Tribunal grants dispensation for major works in Newcastle

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AS/LDC/2022/0243 Property : 89-91 [ADDRESS] [POSTCODE] Applicant : [redacted] Respondents : [redacted] the property Type of Application : Application under section 20ZA to dispense with consultation requirements for a scheme of Major work Tribunal Members : Judge [NAME] and venue of Paper Determination : 30 May 2022 Paper Determination dealt with remotely Date of Decision : 30 May 2022

DECISION

Decision of the tribunal i. The tribunal grants dispensation in respect of the major works relating to the major work required at the property to support the existing roof with additional structural features and rebuild part of the front wall to the building. ii. The Tribunal directions that the Applicant shall provide details of the builder and their estimate, within 28 days of the date of this decision, to the [NAME]. iii. ii. The Tribunal makes no order for the cost occasioned by the making of the application.

The application 1. The applicant by an application, made in 24 February 2022 sought dispensation under section 20ZA of the Landlord and Tenant Act 1985 from part of the consultation requirements imposed on the landlord by section 20 of the 1985 Act1. The premises which are the subject of the application are four flats above two commercial units. The building is three storeys height with shops at the ground floor level and two floors of flats above. The Background

2. This application, sought an order for dispensation of the consultation requirements in respect of the premises, the grounds upon which the dispensation is sought, were set out in the application. The Applicant set out that they had consulted the [NAME] a copy of the Notice of intention to carry out work dated 8.02.2021. The notice set out remedial work to the roof and guttering which included clearing the guttering, repairs to cracked section and re-pointing cracks to asphalting amongst other work. These works involved the need for scaffolding. In an undated report entitled “Report on the movement to the front parapet wall” from [NAME] in paragraph five of the report it was stated as follows-: “ My inspection showed that the front parapet wall has movement outwards from just above the lintels of the second-

1 See Service Charges (Consultation Requirements) (England) Regulations 2003 (SI2003/1987)

floor windows to the bedroom and living room… The wall requires taking down to the top of the lintels to the front windows and rebuilding plum from that point stitching into the parapet wall will then require re-bedding. During the rebuilding of the parapet wall restraint straps should be incorporated in the wall at 1.20m centres tying the front parapet wall to the ceiling joists.” A schedule of work dated February 2022.

. Directions by the Tribunal 3. On 30 March 2022, directions were given by the Tribunal setting out the steps to be taken by the Applicant, (including serving the directions on the respondents) for the progress of this case.

4. The Directions at paragraph (3) stated that -: “…The only issue for the tribunal is whether or not it is reasonable to dispense with the statutory consultation requirements. This application does not concern the issue of whether any service charge costs will be reasonable or payable.” (i) The Directions also provided that -: Those [NAME] who oppose the application shall by 27 April 2022 -: complete the attached form and send it by email to the Tribunal; and (ii) Send to the applicant/ landlord a statement in response to the application with a copy of the reply form by email or by post. They should send with their statement copies of any documents upon which they wish to rely.

5. The Directions also provided that the application would be determined on the basis of written representations in the week commencing 30 May 2022, and that any request for a hearing should be made by 11 May .2022.

6. No request was made for a hearing, and the Tribunal satisfied itself that the matter was suitable to be dealt with on the papers. The Applicant’s case

7. The Tribunal was provided with a bundle comprising 99 pages which included the report referred to above, the total sum of the

work was set out in the schedule to the report in the sum of £27,670 exclusive of VAT and in the total sum £33,204.00.

8. On 5 April 2022 the Tribunal wrote to the Respondents providing them with the directions including the fact that the Tribunal considered that the matter was suitable to be dealt with on consideration of the documents alone, without the need for an oral hearing.

9. The directions provided that the [NAME] who opposed the application should complete the form attached to the directions by 27 April 2022.

10. The Respondent [NAME] have not provided any written objections to the work as required by the directions.

The tribunal’s decision and reason for the decision I. The Tribunal has noted that the only issue which it is dealing with is whether it is reasonable to dispense with the statutory consultation requirements, it is not in this application required to make a finding concerning the reasonableness and payability of the work.

II. However in [COMPANY] v Benson 2013 it was noted in paragraph 54. That “ … the LVT is not so constrained when exercising its jurisdiction under section 20ZA (1) it has power to grant a dispensation on such terms as it thinks fit-provided of course that any such terms are appropriate in their nature and their effect…” III. The Tribunal noted that the issues raised in the surveyor’s report could not reasonably have been foreseen prior to the serving of the notice of intention to carry out the work dated 8.2.2021. The Tribunal is satisfied that the full extent of the roof works only became apparent after the inspection of Mr [NAME], [NAME] on the 13 December 2021.

