Landlord Granted Dispensation for Fire Alarm Installation Without Consultation

OUTCOME: Allowed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference

:

HAV/45UH/LDC/2025/0602

Property

:

[ADDRESS], [POSTCODE]

Applicant

:

[redacted]

Representative

:

Respondent

:

[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

:

Regional Judge Whitney

Date of Decision

:

6 February 2025

DECISION

This is a formal order of the Tribunal which must be complied with by the parties.

Communications to the Tribunal MUST be made by email to [EMAIL]. All communications must clearly state the Case Number and address of the premises.

Summary of the Decision

1. The Applicant is granted 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 in relation to the installation of a fire alarm system. The Tribunal has made no determination on whether the costs of the works are reasonable or payable.

Background

2. 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 8 January 2025.

3. The Property is described in the application:

[ADDRESS] is a purpose built block comprising 20 flats, communal areas, parking garages / spaces and gardens.

The building has a ground and five upper floors. There is one internal staircase which serves as the fire escape route. There are two fire exits on the ground floor. There is a lift in the building, however it is not fire rated.

Over time, work has been undertaken to improve the thermal performance of the block including the injection of blown polystyrene balls into the original cavity wall and the addition of a cladding wall system using polystyrene boards.

A fire risk assessment of the external walls (FRAEW) has been recently undertaken.

4. The Applicant explains in the application that:

The FRAEW has recommended the installation of a fire alarm system to each flat and communal areas. Broader works recommended by the FRAEW to remediate the external walls will take approximately one year to complete. In the interim, the fire risk at the block has to be managed through a change in the fire risk strategy from stay put to full evacuation (currently being implemented) and the installation of the alarm system. An application has been made to the Cladding Safety Scheme (CSS) for financial support to address the risks in the wall system however, the CSS will not cover the cost of the alarm system. Two quotes have been received for the work, the lowest of which is circa £20,000. This cost will need to be recovered from [NAME] as a service charge. Expenditure at this level would normally necessitate a consultation process, however given the risk and urgency, an application is made for dispensation.

No consultation has taken place

[NAME] have been informed of the fire risk issues via letter and a copy of the FRAEW has been made available to [NAME] on the block's online portal. A presentation was recently made to [NAME] (via Microsoft teams) detailing the the findings of the FRAEW, however the presentation was poorly attended. A Microsoft Sharepoint site has been established for the works/project to remediate the external walls and all [NAME] have been invited to join/access the site. The block's manageing agent has also shared important fire safety documents with [NAME] via the block's online building portal.

The FRAEW determined the block's fire risk to be at the "upper end of medium", posing an unacceptable risk to the safety of [NAME]. All insulation behind the rendered façade of the wall is combustible and there are no adequate fire stopping provisions in place that would prohibit the spread of fire across the building. Until the building's fire risk can be made tolerable and issues with the wall system remediated, the FRAEW recommends the installation of an alarm system. Given the risk to the safety of [NAME], the freehold company would like to progress without delay and therefore requests dispensation from the consultation process.

5. The Tribunal gave [NAME] on 20 January 2025 listing the steps to be taken by the parties in preparation for the determination of the dispute, if any.

6. The [NAME] stated that Tribunal would determine the application on the papers received unless a party objected in writing to the Tribunal within 7 days of the date of receipt of the [NAME]. No party has objected to the application being determined on the papers.

7. The only issue for the Tribunal is whether or not it is reasonable to dispense with the statutory consultation requirements. This application is not about the proposed costs of the works, and whether they are recoverable from the [NAME] as service charges or the possible application or effect of the Building Safety Act 2022. The [NAME] have the right to make a separate application to the Tribunal under section 27A of the Landlord and Tenant Act 1985 to determine the reasonableness of the costs, and the contribution payable through the service charges.

