First-tier Tribunal Grants Dispensation for Fire Safety Works

OUTCOME: Allowed

DECISION

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : MAN/OOBN/LDC/2021/0073 Property : [ADDRESS], [POSTCODE] Applicant : [redacted] : [COMPANY] Respondents : [redacted] See Annex A

Type of Application : Section 27A Landlord and Tenant Act 1985 – Section 20ZA Tribunal Members : Tribunal Judge [NAME] Tribunal Member [NAME] of Determination : 16th June 2022 Date of Decision : 4th July 2022

Decision

1. The application to dispense with the consultation requirements imposed by Section 20 of the Landlord and Tenant Act 1985 (“the Act”) regarding the works specified by the Applicant to ensure the safety of the residents at [ADDRESS], [ADDRESS], Manchester is granted.

Reasons

Background

2. This is an application made by [APPELLANT] (“the Applicant”) for the dispensation of the consultation requirements imposed by Section 20 of the Landlord & Tenant Act 1985 (“the Act”) regarding works required to remedy the existing cladding system at [ADDRESS], [ADDRESS], Manchester (“[NAME]”).

3. The Applicant has stated the current cladding does not comply with the current guidance and proposes to carry out certain works to remedy this. These works include: render, spandrel panels, metal cladding, insulation and sundry associated works, fire safety barriers, vents, signage and other fitments.

4. The Respondents to the application are the various long leaseholders of [NAME] (“the Respondents”).

5. The application is dated 7th July 2021 and in respect of which directions were issued on 11th February 2022 providing for the filing of any objection by the Respondents and for the application to be determined without a hearing.

6. There was one formal objection to the application by the leaseholder of Apartment 16.05.

The Law

7. Section 20 of the Act provides:

(1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either-

(a) complied with in relation to the works or agreement, or (b) dispensed with in relation to the works or agreement by (or on appeal from) a tribunal

(2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement

(3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount.

8. In the event the requirements of section 20 have not been complied with, or there is insufficient time for the consultation process to be implemented then

an application can be made to the First-tier Tribunal pursuant to section 20ZA of the Act.

9. Section 20ZA of the Act provides:

(1) Where an application is made to a tribunal for a determination to dispense with all or any consultation requirements in relation to any qualifying works, or qualifying long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements

Submissions

1. The Applicant is the landlord of [NAME], a 18-storey residential block (including three basement car parking levels) with 309 apartments.

2. The Applicant has been made aware that remedial works are required to [NAME] relating to the construction of the external wall system and, in particular, that it is constructed of combustible materials and poses a fire risk.

3. The Applicant has appointed [NAME] to report further upon the work required to remedy the defects and they have recommended the works as referred to in paragraph 3 above. The cost of this work will require compliance with the consultation requirements of section 20 of the Act.

4. The Applicant has registered [NAME] with the [NAME] due to the nature of the remedial work and has claimed for the full cost of the work, but this may not be granted. There is a dispute as to whether the white render construction type, forming part of [NAME], is eligible for funding and further work is ongoing regarding this.

5. The Applicant has chosen to proceed with the work under a Design and Build procurement route which is where the appointed contractor both designs and constructs the work.

6. The Applicant has obtained tenders for the work and states [NAME] have provided the most cost-efficient quote, in the sum of £10,709,632.51 excluding VAT and fees. It is said that, at the time of the application., it was unknown when a final decision would be made in respect of the funding, but as and when a decision is made, work will need to commence at short notice.

7. The Applicant seeks dispensation from all consultation requirements since it is said it would not be practicable to comply with them given the method of funding, the procurement method for dealing with the works and the urgency of it. It is confirmed it has updated the Respondents with details of the works via an online portal and has also arranged several online resident meetings to discuss and advise on progress.

8. The Applicant submits the Respondents will not suffer any financial prejudice by the granting of dispensation. If dispensation is not granted and consultation is required then any government funding could be lost resulting in higher costs for the Respondents.

9. One objection to the application has been received. This said that due to the uncertainty regarding whether the white render will be included in the government funding, the possibility of additional costs to the Respondents will not be the subject of any consultation. The objection was conditional upon the Applicant fulfilling certain requirements as follows: (1) Provide a detailed plan of the start, duration and sequence of the works to be conducted.

(2) Provide evidence that manpower resources are in place and orders have been placed, with confirmed delivery schedules of the raw materials, to fulfil the sequence of works and without any risk of delay due to failed procurement processes and without the need for periods of pause or absence from sire. (3) Provide details of the building security measures which will be put in place whilst the work is underway, including access to any scaffolding and exterior access. (4) Provide confirmation that all sky telecom aerials, aerials and other communications fitments will not be disabled and full communication access will be maintained for all leaseholders and residents.

10. The Applicant submitted the conditional approval was unreasonable and the Respondents would not be prejudiced by dispensation being granted.

Determination

11. The Tribunal is being asked to exercise its discretion under section 20ZA of the Act. Section 20ZA (1) provides the Tribunal may do so where “if satisfied that it is reasonable to dispense with the requirements”.

12. The Tribunal, having considered the submissions made by the Applicant, is satisfied the works are necessary and are urgent. It accepts that due to the steps taken to carry out the work, it is not practicable to carry out the consultation requirements contained within section 20 of the Act and dispensation is therefore granted under section 20ZA.

13. The Tribunal has considered the objections made but does not consider there is any prejudice to the Respondents by reason of a failure to carry out the consultation requirements.

14. The granting of dispensation does not affect the Respondents’ rights to the challenge the reasonableness or the payability of the service charges under a separate application pursuant to section 27A of the Act.

Tribunal Judge J [NAME] 4 July 2022

Annex A

MAN/00BN/LDC/2021/0073

902 [COMPANY] [NAME], L G Daniels & S [NAME] [NAME] & [NAME] [NAME] [NAME] [NAME] & [NAME] [NAME] [NAME] [NAME] & [NAME] [NAME] [NAME] & [NAME] [NAME] [NAME] [NAME] & [NAME] [NAME] [NAME] [COMPANY] [NAME] [COMPANY] [NAME] & [NAME] [NAME] & [NAME] [NAME] & [NAME] [NAME] [NAME] [NAME] [NAME] [NAME] & [NAME] [NAME] & [NAME] [NAME] [NAME] [NAME] [NAME] [NAME] [NAME] & [NAME] [NAME] [NAME] [NAME] & [NAME] [NAME] [NAME] [NAME]

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