First-tier Tribunal Grants Dispensation from Consultation Requirements

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

HAV/00HH/LDC/2025/0676

Property

:

Queen's Quay, 3 Victoria Parade, Torquay, Devon, [POSTCODE]

Applicant: [redacted]

:

[APPELLANT]

Respondent: [redacted]

:

Type of Application

:

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

Tribunal Member

:

Regional Judge Whitney

Date of Decision

:

28 October 2025

DECISION

2 This is a formal order of the Tribunal which must be complied with by the parties.

Communications to the Tribunal MUST be made by email to [EMAIL]. All communications must clearly state the Case Number and address of the premises.

Summary of the Decision

1. The Applicant is granted 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 in relation to the roof repairs and renewal following water ingress and flooding into various apartments and communal areas. The Tribunal has made no determination on whether the costs of the [NAME] are reasonable or payable.

Background

2. 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 application was received on 2 July 2025.

3. The Property is described in the application as:

Queens Quay is a residential block of appartments [sic] that was originally constructed as a hotel in the 1920s, the property following renoveation [sic] is now made up of 16, 1 to 2 bed apartments over the 1st to 5th floors, two commercial units over the ground and lower ground floors, and one penthouse appartment [sic] with 5 bedrooms on top of the whole building.

8 of the apartments have balconies that offer views of the marina and Torbay. The apartments are accessed via two seperate [sic] communal entrances, one to the front of the property and one to the rear, both communal staircases connect via an internal corridor on the 2nd floor.

All of the appartments [sic] are subject to long leases and all pay by persentage [sic] rate to different arears of the property, this reduces the Section 20 threshold considably [sic] as some properties pay a higher persentage[sic] rate than others

4. The Applicant explains in the application that:

Main building roof repairs and renewal following water ingress/flooding into various apartments and communal areas. The [NAME] comprise of lifting all decking belonging to the penthouse apartment, assessment of the roof areas to the main building, complete water testing, complete various repairs to the roof membrane, complete repairs to uncapped parapet walls, application of waterproofing materials to all areas of the roof and parapet upstands including the structure of the penthouse that sits on top of the roof structure.

3 Ph1 is complete leaving Ph2&3 to be done.

The freeholder was required to start investigations & ph1 [NAME] following flooding into apt 8 which led to the [NAME] filling a claim against the freeholder to complete [NAME] to remedy straight away and for losses incurred.

Section 20 consultation notice has been served on all [RESPONDENT], this was issued 11.04.25. However, the freeholder has already appointed [NAME] [sic] to complete investigations to identify [NAME] needed and compelteion [sic] of ph1 [NAME] following the claim issued against them from apt 8. We are looking to have all three phases completed by the same competent contractor and surveyor without further delay.

The freeholder requests dispensation from all three phases and any associated [NAME] to the roof repairs to allow them to recover their costs expended to date to remedy the ingress and mitigate the damage caused to the apartments directly impacted. Also to allow them to progress with the remaining two phases of the roof repairs without delaying the [NAME] until the new service charge year commences in Jan 26, as the lease does not allow for issue of additional demands part way though [sic] the year.

5. The [NAME] are described as urgent by the Applicant because:

The freeholder is not in the position to be able to fund any further repairs without contribution from [RESPONDENT] and the [NAME] are required as an immediate action to stop water from entering and damaging property further. 6. The Tribunal gave Directions on 30 July 2025 listing the steps to be taken by the parties in preparation for the determination of the dispute, if any.

7. The Directions stated that Tribunal would determine the application on the papers received unless a party objected in writing to the Tribunal within 7 days of the date of receipt of the Directions. No party has objected to the application being determined on the papers.

8. The only issue for the Tribunal is whether or not it is reasonable to dispense with the statutory consultation requirements. This application is not about the proposed costs of the [NAME], and whether they are recoverable from the [RESPONDENT] as service charges or the possible application or effect of the Building Safety Act 2022. The [RESPONDENT] have the right to make a separate application to the Tribunal under section 27A of the Landlord and Tenant Act 1985 to determine the reasonableness of the costs, and the contribution payable through the service charges.

