First-tier Tribunal Grants Dispensation for Urgent Repairs to External Decking

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AR/LDC/2024/0637 Property : [ADDRESS], [POSTCODE] Applicant : [redacted] : [RESPONDENT], Solicitors Respondent : [redacted] the Schedule to the [NAME] : None Type of [NAME] : To dispense with the requirement to consult [NAME] about major works, s.20ZA Landlord and Tenant Act 1985 Tribunal members : Judge M Jones Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 11 February 2025

DECISION

Summary of the Decision

1. The Applicant is granted dispensation under Section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act in respect of investigation and repair to the external decking and supporting structures, and drainage works to the lower slab serving the property at [ADDRESS], [POSTCODE] (“the Property”).

2 2. The Tribunal does not impose any conditions on the grant of dispensation.

3. The Tribunal has made no determination as to whether costs of the works are reasonable or payable.

Background to the [NAME]

4. The [COMPANY] applied by [NAME] dated 24 September 2024 for dispensation under Section 20ZA of the 1985 Act from the consultation requirements imposed by Section 20 of the 1985 Act, in respect of works of repair to the external decking and supporting structures forming external common parts of the Property and drainage works to the slab beneath.

5. The Property consists of 91 purpose-built flats arranged in four storey blocks of timber framed construction, built on a serviced slab above a two-storey retail and office complex fronting [ADDRESS] in Romford. The blocks of flats are situated at opposite edges of the slab, with the central area providing an open space and access to the flats.

6. The Applicant is party to the residential leases and carries out repair, maintenance and management services on behalf of the landlord .

7. The respondents are the tenants of the residential flats.

8. The [NAME] is made in circumstances where it is stated that the central open space area, known as the podium deck area, is covered in wooden decking, which has reached the end of its design lifespan and is said to be rotten in parts. Existing work to replace potentially dangerous parts of the decking has revealed that some joist brackets have rusted and are broken or in danger of failing, and plastic feet supporting the decking have buckled.

9. Whilst it may be that in some areas replacing rotten parts of the decking will suffice, until the decking is lifted, the need for additional work replacing brackets and supporting feet cannot be known.

10. A further issue for investigation and potential repair whilst the decking is lifted concerns drainage issues affecting the slab beneath, and it is anticipated that there may be a need to extend rainwater downpipes to permit better drainage, to reduce pooling and the waterlogging of the decking timbers.

11. If the works are not carried out, sections of the podium deck area will need to be closed on health and safety grounds to avoid the risk of collapsing decking, and consequential accidents and injury.

12. The costs of the proposed works are not known: the extent to which repairs may be necessary cannot be ascertained with any degree of

3 precision until decking sections are lifted and the structures beneath inspected. To engage in a tender process would in essence mean that the lifting process would need to be done twice; additionally, as at the date of the [NAME] some urgent works had commenced to replace dangerously worn timbers which presented a health and safety hazard.

13. The Applicant asserts that it has employed a contractor to attend to the immediate works at what it believes to be a competitive rate, which can be extended to the wider contract. It states that if s.20 consultation were to be engaged in, the extended duration of the consultation process and anticipated consequential increases in costs would prejudice the tenants, while the current [NAME] is intended to limit the expenses that will ultimately be sought by way of service charges.

14. The full anticipated cost of the works is not known, due to the inherent uncertainties of the matter. The Applicant hoped that the costs would not exceed the statutory limit of £250 per flat, but does not know whether this sum will be exceeded, or not.

15. The [NAME] were advised in writing of the need for the work and of the Applicant’s proposals on 31 July 2024. They were updated by email sent on 4 September 2024, advising of the present [NAME]. Following the Tribunal’s directions given on 4 December 2024, the [NAME] and supporting papers, advising the [NAME] of their rights to oppose the [NAME] were delivered by hand to each flat.

16. By letter dated 24 January 2025 [APPELLANT], solicitors for the Applicant, have confirmed that no notice of objection or request for further information has been received from any leaseholder.

17. By its directions given on 4 December 2024 the Tribunal allocated the case to the paper track (i.e. without giving directions for an oral hearing), but directed that any party had the right to request an oral hearing. No party requested such a hearing.

