Factual and Procedural Background
This opinion concerns an appeal from a decision of the Leasehold Valuation Tribunal for the Northern Rent Assessment Panel ("the LVT") dated 27 March 2012. The appellant, owner of various properties at Bold Street, Old Trafford, sought to enter into a qualifying long-term agreement (QLTA) engaging consultation requirements under the Service Charges (Consultation Requirements) (England) Regulations 2003. The appellant purported to serve consultation notices dated 16 March 2011 on eight long leaseholders (the respondents). The LVT considered whether the notices were properly served, whether they complied with the Regulations, and whether dispensation should be granted for any non-compliance. The LVT found that some respondents had not been served, that the consultation period was shorter than required, and refused dispensation. The appellant was granted permission to appeal only on the compliance of the consultation period and service on certain respondents. The Upper Tribunal granted permission to appeal on service issues relating to some respondents but refused permission on the dispensation issue. The respondents did not appear at the hearing. Subsequent negotiations led to the appellant buying out most of the long leases except for three respondents. The appellant no longer disputed non-service on one respondent and limited the appeal to the consultation period issue. The hearing proceeded on legal submissions only, with no evidence called by the appellant.
Legal Issues Presented
- Whether the consultation notices dated 16 March 2011 were properly served on the long leaseholders.
- Whether the consultation notices complied with the requirements of the Service Charges (Consultation Requirements) (England) Regulations 2003, particularly concerning the length of the consultation period.
- Whether dispensation should be granted under section 20ZA of the Landlord and Tenant Act 1985 for any failure to comply with the consultation requirements.
- Whether the Leasehold Valuation Tribunal had jurisdiction to raise the issue of insufficient consultation period on its own motion.
- The correct legal interpretation of the phrase "the period of 30 days beginning with the date of the notice" in the Regulations.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the expression "the date of the notice" should be interpreted as the date on which the notice was posted, not the date printed on the notice or the date it was received.
- The appellant argued that interpreting the date as the printed date on the notice or the date of receipt would undermine the consultation requirements and allow tenants to abridge or dispute the consultation period unfairly.
- The appellant submitted that the consultation period given was effectively 30 days from the date of posting, allowing a reasonable period for delivery and observations.
- The appellant relied on the absence of any evidence about the postal carrier’s delivery standards to argue that the date of posting should be the relevant date.
- The appellant argued that the LVT was wrong to raise the issue of insufficient consultation period sua sponte, relying on precedent from Birmingham City Council v Keddie.
- The appellant distinguished the case cited by the LVT (Muscovite v 75 Worple Road RTM Company Limited) as dealing with a different legal context.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Birmingham City Council v Keddie [2012] UKUT 323 (LC) |
Whether the Leasehold Valuation Tribunal had jurisdiction to raise consultation period compliance issues on its own motion. |
The court rejected the appellant’s argument relying on this case, finding the facts materially different and that the LVT was entitled to raise the issue during the hearing. |
| Muscovite v 75 Worple Road RTM Company Limited [2010] UKUT 393 (LC); [2011] L&TR 4 |
Consideration of the date a notice is deemed to be received for timing of responses. |
The court noted the case but distinguished it, holding it did not assist the appellant’s argument regarding the date of the notice. |
| Chiswell v Griffon Land and Estates Ltd [1975] 1 WLR 1181 |
Service of documents by post without recorded or registered delivery. |
The court referred to this case to confirm that service can be effected by ordinary post but no deemed service date applies without recorded or registered delivery. |
| Daejan Investments Limited v Benson [2013] UKSC 14 |
Relevant to the question of dispensation under section 20ZA of the Landlord and Tenant Act 1985. |
The court noted the Supreme Court decision but did not consider it directly as the appellant had no permission to appeal on dispensation. |
Court's Reasoning and Analysis
The court began by rejecting the appellant’s argument that the consultation period should be calculated from the date the notice was posted. It reasoned that the fundamental purpose of a notice is to inform the recipient, which cannot happen before the notice is received. The court found difficulties with treating the date of posting as the "date of the notice" because postal delivery times vary and no evidence was provided about the postal carrier’s delivery standards. The court noted that the Regulations define "relevant period" as 30 days beginning with the date of the notice, but do not specify whether this means posting or receipt.
The court examined statutory provisions and case law related to deemed service and found no applicable deeming provisions for this case, as the notices were not sent by recorded or registered delivery. It accepted the LVT’s finding that it was reasonable to assume the notices arrived two days after posting, on 18 March 2011.
Consequently, the court found the date of the notice to be the date of receipt, 18 March 2011, making the consultation period end on 16 April 2011. Since the notice specified 15 April 2011 as the end date, the consultation period was one day too short, failing to comply with the Regulations.
Regarding the appellant’s argument that the LVT lacked jurisdiction to raise the consultation period issue on its own motion, the court found that the issue of proper consultation was raised by the respondents’ application and addressed at the hearing without objection. Therefore, the LVT was entitled to consider the point.
The court dismissed the appellant’s appeal against the LVT’s findings on service to certain respondents due to lack of evidence and submissions. It also dismissed the appeal on the consultation period compliance, upholding the LVT’s conclusion that the notice period was insufficient.
The court noted that the appellant may apply to the LVT for dispensation reconsideration in light of the Supreme Court’s decision in Daejan Investments Limited v Benson, but declined to make any findings on that matter.
Holding and Implications
The court DISMISSED the appellant’s appeal in its entirety.
The direct effect is that the appellant failed to comply with the consultation requirements under the Service Charges (Consultation Requirements) (England) Regulations 2003 due to inadequate service on some respondents and the provision of a consultation period shorter than 30 days. The appellant may seek dispensation on remittal to the Leasehold Valuation Tribunal, but no such decision was made here. No new precedent was established by this decision.