Gordana WykeApplicantKeephatch House LtdRespondent
Before
Judge Adcock-JonesJudge K. Saward
Members
Dr Jan Wilcox FRICSMr Alexander Sekulic for the ApplicantMs Ceri Edmonds, Counsel For the determination of the liability to for the RespondentVenue Via CVPDate 27 January 2025Hearing 2025-01-13Property: Wokingham, RG40 5PJType of application: pay service charges under section 27A of the Landlord and Tenant Act 1985 Judge Adcock-Jones Judge K. Saward
DECISION
2 Decisions of the tribunal(1) The Tribunal determines that the sums payable by the Applicant in respect of service charge years 2020 to 2023 inclusive are as demanded by the Respondent and as set out below.(2) The Tribunal dismisses the application to make an order under section 20C of the Landlord and Tenant Act 1985 (“the 1985 Act”).(3) The Tribunal dismisses the application to make an order under Rule 13(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (“the Tribunal Rules”) in respect of reimbursement of the Applicant’s Tribunal fees. The application[1]The Applicant seek a determination pursuant to section 27A of the 1985 Act as to whether service charges are payable in respect of the service charge years 2020 to 2023 inclusive.[2]The Applicant further sought an order to limit the recovery of the Respondent’s costs of the proceedings through any service charge and for an order for reimbursement of her Tribunal Fees pursuant to rule 13(2) of the Tribunal Rules. The hearing[3]A remote hearing was held by CVP video, none of the parties having objected to this form of hearing. The Applicant was represented by Mr Sekulic, a personal friend. The Respondent was represented by Ms Ceri Edmonds of Counsel. Mrs Wyke the Applicant was in attendance along with Mr Gywnn, Managing Director of John Mortimer Property Management Ltd, trading as JM Estates.[4]The approach taken by the Tribunal was to allow each party to make opening submissions and then to examine each disputed service charge item in turn with the parties’ representatives addressing the Tribunal on each item with their clients’ position. Witnesses were not formally called, although both Mrs Wyke and Mr Gwynn helpfully assisted the Tribunal in answering any additional questions or providing further information during the course of the hearing. The background[5]The Applicant is the leaseholder of the property known as 23 Keephatch House, Montague Close, Wokingham, RG40 5PG, hereinafter referred to 3 as “the Property”, which she holds jointly with her husband Mr David Wyke, who is not an applicant to these proceedings; however, was accepted by the parties as subject to the same covenants under the lease dated 29 September 1989 as the Applicant.[6]The Respondent is a lessee-owned corporate entity and freeholder of the Property which forms part of the building known as 23 Keephatch House (“the Building”).[7]Historically, the Tribunal notes that the Lease originally named a manager; however, the freehold title was acquired by the lessees in 2002. The Lease was subsequently varied to remove reference to the named manager and as a consequence of the Deed of Variation dated 18 February 2010, any references to “the Manager” in the Lease should now be construed as “to the Lessor”.[8]The Tribunal understands that all of the lessees of flats in the Building are shareholders in the Respondent with 1 share per unit. The share allocated to the Property is held by the Applicant’s husband. The Respondent has two directors who are both lessees of other flats in the Building. The Respondent’s position is that it has appointed JM Estates as its managing agent.[9]No-one requested an inspection of the Property, and the Tribunal did not consider that one was necessary, nor would it have been proportionate to the issues in dispute.[10]The Lease requires the landlord to provide services and the tenant to contribute towards their costs by way of a variable service charge. The specific provisions of the lease will be referred to below, where appropriate.[11]The Application for determination of payability of service charges was made on 07 August 2023 and received by the Tribunal on 23 August 2023. Directions were issued by Judge Wayte on 29 August 2023. Procedural Issues[12]Whilst reference to the Applicant’s husband not being a party to the proceedings was raised as a potential procedural issue in the papers placed before the Tribunal, both parties confirmed that this issue was not being pursued and the Tribunal considered it no further.[13]The schedules of dispute prepared by the parties were defective insofar as the figures shown unhelpfully referred to budgeted sums rather than the proportionate sums as demanded of the Applicant for each respective year in dispute. An updated schedule of dispute was filed with the Tribunal over the lunchtime adjournment. For future reference, it greatly assists the Tribunal to have the actual figures in dispute set out 4 in the schedules in order for the Tribunal to easily deal with questions of payability and reasonableness.