First-tier Tribunal Grants Urgent Works Dispensation Without Consultation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/21UC/LDC/2024/0027/BS

Property

:

[ADDRESS], [POSTCODE]

Applicant: [redacted]

:

[COMPANY]

Respondents

:

[redacted]

:

Type of Application

:

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

Tribunal Member

:

[NAME]

Date and Venue of Hearing

:

Determination on papers

Date of Decision

:

18 March 2024

DECISION

2 The Application

1. 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 1 February 2024.

2. The property is described as a purpose-built block comprising 32 residential flats, garages and surrounding grounds.

3. The works for which dispensation is sought relate to a retaining wall on the eastern boundary of the property. The wall is said to be in a dangerous condition, leaning heavily into the road and, in part, has already collapsed. Notification of a requirement for urgent assessment and repairs has been issued by the Highways Enforcement Department.

4. The Applicant explains that following preparation of a specification of works, and statutory consultation, a contractor was appointed. However, shortly before works were due to commence, the contractor withdrew. Following instruction of a Building Surveyor, and having raised the matter at the Annual General Meeting of the company, a further contractor was appointed. The works however pose a significant health and safety risk, and the Applicant therefore seeks to avoid any additional delay which would, by necessity, arise from a further statutory consultation period.

5. On 29 February 2024 the Tribunal directed that the application would be determined on the papers without a hearing unless a party objected in writing within 7 days. No objections were received.

6. The Directions stated that neither the question of reasonableness of the works, nor of the costs incurred, were included in the application, the sole purpose of which is to seek retrospective dispensation.

7. The Tribunal required the Respondents to return a pro-forma to the Tribunal and to the Applicant by 11 March 2024 indicating whether they agreed or disagreed with the application. Positive responses were received from [NAME] (Flat 1) [NAME] & [NAME] (Flat 15), and [NAME] (Flat 16). No objections were received by either the Tribunal or Applicant.

Determination

8. The 1985 Act provides [NAME] with safeguards in respect of the recovery of the landlord’s costs in connection with qualifying works. Section 19 ensures that the landlord can only recover those costs that are reasonably incurred on works that are carried out to a reasonable standard. Section 20 requires the landlord to consult with [NAME] in a prescribed manner about the qualifying works. If the landlord fails to do this, a [NAME]’s contribution is limited to £250, unless the Tribunal dispenses with the requirement to consult.

3 9. In this case the Tribunal’s decision is confined to the dispensation from the consultation requirements in respect of the works under section 20ZA of the 1985 Act. The Tribunal is not making a determination on whether the costs of those works are reasonable or payable. If a [NAME] wishes to challenge the reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made.

10. Section 20ZA does not elaborate on the circumstances in which it might be reasonable to dispense with the consultation requirements. On the face of the wording, the Tribunal is given a broad discretion on whether to grant or refuse dispensation. The discretion, however, must be exercised in the context of the legal safeguards given to the Applicant under sections 19 and 20 of the 1985 Act. This was the conclusion of the Supreme Court in [COMPANY] v [NAME] and Others [2013] UKSC 14 & 54 which decided that the Tribunal should focus on the issue of prejudice to the tenant in respect of the statutory safeguards.

11. Lord [APPELLANT] in Daejan said at paragraph 44 “Given that the purpose of the Requirements is to ensure that the tenants are protected from (i) paying for inappropriate works or (ii) paying more than would be appropriate, it seems to me that the issue on which the LVT should focus when entertaining an application by a landlord under s 20ZA(1) must be the extent, if any, to which the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements”.

12. Thus, the correct approach to an application for dispensation is for the Tribunal to decide whether and if so to what extent the [NAME] would suffer relevant prejudice if unconditional dispensation was granted. The factual burden is on the [NAME] to identify any relevant prejudice which they claim they might have suffered. If the [NAME] show a creditable case for prejudice, the Tribunal should look to the landlord to rebut it, failing which it should, in the absence of good reason to the contrary, require the landlord to reduce the amount claimed as service charges to compensate the [NAME] fully for that prejudice.

13. The Tribunal now turns to the facts.

14. The Tribunal is satisfied that the works for which dispensation is sought are necessary. The Applicant is in receipt of a notification of repair from the Highways Enforcement Department and has undertaken steps, both statutory and at the Annual General Meeting, to consult [NAME] and to keep them abreast of developments. It was unfortunate that the contractor initially appointed withdrew from the contract and that delay was inevitably incurred engaging a replacement. The Tribunal finds that the Applicant has demonstrated a reasonable approach.

4 15. The Tribunal takes into account the fact that three [NAME] support the application and that there have been no objections. Furthermore, the Tribunal finds that no prejudice as a result of a failure to consult has either been demonstrated or asserted.

16. On the evidence before it the Tribunal is therefore satisfied that the [NAME] would suffer no relevant prejudice if dispensation from consultation was granted.

Decision

17. The Tribunal grants an order dispensing with the consultation requirements under S.20 of the Landlord and Tenant Act 1985 in respect of remedial works to the retaining boundary wall as identified in the application.

18. Dispensation is granted on the condition that the Applicant provides a copy of this decision to all [NAME].

RIGHTS OF APPEAL

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

2. 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.

3. 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.

4. 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.