Hillfinch Properties Ltd v Lessees of Southbourne Court [2013] UKUT 096 (LC)

Summary

The FTT had erred in failing to consider whether the tenants’ ability to afford the works when determining that the works were reasonably incurred. 

Facts

The landlord applied for a determination under s.27A(3) that the cost of proposed major works were reasonably incurred and that the overall costs were reasonable.  None of the tenants contended that the proposed works were unnecessary or that the scope was excessive or that the cost was unreasonable.  The only concern was one of affordability. 

First Instance

The FTT found the costs of the work to be reasonable but, in a somewhat cryptic paragraph of the decision in which the FTT referred to Garside v RFYC & Maunder Taylor [2011] UKUT 367 (LC), it was not clear whether the FTT had decided the affordability point. 

The appellant sought permission to appeal from the FTT, one of the grounds being whether the FTT did or should have taken into account the question of affordability.  In refusing permission, the FTT said its comments on Garside were obiter; it was not necessary to decide the affordability point so it had not done so and, in any event, the point was not properly raised or argued. 

Decision on Appeal

HHJ Mole QC held that the affordability point had been raised and argued and it was necessary for the FTT to determine the issue.  The case was remitted to the FTT.