Exemption Granted for Urgent Fire Safety Works

OUTCOME: Allowed

FIRST-TIER TRIBUNAL

[APPELLANT] CHAMBER

([APPELLANT])

Case Reference : MAN/00CG/LDC/2018/0041

[APPELLANT] : [NAME], 67-69, [ADDRESS] [POSTCODE]

Applicant: [redacted]

Respondents : [redacted]

Type of Application : Application under Section 20ZA Landlord and Tenant Act 1985

Tribunal Members : [NAME] (Chairman)

[NAME] of Decision : 26th April 2019

Order : The dispensation sought by the Applicant

from compliance with Section 20 Landlord

and Tenant Act 1985 is as set out in the

schedule hereto

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Application and background

1 This is an application under Section 20ZA Landlord and Tenant Act 1985 seeking a dispensation from compliance with the consultation requirements of Section 20 Landlord and Tenant Act 1985 (further clarified by the Service Charges (Consultation Requirements) (England) Regulations 2003) in relation to what are termed “qualifying works” within that section. The Application is dated 11th December 2018.

2 The application is generated by the service of an Enforcement Notice by [NAME] dated 6th December 2018 detailing a significant number of issues relating to requirements placed upon the Applicant in respect of the residential building at [NAME], 67-69, [ADDRESS], Sheffield, by The Regulatory Reform (Fire Safety) Order 2005

3 The Applicant indicates through the application that it has responsibility for the maintenance and repair of the building and that work to comply with the Notice is urgently required. It has therefore made this application as those works will amount to “qualifying works” within the meaning of Section 20 Landlord and Tenant Act 1985 and therefore invoke the consultation requirements relating to such works.

4 The [NAME] of the various apartments within the building are entitled to be taken through the consultation process provided by Section 20 Landlord and Tenant Act 1985, but the landlord may seek to claim an exemption from the process under Section 20ZA. Often such applications are retrospective, after Section 20 has not been complied with, but some, as is the case here, are proactive, an applicant believing there is a good case to be made to avoid some, or all, of the consultation requirements.

5 A comprehensive formal objection to the application has been received from a number of [NAME], led by [NAME] [NAME], the long [NAME] of nos 33, 36 and 49 [NAME]. This sets out at some length and with some clarity the views of themselves and those others they represent.

6 The Application is made for a complete exemption from the consultation requirements. The Applicant makes the application on the basis that the work is urgently required and the exact nature, or cost, thereof is yet unknown.

The Law

7 Section 18 Landlord and Tenant Act 1985 defines both a “service charge” and also “relevant costs” in relation to such charges whilst Section 19 of the Act limits the amount of those costs that are included in such charges to those which are reasonably incurred in respect of work which is of a reasonable standard.

8 Section 20 of the Act then proceeds to limit the amount of such charges that may be recoverable for what are known as “qualifying works” unless a consultation process has been complied with. By Section 20ZA of the Act qualifying works are any works to the building or other premises to which the service charge applies and the relevant costs would require a contribution from each tenant of more than £250.00.

9 Section 20ZA(1) particularly provides that:

“ Where an application is made to the appropriate tribunal for a

determination to dispense with all or any of the consultation requirements

in relation to any qualifying works…the tribunal may make the

determination if satisfied that it is reasonable to dispense with the

requirements.”

10 As this is an application to dispense with the need to comply with the

requirements it is not necessary for the Tribunal to consider here in detail

those requirements but they may be found in Regulation 6 of the Regulations referred to in paragraph 1, above.

11 The Regulations impose a 4-stage process for the consultation-

(1) The service by the landlord of a notice of intention to carry out qualifying works.

(2) An invitation to [NAME] (and any relevant tenants association) to nominate a contractor for the works from whom the landlord should try to obtain an estimate.

(3) A requirement to obtain at least 2 estimates.

(4) A statement of reasons as to the eventual choice of contractor.

12 Whilst there is an inevitability about a considerable length of time needing to be taken to complete such a process the Tribunal notes that this application has taken some four months to reach the stage where it can be determined by the Tribunal without any further information being forthcoming as to how compliance with the notice has progressed.

Submissions

13 The Applicant’s submission is brief. It is directly to the point that the notice requires speedy compliance to effect necessary fire protection for the building.

14 The Respondents’ provide an extensive overview, but to the Tribunal’s mind it conflates two distinct issues. It is clear that the Respondents have concerns as to why the position is as it is now and that previous investigation may have prevented the need for such drastic action as is likely to be required to comply with the notice.

15 This is not the issue for this, or any other Tribunal, at this stage. If there is a case to be made for consideration as to whether the costs of complying with the notice are reasonably incurred, or might have been avoided, or reduced, by earlier actions, had they taken place, then it should be considered separately from the need to comply now with the enforcement notice and whether that compliance should be assisted with a dispensation from the consultation requirements.

