Tribunal Grants Dispensation for Urgent Works Due to Safety Concerns

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/00MX/LDC/2025/0629 Property : [ADDRESS] [POSTCODE] Applicant: [redacted]

Representative : [COUNSEL] (Director & Secretary of [NAME]) Respondents :

[redacted] contribute at the Property

Representative : None Landlord : [RESPONDENT] (Kensington) [RESPONDENT]. Type of Application :

S2oZA of the Landlord and Tenant Act 1985 - dispensation of consultation requirements

Tribunal : [COMPANY] :

First tier Tribunal (Property Chamber) [ADDRESS] [POSTCODE]

Date of Decision : 11 July 2025 DECISION

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Decision

1. The Tribunal grants dispensation from the requirements on the applicant to consult all [NAME] under S.20ZA of the Landlord and Tenant Act 1985, in respect of the qualifying works referred to.

2. At the date of application it was stated that construction work had started. It was understood that the management company’s agent acting for the landlord, was able to recharge costs under the service charge provisions to all [NAME] in the Property.

Background

3. The application refers to work to the ‘Amenity Area’ (land at but separate from the residential dwellings at the Property). The applicant is the tenant of this land, the ‘[ADDRESS] Association Ltd.”. It applied to the Tribunal under [POSTCODE] of the Landlord and Tenant Act 1985 (“the Act”) for the dispensation from all or any of the consultation requirements under S.20 of the Act, of [NAME] of related dwellings, who might be liable for service charge contributions arising.

4. The application related to the commissioning of works at the ‘Amenity Land’, separate from the leasehold titles of the dwellings at the Property. It appeared to concern urgent works to apparently defective parts of the Amenity Land in particular a stand alone garden wall with decorative and retaining qualities for the benefit of leasehold flats at the Property adjacent.

5. The ‘Amenity lands’ are defined in that lease dated 30 November 1989 of same between the applicant and the then freeholder – [NAME] ([APPELLANT]; as, “so much of the lands on the Estate not comprising of roadways garage parking spaces… and Buildings as shown on ‘the Plan’.

Directions

6. Directions dated 2 May 2025 were issued without an oral hearing by Judge Wyatt. They identified that the respondents were the [NAME] of some 28No. dwellings – 18No. flats and 10 studio flats at the Property. The Directions provided for the Tribunal to determine the application on or after 30 June 2025, unless a party applied by 30 May 2025 for a hearing.

7. The applicant was to send to each of the [NAME] of the dwellings at the Property; a copy of the application form, brief description of the works, an estimate of the costs of the works including any professional fees and VAT and anything else relied upon with a copy of the Directions.

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8. The applicant was to file with the Tribunal a letter by 16 May 2025, confirming how and when it had been done.

9. [NAME] who objected to the application were to send a reply form and statement to the Tribunal and applicant, by 30 May 2025. The applicant was to prepare a bundle of documents including the application form, Directions, sample lease and all other documents on which they wanted to rely; all responses from [NAME], a certificate of compliance referred to above; with two copies to the Tribunal and one to each respondent leaseholder.

10. In the event, the Tribunal did not receive any requests for a hearing, nor did it receive any forms in support of or objection to respondents either directly or indirectly via the bundle.

11. The Tribunal determined the case on the bundle received from the applicant, only.

Applicant’s Case

12. The application, dated 8 April 2025, at box 4 appears to confirm that the Property is a block of 28No. flats.

13. The application at box 7 confirms that these are to be qualifying works, and that they had been started. They are not part of a long term contract. At box 9 the applicant was content for paper determination and applied for it, at box 10, to be dealt with by [NAME] because: “So that the [NAME] know as soon as possible if they require to further contribute financially towards service charge fees.”

14. The application at ‘Grounds for seeking dispensation’, box 1. stated in addition: “It was observed that a retaining wall had been leaning outwards for over half its length and there was a very large cark in the centre of the wall… The wall was therefore a significant safety hazard. And “…having a structural engineer assess the wall and on 22 September 2022l… [NAME] visited CC and assessed the wall where it was determined amongst other things. ‘The wall was inspected and seen to be cracked and distorted for about half its length in the centre section…’ ”

15. The application at box 2. below this, described the consultation that had been carried out or is proposed to be carried out. “In the Annual General Meeting (AGM) minutes in June 2022, f which all [NAME] were provided a copy … Mr [NAME] discussed the retaining walls…”

4 16. The application at box 3. explained why they sought dispensation of all or any of the consultation requirements. “The cost of removing and rebuilding the retaining wall was £13,250.” Spread across 28No. flats the averages service charge for this capital cost would have been about £475, in excess of the £250 annual cap on cost recovery, without S.20 prior consultation.

