Tribunal Grants Dispensation for Balcony Testing but Rejects Urgent Safety Measures

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BG/LDC/2025/0893 Property : [APPELLANT], [ADDRESS] [POSTCODE] Applicant: [redacted] : [COUNSEL], sole director of [COMPANY] Respondents :

[redacted] Property Present at hearing :

[APPELLANT] (director of [COMPANY]), [APPELLANT] ([NAME] of Flat 2) and [NAME] (friend of [NAME], [NAME]) Type of [NAME] :

Dispensation from compliance with statutory consultation requirements

Tribunal members :

Judge P [NAME] of hearing : 10 December 2025 Date of decision : 11 December 2025

DECISION

Description of hearing

This was a video hearing.

2 Decisions of the tribunal

(1) The tribunal dispenses unconditionally with those of the consultation requirements not already complied with in respect of the qualifying works comprising intrusive structural testing of 18 concrete balconies, including reviewing the test results and recommending remedial options and implementation of emergency safety measures (see paragraph 2(a) below). (2) The tribunal refuses at this stage to dispense with the consultation requirements in respect of any urgent temporary safety works identified as immediately necessary following testing (see paragraph 2(b) below). The [NAME]

1. The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from full compliance with the consultation requirements imposed on the landlord by section 20 of the 1985 Act in relation to certain qualifying works.

2. The qualifying works which are the subject of this [NAME] comprise (a) intrusive structural testing of 18 concrete balconies, including reviewing the test results and recommending remedial options and implementation of emergency safety measures; and (b) any urgent temporary safety works identified as immediately necessary following testing. Applicant’s case 3. The Applicant seeks dispensation from compliance with the statutory consultation requirements in respect of (a) intrusive structural testing of 18 concrete balconies (estimated cost: £3,360 + VAT based on first quote received), structural engineering fees of £3,000 + VAT incurred to date, further fees to be incurred in reviewing the test results and recommending remedial options of £2,100 + VAT and implementation of emergency safety measures of £495 + VAT and (b) any urgent temporary safety works identified as immediately necessary following testing.

4. The Applicant states that 18 cantilevered concrete balconies constructed in 1952 show advanced structural deterioration with exposed corroding reinforcement. [NAME] (a firm of [NAME]) inspected the balconies on 19 September 2025 and advised that "structural deterioration in the form of rusting of the reinforcement and spalling of the concrete has occurred to a number of balconies", that while collapse is "extremely unlikely" the risk is "not zero" and so cannot be disregarded with a view

3 to the Applicant’s safety responsibilities, and also that the concrete is "near the end of its theoretical design life".

5. The Applicant relies on the professional advice of [NAME] and specifically on their employee [NAME] [NAME]. In his email dated 2 October 2025, Mr [NAME] advises that “the risk of a delay having significant impact on the structural safety is not zero” and he recommends proceeding with intrusive testing as soon as possible, noting heightened deterioration risk over the autumn/winter. Interim closures were considered to be adequate only as a short-term measure pending testing and remedial design.

6. From 15 September 2025 the following safety measures were put in place: • all 18 balconies closed to residents with "DANGER - DO NOT USE" signage; • ground-level exclusion zones established beneath balcony runs; and • residents prohibited from gaining balcony access.

7. The Applicant notes that it has duties under the Defective Premises Act, the Occupiers' Liability Acts, the Health & Safety at Work Act 1974 and the Companies Act 2006. It submits that this legislation in aggregate required urgent action on its part to quantify and address the identified risk.

8. When the Applicant made the [NAME] for dispensation, [NAME] was obtaining competitive quotes from three specialist testing contractors. The Applicant notes that going through the full statutory consultation process would add approximately two months before testing could commence. It states that during this period the deterioration would continue unchecked, the risk of sudden failure would remain unquantified, 18 households would remain deprived of balcony access without knowing if this is actually necessary, a public safety risk beneath the balconies would continue, the actual structural adequacy of the balconies is unknown (preventing informed decisions about repairs), the insurance implications remain unclear and property values are affected by the uncertainty.

9. The Applicant goes on to state that [NAME] cannot quantify the actual risk level without intrusive testing. The testing specification has been professionally determined based on structural necessity. It adds that no responses to a section 20 consultation could affect whether testing is required (because it is unavoidable), what tests are needed (as these are determined by structural requirements) and

4 how tests should be conducted (as this depends on the technical specification).

10. The Applicant also states that full transparency is being provided, with all reports and specifications shared, and that delaying the works to allow for full statutory consultation would itself give rise to significant prejudice from delay because of the continued loss of balcony use for 18 households, the possible albeit unquantified risk to residents and public, the ongoing deterioration during the consultation period, the inability to plan for repairs or understand the financial implications and uncertainty regarding insurance and property value.