16 Concentrating solely upon that issue, the [NAME] nevertheless highlight a number of concerns in relation to the position as it now stands:

(1) The lack of precise information as to what works will be required (which they acknowledge will be related to the complexity of what will probably be required).

(2) The terminology used within the report of [NAME] upon which the enforcement notice is based appears to recognise that other methodologies, apart from those directly identified, could address some of the risks highlighted.

(3) The lack of clear information risks real prejudice to the Respondents in relation to what the financial costs may be and the risk to health and safety in the absence of the opportunity for some input into the process.

(4) Similarly, the lack of information about the suggested role of [COMPANY] to provide appropriate plans and its qualifications for the role suggest a possible risk of prejudice if dispensation is granted.

17 The Respondents’ therefore identify the case of [COMPANY] v [NAME] and Others [2013] UKSC 14 as assisting their cause. This case effects a clear review of the law in relation to dispensation from the consultation process of Section 20 of the Act and is used by the respondents to suggest that the Tribunal is not left simply with a choice of granting or refusing a blanket dispensation, but has powers to direct what the nature of any dispensation should be.

18 They suggest some conditions for any dispensation that may be granted considered the matter at the hearing mentioned above. They suggest 4 conditions in paragraphs 72 to 80 of their submissions. The Tribunal does not repeat them here at length, but they are considered below.

Determination

19 The Tribunal considers that in the consideration of the documents it may reasonably come to the following conclusions:

(1) The [NAME] has clearly identified a number of serious deficiencies in fore protection provision at [NAME].

(2) This has resulted in an enforcement notice which is currently in place.

(3) Notwithstanding any arguments as to how this situation has come about it is necessary that the notice be complied with.

(4) The Applicants are faced with the difficult balance between compliance and consultation in respect of major works

(5) There is a clear risk (and it needs to be no more than a risk) of prejudice to the Respondents in view of the paucity of information supplied as to what will be required and the likely cost.

(6) There is also a clear and present risk to the health and safety of occupants and visitors from fire with the building whilst in its current state.

(7) Whilst the reasonableness of the need for the work and its cost may be subject the review as part of future service charges it is not unreasonable that if dispensation is granted there should be some interim steps put in place that would be reasonably likely to place some limit upon any potential prejudice to [NAME].

(8) Although the Tribunal appreciates the lengths to which the Respondents have gone in suggesting conditions that should be attached to any dispensation the Tribunal is not satisfied that those proposed in paragraphs 72, 74 and 78 0f their submission would assist, rather than further delay, the process of compliance. The Tribunal was not entirely sure as to what was intended, but was of the view that, on balance, they would introduce some lengthy consideration of the history of the matter, as recounted by the Respondents.

(9) Similarly, the Tribunal considers the condition set out in paragraph 80 is inappropriate and, if necessary, those costs dealt with under the general jurisdiction of the Tribunal in respect of service charges, should an application be considered appropriate by an interested party.

20 The Tribunal therefore considers it appropriate to grant a dispensation subject to certain conditions, as set out in the Schedule below, which it believes will strike a balance between the need to deal speedily with the discrete matter of the enforcement notice, whist seeking to limit so far as possible the genuine concerns that the Respondents have.

21 In the event that any of the conditions are considered by any party to the proceedings to have been superseded by events since the submissions made by the parties the Tribunal will be open to reconsideration of the order, it being necessary for any application for reconsideration to be in writing with full details being provide and copied to the other parties.

SCHEDULE

The Applicant is granted a dispensation from the requirements of Section 20 Landlord and Tenant Act 1985 in respect of qualifying works required to comply with the enforcement notice served by the South Yorkshire Fire and Rescue Authority in respect of [NAME] TO the following conditions:

(1) Within 28 days hereof a report shall be obtained from a suitably qualified person (being a surveyor, or engineer, currently holding a qualification of Chartered Engineer and Membership or Fellowship of the Institution of Fire Engineers, or equivalent) as to what works are considered to be required to comply with the notice.

(2) Within 35 days hereof that report shall be copied by the Applicant to the [NAME] who may comment thereon to the Applicant within the next 7 days

(3) Within 56 days hereof the Applicant endeavour to seek two estimates from [NAME] for the work required

(4) Within 63 days hereof any estimate received shall be copied by the Applicant to the [NAME] who may comment thereon to the Applicant within the next 7 days.

(5) Within 77 days hereof the Applicant will indicate which (if there are more than one) estimate has been accepted and give reasons

(6) By the same time the Applicant will give reasons as to what consideration has been given to any comments received from [NAME].

[NAME] (CHAIRMAN)

30 April 2019

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