UPPER TRIBUNAL (LANDS CHAMBER)

	
UT Neutral citation number: [2013] UKUT 0480(LC)
LT Case Number: LRX/160/2011

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

LANDLORD AND TENANT – stage one consultation notices – whether repairs to railings and supporting wall comprised within “external repairs and redecorations” - section 20 Landlord and Tenant Act 1985

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
LEASEHOLD VALUATION TRIBUNAL FOR THE
LONDON RENT ASSESSMENT PANEL

BETWEEN	SOUTHERN LAND SECURITIES LIMITED	Appellant
	and
                                                           (1)MR G A HODGE
				       (2) MR J N CARPENTER			Respondent
                                                                                                                                         
Re: Flat 4
	  10 Gipsy Hill
       Upper Norwood
       London SE19 1NL

Before: His Honour Judge Nigel Gerald and P D McCrea FRICS

Sitting at:43-45 Bedford Square, London WC1B 3AS
on 25 September 2013 

Mr Maltz, counsel for the appellant 
The Respondent appeared in person

© CROWN COPYRIGHT 2013

The following cases are referred to in this decision:

Birmingham City Council v Kennedy (LRX/54/2011)
Arrowdell Limited v Conistion Court (North) Hove Limited [2007] RVR 39 
Wales and West Housing Association Limited v Paine [2012] UKUT 732 (LC) 

