Tribunal Grants Dispensation for Urgent Roof Repairs to Prevent Water Damage

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference :

LON/00BK/LDC/2020/0114 CVPREMOTE Property :

St [APPELLANT], [ADDRESS] [POSTCODE] Applicant: [redacted] : Dr [APPELLANT] Director Respondents : [redacted] St [APPELLANT], [ADDRESS] [POSTCODE] listed in the [NAME] [NAME] : [APPELLANT] ([NAME]

7) Type of [NAME] : [NAME] for the dispensation of consultation requirements pursuant to S. 20ZA of the Landlord and Tenant Act 1985 Tribunal Members : Judge Professor Robert M Abbey Mr [NAME] of Determination : [ADDRESS], LondonWC1E 7LR by Video conference Date of Determination and Decision : 30th September 2020

DECISION

Decisions of the Tribunal (1) The Tribunal grants the [NAME] for the dispensation of all or any of the consultation requirements provided for by section 20 of the Landlord and Tenant Act 1985 (Section 20ZA of the same Act). (2) The reasons for the Tribunal’s decision are set out below. The background to the [NAME]

1. The property, St [APPELLANT], [ADDRESS] [POSTCODE], comprises eighteen self contained [NAME] dwellings being a five- storey high block.

2. The tribunal did not inspect the property as it considered the documentation and information before it in the trial bundle enabled the tribunal to proceed with this determination and also because of the restrictions and regulations arising out of the Covid-19 pandemic.

3. This has been a remote hearing which has been consented to by the parties. The form of remote hearing was coded as CVPREMOTE - use for a hearing that is held entirely on the Ministry of Justice Cloud Video Platform with all participants joining from outside the court. A face to face hearing was not held because it was not possible due to the Covid -19 pandemic restrictions and regulations and because all issues could be determined in a remote hearing. The documents that were referred to are in a bundle of many pages, the contents of which we have recorded and which were accessible by all the parties. Therefore, the tribunal had before it an electronic/digital trial bundle of documents prepared by the parties, in accordance with previous directions. The bundle was supplemented by some additional documents submitted in the week prior to the hearing.

4. The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from all the consultation requirements imposed on the landlord by section 20 of the 1985 Act, (see the Service Charges (Consultation Requirements) (England) Regulations 2003 (SI2003/1987), Schedule 4.) The request for dispensation concerns urgent remedial works to maintain scaffolding and effective emergency roof repairs. The [NAME] is said to be urgent, as the works were necessary to stop water ingress into a fourth floor [NAME]. The water ingress was [NAME] the [NAME] damp and has led to mould and staining on the walls and ceiling of the [NAME] affected.

5. Section 20ZA relates to consultation requirements and provides as follows: “(1)Where an [NAME] 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. …. (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 recognised tenants’ association representing them, (b) to obtain estimates for proposed works or agreements, (c) to invite tenants or the recognised tenants’ association 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 recognised tenants’ association 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. At the time of a hearing for Directions on 4 August 2020 made by Judge N. Carr the Directions required tenants who opposed the [NAME] to make their objections known on the reply form produced with the Directions. One objection form was received from the [NAME] and this was then followed by detailed written representations from the [NAME].

7. In essence, the works mentioned above are required to ensure that there is a stop to water ingress into the affected fourth floor [NAME] caused by a defect on the roof structures and blockage in the drainage system. The water ingress was [NAME] the affected [NAME] damp and has led to mould and staining on the walls and ceiling of the [NAME] affected. Dispensation was thought necessary to speed up the remedial works and to save costs.

The decision 8. By Directions of the tribunal dated 4th August 2020 it was decided that the [NAME] be determined without a hearing or by way of a video hearing if an objection was made. There being an objection the hearing was held by video with the parties attending as listed previously. Also attending were two

witnesses from the Management Company that has been appointed to manage this block to assist the tribunal with further details on the decision-[NAME] process and the details of the remedial works required.

