Tribunal Grants Dispensation for Urgent Roof Repairs

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AF/LDC/2019/0161 Property : [ADDRESS] [POSTCODE] Applicant : [redacted] : [COMPANY] Respondents : [redacted] the application Representative : N/A Type of Application : For the dispensation from the requirements to consult lessees about major works – [POSTCODE] Landlord and Tenant Act 1985 Tribunal Members : [APPELLANT] and venue of Hearing : Paper determination on 15 [ADDRESS] [POSTCODE] Date of Decision : 23 October 2019

DECISION

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Decision of the tribunal 1. The tribunal grants the applicant dispensation from the statutory consultation requirements of S20 of the Landlord and Tenant Act 1985 (“the Act”) in respect of works to be carried out to [ADDRESS] [POSTCODE] (“the building”) to resolve the rainwater leaks affecting flats 4 and 8. The background 2. From the initial completion of this development in 2015 Flats 4 and to a lesser extent 8 had experienced rain water leaks. These were investigated as snagging issues by the developer and then freeholder [COMPANY] and plumbing problems were ruled out. A problem with the middle area of the roof was then identified and St Pier proposed erecting scaffolding for access to fully investigate and effect necessary repairs. A Stage 1 Notice of Intention to carry out works under S20 was served on leaseholders on 19 July 2016 but nothing came of this as the freehold was sold to the applicant in August 2016.

3. The applicant’s, managing agents, [APPELLANT], continued to investigate the problem they inherited including obtaining reports from surveyors and leakage detection specialists. Various minor potential sources of leaks were reported on including gutters and poorly fitted windows but despite these being rectified including flat 8 replacing a window the problems persisted. Finally Pinnacle decided in July 2019 to erect scaffolding and fully investigate the roof. The appointed contractor then identified a defect with the area between the edge of the roof and a dormer and/or where the dormer met the main roof. The recommendation of the contractor was to strip back the entire section and carry out necessary repairs. They quoted a total price for the works of £2,956 plus VAT including £635 plus VAT for the scaffolding and £321 plus VAT for the required licence in respect of Flat 4. Similar works were likely to be needed at flat 8 but the leaking dormer window there is located above the main entrance and further scaffolding was needed to fully investigate and access for repairs.

4. On 9 September 2019 Pinnacle sent to all leaseholders a Stage 1 Notice of Intention to carry out the works as advised by their contractor. The consultation period for the notice expired on 10 October and as the second stage of the consultation process could not start before then Pinnacle decided in the hope of avoiding delaying the repairs to apply to the tribunal for dispensation from the consultation requirements and wrote to all leaseholders to advised them that they had done so again on 9 September.

5. In fact the application for dispensation from the consultation provisions of S20 of the Act was not made until 13 September 2019 and Directions in respect of this application were made by the tribunal on 18 September 2019.

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These provided the leaseholders with an opportunity to agree or oppose the application by completing a form included in the directions to advise their support of or opposition to the application to the tribunal. The Directions required the applicant to send to each lessee a copy of the application and the Directions and also to display both documents in the common parts of the building. A copy of a letter from Pinnacle to all leaseholders dated 24 September 2019 appears to show that this direction was complied with. None of the lessees at the block have completed and returned the form to the tribunal indicating opposition to the application.

6. The directions provided for the application to be determined on the papers directed to be submitted to the tribunal unless any of the parties requested an oral hearing; none did and the tribunal considered the application and the supporting documentation on 15 October 2019. No inspection of the property was thought necessary by the tribunal given the information in the hearing bundle and no party asked for one.

7. In the application form the property is described as a converted office building comprising of 11 apartments on ground, first and second floors.

8. Details of the statutory provisions relevant to this application are set out in Appendix 2 to this decision. The tribunal’s decision 9. The leading authority in relation to s.20ZA dispensation requests is [COMPANY] v Benson [2013] 1 WLR 845 (“Benson”) in which the Supreme Court set out guidance as to the approach to be taken by a tribunal when considering such applications. This was to focus on the extent, if any, to which the lessees were prejudiced in either paying for inappropriate works or paying more than would be appropriate, because of the failure of the landlord to comply with the consultation requirements. In his judgement, Lord [NAME] said as follows:

44. Given the purpose of the Requirements is to ensure that the tenants are protected from (1) paying for inappropriate works or (ii) paying more than would be appropriate, it seems to me that the issue on which the LVT should focus when entertaining an application by a landlord under section 20ZA(i) must be the extent, if any, to which the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements.

44. Thus, in a case where it was common ground that the extent, quality and cost of the works were in no way affected by the landlord’s failure to comply with the Requirements, I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the

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position that the legislation intended them to be – ie as if the Requirements had been complied with.

10. None of the leaseholders is opposed to the application nor suggests that the works to be carried out are inappropriate or unnecessary. Nor is there any evidence that the leaseholders will be asked to pay more than is appropriate for the cost of the works.

11. The factual burden of identifying some relevant prejudice is on the leaseholders. They need to show that they have been prejudiced by the failure of the landlord to comply with the statutory consultation procedure. If a credible case of prejudice is established, then the burden is on the landlord to rebut that case.

12. The tribunal is satisfied that no relevant prejudice has been identified. Whilst compliance with the consultation procedure would have enabled the leaseholders to suggest alternative contractors and make observations on quotes received, there is no evidence to suggest that failure to comply with the consultation requirements will lead to the applicant incurring costs in an unreasonable sum, or lead to works being carried out that fall below a reasonable standard. No alternative quotes have been provided that would support such a contention.

13. That these works are urgently required is clear as in the tribunal’s experience rain water ingress into flats in a building can, if not treated promptly, lead to serious damage to the fabric of the building and the decorations of the flats in question as well as potentially rendering them uninhabitable. There is nothing before the tribunal to suggest dispensation should not be granted and the tribunal is satisfied that it is reasonable to dispense with requirements of the Service Charge (Consultation Requirements)(England) Regulations 2003. Nothing in this decision to grant dispensation should be taken as limiting any leaseholder’s rights to challenge a subsequent service charge demand on any grounds save as to compliance with the consultation requirements. Name: [NAME] [NAME]: 23 October 2019

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APPENDIX 1 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.

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