SHEILA BANKS LRX/33/2006

UPPER TRIBUNAL
LANDS CHAMBER
LRX/33/2006Case No LRX/33/2006
Between
SHEILA BANKSApplicant
Before
The PresidentDate 25 August 2006Property: Garden Flat, 56 Parliament Hill, London NW3 2TLCatchwords: LANDLORD AND TENANT – breach of covenant – whether LVT wrong to determine no breach of covenant had occurred – Commonhold and Leasehold Reform Act 2002 s 168(4)
[1]The appellant in this case appeals with permission of this Tribunal against part of a decision of a leasehold valuation tribunal on an application made by her under section 168(4) of the Commonhold and Leasehold Reform Act 2002. There is no respondent. She is the landlord of premises known as the Garden Flat, 56 Parliament Hill, London NW3 2TL, which are the subject of a lease for 99 years from 24 July 1990. The present lessee is Mr P S Castle, and he appeared in the LVT as respondent. The appellant’s application under section 168(4) was treated by the LVT as seeking a determination that in four respects a breach of covenant or condition had occurred. Those matters were: access to the garden flat by the applicant’s expert; emissions from the boiler flue; gardening; and carpeting.[2]The present appeal is concerned with the first of these matters. The LVT determined that there had been no breach of covenant or condition in this respect, and the appellant contends that the determination was wrong in law. There are before me grounds of appeal and a skeleton argument prepared on the appellant’s behalf by Mr James Browne of counsel, and I am asked to decide the appeal on the basis of these.[3]Section 168(4) of the 2002 Act provides simply that a landlord under a long lease of a dwelling may make an application to a leasehold valuation tribunal for a determination that a breach of covenant or condition in the lease has occurred. The relevant covenant for the purposes of the present appeal is that contained in paragraph 1 of Part I of the Fifth Schedule to the lease. This provides:
“To permit the lessor and its duly authorised surveyors and agents with or without workmen at all reasonable times by appointment (but at any time in case of emergency) to enter into and upon the demised premises or any part thereof for the purpose of viewing and examining the state of repair thereof or of the property.”
[4]On 11 August 2005 the LVT gave directions in relation to the application that the appellant had made. These stated that the outstanding issues between the parties were in respect of emissions from the boiler flue, gardening and carpeting only. The directions recorded the agreement of the tenant “to allow the Applicant’s expert to be permitted access in order to prepare ... a report in respect of emissions from the flue of the gas boiler.”[5]At the hearing before the LVT, Mr Browne, representing the appellant, asked the tribunal to consider, in addition to the three issues identified by the directions as the outstanding ones, a dispute as to access. The LVT’s decision records that, following discussions between the parties and the tribunal, “the tribunal agreed to consider the question of access, but limited to access by the Applicant’s expert only.” It records that the respondent’s counsel accepted this. The appellant’s case was that her expert, Mr H Rogers, had not been permitted access. The facts are to be found in the tribunal’s decision at paragraphs 14 to 23: 2 “14. Mrs Banks’ first expert, a Mr Wai Tsang, had intended to inspect the flue on 23 August 2005.[15]In an email from the Applicant to the Respondent’s Solicitors dated 22 August 2005, Mrs Banks said:- ‘Mr Wai Tsang and I will arrive at the Garden Flat tomorrow morning at 9.15 a.m. Please confirm that I will not be barred from entering the Flat on arrival as happened when I arrived with the electricians earlier this year.’[16]On the same date, a further email was sent by the Applicant to the Respondent’s solicitors. This said:- ‘I am in the process of obtaining estimates/opinions from 3 firms who specialize in such work as it is highly specialized and very expensive. Mr Wang’s visit is the first of the visits, and his preliminary visit, and will be followed by requests for access for further visits. I trust that your client will give me his full co-operation so that the Directions can be complied with in the most effective manner.’[17]The response from the Respondent’s solicitors was dated 22 August 2005 and said, inter alia:- ‘As to the appointment tomorrow, the Order for Directions is clear in that it is only your expert who is to be permitted access in order to prepare his report. There is no need or right for you to accompany Mr Wai Tsang and accordingly you will not be allowed access to the flat.’