11. The Applicant proposes to address any potential consultation-related prejudice to [NAME] through (a) obtaining competitive quotes from three structural testing specialists recommended by [NAME], (b) providing full information including copies of all engineers’ reports, test specifications, and quotes received, (c) [NAME] a commitment that if any [NAME] obtains a lower quote from an appropriately qualified specialist within 7 days of the tribunal’s decision that quote will be accepted and (d) engaging in ongoing communication with [NAME] by providing regular updates on findings and on next steps.

12. By way of clarification the Applicant states that the testing costs represent only the investigation phase. Actual repair costs (once known) will be subject to either full section 20 consultation or a further [NAME] for dispensation.

13. In his witness statement Mr [NAME] summarises the above points, adds more detail as to precise dates, and exhibits various relevant documents including a ‘Report On Condition & 10 Year Planned Preventative Maintenance’ relating to the Property dated 18th September 2025 and prepared by [NAME] of [NAME]. The hearing bundle also includes [NAME]’s report on the structural inspection of the Property dated 19th September 2025 plus copy quotations and copy correspondence. Responses from the Respondents 14. A number of [NAME] have responded in writing to the [NAME]. 15. [NAME] (Flat 2), [NAME] (Flat 5), [NAME[NAME] (Flat 11), [NAME[NAME] (Flat 14) and [NAME] (Flat 23) have made written submissions which are identical or at least very similar to each other. Essentially, they state as follows:

5 • The [NAME] have not received a proper report with specific details of the risks from [NAME] (only a letter with some recommendations). • The brief summary given to them includes the statement that “the risk of a delay having significant impact on the structural safety is not zero” and that [NAME] “consider it is extremely unlikely to be severe enough to cause collapse of the balconies”. They consider this wording to be vague and insufficient as a basis for urgent or costly action. • [NAME] require is clarity about what the actual level of risk is, how it was assessed, and over what timeframe it might become critical. • There is no accompanying schedule or breakdown explaining how the figure for the anticipated cost has been calculated or precisely what works or testing this sum would cover. • [NAME] should be given the opportunity to review the proposed works, raise questions, and seek clarification before the matter proceeds.

16. The objections from [NAME] & [NAME] (Flat 4) are different. To summarise, they state as follows: • [NAME] were subjected to intense pressure to sign agreements, being told they would not receive payment if they refused. • The company that originally initiated the contract has since been dissolved, leaving [NAME] in an uncertain and vulnerable position. • [NAME] were explicitly told that service charges would not increase. Despite this assurance, charges have risen. • One hundred shares were secretly allocated to [NAME] mother without the knowledge or approval of other shareholders. • A postbox for “17a” has been installed in the hallway for [NAME], even though no such address exists within the Property.

6 • The [NAME] have twice been denied their right to select a management company. Both Alliance and, more recently, Temphis, were appointed without consultation or approval. • A Section 20 notice was issued without first consulting the other freeholders and without providing a clear explanation of the alleged balcony damage it refers to. 17. [NAME] ([NAME]) objects to being charged for these works on the ground that [NAME] does not have a balcony. [NAME] [NAME] (Flat 13) and [NAME] (Flat 16) both object on the stated ground that their balcony has no structural or other issue. [NAME] [NAME] ([NAME]) also states that their balcony is structurally sound but also adds that they commissioned their own independent structural report in January 2020 and that the [NAME] found no evidence of any urgent safety risk.

18. The Applicant’s responses to the above objections can be summarised as follows: • The structural [NAME]’s report was not available at the time of [NAME] the [NAME] for dispensation but is now included in the hearing bundle. • The consequence of a balcony collapse would reasonably foreseeably include serious injury or death. The Applicant has responsibilities to ensure the safety of occupiers and members of the public, and so even an extremely small risk of an event occurring that has severe consequences must be taken seriously. • The significance of a "not zero" risk assessment for cantilevered balconies is that a balcony failure could result in sudden collapse with no warning, causing death or serious injury to occupants or passersby. The fact that the [NAME] considers collapse "extremely unlikely" does not mean that the risk is acceptable – it means that the risk cannot be quantified without testing. Therefore, the only responsible approach is to determine the actual condition through testing as recommended by the [NAME]. The purpose of this [NAME] is to establish the exact nature of the risk by expediting the testing as recommended by the [NAME]. • All three quotes for testing have now been received, and copies are in the hearing bundle. The cheapest testing quote is £1,970 + VAT but the Applicant prefers the proposal from [APPELLANT] which is for £2,015 + VAT (a very slightly higher amount) but it includes an interpretative report and physical exposure/measurement of reinforcement bars, neither of which is included in the cheapest quote. Excluding any temporary