9. The tribunal had before it a substantial bundle of documents prepared by the applicant that contained the [NAME], grounds for [NAME] the [NAME] including full details of the necessary remedial work necessary to make the roof structure water-tight and to correct the fault causing the water ingress together with copy correspondence including the single copy objection form, a specimen copy lease and copy Tribunal Directions. Further details of the objection were also in the bundle along with a late submission from the [NAME] that the Tribunal allowed as late evidence. The issues 10. The only issue for the Tribunal to decide is whether or not it is reasonable to dispense with the statutory consultation requirements. This [NAME] does not concern the issue of whether or not service charges will be reasonable or payable.

11. Having read the evidence and submissions from the Applicant and having considered all of the copy deeds. reports, documents and grounds for [NAME] the [NAME] provided by the applicant, and the one detailed objection from the [NAME] the Tribunal determines the dispensation issues as follows.

12. Section 20 of the Landlord and Tenant Act 1985 (as amended) and the Service Charges (Consultation Requirements) (England) Regulations 2003 require a landlord planning to undertake major works, where a [NAME] will be required to contribute over £250 towards those works, to consult the [NAME] in a specified form.

13. Should a landlord not comply with the correct consultation procedure, it is possible to obtain dispensation from compliance with these requirements by such an [NAME] as is this one before the Tribunal. Essentially the Tribunal must be satisfied that it is reasonable to do so.

14. In the case of [COMPANY] v Benson [2013] UKSC 14, by a majority decision (3-2), the Supreme Court considered the dispensation provisions and set out guidelines as to how they should be applied.

15. The Supreme Court came to the following conclusions: a. The correct legal test on an [NAME] to the Tribunal for dispensation is:

“Would the [NAME] owners suffer any relevant prejudice, and if so, what

relevant prejudice, as a result of the landlord’s failure to comply with the requirements?” b. The purpose of the consultation procedure is to ensure [NAME] are protected from paying for inappropriate works or paying more than would be appropriate. c. In considering applications for dispensation the Tribunal should focus on whether the [NAME] were prejudiced in either respect by the landlord’s failure to comply. d. The Tribunal has the power to grant dispensation on appropriate terms and can impose conditions. e. The factual burden of identifying some relevant prejudice is on the [NAME]. Once they have shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it. f. The onus is on the [NAME] to establish: i. what steps they would have taken had the breach not happened and ii. in what way their rights under (b) above have been prejudiced as a consequence.

16.

Accordingly, the Tribunal had to consider whether there was any prejudice that may have arisen out of the conduct of the [NAME]/applicant and whether it was reasonable for the Tribunal to grant dispensation following the guidance set out above. It should also be remembered that only one [NAME] has indicated through a written objection that he actually opposes the [NAME].

17. The tribunal is of the view that, taking into account the representations made by the [NAME] and in the absence of any significant written representations from any of the remaining [NAME], it could not find prejudice to any of the tenants of the properties by the granting of dispensation relating to the roof repair works set out in detail in the documentation in the trial bundle submitted in support of the [NAME].

18. The Tribunal was mindful of the fact that the works were undertaken by the applicant supported by [NAME] and with proper estimates and works specifications and that therefore dispensation is wholly appropriate.

19. The applicant believes that roof repair works were vital given the nature of the problems reported. The applicant also says that in effect the tenants of the properties have not suffered any prejudice by the failure to consult. On the evidence before it the Tribunal agrees with this conclusion and believes that it is reasonable to allow dispensation in relation to the subject matter of the

[NAME]. It must be the case that the necessary roof repair works should be carried out as a matter of urgency to ensure the safety and integrity of the building and the well-being of the [NAME] in the affected [NAME] and hence the decision of the Tribunal.

20. Rights of appeal made available to parties to this dispute are set out in an Annex to this decision.

21. The applicant shall be responsible for formally serving a copy of the tribunal’s decision on all [NAME]. Furthermore, the applicant shall place a copy of the tribunal’s decision on dispensation together with an explanation of the [NAME]’ appeal rights on its website (if any) within 7 days of receipt and shall maintain it there for at least 3 months, with a sufficiently prominent link to both on its home page. Copies must also be placed in a prominent place in the common parts of the block. In this way, [NAME] who have not returned the reply form may view the tribunal’s eventual decision on dispensation and their appeal rights.

Name: Judge Professor Robert M. Abbey Date: 30th September 2020

ANNEX - RIGHTS OF APPEAL

1. 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.

2. 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].

3. 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.

4. 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.