First-tier Tribunal Grants Retrospective Dispensation for Urgent Smoke Vents Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AL/LDC/2021/0053 Property : Flats 1 & 2 [ADDRESS], [POSTCODE] Applicant : [redacted] : [COUNSEL] [NAME] Respondent: [redacted] Stone (Flat 2)

Representative :

None Type of [NAME] :

An [NAME] under section 20ZA of the Landlord and Tenant Act 1985 for dispensation from consultation prior to carrying out works Tribunal Members : Mr [NAME] B [NAME] and venue of Hearing : Remote on 2 August 2023 Date of Decision : 2 August 2023

DECISION

2 Decisions of the Tribunal

The tribunal determines that retrospective dispensation should be given from the consultation requirements in respect of the proposed works to renew the smoke vents (referred to as the “Renewal Works”) at Flats 1 & 2 [ADDRESS], [POSTCODE] as required under s.20ZA of the Landlord and Tenant Act 1985 (“the Act”) for the reasons set out below.

This [NAME] does not concern the issue of whether any service charge costs will be reasonable or payable. The [NAME] will continue to enjoy the protection of Section 27a of the Act.

The tribunal directs the Applicant to send a copy of this Decision to the [NAME] and to display a copy in the common parts of the buildings.

The [NAME]

1. The Applicant seeks a determination pursuant to s.20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) to dispense with the statutory consultation requirements associated with carrying out necessary and essential Renewal Works at Flats 1 & 2 [ADDRESS], [POSTCODE] (the “Property”).

2. An [NAME] was received by the First–tier Tribunal dated 21 March 2021 seeking dispensation from the consultation requirements. Directions were issued on the 24 March 2021 to the Applicant. These Directions required the Applicant to advise all Respondents of the [NAME] and provide them with details of the proposed works including costs.

3. The relevant legal provisions are set out in the Appendix to this decision. The hearing 4. This matter was determined by written submissions. The Applicant submitted a bundle of relevant materials to the tribunal.

5. No submissions were received from the Respondents. The background 6. The property which is the subject of this [NAME] comprises 2 self- contained flats located in a two storey building.

3 7. Mr [NAME] of the managing agent, [NAME] explains in his Statement of Case that the smoke vents to block 1 and 2 located above the communal hallway were found to be defective in late 2020. Due to a faulty control mechanism the vents did not close. He explained that water ingress occurred through the open vents at times of rain resulting in damage to the interior of the communal areas.

8. The defect was reported to the managing agents by contractors following a regular inspection of the smoke vents. On receipt of the notification the managing agents sought two quotes from contractors for the remedial works. The tribunal are told the returned quotes exceeded the section 20 service charge threshold of £250 per leaseholder. The quotes are not included in the submitted bundle.

9. A Notice of Intention to undertake the works was then served on the tenants on 19 February 2021. This advised the consultation would end on 22 March 2021 some 4 weeks after the date now advised to tribunal for completion of the works.

10. No response was received from either tenant following the Notice of Intention.

11. No details of the works or selected contractor is provided by the Applicants to the tribunal. No costs of the work undertaken are given.

12. The tribunal are told the Renewal Works were completed on 24th February 2021 and the Applicants now seek retrospective dispensation from consultation requirements.

13. The Applicant contends that the Renewal Works were needed urgently to reduce the probability of damage to the building through water penetration from the failed vents.

14. The only issue for the tribunal to consider is whether it is reasonable to dispense with the statutory consultation requirements in respect of the Renewal Works. Statutory Duties to Consult 15. The obligation to consult is imposed by Section 20 of the Act. The proposed works are perceived as qualifying works. The consultation procedure is prescribed by Schedule 3 of the Service Charge (Consultation Requirements) (England) Regulations 2003 (“the Consultation Regulations”). [NAME] have a right to nominate a contractor under these consultation procedures.

16. The Landlord is obliged to serve [NAME] and any recognised Tenants association with a notice of intention to carry out qualifying

4 works. The notice of intention shall, (1) describe the proposed works, (2) state why the Landlord considers the works to be necessary, and (3) contain a statement of the estimated expenditure. [NAME] are invited to make observations in writing in relation to the proposed works and expenditure within the relevant period of 30 days. The Landlord shall have regard to any observations in relation to the proposed works and estimated expenditure. The Landlord shall respond in writing to any person who makes written representations within 21 days of those observations having been received.

