First-tier Tribunal Grants Emergency Roof Repair Dispensation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : CAM/33UG/LDC/2023/0037 HMCTS code : P:PAPERREMOTE

Property : [ADDRESS], [POSTCODE] Applicant: [redacted] Respondent : [redacted] Property Type of application : Dispensation from the consultation requirements as set out in Section 20ZA of the Landlord and Tenant Act 1985 Tribunal members : Mr [APPELLANT] [NAME] of Determination : 20 September 2023

DECISION

This has been a determination on the papers which the parties are taken to have consented to, as explained below. The form of determination was a paper hearing described above as P:PAPERREMOTE. A hearing was not held and all issues were determined on the papers. The Applicant submitted a bundle. The Tribunal has noted the contents and the decision is below.

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Decision The Tribunal grants the application for retrospective dispensation from further statutory consultation in respect of works to the [NAME] as further and more particularly described below.

The Applicant shall be responsible for serving a copy of this Decision on all of [NAME].

In granting dispensation, the Tribunal makes no determination as to whether any service charge costs are reasonable or payable (section 27A of the Act). The Tribunal also makes no determination in respect of the liability for the cost of the works.

Reasons Background

1. The Applicant seeks a determination pursuant to section 20ZA of the Landlord and Tenant Act 1985 (the “Act”) for retrospective dispensation from the statutory requirement to consult in respect of qualifying works.

2. The Application was completed on 7 July 2023 by Mr [APPELLANT] on behalf of the Applicant. This Decision therefore relates to that Application.

3. The Applicant stated that the work for which dispensation is required was intended to commence within 4 to 6 weeks from the date of the Application. However, it appears from the Statement of Case dated 8 September 2023 that work has been delayed by the need to secure a scaffold permit from the Local Authority.

4. No representations have been received from any of [NAME].

5. Before making this determination, the papers received by the Tribunal were examined to determine whether the issues remained capable of determination without an oral hearing and it was decided that they were, given the lack of any challenge.

6. The only issue for determination is whether it is reasonable for the Tribunal to dispense with the statutory consultation requirements.

7. The Tribunal has not considered whether the service charge costs will be reasonable or payable, nor by whom they will be payable.

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The Law 8. Section 20 ZA (1) of the Act states: “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 works or qualifying long term agreement, the Tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.” 9. In having regard to the question of reasonableness, the Tribunal has considered the extent to which [NAME] would be prejudiced in dispensing of the requirements.

10. The Supreme Court provided guidance to the Tribunal in the application of section 20 AA (1) of the Act in case of [COMPANY] v [NAME] and others [2013] UKSC 14 (the “Daejan case”). The principles can be summarised as follows:

1. The main question for the Tribunal when considering how to exercise its jurisdiction in accordance with section 20ZA is whether there is real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.

2. The financial consequence to the landlord of not granting a dispensation is not a relevant factor. The nature of the landlord is not a relevant factor.

3. Dispensation should not be refused solely because the landlord seriously breached, or departed from, the consultation requirements.

4. The Tribunal has power to grant a dispensation as it thinks fit, provided that any terms are appropriate.

5. The Tribunal has power to impose a condition that the landlord pays the tenants’ reasonable costs (including surveyor and/or legal fees) incurred in connection with the landlord’s application under section 20ZA (1).

6. The legal burden of proof in relation to dispensation applications is on the landlord. The factual burden of identifying any “relevant” prejudice that they would or might have suffered is on the tenants.

7. The court considered that “relevant” prejudice should be given a narrow definition; it means whether noncompliance with the consultation requirements has led the landlord to incur costs in an unreasonable amount or to incur them in the provision of services, or in the carrying out of works, which fell below a

4 reasonable standard, in other words whether the non- compliance has in that sense caused prejudice to the tenant.

8. The more serious and/or deliberate the landlord's failure, the more readily a Tribunal would be likely to accept that the tenants had suffered prejudice.

9. Once the tenants had shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it.

11. The Tribunal has therefore applied the statutory provisions in accordance with the approach taken in the [APPELLANT] case. Representations – The Applicant 12. The Applicant’s Statement of Case sets out the position as follows: “Following reports of leaks in November 2022, we engaged with [NAME] to investigate problems with flats 12 and 17 Sherwyn House. There was water ingress into the top flat number 17 and a couple of weeks later water had found its way into flat 12 below, but the water into flat 12 is more evident that it appears to be in flat 17.

A site visit was completed on 21st December 2022, attended by both roofing and scaffold contractors to assess the scope of works to be required and the extent of scaffold. The visit identified several areas where water is entering the property. Inspections reveals some concerns regarding Velux windows and dormer, but it is unclear whether these require renewing at this stage.”

13. The Tribunal notes that the roof repair works will include: a. “Remove and set aside the front left-hand hip and ridge relevant to works area. To set aside all hip, ridge and roof tiles that are reusable b. To strip roof area and remove all existing old felt. To renew felt membrane with new felt and battens. c. Refix all tiles and replace those fractured/unserviceable with suitable replacements (new or from reclaimed yards to match) d. [NAME] and hip tiles to be bedded back on with 3-1 mortar mix.” 14. The Applicant advised at paragraph 4.8 of the Statement of Case that TM [NAME] quotation for the cost of the works is £12,997.60 + VAT with an additional sum of £5,000 for any additional unforeseen work. A, A copy of the quotation was included in the bundle.

5 15. The Applicant set out a full and detailed explanation of the consultation undertaken in answer to question 2 of the Grounds for Seeking Dispensation.

16. The Applicant explained in their Application that: “Dispensation is sought on the basis that the roof works are required as a matter of emergency. It is not possible to repair the roof from inside, or to complete any temporary repairs. We are required to erect scaffolding and repair the affected areas...” 17. The Applicant included a bundle of 84 pages in support of their application. Whilst the Tribunal is grateful for, and has reviewed, the entirety of the bundle, it does not consider that it is helpful to the Parties for the Tribunal to set out comments or observations in respect of every issue raised. [NAME]

18. The Tribunal has not received any representations from [NAME]. Determination 19. As set out above, the Tribunal may grant dispensation “…if satisfied that it is reasonable to dispense with the requirements”.

20. In making its decision the Tribunal has regard to the extent to which any real prejudice has arisen to [NAME] as a result of the Applicant breaching the consultation requirements.

21. No objections or representations have been received by the Tribunal from [NAME]. In this regard, [NAME] have received the Tribunal Directions and are therefore considered to have been given ample opportunity to submit representations should they have so wished.

22. The Tribunal therefore considers that it has not seen any evidence of prejudice arising to [NAME]. Furthermore, it is apparent from the submissions that the required works are necessary and further delay in their implementation would be prejudicial to the continued enjoyment of the Property by the Leaseholders.

23. The Tribunal consequently grants dispensation from the remaining consultation requirements of section 20 of the Landlord and Tenant Act 1985 in respect of the works carried out to the roof as more particularly described above.

24. In granting dispensation, the Tribunal makes no determination in respect as to whether any of the service charge costs are reasonable or payable.

25. The Applicant shall comply with the requirements as set out under the section headed “Decision” above.

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Name: [NAME] [NAME] [NAME]: 20 September 2023

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 application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. 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. If the application is not made within the 28-day time limit, such application 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 limit. 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 party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).