Tribunal Grants Dispensation for Health and Safety Building Works

OUTCOME: Allowed

1

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case reference HMCTS Code: :

LON/00AY/LDC/2021/0057 P:PAPERREMOTE

Property :

[NAME], 81 [ADDRESS] [POSTCODE]

Applicant

Representative

:

:

[APPELLANT]

[COMPANY] Respondents

Representative

Tribunal members

:

:

The several leaseholders listed in the [NAME]

N/A

Judge [NAME] & place of : 18 May 2021 hearing P:PAPERREMOTE

Date of decision : 18 May 2021

DECISION

2

Covid-19 pandemic: description of hearing This has been a remote paper hearing which has been consented to by the parties. The form of remote hearing was P:PAPERREMOTE. A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. The tribunal was referred to the applicant’s Final Hearing Bundle pages 1 to 633. The order made is described at the end of these reasons. _____________________________________________ Tribunal’s summary decision

(1) The tribunal grants the [NAME] seeking dispensation from the consultation required by section 20 of the Landlord and Tenant Act 1985, as sought by the applicant in respect of premises situate at [NAME], 81 [ADDRESS] [POSTCODE]. _____________________________________________________

The [NAME]

1. The applicant landlord seeks dispensation from the consultation requirements imposed by section 20 of the Landlord and Tenant Act 1985 in respect of works which will include the removal of existing cladding panels, removal of existing combustible insulation and [NAME] combustible materials and replacement with non-combustible material and reinstatement of original stone cladding panels; the installation of horizontal and vertical fire barriers; the replacement of Back Glass and PUR insulation panels and the replacement of timber decking to balconies.

2. The subject premises comprise a twenty-four storey mixed use block of 104 residential apartments and 3 commercial premises located at ground level (‘the Premises’). Eighty-one of the apartments are subject to the terms of long leases and 23 apartments are subject to the terms of leases held by a [COMPANY].

The applicant’s case

2. In support of its [NAME] the tribunal was provided with a bundle of documents containing pages 1 to 633 and included the applicant’s Statement of Case, reports from [APPELLANT] ‘CAL’ dated 26 November 2020, [NAME] provided on 9 November 2020 and the fire engineer’s report of [COMPANY] of November 2020. A witness statement

3 of [APPELLANT], a Senior Property Manager at the applicant’s managing agents [NAME] dated 11 February 2021 was also provided to the tribunal in support of the [NAME].

3. The applicant drew the tribunal’s attention not only to the risk to health and safety the Premises presented in its current state (as confirmed by the various reports and review) but also the need to be able to move quickly to starting the works project if government funding was approved under the [NAME] (‘BSF’) to which an [NAME] has been made by the applicant with the initial technical eligibility checks having been passed.

4. The applicant asserted that it had made this [NAME] to the tribunal in order to be able to commence works as quickly as possible with its chosen contractor. A delay caused by being required to follow all of the consultation procedures (stage one consultation, having already been undertaken) creates the risk that the works could not proceed immediately, funding would be lost, and a further delay would be caused by the unavailability of suitably qualified contractors, who are presently in high demand.

5. As the BSF timescales had required the applicant to submit a full cost [NAME] by 31 December 2020 (extended to 30 June 2021) with 31 March 2021 deadline for works to begin extended to 30 September 2021, the applicant had instructed [APPELLANT] ([APPELLANT]) via a Negotiated Design & Build tender process with a single contractor. Initially the timescales imposed by BSF did not allow a full s.20 consultation process to be undertaken. In view of the uncertainties around the government provided funding and the need, if approved, to commence works quickly, the applicant stated that it had continued to instruct [APPELLANT] with a view to ensuring the availability of the contractor. Further, if the contractor were changed at this late stage, significant further costs were likely to be incurred and the expertise of a specialist contractor that minimises risk in relation to design, delivery and cost in the Design and Build approach were likely to be lost.

The respondent’s case

6. Responses were received from 36 [NAME] (including one on a shared ownership scheme) of [NAME] and these were included in the applicant’s bundle at Tab C, pp 494 to 631. The responses received from [NAME] varied with a number not objecting to the [NAME] for dispensation from consultation but seeking confirmation that [APPELLANT] fully understood the nature of the defects identified and the remedy that was required. [NAME] did not object to the works themselves but to their cost with several [NAME] expressly reserving their position on this issue, in order to challenge the cost and standard of works at a later date.

4 7. [NAME] objected to the works on the basis that further investigations should be carried out before any works were commenced in order to establish the necessity of the works and all avenues explored in respect of the liability to pay for the works before the landlord commenced on is proposed programme of ‘cladding’ works. [NAME] referred to obtaining their own reports and some [NAME] referred to the proposed works as possibly being insufficient to remedy defects and [NAME] required further information and answers to questions they had previously raised with the landlord.

The tribunal’s decision and reasons

8. The tribunal is aware of the nature and scope of the works proposed and their substantial cost. However, the tribunal is satisfied that a defect has been identified that presents a real danger to the health and safety of the [NAME]. The tribunal is also satisfied that the Design and Build approach adopted by the applicant is not unreasonable. Further, the tribunal determines that in light of the uncertainties of the provision of government funding and its requirements to commence works at an early date, that it is likely that a significant disadvantage and prejudice may be caused to the [NAME] if the [NAME] of dispense with stage 2 of the section 20 consultation process were not granted. In addition, it is likely that in the present market, due to the number of replacement cladding projects in the industry, a [NAME] would not be found to commit to this contract.

9. Therefore, the tribunal grants the dispensation sought in respect of the works set out at paragraph 30 of the applicant’s Statement of Case dated 10 February 2021.

Signed: Judge Tagliavini

Date: 18 May 2021

Rights of appeal from the decision of the tribunal 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 [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case.

5 The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] 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 [NAME] for permission to appeal to proceed, despite not being within the time limit. 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. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).