IV. The Tribunal is satisfied that given the scaffolding and disruption caused by the work, and the risk of further damage in the interim that it

is impractical to complete the existing work and carry out a fresh consultation exercise.

V. The Tribunal has also born in [DATE] and that there has been no great explanation as to the chronology between December and February during the interim period prior to this application being made. The Tribunal also noted that a detailed estimate from the contractor who is due to carry out the work has not been provided.

VI. However the Tribunal having considered all of the evidence in detail is satisfied that without the works, potentially the building further damage to be caused to the structure of the building.

VII. The Tribunal noted that its jurisdiction in this matter is somewhat limited and the scope is set out in Section 20ZA and as discussed by the court in [NAME] –v- [NAME] (2013) which requires the Tribunal to decide on whether the [NAME] would if dispensation is granted suffer any prejudice. Although the Tribunal does not find that there is any prejudice to the dispensation being granted.

VIII. The Tribunal acknowledge that the limit in its jurisdiction has meant that although the Tribunal has considered whether the work is within the scope of the repairing covenant in the lease, it is for the landlord to satisfy themselves of this, and to determine the proportion payable by each leaseholder.

IX. As nothing in the Tribunal’s decision deals with the reasonableness or payability under the lease of the work in issue.

X. Further the Applicant shall within 28 days shall provide full details of the builder and the estimates for the cost of the work.

XI. The [NAME] will of course enjoy the protection of section 27A of the 1985 Act so that if they consider the costs of the work are not reasonable (on the grounds set out above or any other ground) they may make an application to the tribunal for a determination of their liability to pay the resultant service charge.

XII. No applications were made for costs before the tribunal.

Judge Daley Date 30 May 2022

Schedule of [NAME] 89a and 91a [NAME] [ADDRESS] Newcastle West Co [NAME] 00353 6671 45 333 [EMAIL] Flat 89b [NAME] 7 [ADDRESS] [POSTCODE] [PHONE] [EMAIL] Flat 91b [NAME] [COMPANY], Oxon [POSTCODE]

Appendix of relevant legislation

Landlord and Tenant Act 1985 Section 27A (1) An application may be made to a leasehold valuation tribunal for a determination whether a service charge is payable and, if it is, as to - (a) the person by whom it is payable, (b) the person to whom it is payable, (c) the amount which is payable, (d) the date at or by which it is payable, and (e) the manner in which it is payable. (2) Subsection (1) applies whether or not any payment has been made. (3) An application may also be made to a leasehold valuation tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to - (a) the person by whom it would be payable,

(b) the person to whom it would be payable, (c) the amount which would be payable, (d) the date at or by which it would be payable, and (e) the manner in which it would be payable. (4) No application under subsection (1) or (3) may be made in respect of a matter which - (a) has been agreed or admitted by the tenant, (b) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party, (c) has been the subject of determination by a court, or (d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement. (5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment. Section 20 (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either— (a) complied with in relation to the works or agreement, or (b) dispensed with in relation to the works or agreement by (or on appeal from) a leasehold valuation tribunal. (2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement. (3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount. (4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount. (5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and

(b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations. (6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is limited to the appropriate amount. (7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in accordance with, the regulations is limited to the amount so prescribed or determined.]

1. [POSTCODE] Consultation requirements: supplementary (1) 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. (2) In section 20 and this section— "qualifying works" means works on a building or any other premises, and "qualifying long term agreement" means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a superior landlord, for a term of more than twelve months. (3) The Secretary of State may by regulations provide that an agreement is not a qualifying long term agreement— (a) if it is an agreement of a description prescribed by the regulations, or (b) in any circumstances so prescribed. (4) In section 20 and this section "the consultation requirements" means requirements prescribed by regulations made by the Secretary of State. (5) Regulations under subsection (4) may in particular include provision requiring the landlord— (a) to provide details of proposed works or agreements to tenants or the [COMPANY] representing them, (b) to obtain estimates for proposed works or agreements, (c) to invite tenants or the [COMPANY] to propose the names of persons from whom the landlord should try to obtain other estimates, (d) to have regard to observations made by tenants or the [COMPANY] in relation to proposed works or agreements and estimates, and

(e) to give reasons in prescribed circumstances for carrying out works or entering into agreements. (6) Regulations under section 20 or this section— (a) may make provision generally or only in relation to specific cases, and (b) may make different provision for different purposes. (7) Regulations under section 20 or this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. [...]

2. The relevant Regulations referred to in section 20 are those set out in Part 2 of Schedule 4 of the Service Charge (Consultation etc) (England) Regulations 2003.