[18]On 23 August 2005, having sent a further email to the Respondent’s solicitors which stated, ‘I have also made my position clear and will attend with my surveyor’, Mrs Banks attended the garden flat with Mr Wai Tsang and was refused access. Mr Wai Tsang carried out an inspection.[19]In a letter to Mrs Banks dated 26 August 2005 (which Mrs Banks did not recall receiving) Mr Castle said, inter alia:- ‘May I remind you that at that lat hearing before the LVT, you did not give any indication that what you intended to do was instruct possibly several ‘experts’ to attend my flat for the purpose of providing you with estimates so that you could then possibly select one such ‘expert’ to be retained by you in this matter. Accordingly, the Tribunal’s Direction in this regard only allows you one ‘expert’ who will be permitted access to prepare a report in respect of the emissions from the flue of the gas boiler to match the report I will be obtaining from my own expert. I did not agree to this Direction on the basis that you and your several experts would be allowed access.... It is you who has chosen to interpret paragraph D(b) of the Tribunal Direction in a way which gives not only your several experts rights of access but also permits you to go into my flat with such experts no doubt 3 on several occasions prior to your then instructing one of these experts to go back into my flat and prepare a report. I do not consider this to be either reasonable or a proper interpretation of paragraph D(b) of the LVT’s direction and this is my objection as it is consistent with your whole approach to my flat which is that you have an almost unfettered right of access which is simply not the case. We are dealing with a very discreet issue namely the testing of emissions from the flue of the gas boiler. I have no doubt that if you were acting reasonably you could instruct an expert to attend my flat on his own and prepare a report for you. Instead, you have chosen to complicate the issue and seek numerous it would appear experts estimates and opinions before making a selection and indeed insisting on accompanying no doubt all of these experts even when, on your case, they are only going into my flat to look at the problem and provide you with an estimate.’[20]Mrs Banks in an email to the Respondent of 31 August 2005 made it clear that she wished to have access to the garden flat with her expert. Mr Castle’s response dated 2 September 2005 stated, inter alia:- ‘I have no intention of preventing your expert attending the premises in compliance with the LVT Direction. I see no need, and indeed there is no provision in the Directions, for you to accompany the expert. Indeed, taking into account what the expert is required to do, there seems to be no need for you at all to attend with him and unless you can produce evidence from him that he requires your attendance, then I will not agree to you coming into my flat when he carries out his inspection/ investigation. If you inform your expert to contact me, I will make the necessary arrangements for him to investigate/inspect which I believe to be in full compliance with the LVT Direction on the matter.’[21]In an email of 2 October 2005 to Mr Castle, Mrs Banks stated, inter alia, ‘you are obliged to permit the lessor access to your premises .... I will expect to accompany my appointed consultant.’[22]Mrs Banks said, at the hearing, ‘He did everything in his power to hinder inspection. I was only allowed one go’.[23]Mrs Banks confirmed that she had ‘no prior knowledge of the field of gas engineering’. The first expert had attended, but Mrs Banks had been excluded. Mrs Banks had made it clear that she intended to attend with the second expert and Mr Banks had made it clear that, whilst there was no objection to a second expert making an inspection, Mrs Banks would again be excluded.” In paragraph 23 “Mr Banks” evidently ought to read “Mr Castle”.[6]The tribunal’s conclusions which led to its determination that there had been no breach of covenant or condition are to be found in the following paragraphs: 4 “25. It is not understood, nor has it been satisfactorily explained, why Mrs Banks, knowing that her presence was unwelcome in the Respondent’s property, would insist on accompanying her first and second experts.[26]It was not the intention of the Tribunal that more than one expert should be used, and this was clear from its Directions. There could have been nothing which she could have usefully added, in order to assist an expert preparing an independent report. As Mrs Banks herself stated, she had no knowledge of the field of gas engineering.