RTM Company Gets Permission for Urgent Fire Safety Works Without Consultation

OUTCOME: Allowed

Case Reference : MAN/00CJ/LDC/2022/0050

Property : Apartments 1 to 68, [APPELLANT], [ADDRESS] [POSTCODE]

Applicant: [redacted] : [APPELLANT]

Respondents : [redacted]

(see Annex)

Type of Application : Landlord & Tenant Act 1985 – Section 20ZA

Tribunal Member : Judge L Bennett

Date of determination : 24 April 2023

Date of Decision : 9 May 2023

_______________________________________________

DECISION ____________________________________

© CROWN COPYRIGHT 2023

FIRST - TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

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Application

1. [APPELLANT] applies to the Tribunal under Section 20ZA of the Landlord and Tenant Act 1985 (the Act) for dispensation from the consultation requirements of Section 20 of the Act and the Service Charges (Consultation Requirements)(England) Regulations 2003 (SI 2003/1987) in respect of fire safety works (the Works) at Apartments 1 to 68, [APPELLANT], [ADDRESS] [POSTCODE] (the Property).

2. The Respondents are the [NAME] at the Property and listed at the Annex to this decision.

Grounds and Submissions

3. The application was received by the Tribunal on 16 September 2022.

4. The Applicant is the [COMPANY] that has taken over the management functions named in the leases.

5. The Tribunal did not carry out an inspection but understands that the Property is a

new build apartment scheme built c2005 by [COMPANY], comprising 68

residential apartments and 1 commercial unit.

6. On 25 January 2023, a Tribunal Legal Officer made directions requiring the service

of documents by the Applicant upon each of the Respondents. The directions

provided that in the absence of a request for a hearing the application would be

determined upon the parties’ written submissions.

7. The Applicant has provided a statement of case explaining why the application was

made to the Tribunal together with supporting documents.

8. The Applicant will be undertaking major works namely: remove and replace any

identified area of the external wall system that are combustible, together with

associated recommendations based on PAS9980. The scopes of these works are

outlined and highlighted at Exhibit Ria4 of the Applicant’s bundle. The works are

urgently needed due to fire safety concerns and are due to commence in the first

quarter of 2023.

9. The exact cost of the works is not yet known but are thought to be in the region of

£1.5 to £2 million. The works are likely to be funded by the [NAME] (see Exhibit Ria5 of the Applicant’s bundle). In addition, the

Applicant has also received a letter from [APPELLANT] dated 13 July 2022,

confirming that they will fund all identified and relevant fire related defects and

consultant costs. A copy of this letter can be found at Exhibit Ria6 of the

Applicant’s bundle.

The application for dispensation is therefore a precautionary application. In the

unlikely event that the Applicant is unable to recover the funds from the above

sources or other unidentified works are needed, the Applicant should not have to

wait for a full consultation exercise to be carried out as this will be a detriment to

the [NAME]. The Applicant submits that no prejudice would be caused to the

[NAME] and it would be reasonable to dispense with the consultation

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requirements. The Applicant also assures the Tribunal that no funds will be

requested from the [NAME] that would contravene the Building Safety Act

2022.

10. The Tribunal did not receive any submissions from a Respondent [NAME].

Neither the Applicant nor a Respondent requested a hearing.

11. The Tribunal therefore convened without the parties to make its determination on

24 April 2023.

Law

12. Section 18 of the Act defines “service charge” and “relevant costs”.

13. Section 19 of the Act limits the amount payable by the lessees to the extent that the

charges are reasonably incurred.

14. Section 20 of the Act states:- “Limitation of service charges: consultation requirements

Where this Section applies to any qualifying works…… the relevant contributions of tenants are limited……. Unless the consultation requirements have either:- a. complied with in relation to the works or b. dispensed with in relation to the works by …… a tribunal. This Section applies to qualifying works, if relevant costs incurred on carrying out the works exceed an appropriate amount”.

15. “The appropriate amount” is defined by regulation 6 of The Service Charges

(Consultation Requirements) (England) Regulations 2003 (the Regulations) as

“……. an amount which results in the relevant contribution of any tenant being more

than £250.00.”

16. Section 20ZA(1) of the Act states:- "Where an application is made to a 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 Conclusions with Reasons

17. I have determined this matter following a consideration of the Applicant’s case but

without holding a hearing. Rule 31 of the Tribunal Procedure (First-tier Tribunal)

([NAME]) Rules 2013 permits a case to be dealt with in this manner

provided that the parties give their consent (or do not object when a paper

determination is proposed). In this case, the Applicant has given its consent and

the Tribunal has not heard from a Respondent in response to the application.

Moreover, having reviewed the case papers, I am satisfied that this matter is

indeed suitable to be determined without a hearing. Determining this matter

does not require me to decide disputed questions of fact.

18. It is not necessary to consider at this stage the extent of any service charges

that may result from the works payable under the terms of the Respondents’

leases. If and when such is demanded, and if disputed, it may properly be the

subject of a future application to the Tribunal.

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19. Having considered the submission made by the Applicant I accept that this

application is purely precautionary. However, the works are clearly of an urgent

nature. A consultation exercise would add considerable delay and be

detrimental to the safety of the [NAME]. The Applicant has notified

[NAME] about the works and of the application to the Tribunal.

20. In [COMPANY] v Benson [2013] UKSC 14 it was determined that

a Tribunal, when considering whether to grant dispensation, should consider

whether the tenants would be prejudiced by any failure to comply with the

Consultation Requirements. Balancing the need for urgent action against

dispensing with statutory requirements devised to protect service charge paying

[NAME], I conclude that the urgency outweighs any identified prejudice.

Dispensation from consultation requirements does not imply that any resulting

service charge is reasonable.

Order

21. The Applicant is dispensed from complying with the consultation requirements in

respect of the works specified in the application.

Laurence J Bennett Tribunal Judge 24 April 2023

5 Annex - List of Respondent [NAME]

[NAME] Mr [RESPONDENT] Mr [RESPONDENT] Ms [NAME] [NAME] Ms [COMPANY] Mr [NAME] Mr [NAME] [NAME] Mr [NAME] Mr [NAME] Mr [NAME] & [NAME] [NAME] [NAME] [NAME] & [NAME] [NAME] Mr [NAME] [NAME] Mr [NAME] Mr & Mrs [NAME] [COMPANY] Mr & Mrs [COMPANY] Ms [NAME] Mr [NAME] Mr [NAME] Ms [NAME] Mr [NAME] Mr & Mrs [NAME] Mr & Mrs [NAME] Mr [NAME] [NAME] [NAME] [NAME] [NAME] [COMPANY] Mr [NAME] Mr & Mrs [NAME] Mr [NAME] [NAME] [NAME] Ms [NAME] Mr [NAME] [NAME] Mrs [NAME] Ms [NAME] LLP Chun Tang Lau & [NAME]

6 [NAME] Mr [NAME] Dr [NAME] Mr & Mrs [NAME]