DECISION
Introduction
1.	This is the hearing of an appeal against the decision of the Leasehold Valuation Tribunal as it was then known made on 21 September 2011, permission to appeal having been granted by the Upper Tribunal by Her Honour Judge Walden-Smith on 22 February 2012.  
2.	The appellant is the freeholder of a four-storey terraced house at 10 Gipsy Hill, Upper Norwood, London, SE19 1NL.  The respondents are the long lessees of one of those flats, flat 4.  
3.	By letter dated 9 October 2008 the appellants’ managing agents, Hamilton King Management Limited served on each of the four tenants a notice under section 20 of the Landlord and Tenant Act 1985 as amended by section 151 of the Commonhold and Leasehold Reform Act 2002 (“the Act”) notifying them of their intention to carry out “external repairs and redecorations which are due under the terms of your lease”.  This was the one and only stage 1 letter served under the consultation provisions of the Act.  On 23 February 2009 Hamilton King provided each of the long lessees with a specification for the external repair and redecoration works which had been prepared by the landlord’s surveyors Lewis Berkeley. 
4.	The work then went out to tender. On 27 April 2009 Hamilton King notified each of the tenants that it proposed to accept the estimate of the lowest contractor, Carrington Building and Mechanical who had quoted the sum of £37,553 plus VAT.  The works were then carried out. During the course of carrying those works out the landlord’s engineer informed Hamilton King that works were required to the wall immediately under the railings at the front of the building above the light well.  
5.	Hamilton King wrote to the tenants on 8 December 2009 informing them of this. The material parts of the letter provide as follows:
	“Para 9: The light well wall has been painted and there is no evidence of recent significant movement.
“Para 11: The width of the wall at high level is 225mm brickwork with a stone plinth with case iron railings. The case iron railings are leaning out towards the road by about 50mm over their height. The railings were easily moved by light hand pressure where they are not braced.
	“Para 13: Some of the mortar joints have gone in the stonework below the hand railing.  
“Para 14: The left hand section of handrail and stone slab is loose.  
“Para 15: Part of the section supporting the gate has corroded at the front edge and the handrail can be relatively easily moved by light hand pressure.
	“Para 16: The light well wall on the property next is also showing signs of movement although not as pronounced.
	“In order to rebuild the upper section of the wall it would be necessary to lift the paving slabs and partially close the footpath.  This would be a significant undertaking and as there is no evidence of recent significant movement it may be more appropriate to undertake minor works and monitor the wall for signs of further outward movement.
	“As a minimum, they have suggested that the gate is repaired, and the railings additionally braced to the front wall of the property to prevent rotation of the stone plinth at the top of the wall.  
“This brace would be located above the basement window.  The plinth could then be re-pointed and pinned in position.
	“If the wall shows any sign of further movement then temporary bracing may be required, pending closure or partial closure of the footpath to undertake excavation and building work.
	“We have instructed works to be carried out as per their recommendations and these will be incorporated within the major works currently taking place.”
6.	Whatever written recommendations were made by the engineer to Hamilton King are not in evidence before us and were not in evidence before the LVT.  It then appears that there was some negotiation as to the price of doing these works between Hamilton King and the contractor, the upshot of which was that the contractor’s quote of £8,000 had been negotiated down to £5,500 by Hamilton King.  Each of the long lessees was notified of this by letter 16 December 2009.  By this stage the original tender price of £37,533.00 + VAT had been reduced to £29,500 following the omission of various items of work, such as the replacement of the roof which turned out not to be necessary once the works had got underway.  It therefore followed that once the additional works were added into the contract the total contract price would be about £35,000 which was still less than the original tender price.
7.	It is not clear precisely what works were actually done.  The only evidence from the appellant before the LVT and before us is the invoice dated 18 February 2010 from Carrington in which the additional works had increased to £7,735.00 plus VAT.  The only indication as to what was done is the rubric from the invoice itself which states as follows:
	“Revised spec as agreed with Lewis Berkeley/mason navarro after existing brickwork had disintegrated and no fixing could be obtained and additional brickwork has to be removed back to solid substrate.
	Revised spec in situ (sic) concrete with reinforcing bar and dowel fixed into brickwork with additional steel strapping to external face of brickwork.  Costs £7,735.00.”
8.	Based on that invoice it was said by the appellant that what appeared to have happened was that the original additional works quoted in the amount of £5,500.00 had had to be enlarged when it was revealed that the existing brickwork had disintegrated and no fixing could be obtained and some additional brickwork had to be removed in order to provide a solid substrate for the fixings and that is why it is said the additional price increased from £5,500.00 to £7,735.00.  
9.	There was no specification, no tender, no estimate, no witness statement or any other evidence of any nature whatsoever in relation to the carrying out of these works or why it was thought that they were necessary or crucial to be done at this particular juncture apart from that which we have already referred to.  
10.	There was however some evidence from the respondent before the LVT in the form of photographs. Mr Hodge, the first respondent, told us that he explained to the LVT what had been done.  In short he said that what had happened was that the top foot or so of brickwork below the railings had been removed whilst the railings remained in situ, that was then shuttered and concrete was poured into it and a restraining bar was then connected from the top of the railings to the wall.  None of this was challenged by the appellant.
11.	Mr Hodge had gone to a person he saw doing some building works nearby called Peter Ives, explained to him what works had been done and asked him to provide an estimate of how much he said those works would cost.  That estimate was emailed by Mr Ives’ wife, and he put the costs of the works at £1,510.00. The body of the estimate summarises the works which, according to Mr Hodge, had been carried out as follows:
			Lift the paving slabs;
			Remove all existing brickwork;
			Replace brickwork with reinforced concrete’
			Extra brace to be added;
			Painting of wall;
			Removal of old bricks.
12.	As Mr Maltz, counsel appearing for the appellant observed, it would therefore appear that whilst Hamilton King’s 8 December 2009 letter gives the impression that the railings will be removed to allow for the works to be done and then brought back, that did not actually happen.  Rather somewhat different works were carried out as described by Mr Hodge.  There being no evidence from the landlord apart from the 18 February 2010 invoice indicating what works were actually done.
13.	The LVT so far as relevant found firstly that the 9 October 2008 stage 1 letter was invalid.  Secondly if valid the additional works, that is the works to the upper part of the light well retaining wall underneath the railings and the associated works, did not fall within the ambit of “external repairs and redecorations” and therefore a second round of consultation was required in respect of those additional works.  Thirdly in the event that that was wrong the £7,735.00 was an unreasonable sum and that was reduced to the £1,510.00 stated in Mr Ives’ estimate.  The reason why the LVT made findings in the alternative was because it anticipated that the appellant-landlord would make an application for dispensation under the provisions of the Act which it was and remains entitled to do.  The appellant seeks to appeal each of those three grounds.  
