Landlord Granted Dispensation for Urgent Driveway Repairs

OUTCOME: Allowed

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First-tier Tribunal Property Chamber (Residential Property)

Case reference

: CAM/00MF/LDC/2019/0032

Property : [ADDRESS] [POSTCODE]

Applicant : [redacted]

Respondents The long [NAME] of the properties listed in the application

Date of Application : Received 11 October 2019

Type of Application : for permission to dispense with consultation requirements in respect of qualifying works - Section 20ZA Landlord and Tenant Act 1985 (“the Act”)

Tribunal

: Mrs [APPELLANT] [NAME] ([NAME])

Date of Decision : 18 November 2019 ____________________________________________

DECISION _________________________________ [NAME] © 2019

Decision

1. The Applicant is granted dispensation from the statutory consultation requirements in respect of the qualifying works .

Reasons

Introduction

2. The landlord has applied for dispensation from the statutory consultation requirements in respect of works in connection with the maintenance of the driveway to [ADDRESS]. The application is said to be urgent as the driveway is badly potholed and in urgent need of refurbishment prior to the winter.

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3. The landlord states that the [NAME] are in agreement and have confirmed in writing that they are happy for the s20 process to be dispensed with and an example letter was provided. The work is to be capped at £25,000.

4. Details of the works were provided, which include repairing and resurfacing the driveway which serves the 12 apartments which form [ADDRESS] and accompanying fencing work. The works are said to be overdue but have been delayed pending the completion of an ongoing major construction project on a lodge sited at the start of the driveway . This is now complete and the applicants are anxious that the work on the driveway take place as soon as possible to prevent further potholes forming and associated damage to vehicles.

5. A procedural chair issued directions timetabling this case to its conclusion. One of the directions said that this case would be dealt with on the papers taking into account any written representations made by the parties and a decision would be made on or after 18 November 2019. It was made clear that if any party requested an oral hearing one would be arranged. No such request has been received and no representations have been received from or on behalf of any of the respondents.

The Law

6. Section 20 of the 1985 Act limits the amount which lessees can be charged for major works unless the consultation requirements have been either complied with, or dispensed with by a leasehold valuation tribunal (now called a First-tier Tribunal, Property Chamber). The detailed consultation requirements are set out in Schedule 3 to the Service Charges (Consultation Requirements) (England) Regulations 2003. These require a fairly complicated consultation process which gives the lessees an opportunity to be told exactly what is going on and the landlord must give its response to those observations and take them into account.

7. The landlord’s proposals, which should include the observations of tenants, and the amount of the estimated expenditure, then have to be given in writing to each tenant and to any recognised tenant’s association. Again, there is a duty to have regard to observations in relation to the proposals, to seek estimates from any contractor nominated by or on behalf of tenants and the landlord must give its response to those observations

8. Section 20ZA of the Act allows this Tribunal to make a determination to dispense with all or part of the consultation requirements if it is satisfied that it is reasonable and the Tenants have not suffered prejudice.

Discussion and Conclusions

9. Following the Supreme Court decision of Daejan Investments Ltd. v Benson [2013] UKSC 14, the only issue for the Tribunal is whether the Respondents have suffered prejudice in dispensing with the requirements.

10. Taking into account into account the urgency of the work, the applicants confirmation that the Respondents are content for the dispensation to be granted and the potential risks of delay, it would clearly be unsatisfactory to Applicant and the Respondents for the work to be delayed. It is therefore

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sensible for the Applicant to proceed with the works as soon as possible and there is no evidence that dispensation as sought would cause any prejudice to the Repondents. It is therefore reasonable to grant dispensation.

ANNEX - RIGHTS OF APPEAL

1. 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.

2. 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.

3. 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.

4. 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.