Leaseholders of the Bourne EstateApplicantLondon Borough of CamdenRespondent
Before
Judge ShepherdAndrew Lerwicki FRICSMr Hai for the ApplicantDetermination as to reasonableness and for the RespondentDate 19 August 2022Property: The Bourne EstateType of application: payability of service charges. Judge Shepherd
DECISION
[30]Taking each of the issues identified above the Tribunal makes the following determination Was replacement of the windows within the repairing covenant?[31]It is clear that several authorities support the fact that the replacement of windows in the present circumstances would come within the repairing covenant of the lease – see in particular Tay v Holding & Management (Solitaire) [2019] UKUT 373 (LC). The windows were required to meet building regulations as well as listing building consent even if this meant some improvement. The fact that some of the windows in a block were in reasonable condition prior to the work did not negate the fact that others were out of repair and something had to be done about them. Replacement was a reasonable and sound option. The Tribunal was particularly impressed by Mr Burton’s evidence that carried considerable gravitas because of his experience and first - hand knowledge. The Tribunal accepts that residents had repeatedly complained to him about needing new windows. The leaseholders may not have been as keen on replacement as a result of the cost but that does not render the council’s decision to replace unreasonable. Was the cost of the window replacement works including scaffolding reasonably incurred and reasonable in amount?[32]The Tribunal considers the cost of the window replacement including scaffolding was reasonably incurred. A number of reports had supported replacement rather than repair particularly when one considered life cycle costing. The cost of scaffolding was high but the Tribunal accepts Mr Flowers’ evidence that even if the risk had been imposed on the contractor the cost would have been high. The new windows have ensured that thermal performance has improved. The windows are also better sound insulated. The Tribunal is concerned however that there are some apparent defects in the window fittings. It was reassured by the Respondents’ confirmation that they will deal with snagging items raised. In particular, the rusting and tarnished fittings need to be addressed by the Respondents. In addition, trickle vents need to be provided to the new windows. In relation to the damage caused by the fasteners on a balance of probabilities the Tribunal accepts Mr Burton’s evidence that this is the result of user error and occupiers need to be given clearer instructions on use. Did the Respondents comply with the consultation requirements?[33]The Tribunal considers that the Respondents did comply with the consultation requirements in Schedule C. Mr Burton’s evidence was honest and clear. He took into account observations as he was required to do. The leaseholders were not misled in correspondence. A general statement about the condition of the windows in consultation was not to be judged with a fine-tooth comb. The message was clear. There were windows out of repair and something had to be done about them. Does the Tribunal have jurisdiction to determine claims for damages for loss of enjoyment due to alleged negligence?[34]The Tribunal does not have jurisdiction to determine claims for damages for loss of enjoyment due to negligence. There is a limited jurisdiction to consider equitable set off in the context of historic neglect: Continental Property Ventures v White [2007] L & TR 4 but that is not what was being proposed by Mr Hai. Should the Tribunal exercise its discretion under s.20C of the Landlord and Tenant Act 1985?[35]The Tribunal will not make an order under s.20C. The Respondents have conducted themselves properly in dealing with the Applicants’ challenge. They should be entitled to recover their costs from the service charge if the lease allows it. Judge Shepherd 19th August 2022 ANNEX - RIGHTS OF APPEAL Appealing against the tribunal’s decisions[1]A written application for permission must be made to the First-tier Tribunal at the Regional tribunal office which has been dealing with the case.[2]The application for permission to appeal must arrive at the Regional tribunal office within 28 days after the date this decision is sent to the parties.[3]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.[4]The application for permission to appeal must state the grounds of appeal, and state the result the party making the application is seeking. All applications for permission to appeal will be considered on the papers[5]Any application to stay the effect of the decision must be made at the same time as the application for permission to appeal.