First-tier Tribunal Grants Dispensation for Urgent Property Works

OUTCOME: Allowed

In the First tier Tribunal (Property Chamber)

Case Reference : MAN/00BN/LDC/2024/0016 Property : [NAME], 4 [ADDRESS] [POSTCODE] Applicant: [redacted] Applicant’s Representative : [APPELLANT] Respondent : [redacted] Annex) Type of Application : Landlord & Tenant Act 1985 – Section 20ZA Tribunal Members [NAME] [APPELLANT] [NAME]. [NAME] [NAME]. [NAME] of Order : 14 February 2025

ORDER

© CROWN COPYRIGHT 2025

DECISION The Tribunal determines that dispensation from consultation for the [NAME] as detailed in the application be granted pursuant to s20ZA Landlord and Tenant Act 1985. INTRODUCTION 1. An application was made by the [COMPANY] for dispensation of the consultation requirements of s20 of the Landlord and Tenant Act 1985 and The Service Charges (Consultation Requirements) (England) Regulations 2003 (“the Consultation Requirements”) relating to [NAME] to an external glazed window at [NAME], 4 [ADDRESS] [POSTCODE] ("the Property").

2. Directions were made by a Legal Officer of the Tribunal on the 25 November 2024. The Applicant was directed to send to the Tribunal, with a copy to each Respondent, a bundle of documents, consisting of a statement of case, correspondence sent to the [NAME] in relation to the [NAME], detailed reasons for the urgency of the [NAME] and the consequences upon lessees of any delay; any quotes or estimates for the proposed [NAME] and relevant reports (including full details of attempts made by the Applicant to obtain quotes or estimates) and copies of any other documents the Applicant seeks to rely on in evidence.

3. Any Respondent who opposes the application was directed, within 14 days of receipt of the Applicant's bundle to send to the Applicant and to the Tribunal, any statement they wished to make in response to the Applicant’s case.

THE PROPERTY 4. The Applicant described the Property as a 6 storey building comprising 82 apartments and 10 commercial units, constructed in or around 2005. The developer [NAME] had converted an old warehouse (rear block) and added a new build extension (front block) at the time of conversion. The building is constructed from steel frame with glass and tile cladding. The internal structure is of steel beams in the front block and

concrete/brick walls with large areas of glazing in the rear block. Fenestration consists of full height glazing with aluminium sliding doors and casements. Internally, the communal areas consist of plastered and painted ceilings and walls with concrete carpeted floors to corridor and ceramic tiled floors to the entrance lobby and ground floor corridor.

5. The Applicant stated that the east façade of the building extends to 6 levels; there are 4 apartments situated upon each level. Apartments at level 1 to 4 have a continuous structural glazing as external wall finish and have access onto a shared balcony area that is enclosed with sliding glass panels. At level 5, the apartments are set back with access onto a balcony area and have 3 glazed patio doors presented as external wall finish. At level 6, the arrangement is similar to level 5, but the balcony areas are open. The [COMPANY] occupy street level areas.

THE [NAME] 6. The Applicant stated that the qualifying [NAME] relate to an external glazed wall to the east side of the building. That area of the building has suffered from water ingress, and it has appeared that the condition has deteriorated. It is noted that evidence of “flash band” and mastic repairs can be seen about this façade in numerous locations.

7. During April, the development was undergoing a cladding remediation with scaffolding erected along the full length of the building. The Applicant appointed [APPELLANT] to produce a comprehensive report on the damage and recommendations to remedy the area.

8.[NAME] included removal and replacement of the existing mastic seals, prime using Sika Aktivator- 205 and seal with Everbuild Tecnic Silicone 825 Mid Grey, removal of the existing “flash band” materials and replace with 100mm wide tape at a total cost of £33,192.13 including VAT.

THE LEGISLATION The relevant legislation is contained in s20ZA Landlord and Tenant Act 1985 which reads as follows: s20 ZA Consultation requirements: supplementary (1) Where an application is made to the appropriate tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying [NAME] 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 [NAME]” means [NAME] 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 [NAME] or agreements to tenants or the recognised tenants’ association representing them, (b) to obtain estimates for proposed [NAME] 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 [NAME] or agreements and estimates, and

(e) to give reasons in prescribed circumstances for carrying out [NAME] 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] THE APPLICATION 9. No [NAME] opposed the [NAME].