[27]Mrs Banks’ actions are considered provocative and confrontational and, perhaps, intended to be so. The prevention of her entry to the garden flat was a foreseeable consequence of her actions. Her insistence on her ‘rights’ under the lease in this particular instance is considered unreasonable. Any rights under the lease to a landlord are limited to a specific purpose (in respect of which she had instructed an expert) and not, as Mrs Banks appears to believe, a general right.”[7]In his submissions Mr Browne says that, contrary to the LVT’s conclusions, the covenant does provide for a general right of access to the flat, the only limits being that the landlord must make an appointment except in cases of emergency, and her entry must be for the purpose of viewing and examining the state of repair of the demised premises or of the property. The tribunal sought to impose a further general requirement that the request for access must satisfy a test of reasonableness, but, it is said, there is no warrant for such a gloss to be applied to the plain wording of the covenant. Whilst it is accepted that the landlord’s intention to inspect the state of repair must be a genuine intention, it is submitted that to impose an arbitrary test of reasonableness would lead to a dispute whenever access was required. The LVT’s ruling that, since the appellant had instructed an expert to make a report, she was not entitled to access, is, it is said, in flat contradiction to the wording of the covenant, which explicitly permits access to the landlord with her agent.[8]The question that the tribunal had to determine was whether there had been a breach of covenant consisting in the denial of access to the premises by the applicant’s expert. This was the question that the tribunal said that it would consider, in addition to the three issues that had been identified in its directions of 11 August 2005. It was in effect allowing the appellant to amend her application so as to include this additional issue. Neither the decision nor the present written submissions suggest that there was any dissent on the appellant’s part to the terms of the question that the tribunal said that it would consider.[9]It is clear on the facts as stated in the decision that the tenant did not deny the appellant’s expert access to the flat. Mr Castle made clear that he had no intention of preventing the expert from having access to the premises in order to prepare a report on the emissions from the flue of the gas boiler. It was only the appellant to whom access was denied. Any contention that, in denying the appellant access for the purpose of accompanying the expert, Mr Castle was in practice denying access to the expert himself would obviously be unfounded; and no such contention is advanced on the appellant’s behalf. The conclusion that there had been no breach of covenant consisting in the denial of access to the expert was one to which the Tribunal, on 5 the facts, was entitled to come. Indeed it would have been in error had it determined otherwise.[10]Paragraphs 25 to 27 of the tribunal’s decision, which embody its conclusions on the question of access, do not appear to relate to access by the expert. They are directed entirely to the conduct of Mrs Banks and her wish to have access to the premises, but, in view of the way in which it had defined the question that it had to answer, this was a matter that did not arise. The directions that it had given recording the agreement about access were similarly irrelevant to the question that it had to consider. Paragraph 27, which, besides condemning the appellant’s conduct, effectively concluded that there had been no breach of covenant through denying her access to the premises, thus addressed a matter which had been excluded by the tribunal’s definition of the issue. The approach that is adopted in that paragraph does not, in any event, seem to me to be correct. Under the terms of the covenant, access must be permitted to the lessor at all reasonable times for the purpose of viewing and examining the state of repair of the premises or the property. Provided that she has this genuine purpose she must be permitted access. There is no test of reasonableness that arises (other than in relation to the time of access). However, the absence of any evident need for the lessor to view the premises could well be a strong pointer that there is no genuine purpose in seeking access.[11]In addressing the question of whether the appellant had wrongly been denied access and in approaching the question in the way that it did, the LVT was, in my view, in error. This does not, however, vitiate its determination. The question for determination was whether there had been a breach of covenant through denial of access to the appellant’s expert, and, on the facts as stated, there clearly had been no such denial. The appeal is dismissed. Dated 25 August 2006 George Bartlett QC, President 6