14.	With regard to the first ground Mr Hodge who was representing himself and co-owner, Mr Carpenter who was also present said that as far as he was concerned the notice was perfectly valid, he understood what it meant, at no stage before the LVT or otherwise did he suggest that it did not comply with the provisions of section 20 and that this was something which the LVT took it upon themselves to raise.  He was perfectly happy to continue on the footing that it was valid.  It is therefore not necessary for us to make any determination here, save to observe that it is regrettable that this is yet another instance where the LVT has taken it upon itself to raise an issue which was not raised by either of the parties.  We refer to Birmingham City Council v Kennedy (LRX/54/2011) which addresses this issue.
15.	We turn to the second issue, namely, were the additional works properly within the ambit of the stage 1 notice dated 9 October 2008.  We here remind ourselves of the relevant provisions of the Service Charges (Consultation Requirements) (England) Regulations 2003/1987, paragraph 1(2) of which provides that 
“the notice shall (a) describe, in general terms, the works proposed to be carried out or specify the place and hours at which a description of the proposed works may be inspected”.
16.	The question here is does the expression “external repairs and redecorations” sufficiently “describe in general terms the works proposed to be carried out”.  The appellant submits that it does.  It does so because it is clear that there are external repairs and decorations.  The subsequent specification encompassed redecoration of the boundary walls and railings and allowing for localised corrosion treatment to the existing railings, including rubbing them down and painting them.  In order to do that it would be necessary to make them safe and therefore within those very modest heads of work are encompassed the somewhat larger additional works.  It would be unworkable if a new round of consultation had to be embarked upon mid-way through building works.
17.	Whether a notice sufficiently describes in general terms the works proposed to be carried out is a question of fact and degree to be determined in the circumstances of each case.  In our judgment the additional works are of such a nature that they do not fall within the stage 1 notice with which we are concerned.  Whilst they are “external repairs” in the sense that they are repairs to the exterior, as a matter of fact there was no proposal at the time when the notice was served for these works to be carried out.  As a matter of fact they are not works which had to be done in order for the contract to be completed save to the very limited extent of the re-painting of the railings.
18.	Sometimes in these sorts of cases a problem is revealed which has to be done in order for the other work to be completed.  Sometimes there are provisional sums and the work turns out to be more extensive or more expensive than was envisaged.  But this case does not fall within those situations.  In this case whilst the building was scaffolded the scaffolding had to be removed in order for the works to be done.  Nothing was dependent on these works being done apart from the railings being painted.  There was nothing in the evidence before the LVT to indicate that this was an unexpected item of repair which simply could not have been foreseen or envisaged at the time when the stage 1 notice was served.  
19.	Indeed it appears that the section of the wall underneath the railings and the railings themselves had been in this condition for a very very long time but for whatever reasons it had been decided not to include them in the programme of works.  In our judgment to argue that the additional works should be now included within the external repairs as part and parcel of it, not only does not fit in with the facts of this case but is a bridge too far.  We therefore dismiss this aspect of the appeal.
20.	With regard to the third issue, Mr Hodge, who is to be commended for his frankness and openness, readily accepted that the estimate of Mr Ives was something which he produced on the morning of the hearing.  He had obtained it merely to show that the landlord’s figure was unreasonable.  He is not a lawyer and has had no previous experience of appearing before the LVT.  But before us he readily accepted that it would be unfair for the LVT to solely rely upon it to reach their findings if that is what they in fact did as firstly the landlord had not had any opportunity to consider it and secondly, Mr Ives did not attend to be examined or provide any note at all, let alone a witness statement as to how he reached that figure, although there is a little bit more detail in the estimate.  
21.	The question is upon what evidence did the LVT allow only £1,510 for the additional works. The material part of the Decision states:
“At the hearing, the [First Respondent] produced a document from a Builder (Peter Ives) who inspected the work done and estimated that it could have been done for £1,510 – rather than £5,500 [the actual amount sought was £7,7735]…
“Using our general knowledge and experience, we agree with Mr Ives and we allow £1,510 for the work done by Carringtons. It appears that the Surveyor was involved with the Second Works – so we add 10% - £151 = £1,661.
“In addition, in the absence of any evidence as to the cost of the engineer’s report… we allow £500 as the reasonable cost thereof…”
22.	In our judgment the LVT is here reaching its own decision based upon its own “knowledge and expertise” to value the works which had been done as described by Mr Hodge and summarised in Mr Ives’ estimate. It does not follow from the fact that they refer to Mr Ives’ estimate that they relied upon it. 
23.	It seems to us that the real difficulty which the LVT faced was that they had to assess the value of the works based upon the unchallenged evidence from Mr Hodge as to what works had in actual fact done, which was supported by albeit after the event photographs but make it tolerably clear as to what Mr Hodge said had been done and which would not have been enhanced by a site visit against the very limited evidence or information from the appellants as to what had been done and its value.  
24.	The LVT appeared to reach the perhaps not unreasonable conclusion that the £7,700.00 odd being sought for the relatively modest amount of work was unreasonable and therefore on the basis of the very limited information before it, they did the best they could based upon their own knowledge and expertise but without first ventilating what their own knowledge was for comment by the parties. In other words, they reached a decision which was unsupported by the evidence before it and was procedurally unfair because the parties had not been told and given an opportunity to make observations upon what knowledge or information the LVT were actually basing it on. We refer to Arrowdell Limited v Conistion Court (North) Hove Limited [2007] RVR 39 at paragraph 23 cited in Wales and West Housing Association Limited v Paine [2012] UKUT 732 (LC). 
25.	We therefore allow this aspect of the appeal. However, given the conclusions we have already made it is of academic interest unless application is made to the LVT for dispensation from the consultation requirements of the Act. It is only if such dispensation is granted that the works as described by Mr Hodge will have to be valued. If that happens, the matter will have to be remitted to the LVT for further consideration after appropriate directions have been given as to the adduction of further evidence. 
						Dated 12 November 2013
					
His Honour Judge Nigel Gerald

						P D McCrea FRICS