First-tier Tribunal Grants Dispensation for Urgent Drainage Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL [RESPONDENT] CHAMBER ([RESPONDENT]) Case Reference : LON/00AW/LDC/2021/0308 HMCTS Code : P: [RESPONDENT] : [ADDRESS], [POSTCODE] Applicant : [redacted] [APPELLANT] Respondent: [redacted] :

Dispensation from consultation requirements under Landlord and Tenant Act 1985 section 20ZA Tribunal Members :

Judge Professor R [NAME] (Econ) MRICS Venue : Remote paper determination Date of Decision : 7 March 2022

DECISION

2

Decisions of the tribunal (1) The Tribunal, pursuant to section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”), grants dispensation from the consultation requirements in respect of the works the subject of the application. Procedural 1. The landlord submitted an application for dispensation from the consultation requirements in section 20 of the Landlord and Tenant Act 1985 (“the 1985 Act”) and the regulations thereunder, dated 26 November 2022 2. The Tribunal gave directions on 13 January 2022. The directions provided for a form to be distributed to those who pay the service charge to allow them to object to or agree with the applications, and, if objecting, to provide such further material as they sought to rely on. The application and directions was required to be sent to the leaseholders and any sublessees, and to be displayed as a notice in the common parts of the [RESPONDENT]. The deadline for return of the forms, to the Applicant and the Tribunal, was 10 February 2022.

3. The Applicant confirmed that the relevant documentation had been sent, and posted as notices, as required by the directions.

4. No response from a leaseholder has been received by the Tribunal, and the Applicant confirms that it has had no responses. The [RESPONDENT] and the works 5. The [RESPONDENT] is described as a “high end period [RESPONDENT]”, comprising 45 residential flats over shops and offices.

6. The works are to descale all of the communal pipes, and to improve access for maintenance. The Applicant relies on the results of investigation by a [NAME], which states that the condition of the sewerage/drainage pipes is poor, and that remedial work is urgent to prevent the backing up of sewerage into the flats. In particular, there is a significant build up of scale, which is preventing the sewerage/drainage system from flowing freely. As a result, the flats have been suffering blockages already.

7. In addition to the descaling, the works include the fitting of access panels to facilitate future maintenance.

3 8. It appears that the sewerage/drainage system serves both the commercial properties and the flats.

9. The Applicant has obtained three quotations, all of which, it states, are above the section 20 consultation threshold. We have not been provided with copies of the quotations. Determination 10. The Tribunal is concerned solely with an application under section 20ZA of the 1985 Act to dispense with the consultation requirements under section 20 of the same Act.

11. In the first place, we accept that there is a degree of urgency in undertaking the works.

12. Secondly, no responses have been received from any of the leaseholders. It is therefore clear that no leaseholder has sought to claim any prejudice as a result of the consultation requirements not having been satisfied. Where that is the case, the Tribunal must, quite apart from any question of urgency, allow the application: [COMPANY] v [NAME] and others [2013] UKSC 14; [2013] 1 WLR 854.

13. This application relates solely to the granting of dispensation. If the leaseholders consider the cost of the works to be excessive or the quality of the workmanship poor, or if costs sought to be recovered through the service charge are otherwise not reasonably incurred, or if the leaseholders consider that a service charge demand is not in part payable by reason of the allocation of costs between the commercial premises and flats, then it is open to them to apply to the Tribunal for a determination of those issues under section 27A of the Landlord and Tenant Act 1985.

Name: Judge Prof Richard Percival Date: 7 March 2022

4 Appendix of relevant legislation

Landlord and Tenant Act 1985 (as amended) Section 20 (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) the appropriate 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. (4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount. (5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and (b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations. (6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is limited to the appropriate amount. (7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in

5 accordance with, the regulations is limited to the amount so prescribed or determined.] Section 20ZA

(1) Where an application is made to a leasehold valuation 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. (2) In section 20 and this section— “qualifying works” means works on a building or any other premises, and “qualifying long term agreement” means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a superior landlord, for a term of more than twelve months. (3) The Secretary of State may by regulations provide that an agreement is not a qualifying long term agreement— (a) if it is an agreement of a description prescribed by the regulations, or (b) in any circumstances so prescribed. (4) In section 20 and this section “the consultation requirements” means requirements prescribed by regulations made by the Secretary of State. (5) Regulations under subsection (4) may in particular include provision requiring the landlord— (a) to provide details of proposed works or agreements to tenants or the recognised tenants’ association representing them, (b) to obtain estimates for proposed works or agreements, (c) to invite tenants or the recognised tenants’ association to propose the names of persons from whom the landlord should try to obtain other estimates, (d) to have regard to observations made by tenants or the recognised tenants’ association in relation to proposed works or agreements and estimates, and (e) to give reasons in prescribed circumstances for carrying out works or entering into agreements. (6) Regulations under section 20 or this section— (a) may make provision generally or only in relation to specific cases, and (b) may make different provision for different purposes. (7) Regulations under section 20 or this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either [NAME].