First-tier Tribunal Grants Dispensation for Safety Works

OUTCOME: Allowed

First-tier Tribunal

Property Chamber

(Residential Property)

Case reference : CAM/11UC/LDC/2019/0007

Property : 72-[ADDRESS], Bucks

[POSTCODE]

Applicant: [redacted]

Respondents : [redacted]

listed in the application

Date of Application : 1 March 2019 (rec’d 6th)

Type of Application : for permission to dispense with

consultation requirements in respect of

qualifying works (Section 20ZA Landlord

and Tenant Act 1985 (“the 1985 Act”))

Tribunal : [NAME] (Hons)

Judge Wayte

____________________________________________

DECISION

_________________________________ ©

1. The Applicant is granted dispensation from further consultation

requirements for work to install edge protection to the rear roof, install

emergency lighting and to install new skylights in each flat.

Reasons

Introduction

2. The Applicant’s managing agents of the property have informed the Tribunal

that following a Health and Safety Risk Assessment and a Fire Risk

Assessment undertaken by [NAME] they need to carry out works to the

building.

3. This comprises edge protection to be installed on the rear roof to prevent any

contractors working for the Landlord or the retail tenants from falling

together with installation of emergency lighting as it was deemed that natural

light in the event of a power failure would not be sufficient to assist tenants in

leaving the property

4. In addition, the Applicants managing agents state that there is a need to

install new skylights to each flat as the current skylights are failing and this

2

is causing internal damage to the flats and has generated complaints from

leaseholders.

5. In a directions order dated 7 March 2019, it was said that this case would be

dealt with on the papers on or after 16 April 2019 taking into account any

written representations made by the parties. It was made clear that if any

party wanted an oral hearing, then that would be arranged. No request for a

hearing was received and there have been no representations from the

Respondents.

The Law

6. Section 20 of the 1985 Act limits the amount which lessees can be charged for

major works unless the consultation requirements have been either complied

with, or dispensed with by a First-tier Tribunal. The detailed consultation

requirements are set out in Schedule 4, Part 2 to the Service Charges

(Consultation Requirements) (England) Regulations 2003. These

require a Notice of Intention, facility for inspection of documents, a duty to

have regard to tenants' observations, followed by a detailed preparation of

the landlord’s proposals.

7. The landlord's proposals, which should include the observations of tenants,

and the amount of the estimated expenditure, then have to be given in

writing to each tenant and to any recognised tenant’s association. Again,

there is a duty to have regard to observations in relation to the proposals, to

seek estimates from any contractor nominated by or on behalf of tenants and

the landlord must give its response to those observations.

8. Section 20ZA of the Act allows this Tribunal to make a determination to

dispense with the consultation requirements if it is satisfied that it is

reasonable.

Conclusions

9. All the Tribunal must determine is whether dispensation should be granted

from the full consultation requirements under Section 20ZA of the 1985 Act.

There has been much litigation over the years about the matter to be

considered by a Tribunal dealing with this issue which culminated with the

Supreme Court decision of Daejan Investments Ltd. v Benson [2013]

UKSC 14.

10. That decision made it clear that a Tribunal is only really concerned with any

actual prejudice which may have been suffered by the lessees or, perhaps put

another way, what would they have done in the circumstances?

11. This is not an application for the Tribunal to approve the reasonableness of

the works or the reasonableness, apportionment or payability of the service

charge demand. However, the Tribunal were supplied with evidence of

market testing of costs for all elements which did not appear to be excessive.

12. A subsequent application can be made to this Tribunal to assess the

reasonableness of the charges for these works under Section 27(A) Landlord

and Tenant Act 1985. The Tribunal would want clear evidence that, given the

circumstances, there would have been contractors available at the time who

would have been able to undertake the works reasonably quickly at a lesser cost.

3

13. As far as this application is concerned, the [NAME] case referred to above now

places the responsibility on the shoulders of the [NAME] to establish a

particular prejudice arising from a lack of consultation. None have been put forward

and the Tribunal concludes that, on balance, it can grant dispensation because the

works are required to be completed urgently.

[NAME]

18 April 2019

ANNEX - RIGHTS OF APPEAL

i. If a party wishes to appeal this decision to the Upper Tribunal (Lands

Chamber) then a written application for permission must be made to the

First-tier Tribunal at the Regional office which has been dealing with the

case.

ii. The application for permission to appeal must arrive at the Regional office

within 28 days after the Tribunal sends written reasons for the decision to

the person making the application.

iii. If the application is not made within the 28-day time limit, such application

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 application for permission to

appeal to proceed despite not being within the time limit.

iv. The application 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

making the application is seeking.