[14]In the application, the Applicant had not ticked the relevant box to confirm that they would be making a section 20C application; however, given that the Applicant referred to this in their statement of case, the Respondent did not oppose the making of the application, merely argued against its merits. The application identified the service charge years in dispute as 2020, 2022 and 2023, and not 2021. At the hearing Mr Sekulic confirmed that this was an oversight, and that all four years are in dispute. Ms Edmonds confirmed that she was content to proceed on that basis, having noted that the Tribunal directions referred to 2020 to 2023 inclusive as the service charge years in dispute.[15]Neither party addressed the Tribunal on the consultation requirement under section 20 of the 1985 Act therefore the Tribunal has not considered the same.[16]Mr Sekulic confirmed that the “Other Creditors” item on the schedule of disputed service charges was no longer being pursued. The issues[17]At the start of the hearing the Tribunal identified the relevant issues for determination as follows: I. The payability of the service charges for the years of 2020 to 2023 inclusive; II. Whether the works are within the landlord’s obligations under the lease/whether the cost of works are payable by the leaseholder under the lease; III. Whether the costs of the works are reasonable, in particular in relation to the nature of the works, the contract price and the supervision and management fee;[18]The relevant legal provisions are set out in the Appendix to this decision. The Lease[19]A copy of the Applicant’s lease dated 29 September 1989 was provided. The lease is for a term of 125 years from 01 May 1998.[20]The tenant’s proportion of the service charge are as follows: Part A Estate Costs 2.86% Part B Building Costs 2.46% 5 Part C Basement Parking Costs 3.33% Part D Garage Costs Nil[21]Clause 1.16 of the Lease refers to “the Maintenance Expenses” which “means the moneys actually expended or reserved for periodical expenditure by or on behalf of the Manager or Lessor at all times during the Term in Carrying out the obligations specified in the Sixth Schedule”.[22]Clause 1.18 of the Lease defines “the Lessee’s Proportion” as meaning “the proportion of the Maintenance Expenses payable by the Lessee in accordance with the provisions of the Seventh Schedule”.[23]The Sixth Schedule refers to the Part A Estate Costs referred to above and deals, in summary, with the maintenance and keeping of the grounds and gardens, accessways, service installation in good repair and arranging for the provision of rubbish receptacles for the tenants.[24]Part B Building Costs refers to, in summary, the inspecting and maintaining of various parts of the Building such as the common entrance halls, fire safety appliances and costs incurred in insuring the Building.[25]Part C Basement Car Park Costs refers to, in summary, the inspection and maintaining of the Basement Car Park and costs incurred in insuring the Basement Car Park and ancillary structures.[26]Part D Garage Block Costs refer to the inspecting and maintenance of the Garage Block and associated insurance. As the Applicant’s contribution to this is Nil, no further consideration is given by the Tribunal.[27]The Seventh Schedule sets out the Applicant’s proportion of the Maintenance Expenses, the percentages of such being defined on page 2 of the Lease and as already set out above.[28]Paragraph 6 of the Seventh Schedule provides for “an account of the Maintenance Expenses (distinguishing from actual expenditure and reserve for future expenditure) for the period ending on 31st day of October One thousand nine hundred and ninety nine and for each subsequent year ending on the 31st day of October during the Term shall be prepared as soon as is practicable and the Manager shall if it so decides or if requested in writing by the Lessee to do so serve a copy of each account and of the accountants certificate on the Lessee”.[29]Section 7, subsection 7.1 goes on to record that the Lessee shall pay their proportion of the Maintenance Expenses “in advance on the First Day of May and the First day of November in every year throughout the Term one half of the Lessee’s proportion of the amount estimated from time to time by the Manager or its managing agents as the 6 Maintenance Expenses for the year the first payment to be apportioned (if necessary) from the date hereof”.