This page has been set-up for ALL owners of chalets/lodges at Atlantic Bays to ensure that they are aware of what is happening on the site. It contains information that is freely available but that you may not be aware of. Click on the links below to view the documents.
Letter to Non-Members
County Court Action
PHILLIPS Goddard v Francis JUDGEMENT ON PRELIMINARY ISSUE – This is the judgement that gave the protection of the Landlord & Tenant Act 1985 to chalet owners.
Phillips-v-Francis9TR9003 final 28-10-11 – This is the judgement from Part One of the hearing to determine the reasonableness of the 2008 & 2009 service charges
Minute of Order from 19th March Directions Hearing – Order made by HHJ Cotter on the 19th March. Please note the amounts of service charge money disallowed from part one of the judgement.
Judgement from the Appeal of Issues from Part One. – The PCAG appealed against two points from the Part One Judgement above, put simply these are: –
- The decision that the lessor can charge a 5% management charge on all items from Schedule 3 of the lease. It could amount to double charging on items such as the landlords wages.
- The decision that works on the site did not amount to one set of works and thereby qualified for consultation.
The appeal was successful on both counts.
- The lessor cannot now charge for their wages, nor can they charge for any agent services that are not professional or they have a connection with
- The works on site for 2008 and 2009 are now one set of works and the lessor is limited to £250 per chalet unless he can obtain dispensation from the need to consult from the LVT.
The judgement from this appeal has clarified the law on fragmentation of qualifying works and will have far reaching benefits for all tenants who pay a variable service charge.
An application to the LVT for dispensation from the need to consult had been made prior to the appeal hearing by the lessor. (See below) but NO Application to the Appeal Courts has been made to appeal this decision from Sir Andrew Morritt.
26th March 2013 – the landlords at Atlantic Bays Holiday Park have now made an application to appeal (out of time) this decision by Sir Andrew Morritt.
18th November 2014 – the landlords have been granted permission to appeal out of time and have been granted permission to appeal. Order of the Appeal Court is below, the appeal will now be heard some time in 2014.
14th October 2014 – The Court of Appeal has ruled on the two points from the High Court judgement
- The ruling on wages claimed by the landlord and the 5% management charge has been upheld and ruled to be double charging. The landlords cannot claim for their wages in connection with the site and must rely solely on the 5% management charge.
- The ruling from the High Court decision on how fragmented works are decided on has been overturned, but the Appeal Court refused to go against the findings of HHJ Cotter on fragmented works at Atlantic Bays. These works must now go to the First tier Tribunal (Property Chamber) for a ruling on reasonableness.
County Court Action Part 2
Phillips v Francis 11 March 2013 Draft Order – This is a draft of the settlement agreed at part 2 of the trial on the 11th March. As you will see from figures agreed for each year using the divisors of 164 for 2008 and 166 for 2009 the service charge equates to £990.63 for 2008 and £826.25 for 2009. The Lodges on site are to be covered by the L & T Act 1985 and the forfeited chalet 149 is to be returned to its owner.
Phillipsapportioment DRAFT – HHJ Cotter ruled that the divisors for 2008 will be 164 and for 2009 will be 166. We only have a draft copy of this judgement at present when the official copy arrives it will be posted here. This ruling will not be binding on later years.
Phillips Goddard-v-Francis (revisedcostsjudgment) – This is the judgement on costs from the County Court Action as handed down on the 18th June 2013.
The PCTA have now made an application to appeal this costs judgement, which has now been refused with the proviso that mediation takes place between landlord and tenant. The mediation unfortunately did not yield any result.
This is the ruling from HHJ Cotter on the PCTA application to prevent Mr and Mrs Francis from claiming their costs of the County Court action via the service charge. Of course the ruling only applies to the applicants.
As the PCTA were successful in their application to prevent Mr and Mrs Francis recovering all their costs they were awarded 25% of their costs.
FtT Application by PCTA
The LVT is now known as First tier Tribunal (Property Chamber) or FtT
LVT directions dated 12-05-18 – These are the directions from the LVT Hearing of the 14th May 2012. The respondents our landlords, applied for the application to be struck off and refused to supply the names and addresses of owners who were not named on the application. Both these points were refused.
At the request of the landlord/lessor these proceedings have been stayed pending the outcome of Part 2 of the County Court trial.
The stay on these proceedings is now lifted and below is the directions from a recent Case Management call these are summed up as
- Landlord to supply amended schedules for 2010 and 2011 by the 27/02/15
- Landlord to supply new schedules for 2012 by 27/02/15
- Landlord to supply amended schedules for outstanding works from 2008/9 by 27/02/15
- PCTA to respond to those schedules by the 17/04/15
- Landlord to reply to the PCTA response by the 15/05/15 if he is so advised.
- Further CMC to be set for first available date after 29/05/15
18-01-16 – The latest position on the FtT hearings is that 2013 – 2015 have now been added to the litigation with 2013 and 2014 stayed. A hearing on the “on-account” demand for 2015 has been scheduled for 26th January 2016 at Bodmin Courts. This hearing is to determine whether the amount demanded on-account for this year is reasonable.
This is the judgement from the FtT on the reasonableness of the 2015 On-Account demand. The ruling is that PCTA members are to pay £1,757.52 on-account for 2015 but it has been recognised that when the determination of the actual spend for this year is heard by the FtT there may well be a credit due. The PCTA has applied to the Upper Tribunal for permission to appeal the amount as it was felt that the Tribunal had over looked a number of important issues in their ruling. One of which was that the average actual spend on general maintenance for the years 2010 – 2012 was £644.73/chalet. This figure of course excludes Mr and Mrs Francis’s legal costs which they are trying to claim via the service charge.
This is the Upper Tribunal dismissal of the PCTA appeal. The members of the PCTA will now need to pay the £1,757.52 + VAT as ordered by the FtT. This still a reduction on the £2,411.47 + VAT demanded originally.
This is the ruling on the reasonableness of the service charges for years 2010 -2012 and the major works in 2008/9 transferred from the County Court.
This is the determination of the FtT on the PCTA’s application to prevent Mr and Mrs Francis from adding their legal costs from the Tribunal hearing on service charge years 2008-2012, as above. The application was successful and those owners who were party to the application will not have to pay the costs through the service charge.
FtT Application by the PCTA for service charge Years 2013-2015
The stay on this application is now lifted and a Case Management Hearing is to take place on the 1st November 2017.
FtT Application by Landlord
Atlantic bays Holiday Park (Leasehold Valuation Tribunal) – These are the directions from the LVT with respect to the application by the lessor of Atlantic Bays Holiday Park for dispensation from the need to consult as per s20ZA of the Landlord & Tenant Act 1985.
At the request of the lessor these proceedings have now been stayed pending the outcome of Part 2 of the County Court Trial.
Stay now lifted.
As the Tribunal has now ruled on the major works in 2008/9 there is no longer any requirement for this application.
Lands Tribunal Application
Judgement-5sept11 – This is the judgement from the Lands Tribunal on the application to remove the 10 month restriction of use on leases at Atlantic Bays.
The PCTA has applied for permission to appeal this decision and will post further information here.
Permission to appeal this judgement has now been refused by the Appeal Court.
PCTA complaint to the ICO
ICO decision – The ICO has decided that a breach of the Data Protection Act by Atlantic Bays has taken place. They are satisfied that the appropriate action has been taken by Atlantic Bays to correct the breach and ensure that no further breaches occur. The complaint will be kept on record in the event of further breaches.
The PCTA requested that Atlantic Bays issue an apology for the breach and confirm that legal costs connected with the investigation are not charged to tenants via the service charge. As of today’s date (29-06-12) no response has been received.