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R (on the application of Spaul v Upper Tribunal (Administrative Appeals Chamber) Unreported 22nd May 2013) (Leggat J): Requisite Consultation Notice On Major Works Costs Not Received By Lessee

Facts: The managing agent of a building in London applied to the LVT for a determination that the costs to be incurred on major works were reasonable. In accordance with the Leasehold Valuation Tribunals (Procedure) (England) Regulations 2003 reg.5 the LVT had sent notice of the application to those named as respondents, including the claimant lessee. The notice had been sent to the address provided by the managing agent which was the claimant’s flat in the building. The lessee’s case was that he had not received the requisite notice of consultation under s.20 of the 1985 Act, nor notice of the application to the LVT. He said that he did not live at the flat and that the managing agent knew that, and knew his proper address which it had not given to the LVT. Furthermore, the failure to give notice of the consultation and of the application was a “substantial procedural defect” justifying the grant by the Upper Tribunal of permission to appeal against the decision of the LVT, within the relevant Interim Practice Directions and Guidance of the Upper Tribunal (Lands Chamber). The Upper Tribunal refused permission to appeal on the ground that there was nothing to suggest that the managing agent knew that the lessee’s address was not at the building and that the managing agent knew what that address was. The lessee applied for judicial review of the Upper Tribunal’s decision refusing his application for permission to appeal from a decision of the LVT on the ground that, if the Upper Tribunal had properly considered the evidence, it would have been bound to decide that there were reasonable grounds for finding that there had been a substantial procedural defect in the decision of the LVT.

Decision: In dismissing the application, Leggatt J held that the evidence presented to the Upper Tribunal on the critical issue was wholly unsatisfactory and there was no witness statement to indicate what that material was. It appeared that the application for permission to appeal had been presented to the Upper Tribunal on the incorrect basis that the application to the LVT was by the landlord rather than by the managing agent. His case was that he had informed the landlord and the managing agent of his change of address and he said that there had been some evidence to that effect before the Upper Tribunal in the form of a letter. However, he failed to show that that letter had been included in the material before the Upper Tribunal. In any event the managing agent’s case in opposition to the lessee’s application for permission to appeal contained a detailed rebuttal of the allegation that the managing agent was aware of the lessee’s address. There was compelling contemporaneous documentary evidence that the lessee had been asked by the managing agent for an address for correspondence apart from the flat and that none had been forthcoming. In the circumstances, although the Upper Tribunal might have gone too far in stating that there was nothing to indicate that the managing agent knew that the lessee had an address other than the flat and what that address was, it could not possibly be said that on the material before the Upper Tribunal it was not entitled to conclude that there were no reasonable grounds for asserting that there had been a substantial procedural defect. The lessee’s claim for judicial review failed.

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