First-tier Tribunal Grants Dispensation from Consultation Requirements

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00BK/LDC/2022/0114 Property

: 75-89 Lancaster Gate, London, [POSTCODE] Applicant : [redacted] : [COMPANY] Respondents :

[redacted] (“the tenants”) Representative :

In person Type of [NAME] :

For dispensation from the consultation requirements under section 20ZA Landlord & Tenant Act 1985 Tribunal :

Mr [APPELLANT] (Hons) LLM Property Law MA FRICS

Date of Decision : 18th October 2022

DECISION

This has been a remote paper determination, which has been consented to by the parties. A face-to-face hearing was not held because it was not practicable and no one requested same.

The documents the Tribunal were referred to were in a bundle of some 72 pages.

Decision

(1) The tribunal determines that unconditional dispensation should be granted from the consultation requirements from section 20ZA of the Landlord and Tenant Act 1985 (the Act) in respect of the property 75-89 Lancaster Gate, London, [POSTCODE]. (2) We make no determination as to the reasonableness of the costs of same, these being matters which can be considered, if necessary, under the provisions of s27A and s19 of the Act. The [NAME]

1. This [NAME] is the third under this scheme of works, previous applications of 4th July 2019 LON/OOBK/LDC/2019/0067 and 21st January 2021 LON/OOBK/LDC/2020/0087.

2. The [NAME] seeks dispensation from the consultation requirements under section 20ZA of the Landlord and Tenant Act 1985.

3. The [NAME] is concerned solely with the question of what consultation if any should be given of the consultation requirements of section 20 of the 1985 for works costing in excess of £250 per flat. It is not concerned with the reasonableness or payability of any service charges which may arise. The hearing 4. A written [NAME] was made by Withers solicitors, who have been appointed by the freeholder, to make this [NAME]. The case was decided on paper and no appearances were made. The tribunal considered the written bundle of 311 pages, in support of the [NAME]. Background

5. The property which is the subject of this [NAME] is a Grade II listed building, previously comprising 15 terrace houses, each “house has two facades with a flank wall at each end of the building. The building was converted into 75 flats and two leasehold houses in 2007.

6. The applicant in this case is a [COMPANY] and is the freeholder. The directors of the applicant are proprietors, of long leases in the subject property. Each of the lessees in the property is a member of the Applicant.

7. This [NAME] has been issued because during the course of the qualifying works, it has become apparent that additional works are necessary but were not originally anticipated or discoverable. Therefore, the scope and costs of the render and masonry repairs have now increased and in addition the specification for external decoration changed since the original contract was entered into. Additional work to the roof terraces and roof drainage is also needed.

8. The Applicant previously obtained dispensation from the statutory consultation requirements in relation to the sum of £17,517,381.29. The purpose of this [NAME] is to request dispensation for an additional sum of £6,432,649.39. Therefore, it is estimated that the total cost of the works will amount to £23,950,030.68, including professional fees and VAT but this is subject to changes. The reasons for this are set out in full in the [NAME] and detailed in the project report prepared by the Applicant's project manager, [APPELLANT] of [APPELLANT], dated 24 January 2022.

9. The Directions dated 27th July 2022, provided for the tenants to be given copies of the [NAME] form, a brief statement to explain the reasons for the [NAME] and display a copy of the directions in a prominent place in the common parts of the property.

11. The Directions also note that any leaseholder who opposes the [NAME] should by the 5th September 2022 complete the reply form and return it to the tribunal.

12. The only issue for the tribunal is whether or not it is reasonable to dispense with the statutory consultation requirements of section 20 of the 1985 Act. This [NAME] does not concern the issue of whether any service charge costs will be reasonable or payable. Documents

13. It is appropriate to record that the tribunal has not received any Reply forms completed by the Respondents, and so there are no objections to the [NAME] before us, or representations objecting. The tribunal’s decision 14. The tribunal grants dispensation under section 20 ZA of the Landlord and Tenant Act 1985 and the Service Charges (Consultation) (England) 2003 for the works set out in the [NAME].

15. We are, aware of the judgment in [COMPANY] v Benson and others [2013] UKSC 14. The [NAME] for dispensation is not challenged.

16. The Supreme Court (Lord [NAME] at para 50) accepted that there must be real prejudice to the tenants. Indeed, the Respondents do not oppose the [NAME]. It is accepted that we have the power to grant dispensation on such terms as we think fit. However, the Landlord is entitled to decide the identity of the contractors who carry out the work, when they are done, by whom and the amount. The safety net for the Respondents is to be found in sections 19 and 27A of the Landlord and Tenant Act 1985.

17.

Accordingly, we find that unconditional dispensation should be granted. In [NAME] our decision we have borne in mind the quotes which we were referred, which in our finding clearly indicate that works are required at the Property.

18. Our decision is in respect of the dispensation from the provisions of s20 of the Act only. Any concern that a Respondent has as to the standard of works, the need for them and costs will need to be considered separately and their position is not affected by our decision on this [NAME].

[NAME]: [NAME] 18th October 2022

ANNEX – RIGHTS OF APPEAL

1. 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 at the Regional Office which has been dealing with the case.

2. 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].

3. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request to 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.

4. The [NAME] for permission to appeal must identify the decision of the Tribunal to which it relates (ie 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