First-tier Tribunal Grants Dispensation for Lift Upgrades Due to Unique System

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AN/LDC/2024/0044 Property : [ADDRESS], [NAME] & [NAME], [ADDRESS], [ADDRESS], [ADDRESS], London, SW6 Applicant : [redacted] : [COUNSEL] and [NAME] (Ms [COUNSEL]) Respondents : [redacted] [NAME] and [NAME] of [NAME] : Dispensation with Consultation Requirements under section 20ZA Landlord and Tenant Act 1985 Tribunal member :

Judge Robert Latham

Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 27 June 2024

DECISION

The Tribunal grants this [NAME] to dispense with Stage 2 of the statutory consultation requirements imposed by section 20 of the Landlord and Tenant Act 1985 as it is apparent that the work can only be executed by [NAME] because the lifts use a closed protocol system. The Applicant intends to serve a modified Stage 3 Notice about Estimates.

2

The [NAME]

1. On 13 April 2024, the Applicant, applied for dispensation from the statutory duty to consult in respect of works to upgrade two lifts. The estimated cost of the works is £107,382 +VAT. The Respondents are 154 Leaseholders of [ADDRESS], [NAME] and [NAME] whose names have been provided to the Tribunal. The Applicant provided a copy of the lease for “Plot [ADDRESS] (Block C)”. 2. [ADDRESS] is a general needs 14-storey purpose-built residential block of flats with 68 flats. This property has adjoining blocks and Fountain Centre on the ground and first floors, which runs under [ADDRESS], [NAME] and [NAME]. The height of the building to the uppermost occupied floor level is approximately 39m. The development has an individual core, providing individual entrances and exits to the flats.

3. On 6 November 2023, the Applicant obtained a report from [NAME]. [NAME] recommended the modernisation of the two lifts based on their “GeN3 Plus Upgrade Package” at a cost of £107,382 + VAT.

4. Section 20 of the Landlord and Tenant Act 1985 (“the Act”) requires a landlord to consult in respect of “qualifying works” where the relevant contribution of any [NAME] will exceed £250. The consultation requirements applicable in the present case are contained in Part 2 of Schedule 4 to the Service Charge (Consultation Requirements) (England) Regulations 2003. A summary of these is set out in the speech of Lord [NAME] in [COMPANY] v Benson [2013] UKSC 14; [2013] 1 WLR 854 at [12]: Stage 1: Notice of Intention to do the Works: Notice must be given to each tenant and any tenants’ association, describing the works, or saying where and when a description may be inspected, stating the reasons for the works, specifying where and when observations and nominations for possible contractors should be sent, allowing at least 30 days. The landlord must have regard to those observations. Stage 2: Estimates: The landlord must seek estimates for the works, including from any [NAME] identified by any tenants or the association. Stage 3: Notice about Estimates: The landlord must issue a statement to tenants and the association, with two or more estimates, a summary of the observations, and its responses. Any

3 [NAME]’s estimate must be included. The statement must say where and when estimates may be inspected, and where and by when observations can be sent, allowing at least 30 days. The landlord must have regard to such observations. Stage 4: Notification of reasons: Unless the chosen contractor is a [NAME] or submitted the lowest estimate, the landlord must, within 21 days of contracting, give a statement to each tenant and the association of its reasons, or specifying where and when such a statement may be inspected.

5. On 9 January 2023, the Applicant served a Stage 1: Notice of Intention on the leaseholders informing them of their proposal to upgrade the two lifts. The Notice stated that due to their age and conditioning of the mechanics, a full upgraded was required. A further factor was that parts necessary to maintain the lifts had become obsolete. The leaseholders were asked to make any observations on this proposal by 13 February. The leaseholders were also invited to nominate a contractor from whom an estimate should be sought.

6. In their [NAME], the Applicant states that the landlord had approached [NAME] and [NAME] for estimates. [NAME] have declined to submit a proposal since only [NAME] can price for the works required, because the lifts use a closed protocol system. The Applicant seeks dispensation of the requirement to seek a second estimate. It proposes to send a modified Stage 3: Notice about Estimates to the leaseholders providing details of the one quote received and give a period of 7 days for any observations to be made. It is said that the works are urgent as there is a threat to the lives and safety of the leaseholders.

7. On 4 March 2024, the Tribunal issued Directions. The Directions stated that the Tribunal would determine the [NAME] on the papers, unless any party requested an oral hearing. No party has done so.

8. By 11 March 2024, the Applicant was directed to send to the leaseholders (and any residential sublessees) and any [COMPANY], by email, hand delivery or first-class post: (i) copies of the [NAME] form (excluding any list of respondents’ names and addresses) unless already sent by the applicant to the [NAME]/sublessee; (ii) if not already provided in the [NAME], a brief statement to explain the reasons for the [NAME]; and (iii) the directions. The Applicant was further directed to display a copy of these in a prominent place in the common parts of the property. On 16 May 2024, the Applicant confirmed that it had comp0lied with this Direction.

9. By 22 March 2024, any [NAME] who opposed the [NAME] was directed to complete a Reply Form which was attached to the Directions

4 and send it both to the Tribunal and to the Applicant. The [NAME] was further directed to send the Applicant a statement in response to the [NAME]. No [NAME] has returned a completed Reply Form opposing the [NAME].

10. The Applicant has provided a Bundle of Documents (41 pages) in support of the [NAME].

11. On 24 April 2024, the [NAME] was placed before Judge Percival for determination on the papers. He felt unable to determine the [NAME] on the basis of the papers provided and issued further Directions.

12. On 16 May 2024, the Applicant confirmed the two lifts in [ADDRESS] will undergo upgrades. The reason for this is the noisy break mechanism in the firefighting lift. While only one lift has a noisy part, both lifts need upgrading because they operate in tandem, and the noisy mechanism is now obsolete. Despite being operational, the lifts generate noise during operation, necessitating the upgrades. The lifts are also reaching an age where a full upgrade is due, especially now spare parts are becoming obsolete.

13. The Applicant also confirmed that the contract with [NAME] is 12 months in duration, and therefore is not a qualifying long term agreement for the purposes of the Act.

14. Section 20ZA (1) of the Act provides: “Where an [NAME] 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 or qualifying long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.”

15. The only issue which this Tribunal has been required to determine is whether or not it is reasonable to dispense with the statutory consultation requirements. This [NAME] does not concern the issue of whether any service charge costs will be reasonable or payable.

16. The Tribunal is satisfied that it is reasonable to grant dispensation from the statutory consultation requirements. It is apparent that the work can only be executed by [NAME] because the lifts use a closed protocol system. No [NAME] has opposed the [NAME].

17. The Directions make provision for the service of the Tribunal’s decision. The Tribunal will email a copy of its decision to the Applicant.

5 The Applicant is responsible for serving a copy of the Tribunal’s decision on the Respondents. Judge Robert Latham 27 June 2024

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made by e-mail to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28 day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28 day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).