellant on a Direct Access basis Mr Andrew Dewhurst B SC MRICS for the Respondent
The following case is referred to in this Decision:
Tintem Abbey Residents Association Ltd v Owen  UKUT 0232 (LC)
|Engineer roof report||250|
The parties take a very different view of the cause of debris visible by the connecting point on the inner face of the wall. We will not record the conflicting evidence we heard because all we can say is [the Landlord] failed to provide convincing and conclusive evidence of the kind we would expect to see when something as serious as a breach of covenant is alleged. There has been no breach of clause 2(Q)(i) in this regard.
"... need not be elaborate. They should identify the issues for decision, and provide a summary of the tribunal's basic factual conclusions. They need not to recite the evidence in detail but they must briefly explain why the tribunal has arrived at its conclusions."
the F-tT including:
replacing it with a horizontal pipe which connected to a vertical pipe near the front of the building. This necessarily involved altering the connections to the Tenant's toilet According to the Landlord all of the work was carried out from the outside of the building. The connections inside the Tenant's bathroom were not interfered with at all.
Disputes between the parties.
1. On 22/2/2015 Mr Weaver wrote to the parties and Mr Laming requesting them to set out the disputes in a form of Scott Schedule which he had devised.
2. Mr Laming set out his allegations on 2/3/2015. In relation to the bathroom he alleged that the Landlord was responsible for levelling the floor, repairing cracks in walls and ceiling and redecorating and retiling. He envisaged that it would be necessary to remove and refit the sanitary ware in order to level the floor.
3. The Landlord responded to these allegations in detail on 3/3/2015. She accepted responsibility for the cracking and some consequential repainting. She accepted no responsibility for the relevelling of the floor. In her view this was not related to her works at all. She did not regard it as necessary to remove and refit the sanitary ware.
4. On 16/4/2015 Mr Weaver sent some preliminary observations which included:
"The main principle being that the party wall works (the excavation works and the undermining of the foundations) have affected the first floor flat and remedial works are necessary.
However, where the repair necessary is due to the age or works that are not party wall related, the party wall act is the incorrect method of achieving a dispute resolution."
In his view all the allegations in relation to the bathroom were party wall related. He did not express any other view on the merits of the allegations.
5. On 6/5/2015 the Landlord sent a more detailed commentary on the allegations. In summary the Landlord accepted that cracking and redecorating to the bathroom wall was her responsibility but did not accept any responsibility for the bathroom floor. She described the allegation as "opportunistic".
6. In early November 2015 the Landlord's builder was on site and repaired and redecorated the cracks in the bathroom. Mr Brian Laming was on site on 6 November 2015 and there was an inspection by Mr Weaver on 5 January 2016. He was satisfied with the repair of the cracks to the wall. He accepted that the bathroom floor showed a noticeable slope. In his view:
"One would expect a degree of unevenness in the floors of a house of this age and construction. There is a chance that it has been exacerbated by the building works. A scheme of repair could be affected quite easily by means of a self-levelling screed applied directly to the floor, with the carpet re-laid directly on to it.
Whilst it is plausible that the floor has suffered as a consequence of the works, an argument that the entire amount of distortion is due to the works is, in my view unproven. I suggest a settlement of £300 as a contribution to levelling of the floor and adjustment of the bath and WC would be a fair sum."
7. Mr Laming responded within a very short time of the award. In his view the award of £300 was not adequate as the actual cost of levelling was £1,620.
Mr Laming's responses to the Landlord's complaint
"On 24 March 2017 [the Tenant] did confirm that during the bathroom repair works of January 2016 some brickwork had been temporarily removed ...The brickwork was reinstated and the hole was therefore returned to its original size position in the inner wall. [The Tenant] mistakenly believed she was responsible for the damage to the outer wall until her surveyor Andrew Dewhurst produced photographs showing the outer wall damage...
"... [The Tenant's] plumber did not move the WC waste pipe as evidenced by the photograph ... The photograph in 2017 clearly shows the WC waste pipe going through the wall in the same position as in 2017.
Discussion and findings
His Honour John Behrens150.image2.png
Dated: 10 May 2018