First-tier Tribunal Grants Dispensation for Urgent Water Pipe Repairs

OUTCOME: Allowed

FIRST-TIER TRIBUNAL

PROP-ERTY CHAM-BER (RESI-DEN-TIAL PROP-ERTY)

Case Reference : LON/00AY/LDC/2022/0041

Property : 1-2 37A [ADDRESS] [POSTCODE]

Applicant : [redacted]

Representatives : [COMPANY]: [NAME]

Respondents : [redacted]

Type of Applica-tion : Application for the dispensation of consultation requirements pursuant to S. 20ZA of the Landlord and Tenant Act 1985

Tribunal Mem-bers : [APPELLANT] of Determi-nation and Deci-sion : 30th May 2022

Decisions of the Tribunal

(1) The Tribunal grants the application for the dispensation of all or any of the consultation requirements provided for by section 20 of the Land-lord and Tenant Act 1985 (Section 20ZA of the same Act).

(2) The reasons for the Tribunal’s decision are set out below.

The background to the application

1. The property is a two storey mid terrace Victorian building which has been converted to form two self contained flats.

2. The tribunal did not inspect the property as it considered the documentation and information before it in the set of documents pre-pared by the Applicants Managing Agents which enabled the tribunal to proceed with this determination and also because of the restrictions and regulations arising out of the Covid-19 pandemic.

3. This has been a paper hearing which has been consented to by the parties. The documents that were referred to are prepared by the applicant, plus the tribunals Directions the contents of which we have recorded. Therefore, the tribunal had before it a bundle of docu-ments prepared by the applicant, in accordance with previous direc-tions.

4. The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from all the consulta-tion requirements imposed on the landlord by section 20 of the 1985 Act, (see the Service Charges (Consultation Requirements) (England) Regulations 2003 (SI2003/1987), Schedule 4.) The request for dispen-sation concerns urgent works for the replacement of a mains water supply pipe and associated works following a burst of the incoming pipe reported by the leaseholder of the ground floor flat on the 1st June 2022.

5. The application is said to be urgent, as the works are neces-sary in order to prevent water damage to the property. The applicants qualified long term contractor undertook a survey of the incident and emergency works were carried out under a qualifying long term agreeement in accordance with “ The Justification Report for Emer-gency Works dated 11th June 2021 in the estimated sum of £3816.

6. Section 20ZA relates to consultation requirements and pro-vides as follows:

“(1)Where an application is made to a leasehold valuation tri-bunal 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.

….

(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 [NAME] 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 rec-ognised 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.

7. The Directions on 7th April 2022 required any of the 2 [NAME] who opposed the application to make their objections known on the reply form produced with the Directions.by the 4th May 2022 The Tribunal has not been made aware of any objections by this date.

8. The application confirms that the cost of the works is esti-mated to be £3816

9. The Decision

10. By Directions of the tribunal dated 7th April 2022 it was de-cided that the application be determined without a hearing or by way of a video hearing.

11. The issues

12. The only issue for the Tribunal to decide is whether or not it is reasonable to dispense with the statutory consultation requirements. This application does not concern the issue of whether or not service charges will be reasonable or payable.

13. Having read the evidence and submissions from the Appli-cant and having considered all of the documents and grounds for mak-ing the application provided by the applicants, the Tribunal determines the dispensation issues as follows.

14. Section 20 of the Landlord and Tenant Act 1985 (as amend-ed) and the Service Charges (Consultation Requirements) (England) Regulations 2003 require a landlord planning to undertake major works, where a leaseholder will be required to contribute over £250 towards those works, to consult the leaseholders in a specified form.

15. Should a landlord not comply with the correct consultation procedure, it is possible to obtain dispensation from compliance with these requirements by such an application as is this one before the Tri-bunal. Essentially the Tribunal must be satisfied that it is reasonable to do so.

16. In the case of [COMPANY] v Benson [2013] UKSC 14, by a majority decision (3-2), the Supreme Court considered the dispensation provisions and set out guidelines as to how they should be applied.

17. The Supreme Court came to the following conclusions:

a. The correct legal test on an application to the Tribunal for dis-pensation is:

“Would the flat owners suffer any relevant prejudice, and if so, what relevant prejudice, as a result of the landlord’s failure to comply with the requirements?”

b. The purpose of the consultation procedure is to ensure lease-holders are protected from paying for inappropriate works or paying more than would be appropriate.

c. In considering applications for dispensation the Tribunal should focus on whether the leaseholders were prejudiced in either re-spect by the landlord’s failure to comply.

d. The Tribunal has the power to grant dispensation on appropri-ate terms and can impose conditions.

e. The factual burden of identifying some relevant prejudice is on the leaseholders. Once they have shown a credible case for prej-udice, the Tribunal should look to the landlord to rebut it.

f. The onus is on the leaseholders to establish:

i. what steps they would have taken had the breach not happened and

ii. in what way their rights under (b) above have been prej-udiced as a consequence.

16. Accordingly, the Tribunal had to consider whether there was any prejudice that may have arisen out of the conduct of the applicant and whether it was reasonable for the Tribunal to grant dispensation following the guidance set out above.

17. The tribunal is of the view that, taking into account that there were no objections from the 2 leaseholders, it could not find prejudice to any of the leaseholders of the property by the granting of dispensa-tion relating to the essential replacement of a section of the incoming water supply pipe as set out in the documentation in the bundle sub-mitted in support of the application.

18. The Tribunal was mindful of the fact that the works were un-dertaken by the applicant supported by a detailed report containing photographic evidence and that therefore dispensation is wholly ap-propriate.

19. The applicants believed that the works were vital in order to prevent a waterproof roof covering and prevent possible flooding and water damage to the building. On the evidence before it the Tribunal agrees with this conclusion and believes that it is reasonable to allow dispensation in relation to the subject matter of the application. It must be the case that the applicant must ensure that the fabric of the build-ing is properly maintained to the satisfaction of the leaseholders in ac-cordance with the terms of the lease .The repairs works to the burst water pipe were therefore carried out as a matter of urgency, hence the decision of the Tribunal.

20. Rights of appeal made available to parties to this dispute are set out in an Annex to this decision.

21. The applicants shall be responsible for formally serving a copy of the tribunal’s decision on the two leaseholders named on the schedule attached to the application. Furthermore, the applicants shall place a copy of the tribunal’s decision on dispensation together with an explanation of the leaseholders’ appeal rights on its website (if any) within 7 days of receipt and shall maintain it there for at least 3 months, with a sufficiently prominent link to both on its home page. Copies must also be placed in a prominent place in the common parts of the buildings. In this way, leaseholders who have not returned the reply form may view the tribunal’s eventual decision on dispensation and their appeal rights.The Tribunal requests the applicants managing agent to confirm to the Tribunal this has been carried out.

Name: Mr [NAME]: 30th May 2022

ANNEX - RIGHTS OF APPEAL

1. 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.

2. 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.

3. If the application is not made within the 28 day time limit, such appli-cation 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 lim-it.

4. 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 par-ty making the application is seeking.