First-tier Tribunal Grants Dispensation for Urgent Water Works

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/24UJ/LDC/2023/0093

Property

:

13-18 [APPELLANT], [ADDRESS], [POSTCODE]

Applicant: [redacted]

:

[COUNSEL] – Company Secretary

Respondents

:

[redacted]

Representative

:

Type of Application

:

To dispense with the requirement to consult [NAME] about major works section 20ZA of the Landlord and Tenant Act 1985

Tribunal Member

:

[NAME] and Venue of Hearing

:

Determination on Papers

Date of Decision

:

25 September 2023

DECISION

2 The Application

1. The applicant seeks dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act (“the Act”). The application was received on 4 August 2023.

2. The property is described as a purpose built block of six 2-bedroom flats.

3. Dispensation is sought in relation to the installation of a replacement mains water supply into each of six flats.

4. The applicant stated that an inaccessible and unrepairable water leak in the mains water supply beneath the building has been identified and that urgent replacement works are required, albeit that, currently, no loss of water pressure, damage or damp is evident. It is proposed to install a replacement supply of mains water from the boundary into each of six flats and associated works.

5. The applicant stated that a Notice of Intention, pursuant to s.20 of the Act, was issued to [NAME] on 4 August 2023 and that it is intended to issue a Notice of Estimates once quotations are received. The applicant seeks dispensation to reduce the consultation period to 10 days for each Notice due to the urgent nature of the works.

6. On 24 August 2023 the Tribunal directed the applicant to serve the application and Tribunal Directions on the respondents. On 26 August 2023 the applicant confirmed compliance.

7. The respondent leaseholders were informed in the Directions issued that the question of reasonableness of the works, or cost, was not included in the application, the sole purpose of which is to seek dispensation.

8. The Tribunal required the respondents to return a pro-forma to the Tribunal and to the applicant by 6 September 2023 indicating whether they agreed or disagreed with the application.

9. The Tribunal received forms from four respondents, as noted below, each of whom agreed with the application and who agreed with it being dealt with on the papers:

i. [NAME] (Flat 2) ii. [NAME] (Flat 4) iii. [NAME] (Flat 5) iv. [NAME] and [NAME] [NAME] (Flat 15)

3 Determination

10. The 1985 Act provides leaseholders with safeguards in respect of the recovery of the landlord’s costs in connection with qualifying works. Section 19 ensures that the landlord can only recover those costs that are reasonably incurred on works that are carried out to a reasonable standard. Section 20 requires the landlord to consult with leaseholders in a prescribed manner about the qualifying works. If the landlord fails to do this, a leaseholder’s contribution is limited to £250, unless the Tribunal dispenses with the requirement to consult.

11. In this case the Tribunal’s decision is confined to the dispensation from the consultation requirements in respect of the works under section 20ZA of the 1985 Act. The Tribunal is not making a determination on whether the costs of those works are reasonable or payable. If a leaseholder wishes to challenge the reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made.

12. Section 20ZA does not elaborate on the circumstances in which it might be reasonable to dispense with the consultation requirements. On the face of the wording, the Tribunal is given a broad discretion on whether to grant or refuse dispensation. The discretion, however, must be exercised in the context of the legal safeguards given to the Applicant under sections 19 and 20 of the 1985 Act. This was the conclusion of the Supreme Court in [COMPANY] v [NAME] and Others [2013] UKSC 14 & 54 which decided that the Tribunal should focus on the issue of prejudice to the tenant in respect of the statutory safeguards.

13. Lord [APPELLANT] in Daejan said at paragraph 44 “Given that the purpose of the Requirements is to ensure that the tenants are protected from (i) paying for inappropriate works or (ii) paying more than would be appropriate, it seems to me that the issue on which the LVT should focus when entertaining an application by a landlord under s 20ZA(1) must be the extent, if any, to which the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements”.

14. Thus, the correct approach to an application for dispensation is for the Tribunal to decide whether and if so to what extent the leaseholders would suffer relevant prejudice if unconditional dispensation was granted. The factual burden is on the leaseholders to identify any relevant prejudice which they claim they might have suffered. If the leaseholders show a creditable case for prejudice, the Tribunal should look to the landlord to rebut it, failing which it should, in the absence of good reason to the contrary, require the landlord to reduce the amount claimed as service charges to compensate the leaseholders fully for that prejudice.

4 15. The Tribunal now turns to the facts. The Tribunal is satisfied that it is necessary to carry out the replacement works to the mains water supply and that these works are urgent. The Tribunal take into account that the applicant has issued the Notice of Intention and intends issuing the Notice of Estimates upon receipt of quotations, albeit with a reduced period for each. Furthermore, the Tribunal takes into account that there have been no objections from any respondents and that four respondents have indicated their agreement. The Tribunal therefore finds that no prejudice has been demonstrated or asserted.

16. On the evidence before it the Tribunal is, therefore, satisfied that the leaseholders would suffer no relevant prejudice if dispensation from consultation was granted.

Decision

17. The Tribunal grants an order dispensing with the consultation requirements under S.20 of the Landlord and Tenant Act 1985 in respect of the installation of replacement mains water supply, and associated works, to six flats .

18. The Tribunal directs the applicant to supply a copy of the decision to the leaseholders and to confirm to the Tribunal that it has done so.

RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application by email to [EMAIL] to the First-tier Tribunal at the [NAME] which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.