Freeholder Granted Dispensation for Urgent Repairs to Leaking Water Main

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AY/LDC/2024/0646 Property : 1-[ADDRESS], Salter’s [ADDRESS], [POSTCODE] Applicant : [redacted] Borough of Lambeth Representative : [COUNSEL] (of the applicant) Respondents : [redacted] [APPELLANT] (Flat 5) [NAME] [NAME] (Flat 9) [NAME] (Flat 14) [COMPANY] (Flat 16) [NAME] (Flat 17) [NAME] (Flat 19) D Meade & C Meade (Flat 20) [NAME] & Ines Jane Orpher (Flat 21) Type of application : For dispensation from statutory consultation Tribunal member : Mr O Dowty MRICS Date of determination : 17 April 2025

DECISION

Decision of the Tribunal The Tribunal grants the application for dispensation from statutory consultation in respect of the qualifying works.

2 The application 1. The applicant, the London Borough of Lambeth, is the freeholder of the subject property. The respondents are service charge paying [NAME] in the subject building, who will – the applicant avers – “ultimately be liable for a proportion of the rechargeable block cost”.

2. The property is a purpose-built, 5 storey block of 21, 2 bedroom flats. 9 of those flats are held by [NAME].

3. The application, dated 1 November 2024, seeks a determination pursuant to section 20ZA of the Landlord and Tenant Act 1985 (“The Act”) dispensing with statutory consultation in respect of qualifying works. At the time of that application, those works had started, and were said to be one week away from completion.

4. Directions were issued by the Tribunal on 17 January 2025. Amongst other things, those directions provided that the applicant was to display a copy of the Tribunal’s directions in the common parts of the property and to serve both the Tribunal’s directions and the applicant’s application form on the [NAME] of the property. Mr [APPELLANT], an internal litigation officer of the applicant who has conduct of this matter on their behalf, confirmed in an email, dated 3 February 2025, to the Tribunal that the applicant had done so.

5. The Tribunal’s directions provided template reply forms, and directed any leaseholder or sublessee who opposed the application to provide a reply form indicating their objection both to the Tribunal and to the applicant. The Tribunal has received no such objecting reply forms, and the applicant has – in compliance with directions – confirmed they have received no objections either in an email from Mr [NAME] dated 28 March 2025.

6. The Tribunal considered that a paper determination of the application was appropriate, the applicant indicated that they were content for this to happen in their application and no objections were received from any respondents. I agree, and I therefore determined this matter on the basis of the papers provided to me without a hearing.

7. I did not inspect the subject property as it was not necessary to do so to determine the present application.

3 The Qualifying Works

8. The applicant sets out in the bundle that the works were an “urgent matter”. The applicant’s “Housing Team identified a leaking water main external to [ADDRESS], next to the plant room at the side of the block”. They instructed a contractor, [APPELLANT] - who was already working with the applicant on a Qualifying Long Term Agreement basis, to investigate the situation. They identified “two leaks on the cold-water mains supply to the block”.

9. That contractor quoted a price of £17,108 for the repair works, which are detailed further in the applicant’s bundle. They were instructed to carry out those works, which were said by the applicant to be a week away from completion on the day the application was made (1 November 2024).

10. The applicant avers further that a “temporary fix” to allow for full consultation to be carried out would not have been practicable, as it would have been “an inefficient use of resources, resulting in the duplication of work; particularly as it was clear that a mains relay would be required. Additionally, as the leak was causing large amounts of water to go to waste, and there was a risk that the pipeline could rupture further, leaving the block without a water supply and raising hygiene issues”. The applicant has provided a ‘Justification Report’ in support of those submissions dated 25 October 2024 carried out by [APPELLANT] – a water quality officer employed by the applicant.

11. Whilst no ‘Section 20’ consultation was started, the applicant submits they acted “in the spirit of the regulations” by sending a letter to the [NAME] on 1 November 2024 (of which a sample copy was provided in the bundle) informing them of the costs of the works. [NAME] were invited to provide observations regarding the works, but on an ‘as soon as possible’ basis, and at least by 8 November 2024 due to the urgency of the works. Decision and Reasons 12. Section 20ZA(1) of the Act provides: 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 or qualifying long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.

4 13. The applicant’s case is that the works were required urgently to remedy a leak to the outside of the property which was discharging large amounts of water and if not remedied might have resulted in there being no water supply to the building at all. No representations have been received that dispute this, and – alongside the applicant’s other submissions - the applicant has provided a ‘justification report’ speaking to the urgency of the works. It therefore appears reasonable to me, based on the evidence provided, to have carried out these works urgently.

14. Nevertheless, as the applicant alludes to in their legal submissions (the contents of which I have read, but do not require repetition in this decision), my decision in this matter is one that must be focussed upon prejudice that has been, or might be, suffered by service charge payers due to a full consultation under Section 20 of The Act not taking place. The leading case in this area to that effect, as again is noted by the applicant, is the Supreme Court case of [COMPANY] v Benson [2013] UKSC 14.

15. No leaseholder or other interested party has indicated their objection to the application at all. It is therefore trivial to note that no leaseholder or other interested party has identified any prejudice that might be, or has been, suffered by them as a result of the failure to consult. Similarly, I have not identified any clear prejudice that the [NAME] or any other interested parties have suffered, or might suffer, in the absence of any such representations from them.

16. In light of the above, I consider it reasonable to grant the application for dispensation from statutory consultation. No conditions on the grant of dispensation are appropriate and I therefore make none.

17. This decision does not affect the Tribunal’s jurisdiction upon an application to make a determination under section 27A of The Act in respect of the reasonable and payable costs of the works, should this be disputed by any leaseholder. Name: Mr [NAME]: 17 April 2025

5

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 should be made on Form RP PTA available at https://www.gov.uk/government/publications/form-rp-pta-application-for- permission-to-appeal-a-decision-to-the-upper-tribunal-lands-chamber

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).