[30]Subsection 7.2 provides that “within twenty one days after the service by the Manager on the Lessee of a certificate in accordance with Paragraph 6 of this Schedule for the period in question the Lessee shall pay to the Manager the balance by which the Lessee’s proportion received by the Manager pursuant to Sub-Paragraph 7.1 of this Schedule falls short of the Lessee’s Proportion payable to the Manager as certified by the said certificate during the said period and any overpayment by the Lessee shall be credited against future payments due from the Lessee to the Manager”.[31]Part E effectively provides for other costs which may form a liability by way of service charges and the Tribunal specifically notes section 7 which refers to “if necessary employing a firm of managing agents or consultants or similar and the payment of all costs and expenses incurred by the Manager (extract)…”, section 12 which refers to a sum of 15% plus VAT for a Management Fee and section 15 which effectively provided for a sweeping up provision for all other expenses including recoverability of expenses in “all other expenses (if any) incurred by the Manager in and about the maintenance and proper and convenient management and running of the Development but without prejudice to the generality of the foregoing any expenses incurred in “rectifying or making good any inherent structural defect in the Building or any other part of the Development) (extract)” save where recoverability would not fall under any insurance policy or arise from any legal proceedings of a liable third party.[32]Pursuant to section 2 of the Eighth Schedule, the Lessee covenants “to pay to the Manager or its authorised agent the Lessee’s Proportion at the times and manner herein provided”. Interest on any service charges in arrears is payable as provided by section 3.[33]The Ninth Schedule provides for the Landlord’s covenants, notably to insure the Building at section 7 and the Tenth Schedule contains the Manager’s covenants. Section 1 obliges the Manager to “To carry out the works and do the acts and things set out in the Sixth Schedule as appropriate to each type of dwelling…”.[34]The Tribunal also notes the Manager’s covenants at section 2 to use all reasonable endeavours to recover the contributions from the lessees and at section 3 to ensure that the reserve fund is kept in a separate account and only applied in connection with the matters detailed in the Sixth Schedule. Determination[35]The Tribunal determined that the application was to be considered under section 19(1) of the 1985 Act. 7[36]Section 19(1) limits the amount payable for a service charge to the extent that it is “reasonably incurred” and that services or works are “of a reasonable standard”.[37]The disputed service charge items are listed in the table below. Disputed Item Total Cost 31/10/20 Total Cost 31/10/21 Total Cost 31/10/22 Total Cost 31/10/23 Window Cleaning £34.83£44.07£54.05£70.41 Management Fees £180.09£182.81£190.13£203.43 Company Secretary Fees £9.35£11.03£11.26£11.69 Major Works Contributions (Reserve Fund) Estate: £237.38 Block: £369.00 Basement: £49.95 Estate: £237.38 Block: £369.00 Basement: £49.95 Estate: £243.10 Block: £442.80 Basement: £49.95 Estate £243.10 Block £492.00 Basement £49.95 Deficit Estate: £69.44 Block: £83.32 - Estate: £160.78 Block: £56.53 Basement: £19.28 Estate £98.15 Block £287.22 General Maintenance – Estate £41.18£22.30 - £30.93£22.30[38]There is no dispute about the validity or timing of the service charge demands.[39]However, the Applicant asserts that the Respondent is in breach of the lease by failing to have the accounts audited. The Respondent counters that this is not a requirement under the Lease.[40]The parties elaborated and, where necessary, expanded on the submissions raised within their respective statements of case. Window Cleaning[41]The Applicant argued, with reference to the Second Schedule of the Lease, that the lease provided for window cleaning to the communal areas only, and an apparent lack of agreement from the AGM minutes on page 388 of the bundle, coupled with the Applicant’s objections to paying 8 for the same. Argument was further raised that the reasonable sum would effectively be on a pro-rata basis of circa 8% which is reflective of the communal parts of the Building.[42]Whilst arguments were raised by the Respondent over estoppel and waiver with reference to the authority of Clacy v Sanchez [2015] UKUT 0387, the Tribunal found no need to address the matter as the Lease contains provision dealing with the window cleaning as set out further below.[43]The Respondent highlighted the nature of the Building being lessee- owned rather than an anonymous landlord. It primarily relied upon reference to section 11 of Part E of the Sixth Schedule which provides for “ any other service or facility which is in the opinion of the Manager it is reasonable to provide” in respect of cleaning services to other areas beyond the communal parts of the Building such as guttering clearing and entranceway canopy cleaning.