ACCL v LB of Camden
Cumberland Ellis achieved a landmark success for our clients, the Association of Camden Council Leaseholders ("ACCL"), in a Lands Tribunal decision dated 18 March 2008. We represented ACCL in their appeal against an order that the Leasehold Valuation Tribunal ("the LVT") had made on the application by the London Borough of Camden ("LBC") for an order dispensing with the need to comply with the consultation requirements set out in subparagraphs 4(4), 4(5), 4(6) and 4(7) of Schedule 2 of the Service Charges (Consultation Requirements)(England) Regulations 2003. These sub-paragraphs set out the detail and information that a landlord should provide to leaseholders if he is proposing to enter into a Qualifying Long Term Agreement ("QLTA") with a contractor partner for the delivery of repairing and maintenance works to properties with long leaseholder tenants. Over the last few years the LVT had been prepared to grant dispensation where local authorities have applied on the basis that it would be too difficult or expensive to provide the information required by those sub-paragraphs. In this matter the LVT had concluded that dispensation should also be granted notwithstanding the fact that no completed or prospective agreements had been provided.
In the Lands Tribunal, HHJ Huskinson criticised the LVT's original decision and approach in stark terms and his conclusions indicate that any future application by a landlord to dispense with the need not comply with any of these sub-paragraphs is most unlikely to succeed unless it is made at a time that the proposed partnering agreement and its terms can be clearly identified and even then a "sustainable reason" must be provided beyond "merely showing that it was not yet (i.e. at the date of the LVT hearing) possible to anticipate actual costs and works such that...[the freeholder] could not yet give meaningful information, within the consultation provisions, to individual leaseholders and that...[the freeholder] would only be able to put forward figures which would likely be unreliable and meaningless". The case is, therefore, likely to be of great significance both to local authorities and leaseholders of properties who have local authorities as freeholders."
HHJ Huskinson also went on to consider whether the LVT had jurisdiction to grant a dispensation in respect of a QLTA that had not yet been entered into under section 20ZA(1) of the Landlord and Tenant Act 1985. The point had been raised that the wording of section 20ZA could be read to suggest that an application for dispensation could not be made if the QLTA had not yet been "entered into". The Judge's conclusion after interpreting the relevant wording was that an application could be made in respect of a prospective application as well as a retrospective application. The Judge also found that if the wording was ambiguous then he was entitled to look at Hansard and the statement made by Ms Keeble, the responsible Minister, on 11 March 2002 gave support to the interpretation that dispensation could be granted prospectively as well as retrospectively.
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