17. Section 20ZA (1) of the Act provides: “ Where an [NAME] is made to the appropriate 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.” 18. This determination relies upon a bundle of papers which included the [NAME], the Directions, a specimen lease, a Statement of Case and supporting documents.

19. The Supreme Court’s decision in the case of [COMPANY] v [NAME] and Ors [2013] 1 W.L.R. 854 clarified the tribunal’s jurisdiction to dispense with the consultation requirements and the principles upon which that jurisdiction should be exercised.

20. The scheme of consultation provisions is designed to protect the interests of [NAME], and whether it is reasonable to dispense with any requirements in an individual case must be considered in relation to the scheme of the provisions and its purpose. The purpose of the consultation requirements is to ensure that [NAME] are protected from paying for works which are not required or inappropriate, or from paying more than would be reasonable in the circumstances.

21. The tribunal needs to consider whether it is reasonable to dispense with the consultation. Bearing in mind the purpose for which the consultation requirements were imposed, the most important consideration being whether any prejudice has been suffered by any leaseholder because of the failure to consult in terms of a leaseholder’s ability to make observations, nominate a contractor and or respond generally.

22. The burden is on the Landlord in seeking a dispensation from the consultation requirements. However, the factual burden of identifying some relevant prejudice is on the leaseholder in opposing the [NAME] for dispensation. The [NAME] have an obligation to

5 identify what prejudice they have suffered because of the lack of consultation. The determination 23. The tribunal is satisfied that the works were of an urgent nature, and they were for the benefit of and in the interests of both Landlord and [NAME] in the Property.

24. They noted that none of the [NAME] objected to the grant of dispensation.

25. The tribunal has made their decision on basis of the information submitted in the bundle.

26. The tribunal is aware that the bundle contains none of the following information namely, a detailed works justification, a description of the works or a confirmed cost quotation.

27. There was a demonstrated need to carry out the works urgently to obviate the risk to residents from water ingress at the property. Also, a timely start on the works was required to mitigate the extent of consequential damage to the building and ensure repair costs were minimised.

28. The tribunal addressed its mind to any financial prejudice suffered by the [NAME] due to any failure to consult. No works cost evidence is submitted to tribunal. In the absence of this information, it is difficult to assess whether the residents suffered any financial prejudice due to the failure to consult. The rights of the Respondents to challenge the reasonableness of the incurred costs are not affected by this decision.

29. The tribunal has taken into consideration that the [NAME] have not had the opportunity to be consulted in accordance with the timetable afforded by the 2003 Regulations. In view of the circumstances under which the works became necessary the tribunal does not consider that the [NAME], with a reduced opportunity to make observations and to comment on the works or to nominate a contractor, were likely to suffer any relevant prejudice.

30. The tribunal having considered the evidence is satisfied that it is reasonable to retrospectively dispense with the consultation requirements in this case. In the circumstances, the Tribunal makes an order that the consultation requirements are retrospectively dispensed in respect of the Smoke Vent Renewal Works at the Property,

6 31. It is the Applicant’s responsibility to serve a copy of the tribunal’s decision on all Respondent [NAME] listed on the [NAME]. 32. This decision does not affect the right of the Respondents to challenge the costs, payability or the standard of work should they so wish.

Valuer Chairman: [NAME]: 2 August 2023

7 Appendix of relevant legislation

Section 20 of the Act (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either— (a) complied with in relation to the works or agreement, or (b) dispensed with in relation to the works or agreement by (or on appeal from) a leasehold valuation tribunal. (2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement. (3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount. (4) The Secretary of State may by regulations provide that this section applies to a qualifying long-term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount. (5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and (b) an amount which results in the relevant contribution of any one or more tenant’s being an amount prescribed by, or determined in accordance with, the regulations. (6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be considered in determining the relevant contributions of tenants is limited to the appropriate amount. (7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in accordance with, the regulations is limited to the amount so prescribed or determined.

8

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] 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).