The Law

8. Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and the related Regulations provide that where [NAME] undertakes qualifying works with a cost of more than £250 per lease, the relevant contribution of each [NAME] (jointly where more than one under any given lease) will be limited to that sum unless the required consultations have been undertaken or the requirement has been dispensed with by the Tribunal. An application may be made retrospectively.

9. The relevant section of the Act reads as follows:

S.20 ZA Consultation requirements:

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.

10. The appropriate approach to be taken by the Tribunal in the exercise of its discretion was considered by the Supreme Court in the case of [COMPANY] v [NAME] et al [2013] UKSC 14.

11. The leading judgment of Lord [NAME] explained that a Tribunal should focus on the question of whether the [NAME] will be or had been prejudiced in either paying where that was not appropriate or in paying more than appropriate because the failure of [NAME] to comply with the regulations. The requirements were held to give practical effect to those two objectives and were a means to an end, not an end in themselves.

12. The factual burden of demonstrating prejudice falls on the [NAME]. The [NAME] must identify what would have been said if able to engage in a consultation process. If the [NAME] advances a credible case for having been prejudiced, [NAME] must rebut it. The Tribunal should be sympathetic to the [NAME](s).

13. Where the extent, quality and cost of the works were in no way affected by [NAME]’s failure to comply, Lord [NAME] said as follows:

I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be- i.e. as if the requirements had been complied with.

14. The main, indeed normally, the sole question, as described by Lord [NAME], for the Tribunal to determine is therefore whether, or not, the [NAME] will be or has been caused relevant prejudice by a failure of the Applicant to undertake the consultation prior to the major works and so whether dispensation in respect of that should be granted.

15. The question is one of the reasonableness of dispensing with the process of consultation provided for in the Act, not one of the reasonableness of the charges of works arising or which have arisen.

16. If dispensation is granted, that may be on terms.

17. There have been subsequent Decisions of the higher Courts and Tribunals of assistance in the application of the Decision in Daejan but none are relied upon or therefore require specific mention in this Decision.

Consideration

18. The [NAME] attached a reply form for the Respondents to complete to confirm whether they agreed with the application or not and if opposed, to provide a statement setting out why they oppose.

19. The Tribunal received one reply form regarding Flats 6 and 17, confirming their agreement to the application. Replies have not been received from the remaining flats.

20. The Applicant confirmed by email on 30 January 2025 that they have received no objections to the application.

21. Having considered the application and prior to undertaking this determination, I am satisfied that a determination on the papers remains appropriate, given that the application remains unchallenged.

22. The reason why dispensation from consultation requirements is said to be required is that there is an unacceptable risk to the safety of the [NAME] of the building until the building’s fire risk can be made tolerable, therefore requiring the installation of a fire alarm system. Given the nature of the works and the fact that it relates to the safety and welfare of the building and its [NAME], I am satisfied that the qualifying works are of an urgent nature.

23. There has been no objection to the dispensation of the consultation requirements from any of the [NAME].

24. None of the [NAME] have therefore asserted that any prejudice has been caused to them. The Tribunal finds that nothing different would be done or achieved in the event of a full consultation with the [NAME], except for the potential delay and potential problems.

25. The Tribunal finds that the Respondents have not suffered any prejudice by the failure of the Applicant to follow the full consultation process.

26. The Tribunal consequently finds that it is reasonable to dispense with all of the formal consultation requirements in respect of the major works to the building as described in this Decision.

27. This Decision is confined to determination of the issue of dispensation from the consultation requirements in respect of the qualifying works for the installation of the fire alarm system as outlined at paragraph 4. The Tribunal has made no determination on whether the costs are payable or reasonable. If a [NAME] wishes to challenge the payability or reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made.

28. In reaching my decision I have taken account of the fact that no party has objected to the application. The [NAME] have had opportunity to raise any objection and they have not done so. I do however Direct that the dispensation is conditional upon the Applicant or their agent sending a copy of this decision to all the [NAME] so that they are aware of the same.

RIGHTS OF APPEAL

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

30. 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.

31. 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.

32. 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.