First-tier Tribunal Grants Unconditional Dispensation for Urgent Waterproofing Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AE/LDC/2023/0255 Property :

The Coachworks, [ADDRESS], [NAME], London [POSTCODE]

Applicant: [redacted] : [COUNSEL] [NAME], Solicitor, of [APPELLANT] Respondents : [redacted] Property Type of application :

Dispensation from compliance with statutory consultation requirements

Tribunal member :

Judge P [NAME] of decision : 5 February 2024

DECISION

Description of hearing

This has been a remote hearing on the papers. An oral hearing was not held because the Applicant confirmed that it would be content with a paper determination, the Respondents did not object and the tribunal agrees that it is appropriate to determine the issues on the papers alone. The documents to which I have been referred are in an electronic bundle, the contents of which I have noted. The decision made is described immediately below under the heading “Decision of the tribunal”.

2 Decision of the tribunal

The tribunal dispenses unconditionally with the consultation requirements in respect of the qualifying works which are the subject of this application. The application 1. The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from the consultation requirements imposed on the landlord by section 20 of the 1985 Act in relation to certain qualifying works.

2. The qualifying works which are the subject of this application consist of works to make the building more waterproof.

3. The Property comprises 8 separate residential flats above a commercial unit on the ground floor. Applicant’s case 4. The Applicant states that on 25 April 2023 an inspection of the Property was carried out by [NAME] following reports of water ingress and damp within Flats 2, 4, 5 and 6. The surveyor was shown a vide of rain coming through the ceiling and around a window during a period of heavy rainfall. Meter reading s also showed that a significant amount of water was being retained within the ceiling structure. Water damage was also evident in the flooring.

5. Following production of the surveyor’s report a quote was obtained for the necessary remedial works including removal of rainwater drip trays and coping stones, installation of waterproofing and flashing detail on exposed window sills, alteration of the ledge detailing of the window surround, installation of new flashing on the sills and reinstallation of aluminium rainwater trays and coping stones. The quote was for £8,466 inclusive of VAT and the surveyor advised that the works needed to be carried out urgently.

6. The Applicant seeks dispensation on the basis of the perceived urgency of the works, as it has been advised that if there are further periods of extensive rainfall these are likely to cause further damage to the building and to the flats inside.

7. The hearing bundle includes a copy of [NAME]’ report, a copy of the quote obtained and a witness statement from [APPELLANT] [NAME] of the Applicant’s managing agents.

3 Responses from the Respondents 8. None of the Respondents has written to the tribunal raising any objections to the dispensation application. The relevant legal provisions 9. Under Section 20(1) of the 1985 Act, in relation to any qualifying works “the relevant contributions of tenants are limited … unless the consultation requirements have been either (a) complied with … or (b) dispensed with … by … the appropriate tribunal”.

10. Under Section 20ZA(1) of the 1985 Act “where an application 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…, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements”. Tribunal’s analysis 11. The Applicant has explained why the works were considered urgent for reasons connected to concerns about further water ingress and resulting damage to specific flats and the wider building and why, therefore, it did not go through a statutory consultation process before carrying out the works.

12. As is clear from the decision of the Supreme Court in [COMPANY] v [NAME] (2013) UKSC 14, the key issue when considering an application for dispensation is whether the leaseholders have suffered any prejudice as a result of the failure to comply with the consultation requirements.

13. In this case, none of the Respondents has expressed any objections in relation to the failure to go through a statutory consultation process, and there is no evidence before me that the leaseholders were in practice prejudiced by the failure to consult. Furthermore, I accept on the basis of the uncontested evidence before me that the carrying out of the works was urgent for reasons connected to concerns about further water ingress and resulting damage to the Property. The Applicant has helpfully provided a copy of the surveyors’ report, a copy of the quote obtained for the works, and a witness statement from the Applicant’s managing agent.

14. The tribunal has a wide discretion as to whether it is reasonable to dispense with the consultation requirements. In this case the Applicant has explained why the works were urgent, and no leaseholders have raised any objections or challenged the Applicant’s

4 factual evidence. I therefore consider that it is reasonable to dispense with the consultation requirements.

15. As is also clear from the decision of the Supreme Court in [NAME] v [NAME], even when minded to grant dispensation it is open to a tribunal to do so subject to conditions, for example where it would be appropriate to impose a condition in order to compensate for any specific prejudice suffered by leaseholders. However, as noted above, there is no evidence nor any suggestion that the leaseholders have suffered prejudice in this case.

16.

Accordingly, I grant unconditional dispensation from compliance with the consultation requirements.

17. It should be noted that this determination is confined to the issue of consultation and does not constitute a decision on the reasonableness of the cost of the works. Costs 18. There have been no cost applications.

Name: Judge P [NAME]: 5 February 2024

RIGHTS OF APPEAL

A. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) a written application for permission must be made to the First-tier Tribunal at the regional office dealing with the case.

B. 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.

C. If the application is not made within the 28 day time limit, such application must include a request for extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.

D. 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.