10. The Applicant estimated that scaffolding would amount in the region of £70,000 to £100,000. The cost of scaffolding would not be charged to the [NAME], except for adjustments in reaching the actual damaged area and this is reflected in the total sum of the [NAME], given that it was in place for the cladding [NAME].

11. The Applicant appointed the same contractor remedying the cladding elements, [NAME]. The [NAME] were overseen by [NAME]. That decision was evaluated against time and money.

12. The Applicant averred that they had acted within a reasonable scope for the avoidance of financial burden.

13. Several letters were sent to the [NAME], (24 April, 23 May, 15 June and 21 July 2023) which alongside updates on the cladding [NAME] (funding for which was provided from the Government Building Remediation Fund), advised [NAME] of the need for the water penetration [NAME], the costs of the [NAME] and the intention to apply for dispensation, and generally keeping them informed. The [NAME] were supplied with a copy of this Application.

14. The Applicant stated that their understanding of prejudice is that this would occur if the [NAME] resulted in an unreasonable financial cost to the leaseholder because the [NAME]:

(c) were unnecessary or inappropriate (c) were carried out to an inappropriate standard (c) resulted in an unreasonable amount of costs

15. The Applicant stated that the [NAME] were necessary and urgent, as recommended by [NAME]. They submitted that they conducted an equitable approach in appointing a contractor that was already on site, and that the [NAME] have not been prejudiced by the lack of consultation process.

16. It is held that there was not any prejudice.

17. The Applicant confirmed to the Tribunal on 19th December 2024 that no replies had been received in response to their bundle, which had been sent on the 18th November 2024.

THE DETERMINATION 18. The Tribunal has jurisdiction to dispense with consultation under Section 20ZA (1) which provides the Tribunal may do so “if satisfied that it is reasonable to dispense with the requirements”.

19. The only issue for the Tribunal to consider under section 20ZA is whether or not it is reasonable to dispense with the consultation requirements. The application does not concern the issue of whether any service charge costs resulting from the contracts are reasonable or indeed payable and it will be open to lessees to challenge any such costs charged by the Applicant under section 19 of the Act, if, for example they did not believe the Applicant was entitled to charge for utilities under the terms of their occupancy agreement.

20. This was confirmed by HHJ Huskinson in the Upper Tribunal who considered the jurisdiction for prospective dispensation under s20ZA in the case of [NAME] v [NAME] [2008]. The Upper Tribunal confirmed that the Tribunal has broad judgment akin to a discretion in such cases. The dispensation should not however be vague and open ended. The exercise of discretion to grant dispensation requires the clearest of reasons explaining its exercise 21. Dispensation was considered in depth by the Supreme Court in Daejan v Benson [2013] UKSC14 which concerned a retrospective application for dispensation. Lord [NAME] confirmed that the Tribunal has power to grant a dispensation on such terms as it thinks fit, providing that the terms are appropriate in their nature and effect.

22. At paragraph 56 Lord [RESPONDENT] said it was “clear” that a landlord may ask for dispensation in advance for example where [NAME] were urgent, or where it only becomes apparent that it was necessary to carry out some [NAME] whilst contractors were already on site carrying out other work. In such cases it would be “odd” if the (LVT) could not dispense with the Requirements on terms which required the Landlord, for instance (i) to convene a meeting of the tenants at short notice to explain and discuss the necessary [NAME], or (ii) to comply with stage 1 and/or stage 3, but with (for example 5 days instead of 30 days for the tenant to reply.

23. Lord [APPELLANT] also confirmed that conditions could be imposed as to costs, aside from the Tribunal’s general powers to award costs, (which at that time were limited), drawing a parallel to the Court’s practice to making the payment of costs a condition of relief from forfeiture.

24. The correct approach to prejudice to the tenants is to consider the extent that tenants would “relevantly” suffer if an unconditional dispensation was accorded. The Tribunal needs to construct what might happen if the consultation proceeded as required - for instance whether the [NAME] would have cost less, been carried out in a different way or indeed not been carried out at all, if the tenants (after all the payers) had the opportunity to make their points.

25. The Tribunal is satisfied that the [NAME] were urgent given the potential for damage to the Property, and were carried out expeditiously for the benefit of all [NAME],

and making use of scaffolding that was already erected for cladding [NAME], resulting in savings estimated by the Applicant to be between£70,000 and £100,000.

26. The request for dispensation was made sometime after the [NAME] were completed. No [NAME] submitted any reply form to the Tribunal, or sought to have any involvement in this application.

27.

In all the circumstances, dispensation from consultation is granted.