[44]The Tribunal was referred to the various invoices relating to the window cleaning and noted that the base fee was largely consistent each year and further cleaning services such as the canopy cleaning were set out on the relevant invoices.[45]The Tribunal is satisfied that the Lease effectively has an all- encompassing clause pursuant to section 11 Part E of the Sixth Schedule under which the works pertaining to cleaning of the non-communal parts of the Building would be covered. In respect of the sums charged, the Tribunal is further satisfied that the invoices demonstrated reasonable sums incurred and that any increased prices above the base costs of the window cleaning related to additional works set out therein and were reasonable in amount sought.[46]The Tribunal determines that the sums of £34.83 (2020), £44.07 (2021), £54.05 (2022) and £70.41 (2023) for window cleaning are payable and reasonable. Management Fees[47]As confirmed by the parties, the only question before the Tribunal was payability of the service charge and not the issue of reasonableness.[48]Mr Sekulic sought to argue that a higher degree of formality in respect of the arrangements relating to the appointment of JM Estates was required given the use of the word “employing” within section 7 of Part E of the Sixth Schedule. He further expressed concern regarding the relationship of JM Estates as a division of Encore. Effectively, the Applicant sought openness and transparency. No appropriate authority 9 to support the argument that “employing” required greater formality was provided.[49]Ms Edmonds submitted that the landlord was entitled to select a managing agent and had done so, as such the appointment of JM Estates was in accordance with the Lease. Mr Gywnn also set out the relationship of JM Estates as effectively being under the Encore umbrella.[50]Whilst the Tribunal noted that such issue could be confusing for leaseholders without guidance, the Tribunal nevertheless considered the Applicant’s position in respect of the Management Fees to be misguided and the arguments made unattractive. Clearly, the Lease makes provision for a managing agent to be appointed and, in the context of the Lease, the use of word “employing” is to be read as synonymous with “appointing”.[51]Therefore, the Tribunal determines that the sums of £180.09 (2020), £182.91 (2021), £190.13 (2022) and £203.43 (2023) for management fees are payable and reasonable. Company Secretary[52]This issue related to payability only and Mr Sekulic expressed concern that it was not clear to whom such fees were going and referred the Tribunal to page 331 of the bundle which is a Companies House extract recording EPMG Legal Limited as a dormant company and noting previous company names.[53]Ms Edmonds countered that the sums sought fell within the 15% management fee provided for under section 12 of Part E of the Sixth Schedule. Further, there was no merit in the reference to a dormant company as the work was being done as necessary expenditure and referred the Tribunal to the invoice at page 417 in respect of the sums sought. Again, Mr Gywnn provided further information regarding the company name change.[54]The Tribunal did not consider the Applicant’s arguments in this regard persuasive. Again, clearly the Lease provides for the services of a Company Secretary to be recovered under section 12 of Part E of the Sixth Schedule and the invoices established the fees raised. The issue that this was done by a non-operative company is of no relevance to the Tribunal’s decision.[55]Accordingly, the Tribunal determines that the sums of £9.35 (2020), £11.03 (2021), £11.26 (2022) and £11.69 (2023) for the Company Secretary fees are payable and reasonable. 10 Audited Accounts[56]Mr Sekulic referred the Tribunal to section 9 of Part E of the Sixth Schedule. It provides for a qualified accountant to audit the accounts and certify the total amount thereof for the period to which the account relates. Attention was drawn to the Accountant’s report prepared by Lakin Rose Limited in which it was stated “You have determined that an audit of the service charge accounts in accordance with International Standards on Auditing is required under the Lease…had we performed an audit…other matters might have come to our attention that would have been reported to you”. It was suggested that other matters may have come to light such as double payments or relating to who is the company secretary and there was inconsistency which gave rise to treating the sums with circumspection or suspicion as per the decision in Pendra Loweth Management Ltd v North [2015] UKUT 0091 (LC).[57]Ms Edmonds submitted that the Lease did not require this and referred the Tribunal to section 6 of the Seventh Schedule which simply provides for an account to be prepared and that in this case, such account had been prepared by independent accountants and provided to the Applicant. The accounts provided were in a “solid format” and that the Applicant’s position regarding the figures was wrong.