First-tier Tribunal Grants Dispensation from Consultation

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BG/LDC/2025/0664 Property : Pan Peninsular, 1-[ADDRESS], London [POSTCODE] Applicant : [redacted] (2) [APPELLANT] : Mr [COUNSEL], counsel Respondents : [redacted] [NAME] : Mr [COUNSEL] ([NAME]) Type of [NAME] : An [NAME] under s.20ZA Landlord and Tenant Act 1985 Tribunal members : Judge Tagliavini Mr Andrew Thomas RBI FRICS MBA MIFireE Venue : 10 [ADDRESS] [POSTCODE] Date of hearing Date of decision : 14 August 2025 20 August 2025

DECISION

2 The tribunal’s decisions (1) The tribunal grants the applicants dispensation from consultation

pursuant to s.20ZA Landlord and Tenant Act 1985 in respect of:

(a) The refurbishment, testing and commissioning of four low

temperature hot water (LTHW) and four chilled water

(CHW) PHXs with new plate and gasket packs; and

(b) The provision of all lifting and enabling works, amendment

and reinstatement of any associated services and

ancillaries to facilitate the replacement works and all

testing, commissioning and handover documentation. (2) The tribunal makes an order under s.20c of the Landlord and

Tenant Act 1985 so that only the costs of and incidental to the oral

hearing may be added to the service charges.

The [NAME] 1. The applicants seeks dispensation from consultation under section 20ZA

of the Landlord and Tenant Act 1985 in respect of works to refurbish the

mid-level east and west plate heat exchangers forming part of the

communal heating and cooling systems installed within the common

parts of Pan Peninsular, 1-[ADDRESS], London

[POSTCODE] (‘[NAME]’).

The parties

2. The first applicant is the registered freehold proprietor of [NAME].

The second applicant is the tenant by way of two intervening leases each

dated 23 March 2016 whereby the private residential units were demised

by the First Applicant to the Second applicant for a term of 1,000 years

from and including 8 January 2010. Consequently, the first applicant is

the landlord and the second applicant the tenant under the intervening

leases. Under each private lease the second applicant is the landlord and

the [NAME] the tenants.

The Property

3. The subject Propoerty comprise two blocks of 40 and 50 stories

respectively, containing a total of 765 residential units on both private

and shared ownership leases.

The Background

3 4. In 2024 the applicants obtained a scope of works report which was put

out to tender by the first applicant’s project manager [APPELLANT]. Although the applicants sent an Initial

Notice of Intention to carry out the necessary works dated 24 February

2025, this was in tandem with the tender process which subsequently

attracted three compliant returns. However, the applicant had already

decided upon the successful contractor on the basis they already knew

[NAME] although this was not known to the [NAME].

Consequently, the applicants selected the tender produced by the

[COMPANY] and the total cost of the works was estimated at £158,490.

However, the continued deterioration and increasing costs of the

intended works prompted the applicants to make this [NAME] in

respect of:

temperature hot water (LTHW) and four chilled water

(CHW) PHXs with new plate and gasket packs; and

and reinstatement of any associated services and

ancillaries to facilitate the replacement works and all

testing, commissioning and handover documentation. The hearing

5. An oral hearing was requested by the respondents, 26 of whom had

objected to the [NAME]. All 26 [NAME] were members of the Pan

Peninsular Residents Association (PPRA)who were represented by Mr

[NAME], Secretary of PPRA.. However, on the day of the hearing

Mr [NAME] failed to attend to represent the respondents, due allegedly

to urgent ‘work’ related issues. Consequently, the respondents were

represented by Mr [NAME] ([NAME]) who made an [NAME] for

an adjournment in order for Mr [NAME] to be able to attend. The

applicants objected to this [NAME]. The tribunal refused the

[NAME] to adjourn as all matters relied upon by the respondents were

included in the hearing bundle of 194 digital pages and considered the

respondent was not prejudiced by the absence of Mr [APPELLANT].

The applicant’s case

6. The applicant stated that in the interim period between the [NAME] of

this [NAME] and its hearing, the works have been concluded, with a

total final bill of £159,610. As these costs are apportioned between the

765 [NAME], only some 187 [NAME] are liable to pay more than

the £250 required to engage the consultation requirements found at

sections 20 and 20ZA of the 1985 Act.

