First-tier Tribunal Grants Dispensation for Urgent Fire Safety Works

OUTCOME: Allowed

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Case Reference : MAN/00CG/LDC/2021/0023

Property : Parkside, Foxglove & Bluebell House, [ADDRESS], [ADDRESS], Sheffield

Applicant : [redacted] Management Company Limited

Representative : [COMPANY]

Respondents : [redacted]

(See Annex A)

Type of Application : Landlord & Tenant Act 1985 – Section 20ZA

Tribunal Member : Judge L Bennett

Date of determination : 10 May 2022

Date of Decision : 10 May 2022

_______________________________________________

DECISION ____________________________________

© CROWN COPYRIGHT 2022

FIRST - TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

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Application

1. [ADDRESS] Estate Management Company Limited applies to the Tribunal under Section 20ZA of Landlord and Tenant Act 1985 (the Act) for retrospective dispensation from the consultation requirements of Section 20 of the Act and the Service Charges (Consultation Requirements)(England) Regulations 2003 (SI 2003/1987) in respect of an external wall system survey (EWS1)(the Works) carried out at Parkside, Foxglove and Bluebell House ([NAME]).

2. The Respondents are [NAME] of apartments at [NAME] and listed at the Annex to this decision.

Grounds and Submissions

3. The application is dated 6 May 2021.

4. The Applicant is the Landlord and registered proprietor of the freehold title of [NAME].

5. [NAME] comprises 3 individual 3 storey purpose built blocks, containing a

total of 26 apartments and 12 townhouses. There is also an undercroft carpark with

a raised deck.

6. On 27 July 2021 Deputy Regional Judge Bennett made directions requiring the

service of documents by the Applicant on each of the Respondents. The directions

provided that in the absence of a request for a hearing the application would be

determined upon the parties’ written submissions.

7. In response to directions the Applicant has provided a statement of case which also

contains various Annexes.

8. The Applicant’s statement of case sets out a chronology of events leading up to the

application for retrospective dispensation.

9. The Applicant was made aware of issues relating to the construction of the external

wall system following investigatory works where it was discovered that the

construction was likely to comprise of combustible materials likely to pose a risk of

fire spread.

10. On 28 February 2020, [APPELLANT] ([NAME]), the Applicant’s

appointed Managing Agent, conducted an inspection of [NAME] to ascertain

the potential cause of rainwater ingress. The report identified issues with the lack of

weathering detailing and the thickness and position of the PIR insulation. A copy of

the report can be found at Annex C of the Applicant’s statement of case.

11. [NAME] then instructed [COMPANY] ([COMPANY]) to carry out a condition survey of [NAME]. [COMPANY] attended [NAME] on 26 August 2020. [COMPANY] provided the

Applicant with a site survey report. The report highlighted issues with the window

and door details, the fasteners and AOV controller. It concluded that the façade

system was of a very poor standard and was not fit for purpose in its current state.

Major remedial works were therefore required to ensure it was installed as per

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current regulations and as per the manufacturer’s instructions. A copy of the report

can be found at Annex D of the Applicant’s statement of case.

12. [NAME] next instructed [NAME], the developer of the original cladding, to

complete a site inspection report. The inspection took place on 14 October 2020.

The report concluded that the use of timber in a rainscreen system was not a

solution they would recommend. A copy of the report can be found at Annex E of

the Applicant’s statement of case.

13. In and around October 2020, [NAME] conducted a second inspection, to identify

any issues with the external wall construction. The [NAME] found

that the existing rainscreen cladding panels did not provide adequate

stability/protection in case of fire. A copy of the report can be found at Annex F of

the Applicant’s statement of case.

14. All 3 reports identified that there were potential fire safety issues with [NAME]

which would have to be considered further by way of an EWS1 survey. To complete

the EWS1 survey, various works were required at [NAME]. Details of which are

listed at paragraph 13 of the Applicant’s statement of case. The Applicant relies on

the entirety of the EWS1 survey which confirms the exact works undertaken as part

of the inspection.

15. [NAME] approached 3 companies to tender for the works:

a. [COMPANY] (£46,875 plus VAT)

b. [COMPANY] (£28,000 plus VAT)

c. [COMPANY] (£14,465 plus VAT)

The proposal form for [APPELLANT] can be found at Annex G of the

Applicant’s statement of case.

[APPELLANT] did not provide a formal quotation (only verbal) due to the fact

that they were unavailable to complete the works.