[58]The Tribunal considered the Applicant’s position again misguided on this point. The Lease clearly provides for the manner in which accounts are to be prepared and provided at paragraph 6 of the Seventh Schedule and therefore the service charges raised in respect of these sums are payable. Major Works Contributions[59]Mr Sekulic sought to argue that the contributions were based on estimates which were not reasonable and there lacked transparency in the sums sought and reference was made to a lack of detail in the plans for expenditure.[60]Ms Edmonds countered that the Applicant’s position may stem from a misunderstanding as to how the accounts provided worked but they set out the money coming in and the money coming out and that although the Applicant accepted that a reserve fund was good practice, it was argued that the sums were not reasonable in the absence of a detailed plan but did not suggest what would be reasonable. In this instance, provision was being made for roof repairs and lift replacement.[61]The Tribunal notes that it would have been beneficial to have been provided with a more detailed planned and cyclical works programme in relation to future projects and that potentially such plan or further breakdown within the accounts would have prevented such concern or dispute to have arisen. The letter dated 6 November 2019 referred to “A long term maintenance plan is being prepared alongside the directors to assist with budgeting over the next 10+ years” and yet by the AGM on 20 11 June 2023, minutes of which were provided, such plan had unfortunately not appeared to have been prepared, some four years later.[62]However, whilst the level of detail appears to have given rise to concerns pertaining to a lack of transparency by the Respondent it is nevertheless prudent and good practice to make provision for a reserve fund for future projects, the Tribunal is satisfied that the limited detail provided is sufficient to establish that such sums are payable and reasonable in amount.[63]Therefore, the Tribunal determines that the sums as set out below in respect of Major Works Contributions are payable. Major Works Contributions (Reserve Fund) 2020 Estate: £237.38 Block: £369.00 Basement: £49.95 2021 Estate: £237.38 Block: £369.00 Basement: £49.95 2022 Estate: £243.10 Block: £442.80 Basement: £49.95 2023 Estate £243.10 Block £492.00 Basement £49.95 Deficit[64]The Tribunal considered that submissions raised by the Applicant on this item were misguided. It is trite that an accounting or balancing exercise is required in dealing with budgeting for service charges insofar as if an overpayment is made by the tenant, then a surplus will be recorded in the accounts, conversely if there is an underpayment, then a deficit will be recorded in the accounts.[65]The Lease specifically provides for this accounting exercise under sections7.1 and7.2 of the Seventh Schedule – the former providing for bi-annual advance payments of service charges and the latter for the balancing payment within 21 days of the demand confirming the balance owing.[66]Whilst the Tribunal notes that more detail within the accounts explaining the calculation of the deficit could have been beneficial in assisting the Applicant’s understanding, the Tribunal concludes that deficit sums as set out below are payable and reasonable in amount. Deficit 2020 Estate: £69.44 Block: £83.32 2021 - 2022 Estate: £160.78 Block: £56.53 2023 Estate £98.15 Block £287.22 12 Basement: £19.28 General Maintenance[67]The Tribunal is satisfied that the landlord is responsible under Section 1 of Part B of the Sixth Schedule for, in summary, dealing with issues within the Building “as reasonably necessary” and keeping it in “good and substantial repair”. Insofar as there was an issue with the roof that engaged that repairing obligation, and the evidence provided in respect of expenditure that such sum was payable under the Lease and reasonable in amount. Alternatively, the Tribunal was satisfied that such service charge could easily be accounted for within sections 11 and 15 of Part E of the Sixth Schedule pertaining formerly to providing any other service or facility which is reasonable to provide, or the latter, which is an all-encompassing provision for all other expenses incurred for, amongst other items, a structural defect.[68]The Tribunal is further satisfied that the service charge raised in respect of the legal advice sought in relation to the window strips is payable and reasonable as legal costs under paragraph 15 of Part E of the Sixth Schedule having seen the invoice and was not persuaded by the Applicant’s argument that such sum was not reasonable in amount given the lack of evidence to the contrary. Inevitably, a dispute had arisen upon which the landlord was entitled to seek legal advice and, under the terms of the Lease, is entitled to recover the fees paid for such legal advice by way of the service charge.