Michael Wynne v Rodger Yates & Anor

For major works, the consultation requirements under Landlord and Tenant Act 1985 apply to a set of works. A change of contractor, an increased cost, or work exceeding an estimate does not by itself create a new set requiring fresh consultation. The question is one of fact and degree.

Dispensation is normally granted unless tenants identify relevant prejudice caused by the failure to consult. A lost opportunity to participate, or the obligation to pay for works, is insufficient. A service-charge challenge also requires evidence of unreasonableness; tenants cannot merely put the landlord to proof.

Michael Wynne v Rodger Yates & Anor was the landlord’s appeal from a First-tier Tribunal determination concerning interim service charges for a converted house and a refusal of dispensation from consultation requirements for works completed by replacement contractors.

The First-tier Tribunal had refused dispensation, limited the reasonable cost of the works to the original contractor’s estimate, and made consequential determinations about the interim charges. The landlord contended that those conclusions were inadequately reasoned and irrational. A separate issue arose because one interim charge, demanded in June 2018, had already been paid without dispute.

The central questions were whether fresh consultation was required for the replacement and additional work, whether any relevant prejudice had been shown, and whether the tenants had produced evidence capable of challenging the reasonableness of the remaining interim charges.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside in its entirety. The Upper Tribunal substituted its own determination.

2. Under section 20ZA of the Landlord and Tenant Act 1985, dispensation normally follows unless tenants identify relevant prejudice from non-compliance. The First-tier Tribunal found prejudice but did not identify it, and the evidence disclosed none. The tenants had not shown that consultation could have produced a cheaper contractor or a better, quicker method of work. The refusal of dispensation was therefore irrational.

3. Fresh consultation was not required. The consultation regime applies to a set of works, as explained in Phillips v Francis [2014] EWCA Civ 1395. A contractor’s inability to finish, a replacement contractor, a higher price, or work beyond an estimate does not itself create a new set of works. On the facts, the roof repairs and external redecoration remained within the notified description of external redecoration, roof repairs and associated works. Alternatively, dispensation would have been granted because no relevant prejudice was established.

4. The First-tier Tribunal had no rational basis for treating the original contractor’s estimate as a ceiling on reasonable cost. Consultation and reasonableness are distinct safeguards. The tenants had not challenged the quality of the works or adduced evidence that their cost was unreasonable. Their challenge to the three remaining interim charges therefore failed and those charges were payable.

5. The June 2018 interim charge had been paid without dispute. By section 27A(4), the First-tier Tribunal lacked jurisdiction to determine it. The landlord could not recover it again.

• Upper Tribunal (Lands Chamber): allowed the landlord’s appeal, set aside the First-tier Tribunal’s decision in its entirety, and substituted a determination.
• First-tier Tribunal (Property Chamber): had refused dispensation from consultation requirements and made determinations limiting the reasonable cost of works and the interim service charges. No citation was stated.