7 propping that might be recommended by the [NAME] upon receipt of the testing results, the cost per [NAME] will be approximately £380. • [NAME] were made aware of potential structural issues with the balconies on 15 September 2025 and were provided with a copy of the [NAME] and accompanying evidence on 3 October 2025 alongside an explanatory email setting out why the [NAME] was required. [NAME] were invited to comment and provide details of their own contractor to provide a comparable testing quotation. No comments were received until 27 October 2025. No contractors have been put forward by any [NAME] to date. Had any [NAME] identified any realistic alternative approach or cheaper contractor, that could have been considered. None was proposed, confirming, in the Applicant’s submission, the absence of any actual prejudice. • The full structural report and remaining two contactor quotations were provided to the Respondents on 31 October 2025. At the time of [NAME] this statement, no comments have been made by the Respondent in respect of these documents. • In the decision of the Supreme Court in [NAME] v [NAME] and others [2013] UKSC 14, Lord [NAME] at paragraph 46 states that "the Requirements (i.e. the consultation requirements) are a means to an end, not an end in themselves, and the end to which they are directed is the protection of tenants in relation to service charges." Lord [NAME] then states at paragraph 44 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." The statements in opposition to this [NAME] provide no evidence that the works are inappropriate or that the [NAME] would be asked to pay more than would be appropriate. • The [NAME] of [NAME] states that they obtained an independent structural report in January 2020 confirming their balcony was structurally sound. In response, the Applicant states that the 2020 report is now nearly six years old, a copy of the report has not been provided, concrete degradation is a progressive condition that worsens over time, Mr [NAME] 2025 report identified specific concerns at this balcony and the testing is required to determine the current condition, not the condition as it was in 2020.

8 The hearing 19. Eleven separate [NAME] had requested a hearing, but of these only [NAME] ([NAME] of Flat 2) actually attended the hearing. In addition, [NAME], who said that he was a friend of [NAME] ([NAME]), attended the hearing on Mr [NAME] behalf but only with a view to reporting back to Mr [NAME] on what had been said at the hearing.

20. Prior to the hearing the case officer contacted all of those who had requested a hearing and who had provided a contact telephone number. One of them said that he no longer wished to attend the hearing; the others did not answer and the hearing officer left them a message. The hearing was delayed for 30 minutes in case of late arrivals, but nobody else attended the hearing (either at the start of the delayed hearing or during the course of the hearing).

21. At the hearing Mr [APPELLANT] summarised the Applicant’s case. Ms [APPELLANT] in response said that from her perspective the main problem had been poor communication at the beginning. She felt that initial communications from the Applicant had been confusing, had contained insufficient detail and had led her to be concerned that costly works were planned in response to a risk that was virtually non-existent. She also did not realise that this [NAME] was confined to the testing stage.

22. Ms [NAME] confirmed that having seen the full hearing bundle and heard Mr [NAME] explanations she was now much more relaxed about this specific [NAME]. Mr [NAME] asked a few questions, not by way of challenge to the [NAME], as he did not have knowledge of any of the detail, but just so as to enable him to report back to Mr [NAME].

23. In relation to the communication of the level of risk, Mr [NAME] said that the managing agents had a delicate balance to strike as they needed to make it clear that there was a risk of collapse but at the same time they did not want to alarm residents. Mr [NAME] also referred the tribunal and Ms [NAME] and Mr [NAME] to the truncated consultation process that had been offered and to which there had been no responses from [NAME].

24. Judge Korn asked [NAME] why the Applicant had applied for dispensation when in the time between the lodging of the [NAME] and the hearing the Applicant could have gone through the statutory consultation process. Mr [NAME] replied that he had not realised that the [NAME] would take so long to deal with. Also, he did not know when [NAME] the [NAME] that any [NAME] would request an oral hearing.

9 25. Judge Korn noted that the Applicant had made a commitment that if any [NAME] obtains a lower quote from an appropriately qualified specialist within 7 days of the tribunal’s decision that quote will be accepted, but he questioned whether it was prudent for the Applicant to make such a commitment as surely the ultimate decision should be made by the Applicant. Mr [APPELLANT] acknowledged the point but repeated the condition that it had to be a quote from an appropriately qualified specialist.

26. In relation to the Applicant’s request for dispensation in relation to any urgent temporary safety works identified as immediately necessary following testing, Judge Korn told [NAME] that whilst the tribunal had not yet made its decision there could well be a problem with granting dispensation in respect of unspecified works which were uncosted and unknown and might well not be needed.

27. The relevant legal provisions 28. Under Section 20(1) of the 1985 Act, in relation to any qualifying works “the relevant contributions of tenants are limited … unless the consultation requirements have been either (a) complied with … or (b) dispensed with … by … the appropriate tribunal”.