The Law

4 9. Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and the related Regulations provide that where [NAME] undertakes qualifying [NAME] with a cost of more than £250 per lease, the relevant contribution of each [NAME] (jointly where more than one under any given lease) will be limited to that sum unless the required consultations have been undertaken or the requirement has been dispensed with by the Tribunal. An application may be made retrospectively.

10. The relevant section of the Act reads as follows:

S.20 ZA Consultation requirements: Where an application 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 [NAME] or qualifying long- term agreement, the Tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.

11. The appropriate approach to be taken by the Tribunal in the exercise of its discretion was considered by the Supreme Court in the case of [COMPANY] v [NAME] et al [2013] UKSC 14.

12. The leading judgment of Lord [NAME] explained that a Tribunal should focus on the question of whether [NAME] will be or had been prejudiced in either paying where that was not appropriate or in paying more than appropriate because the failure of [NAME] to comply with the regulations. The requirements were held to give practical effect to those two objectives and were a means to an end, not an end in themselves.

13. The factual burden of demonstrating prejudice falls on [NAME]. [NAME] must identify what would have been said if able to engage in a consultation process. If [NAME] advances a credible case for having been prejudiced, [NAME] must rebut it. The Tribunal should be sympathetic to [NAME](s).

14. Where the extent, quality and cost of the [NAME] were in no way affected by [NAME]’s failure to comply, Lord [NAME] said as follows:

I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be- i.e. as if the requirements had been complied with.

15. The main, indeed normally, the sole question, as described by Lord [NAME], for the Tribunal to determine is therefore whether, or not, [NAME] will be or has been caused relevant prejudice by a failure of the Applicant to undertake the consultation prior to the major [NAME] and so whether dispensation in respect of that should be granted.

16. The question is one of the reasonableness of dispensing with the process of consultation provided for in the Act, not one of the reasonableness of the charges of [NAME] arising or which have arisen.

5

17. If dispensation is granted, that may be on terms.

18. There have been subsequent Decisions of the higher Courts and Tribunals of assistance in the application of the Decision in Daejan but none are relied upon or therefore require specific mention in this Decision.

Consideration

19. The Directions attached a reply form for the Respondents to complete to confirm whether they agreed with the application or not and if opposed, to provide a statement setting out why they oppose.

20. The Tribunal has not received any reply forms from any of the Respondents.

21. The Applicant’s representative emailed the Tribunal on 8 September 2025 confirming that they have received no objections in relation to the application.

22. Having considered the application and prior to undertaking this determination, I am satisfied that a determination on the papers remains appropriate, given that the application remains unchallenged.

23. The reason why dispensation from consultation requirements is said to be required is to allow the Applicant to recover its costs expended to date and to enable the remaining phases of the roof repairs to take place. Given the nature of the [NAME], the potential ongoing damage caused by the water ingress and the fact that it was directly impacting occupants of various apartments, I am satisfied that the qualifying [NAME] were of an urgent nature.

24. There has been no objection to the dispensation of the consultation requirements from any of the [NAME].

25. None of the [NAME] have therefore asserted that any prejudice has been caused to them. The Tribunal finds that nothing different would be done or achieved in the event of a full consultation with the [NAME], except for the potential delay and potential problems.

26. The Tribunal finds that the Respondents have not suffered any prejudice by the failure of the Applicant to follow the full consultation process.

27. The Tribunal consequently finds that it is reasonable to dispense with all of the formal consultation requirements in respect of the major [NAME] to the building as described in this Decision.

28. This Decision is confined to determination of the issue of dispensation from the consultation requirements in respect of the qualifying [NAME]

6 for the roof repairs as outlined at paragraph 4. The Tribunal has made no determination on whether the costs are payable or reasonable. If a [NAME] wishes to challenge the payability or reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made.

29. In reaching my decision I have taken account of the fact that no party has objected to the application. [RESPONDENT] have had opportunity to raise any objection, and they have not done so. I do however Direct that the dispensation is conditional upon the Applicant or their agent sending a copy of this Decision to all [RESPONDENT] so that they are aware of the same.

RIGHTS OF APPEAL

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

31. 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.

32. 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.

33. 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.