[69]According, the Tribunal determines that the sums of £41.18 (2020), £22.30 (2021), £30.93 and £22.30 (2023) for General Maintenance fees are payable and reasonable in amount. Application under section 20C and for refund of fees[70]The Applicant applied for an order under section 20C of the 1985 Act to limit recovery of the Respondent’s costs of the proceedings through the service charge. The proceedings have provided some further clarification for the Applicant; however, she has been unsuccessful in her application and where noted above, several points of dispute were argued on misguided grounds. The Tribunal hopes that, given the ongoing nature of their relationship as tenant and landlord, the parties will engage in more fruitful discussions should such issues arise in future service charge years to avoid proceedings being issued unnecessarily.[71]Accordingly, the Tribunal does not consider it just and equitable in the circumstances where the Applicant has not enjoyed any substantial success in her application for an order to be made under section 20C of the 1985 Act. 13[72]For the same reasons as given for the refusal of the section 20C application, the Tribunal considers that there is no proper reason to exercise its discretion to order reimbursement of the Applicant’s Tribunal fees. Name: Judge Adcock-Jones Date: 27 January 2025 Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First- tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber). 14 Appendix of relevant legislation Landlord and Tenant Act 1985 (as amended) Section 18(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, improvements 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, or a superior 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. Section 19 (1) 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 provisions 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. (2) 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. Section 27A (1) An application may be made to the appropriate tribunal for a determination whether a service charge is payable and, if it is, as to - (a) the person by whom it is payable, (b) the person to whom it is payable, (c) the amount which is payable, (d) the date at or by which it is payable, and (e) the manner in which it is payable. (2) Subsection (1) applies whether or not any payment has been made. (3) An application may also be made to the appropriate tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to - (a) the person by whom it would be payable, 15 (b) the person to whom it would be payable, (c) the amount which would be payable, (d) the date at or by which it would be payable, and (e) the manner in which it would be payable.(4) No application under subsection (1) or (3) may be made in respect of a matter which - (a) has been agreed or admitted by the tenant, (b) has been, or is to be, referred to arbitration pursuant to a post- dispute arbitration agreement to which the tenant is a party, (c) has been the subject of determination by a court, or (d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement.(5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment. Section 20C (1) A tenant may make an application for an order that all or any of the costs incurred, or to be incurred, by the landlord in connection with proceedings before a court, residential property tribunal or the Upper Tribunal, or in connection with arbitration proceedings, are not to be regarded as relevant costs to be taken into account in determining the amount of any service charge payable by the tenant or any other person or persons specified in the application. (2) The application shall be made— (a) in the case of court proceedings, to the court before which the proceedings are taking place or, if the application is made after the proceedings are concluded, to a county court; (aa) in the case of proceedings before a residential property tribunal, to that tribunal; (b) in the case of proceedings before a residential property tribunal, to the tribunal before which the proceedings are taking place or, if the application is made after the proceedings are concluded, to any residential property tribunal; (c) in the case of proceedings before the Upper Tribunal, to the tribunal; (d) in the case of arbitration proceedings, to the arbitral tribunal or, if the application is made after the proceedings are concluded, to a county court. (3) The court or tribunal to which the application is made may make such order on the application as it considers just and equitable in the circumstances.