[NAME] instructed [COMPANY] to carry out the EWS1 survey at a

final cost of £17,258 including VAT. A copy of the invoice can be found at Annex H

of the Applicant’s statement of case.

16. On 9 February 2021, [APPELLANT] attended [NAME] to

complete the intrusive part of the survey. The report was subsequently prepared on

3 March 2021. The EWS1 survey can be found at Annex I of the Applicant’s

statement of case.

17. The Tribunal did not receive submissions from a Respondent Leaseholder.

Neither the Applicant nor a Respondent requested a hearing.

18. The Tribunal convened without the parties to make its determination on 10 May

2022.

4 Law

19. Section 18 of the Act defines “service charge” and “relevant costs”.

20. Section 19 of the Act limits the amount payable by the lessees to the extent that the

charges are reasonably incurred.

21. Section 20 of the Act states:- “Limitation of service charges: consultation requirements

Where this Section applies to any qualifying works…… the relevant contributions of tenants are limited……. Unless the consultation requirements have either:- a. complied with in relation to the works or b. dispensed with in relation to the works by …… a tribunal. This Section applies to qualifying works, if relevant costs incurred on carrying out the works exceed an appropriate amount”.

22. “The appropriate amount” is defined by regulation 6 of The Service Charges

(Consultation Requirements) (England) Regulations 2003 (the Regulations) as

“……. an amount which results in the relevant contribution of any tenant being more

than £250.00.”

23. Section 20ZA(1) of the Act states:- "Where an application is made to a 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."

Tribunal’s Conclusions with Reasons

24. I have determined this matter following a consideration of the Applicant’s case but

without holding a hearing. Rule 31 of the Tribunal Procedure (First-tier Tribunal)

([NAME]) Rules 2013 permits a case to be dealt with in this manner

provided that the parties give their consent (or do not object when a paper

determination is proposed). In this case, the Applicant has given its consent and

the Tribunal has not heard from a Respondent in response to the application.

Moreover, having reviewed the case papers, I am satisfied that this matter is

indeed suitable to be determined without a hearing. Determining this matter

does not require me to decide disputed questions of fact.

25. It is not necessary to consider at this stage the extent of the service charges

that would result from the works payable under the terms of the Respondent’s

leases. If and when such is demanded, and if disputed, it may properly be the

subject of a future application to the Tribunal.

26. I accept from the details provided by the Applicant that the water ingress and

damp issues at [NAME] were worsening. That the subsequent 3 reports

identified fire and safety issues. That the potential risks to the occupiers of the

apartments at [NAME] needed to be identified. That the works required to

obtain the EWS1 survey report were therefore necessary and urgent and had to be

carried out outside of the Section 20 consultation process.

27. Although formal consultation has not taken place, I note that the Applicant ensured

that that the [NAME] were continually updated through numerous letters,

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minutes from Director meetings were circulated and information was placed on the

communal tenant portal. Balancing the need for urgent action against dispensing

with statutory requirements devised to protect service charge paying [NAME],

I conclude the urgency outweighs any identified prejudice. Dispensation from

consultation requirements does not imply that the resulting service charge is

reasonable.

28. I conclude it reasonable in accordance with Section 20ZA(1)of the Act to dispense

with the consultation requirements, specified in Section 20 and contained in

Service Charges (Consultation Requirements)(England) Regulations 2003 (SI

2003/1987).

29. Nothing in this determination or order shall preclude consideration of whether the

Applicant may recover by way of service charge from the Respondents any or all of

the cost of the work undertaken or the costs of this application should a reference be

received under Section 27A of the Landlord and Tenant Act 1985.

Order

30. The Applicant is dispensed from complying with the consultation requirements in

respect of the work specified in the application.

Laurence J Bennett Tribunal Judge 10 May 2022

6 Annex A

[NAME]

[NAME] Mr & Mrs [NAME] [NAME] Mr [NAME] Ms [NAME] [NAME] [NAME] [NAME] Ms [NAME] [NAME] Mr [NAME] Mr & Mrs [NAME] Mr & Mrs [NAME] [NAME] Mr [NAME] Mr & Mrs [NAME] N Haywood-Alexander & The Estate of H [NAME] [NAME] [NAME] Ms [NAME] Mr & Mrs [NAME] [NAME] Mr [NAME] [NAME] [NAME] [COMPANY]