29. Under Section 20ZA(1) of the 1985 Act “where an [NAME] 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…, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements”. Tribunal’s analysis 30. The Applicant has provided a good and thorough summary of its case and has included suitable supporting documents. Whilst much but not all of the information was available to [NAME] at an early stage, the hearing bundle contains a clear explanation of the issues, detailed reports, three separate quotes and confirmation of the carrying out of a truncated consultation process. As acknowledged by the Applicant, a truncated process does not meet the statutory requirements (in the absence of dispensation) but it is significantly better than nothing and also suggests a willingness to engage with [NAME].

31. As noted by the Applicant, the leading case in this area is the decision of the Supreme Court in [NAME] v [NAME] and others [2013] UKSC 14. In that case, Lord [NAME] made it clear that compliance with the consultation was not an end in itself and that the consultation requirements were there to protect [NAME] from suffering prejudice either because they would otherwise have to pay for inappropriate works or pay more than would be appropriate.

10 32. Applying this test to the proposed intrusive structural testing of 18 concrete balconies, including reviewing the test results and recommending remedial options and implementation of emergency safety measures (“the Costed Works”), the Respondents in our view have been unable to show that the failure to go through a full consultation process has caused them prejudice of the sort envisaged by Lord [APPELLANT] in [NAME].

33. The Applicant has obtained three estimates for these works and has given a reasoned analysis as to why it has chosen the one that it has chosen. It has made a commitment, arguably slightly rashly, that if any [NAME] obtains a lower quote from an appropriately qualified specialist within 7 days of the tribunal’s decision then that quote will be accepted. It has provided detailed expert reports which identify the danger of not carrying out the preliminary works until after carrying out a full consultation, and the only expert evidence referred to by the Respondents by way of challenge to the Applicant’s experts’ assessment is an unseen report from an [NAME] provided nearly 6 years ago. That challenge is unconvincing. As for the similar challenges by Flat 13 and Flat 16, these are even less convincing as there is no reason to think that the [NAME] of these flats have any relevant expertise which would enable them to make a meaningful assessment of the structural soundness of their respective balconies.

34. Mr [NAME] accepted with the benefit of hindsight that it might have been quicker to comply fully with the consultation requirements than to seek dispensation, but (a) that does not make the decision to seek dispensation irrational at the time it was made and (b) in any event, the test remains whether the failure fully to consult has caused [NAME] prejudice of the sort identified in [NAME].

35. The objections from the [NAME], even if accurate, are mostly irrelevant to the narrow issue of whether dispensation from full compliance with the statutory consultation requirements should be granted. Arguably the [NAME] make one relevant point but this has been comfortably dealt with by the Applicant. 36. [NAME]’s objection on the ground that [NAME] has no balcony is misconceived. The issue in this case is simply whether the failure to go through the full statutory consultation process should prevent the Applicant from recovering the full cost of chargeable items through the service charge (or whether it should only be entitled to recover the full cost subject to specified conditions).

37.

Accordingly, in relation to the Costed Works we are satisfied that it is appropriate to dispense with the requirement to comply with the statutory consultation requirements. It needs to be added that, as identified by [NAME], it is possible to grant dispensation but only to do so on certain conditions. However, in the present case none of the

11 Respondents have identified any conditions that they wish to be imposed on the Applicant, even if we were to consider it appropriate to do so. In any event, we do not consider that it is necessary or appropriate to impose any conditions in this case, especially as the Applicant has unilaterally taken on some relevant conditions for the benefit of [NAME].

38. In relation to any urgent temporary safety works identified as immediately necessary following testing, we do not consider it appropriate to grant dispensation at this stage. As was pointed out to Mr [NAME] at the hearing, these works are unspecified works which are uncosted and unknown and might well not be needed at all. The tribunal cannot properly give blanket dispensation in respect of something so unknown simply in reliance on an assumption that the Applicant will act reasonably and sensibly, and it cannot know whether in such a scenario the [NAME] will suffer prejudice. Therefore, in relation to these unknown possible future works, dispensation is refused.

39. It should be noted that this determination is confined to the issue of consultation and does not constitute a decision on the reasonableness of the cost of any of the works. Costs 40. There have been no cost applications.

Name: Judge P Korn Date: 11 December 2025

12 RIGHTS OF APPEAL

A. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) a written [NAME] for permission must be made to the First-tier Tribunal at the [NAME] dealing with the case.

B. The [NAME] for permission to appeal must arrive at the [NAME] within 28 days after the Tribunal sends written reasons for the decision to the [NAME].

C. If the [NAME] is not made within the 28 day time limit, such [NAME] must include a request for extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason and decide whether to allow the [NAME] for permission to appeal to proceed despite not being within the time limit.

D. The [NAME] 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 [NAME] the [NAME] is seeking.