7. The applicant asserted the burden of identifying relevant prejudice falls

on the [NAME] objecting to the dispensation [NAME]. It has been

said that in order to resist a landlord’s [NAME] for dispensation, the

4

[NAME] must engage with some evidence. The respondents will not

be able to resist the [NAME] unless they can demonstrate prejudice

beyond the simple fact of not having been consulted or of having had to

contribute to the cost of the works: it is not for the landlord to

demonstrate, in the absence of any evidence of relevant prejudice, that

the tenants were not prejudiced; Wynne v Yates [2021] UKUT 278.

Further, despite having sent an Initial Notice to the respondents no

observations were made by or received from any [NAME] in respect

of the proposed works.

8. The applicant asserted the [NAME] should be granted following

[NAME] v Benson [2013] UKSC 14. Further, the [NAME]

should be granted unconditionally, as the conditions sought to be

imposed by the respondents were irrelevant of not within the jurisdiction

of the tribunal.

The respondents’ case

9. The written objections received from the respondents indicated that in

principle they agreed the works were necessary and did not object to the

[NAME] on condition it did not prejudice their right to make an

[NAME] pursuant to s.27A challenging the reasonableness of the

works and their costs. Further, it was not known by Mr [NAME] how

many of the 26 respondents who objected were required to contribute

more than £250 towards these works.

10. In the Statement accompanying the Reply Forms, the respondents

asserted they had been financially prejudiced by the way the

procurement process had been conducted. The respondents asserted

‘that if dispensation is granted, it must be subject to strict conditions to

preserve [NAME] protections under Section 19 and 27A and to

ensure future transparency and accountability.

11. Despite stating the respondents did not object to the [NAME] in

principle, the respondents’ Statement went on to record their

dissatisfaction with the applicant’s apparent failure to plan for known

risks not only on this occasion but over the last 15 years allowing the

need for repairs to become urgent. The respondents also queried the

procurement process and asserted that the contract was awarded to the

most expensive contractor and there was no opportunity to challenge the

choice of contractor. Consequently, the lack of transparency and

independent oversight creates a strong perception of bias and raises

legitimate questions about procurement governance.

12. The respondents asserted that had the respondents been meaningfully

consulted (i) lower cost contractors may have been identified; (ii) the

decision to appoint the most expensive contractor could have been

challenged and (iii) [NAME]’s selection criteria and procurement

standards could have been scrutinised.

5 13. The respondents sought the imposition of4 conditions which included

the preservation of rights under ss. 19 and 27A L&T 1985; the [NAME] of

as a s.20C order; the disclosure of all tender submissions and other

associated documentation and the declaration of any conflicts of interest

on the part of [NAME] and its employees.

The tribunal’s decisions and reasons

14. The tribunal determines it is reasonable to grant the applicants the

dispensation sought in respect of:

temperature hot water (LTHW) and four chilled water

(CHW) PHXs with new plate and gasket packs; and

and reinstatement of any associated services and

ancillaries to facilitate the replacement works and all

testing, commissioning and handover documentation. 15. Notwithstanding the respondents’ in principle absence of objection to

the [NAME], the tribunal finds the respondents have in any event

failed to identify or provide any evidence in support of the alleged

financial prejudice suffered due to the lack of consultation. The tribunal

would have expected the respondents to have obtained some sort of

report in support of its assertions. In its directions the tribunal made

clear the tribunal would not consider the reasonableness or cost of

the works. These issues remain subject to any s.27A the respondents

might seek to make.

16. The tribunal was however, less than impressed by the applicant’s

failure to follow the consultation process when there appeared to have

been sufficient time to do so, had it been more organised.

16. The tribunal also considered whether an order under s.20C should be

made prohibiting the applicants from adding the costs of this [NAME]

to the service charges. The applicants informed the tribunal that it would

be reasonable for the costs of and incidental to the hearing to be added

to the service charges as the applicants had requested a ‘paper’ hearing.

The respondents had requested an oral hearing but their representative

had failed to attend or provide any evidence in support of their assertions

of prejudice. Therefore, the tribunal makes an order under s.20c to the

extent that only the costs of and incidental to the oral hearing may be

added to the service charges.

6 Name: Judge Tagliavini Dated: 20 August 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] should be made on Form RP PTA available at https://www.gov.uk/government/publications/form-rp-pta-[NAME]-for- permission-to-appeal-a-decision-to-the-upper-tribunal-lands-chamber 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).