Last week the Court of Appeal overturned the High Court's decision in Phillips v Francis by re-adopting the generally accepted view that section 20 should be applied to individual "sets" of works.

Landlords and practitioners will recall the frenzy caused by the High Court's decision in Phillips v Francis in 2012 which obliged landlords to serve section 20 notices in respect of all works (not just major works) if the aggregate annual cost of those works required the tenant to contribute more than £250. That meant the landlord having to consult with tenants on minor repairs costing less than £250 simply because, together with other works during the same year, the total cost exceeded the £250 threshold.

The decision in 2012 turned the consultation of major works upside down. How could the landlord consult and invite observations on potential works? Who was going to pay for the additional administrative work involved in serving numerous section 20 notices and obtaining tenders for minor works? What if a major works' project spanned more than one financial year? Would the landlord have to consult more than once on the same works? These were all legitimate and unanswered questions. That is until the Court of Appeal's decision last week.

The Court of Appeal has held that applying the consultation obligations on every item of maintenance and repair is not sensible and in many cases unworkable. Aggregating the annual cost of works and encumbering the landlord and tenants in such a way could not have been intended by Parliament. The High Court had simply got it wrong. There is no reference to an annual cap in the consultation provisions under section 20 and it therefore makes no sense to calculate the cost of works on an annual basis. Further, the requirement under section 19 of the Landlord & Tenant Act 1985 for service charges to be reasonable and reasonably incurred is meant to be the real protection for tenants; that is the sensible way to control routine works of repair and maintenance, not section 20.

The Court of Appeal has made it clear that section 20 should be applied by reference to the cost of individual "sets" of works. It is not necessary to look at the aggregate cost of works in any given year but the cost of each project when deciding whether or not consultation is necessary. Accordingly, the generally long and accepted view held before Phillips v Francis once again prevails.

What constitutes a single set of works is a question of fact and will therefore depend on the circumstances in each case. However, determining factors may include whether the works are:

the subject of the same contract;
to be carried out at more or less the same time or at different times;
different in character from, or have no connection, with each other;
physically removed from each other.

The Court of Appeal's decision will be welcomed by landlords and managing agents who have, up to now, struggled with the practical implications of Phillips v Francis.