The landlord had set out to refurbish the building occupied by the defendant tenants. They began a consultation process for the repairs, but failed to complete it, and the tenants objected. The landlords now appealed against rejection of their request that the tribunal exercise its discretion to make an order notwithstanding the failure.
Held: The appeal failed.
Gross LJ concentrated on three issues. First, ‘the financial effect of the grant or refusal of dispensation [on the individual landlord and tenants] is an irrelevant consideration when exercising the discretion under section 20ZA(1)’. Secondly, that the LVT had not erred in treating Daejan more harshly than if it had been a landlord controlled or owned by the lessees. Thirdly, ‘significant prejudice to the tenants is a consideration of first importance in exercising the dispensatory discretion under section 20ZA(1)’.
However, he went on to say that Daejan’s failure ‘constituted a serious failing and did cause the respondents serious prejudice’, and he echoed the LVT and Upper Tribunal in saying that this was not ‘a technical, minor or excusable oversight’. The LVT had been entitled not to speculate on what would have happened if there had been no breach, on the ground that the respondents’ ‘loss of opportunity (to make further representations and have them considered) . . itself amount[ed] to significant prejudice’. In agreement with the Upper Tribunal, he doubted that the LVT would have been entitled to accede to Daejan’s offer to reduce the chargeable amount by andpound;50,000, and that, anyway, the LVT was entitled to reject that proposal.
Sedley, Pitchford, Gross LLJ
[2011] EWCA Civ 38, [2011] HLR 21, [2011] L and TR 14, [2011] 5 EG 105 (CS), [2011] 1 WLR 2330
Bailii
Service Charges (Consultation Requirements) (England) Regulations 2003
England and Wales
Citing:
Appeal from – Daejan Investments Ltd v Benson and Others UTLC 27-Nov-2009
UTLC LANDLORD AND TENANT ACT – service charges – consultation requirements for qualifying works – failure at stage 2 to provide summary of observations received during stage 1 consultation period and responses to . .
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited by:
Appeal from – Daejan Investments Ltd v Benson and Others SC 6-Mar-2013
Daejan owned the freehold of a block of apartments, managing it through an agency. The tenants were members of a resident’s association. The landlord wished to carry out works, but failed to complete the consultation requirements. The court was . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.428308