18. The matter is therefore determined on the papers in accordance with Rule 31 of the Tribunal’s Procedural Rules.

19. [NAME] this determination, the papers received including the Applicant’s hearing bundle comprising some 94 pages were considered, to ascertain whether the issues remained capable of determination without an oral hearing and it was decided that they were, in particular given the absence of any formal representations to the contrary.

20. Whilst the Tribunal makes it clear that it has read the bundle, the Tribunal does not refer to every one of the documents in detail in this Decision, it being impractical and unnecessary to do so. Where the Tribunal does not refer to specific documents in this Decision, it should not be mistakenly assumed that the Tribunal has ignored or left them out of account.

4

The Law

21. The relevant section of the 1985 Act reads as follows:

“S.20 ZA Consultation requirements:

Where an [NAME] 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.”

22. The issues arising on such applications were examined in detail by the Supreme Court in the case of [COMPANY] v Benson [2013] UKSC 14. In summary the Supreme Court noted the following:

a. The main question for the Tribunal when considering how to exercise its jurisdiction in accordance with section 20ZA is the real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.

b. The financial consequence to the landlord of not granting a dispensation is not a relevant factor. The nature of the landlord is not a relevant factor.

c. Dispensation should not be refused solely because the landlord seriously breached, or departed from, the consultation requirements.

d. The Tribunal has power to grant a dispensation as it thinks fit, provided that any terms are appropriate.

e. The Tribunal has power to impose a condition that the landlord pays the tenants’ reasonable costs (including surveyor and/or legal fees) incurred in connection with the landlord’s [NAME] under section 20ZA (1).

f. The legal burden of proof in relation to dispensation applications is on the landlord. The factual burden of identifying some “relevant” prejudice that they would or might have suffered is on the tenants.

g. The court considered that “relevant” prejudice should be given a narrow definition; it means whether non-compliance with the consultation requirements has led the landlord to incur costs in an unreasonable amount or to incur them in the provision of services, or in the carrying out of works, which fell below a reasonable standard, in other words whether the non-compliance has in that sense caused prejudice to the tenant.

5 h. The more serious and/or deliberate the landlord's failure, the more readily a Tribunal would be likely to accept that the tenants had suffered prejudice.

i. Once the tenants had shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it.

Evidence

23. The Applicant’s case is summarised in paragraphs 4 to 15, above.

24. No objections have been received from any Respondent.

Determination

25. Dispensation from the consultation requirements of S.20 of the 1985 Act may be given where the Tribunal is satisfied that it is reasonable to dispense with those requirements. Guidance on how such power may be exercised is provided by the leading case of [NAME] v [NAME], referred to above.

26. The urgent nature of works to the most badly damaged decking timbers, and the wider potential hazard presented by the rotting decking and failing structures underneath, allied with the pragmatic desirability and anticipated lower costs of effecting works of investigation and repair together present a strongly persuasive case in support of the [NAME].

27. Where there was failure to comply with the statutory regime, the issue is simply whether by not being consulted the Respondents have suffered prejudice.

28. In the circumstances of this case the Tribunal finds nothing on the evidence to establish that the Respondents would suffer prejudice by the grant of dispensation from the statutory consultation procedure.

29. Accordingly, the Tribunal is satisfied that it is appropriate to dispense with the consultation requirements for the works in issue.

30. The Tribunal therefore grants dispensation from the consultation requirements of S.20 Landlord and Tenant Act 1985 in respect of investigation and repair to the external decking and supporting structures, and drainage works to the lower slab serving the Property

31. The grant of dispensation is unconditional.

32. In granting dispensation, the Tribunal makes no determination as to whether any service charges are reasonable or payable. This determination does not affect the

6 right of the Respondents to challenge the costs or standard of work if they so wish.

33. In accordance with paragraph 8 of the directions dated 4 December 2024, it is the Applicant’s responsibility to serve a copy of the Tribunal’s decision on all Respondent leaseholders to the [NAME].

Name: Judge M Jones Date: 11 February 2025

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 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).