28. This judgement does not address whether the costs are either payable, under the terms of the lease, or reasonable in terms of amount and quality of [NAME], and any leaseholder who has concerns in any of those respects has a right to apply to the Tribunal pursuant to s27A Landlord and Tenant Act 1985.

Tribunal Judge J Murray LLB 14 February 2025

Annex A - [NAME] 101, [NAME] [NAME] & [NAME] [NAME] 102, [NAME] [NAME] 103, [NAME] [NAME] [NAME] & Miss [NAME] 104, [NAME] [NAME] [NAME] 105, [NAME] [NAME] [NAME] & [NAME] [NAME] 106, [NAME] Mrs [NAME] 107, [NAME] [NAME] [NAME] & [NAME] [NAME] 108, [NAME] [NAME] [NAME] 109, [NAME] [NAME] 201, [NAME] [NAME] [NAME] 202, [NAME] [NAME] 203, [NAME] [NAME] [NAME] 204, [NAME] [NAME] [NAME] 205, [NAME] [NAME] [NAME] 206, [NAME] [NAME] [NAME] [NAME] 207, [NAME] [NAME] [NAME] & [NAME] [NAME] 208, [NAME] [NAME] [NAME] & [NAME] [NAME] 209, [NAME] [NAME] [NAME] & [NAME] [NAME] [NAME] 210, [NAME] [NAME] [NAME] 211, [NAME] [NAME] [NAME] [NAME] 212, [NAME] [NAME] 213, [NAME] [NAME] [NAME] & [NAME] [NAME] 214, [NAME] [COMPANY]. Apartment 215, [APPELLANT]. Apartment 216, [NAME] [APPELLANT] [COMPANY]. Apartment 217, [NAME] [NAME] [APPELLANT] [NAME] & [NAME] [NAME] 301, [NAME] [NAME] [NAME] 302, [NAME] Mrs [NAME] 303, The [COMPANY]. Apartment 304, [NAME] [NAME] [NAME] 305, [NAME] [NAME] [NAME] 306, [NAME] 307, [NAME] [NAME] [NAME] 308, [NAME] [NAME] [NAME] & Mrs [NAME] 309, [NAME] [NAME] [NAME] 310, [NAME] [NAME] [NAME] 311, [NAME] [NAME] [NAME] 312, [NAME] [NAME] [NAME] & Mrs [NAME] 313, [NAME] [NAME] [NAME] 314, [NAME] [NAME] [NAME] & [NAME] B [NAME] 315, [NAME] [NAME] [NAME] & [NAME] [NAME] [NAME] 316, [NAME] [NAME] [NAME] 317, [NAME] [NAME] [NAME] [NAME] 401, [NAME] [NAME] 402, [NAME] [NAME] [NAME] 403, [NAME] [NAME] 404, [NAME] A Dickinson & A Ferguson Apartment 405, [NAME] [NAME] 406, [NAME] [NAME] [NAME] 407, [NAME] [NAME] [NAME] 408, [NAME] [NAME] 409, [NAME] [NAME] 410, [NAME] [NAME] [NAME] & [NAME] [NAME] [NAME] 411, [NAME] [NAME] [NAME] & Miss [NAME] 412, [NAME] [NAME] [NAME] 413, [NAME] Dr [NAME] 414, [NAME] Dr [NAME] [NAME] 415, [NAME] [NAME] [NAME] [NAME] 416, [NAME] [NAME] 417, [NAME] [NAME] [NAME] 501, [NAME] [NAME] [NAME] 502, [NAME] [NAME] [NAME] & [NAME] [NAME] 503, [NAME] [NAME] 600, [NAME] [NAME] 506, [NAME] [NAME] [NAME] & [NAME] 507, [NAME] [NAME] [NAME] 508, [NAME] [NAME] [NAME] 509, [NAME] [NAME] [NAME] 510, [NAME] [NAME] [NAME] 511, [NAME] [NAME] [NAME] 512, [NAME] [COMPANY]. Apartment 601, [NAME] [NAME] J & [NAME] 602, [NAME] [NAME] [NAME] 603, [NAME] [NAME] [NAME] 604, [NAME] [NAME] [NAME] 605, [NAME] [NAME] [NAME] 606, [NAME] [NAME] [NAME] & [NAME] [NAME] 607, [NAME] [NAME] [NAME] 608, [NAME] [NAME] 609, [NAME] [NAME] [NAME] & Miss [NAME] 610, [NAME] [NAME] [NAME] 611, [NAME] [NAME] [NAME]