17. Besides a copy of the completed lease of the ‘Amenity Land’, (though not a sample one of a dwelling in the Property showing the means of recharge and recovery on [NAME]) the applicant included further documents:

1. A quotation from [APPELLANT] (undated) for the work for repair part of the wall at £3960.

2. A quotation from [NAME] (undated) for the work of taking down and rebuilding the wall at £12903 received 29 March 2022.

3. A quotation from [COMPANY]. (dated 1 April 2022) for the work of taking down and rebuilding the wall at £12600.

4. A quotation from [NAME] (dated 13 December 2022) for the work of taking down and rebuilding the wall at £13250.

5. The report from [NAME] dated 22 September 2022 confirming the condition of the wall. 7No. photographs of the wall before and during work to take down and rebuild.

18. The applicant did not include a list of names and addresses of [NAME] names affected by the expenditure, nor confirm exactly what they had sent to the potential respondents nor set out the mechanism for recharge within the lease of the Amenity Land attached or refer to a sample lease of a dwelling at the Property.

19. There was no reference to scaffolding or preliminaries in the quotes of the cost of the Structural Engineers work and their cost to be included in any dispensation. It appears that the firm of [NAME] was selected to carry out the work at the price quoted by them in 2022.

Respondent’s Case

20. The applicant did not identify in the bundle to the Tribunal the 9No. [NAME] at the Property, from whom the service charge would eventually be recovered as potential respondents. The applicant confirmed by an undated unsigned letter that the respondent [NAME] had been sent the documents specified by the Tribunal in its earlier Directions.

21. The Tribunal did not receive any objections or other representations from the [NAME], either through the applicant, or directly.

5 The Law

22. S.18 (1) of the Act provides that a service charge is an amount payable by a tenant of a dwelling as part of or in addition to the rent, which is payable for services, repairs, maintenance, improvements or insurance or landlord’s costs of management, and the whole or part of which varies or may vary according to the costs incurred by the landlord. S.20 provides for the limitation of service charges in the event that the statutory consultation requirements are not met. The consultation requirements apply where the works are qualifying works (as in this case) and only £250 can be recovered from a tenant in respect of such works unless the consultation requirements have either been complied with or dispensed with. For long term contracts, the cap on contributions from [NAME] is £100 per annum.

23. Dispensation is dealt with by S.20 ZA of the Act which provides:- “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.”

24. Dispensation is dealt with by S.20 ZA of the Act which provides:- “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.”

25. The consultation requirements for qualifying works under qualifying long term agreements are set out in detail at Schedule 3 of the Service Charges (Consultation Requirements) (England) Regulations 2003.

26. The consultation requirements for qualifying works for which public notice is not required are set out in detail at Schedule 4 of the Service Charges (Consultation Requirements) (England) Regulations 2003.

Tribunal’s Decision

27. The scheme of the provisions is designed to protect the interests of [NAME] and whether it is reasonable to dispense with any particular requirements in an individual case must be considered in relation to the scheme of the provisions and its purpose.

6 28. The Tribunal must have a cogent reason for dispensing with the consultation requirements, the purpose of which is that [NAME] who may ultimately pay the bill are fully aware of what works are being proposed, the cost thereof and have the opportunity to nominate contractors where there is no public procurement.

29. The correspondence showed that the applicant generally complied with the Directions.

30. The terms of this Dispensation from the requirements of Section 20, are:

31. That this only covers the work set out in the price quoted above from the [NAME] at their fixed price as received by the applicant and sent to the Tribunal. No dispensation for any prior report, nor ancillary work before or after whichever quote or estimate is accepted by the applicant, is included in this dispensation. This remains subject to subsequent challenge by any respondent leaseholder, both of the item itself and/or the amount reasonably payable, in the usual way. Other than this no other items are included given dispensation because they were not specifically sought. Those other costs including any professional fees associated with the work will be subject to the annual cap of £250 per leaseholder for a contract for works rechargeable under a service charge or to a further application for dispensation if required. This is because they do not form part of this application for dispensation.

32. The applicant will meet all of its costs arising from the making and determination of this application. However these costs can be recovered from any leaseholder as service charge and/ or as an administrative charge if the lease of each unit allows for it, subject to the usual scope for leaseholder challenge to its reasonableness and payability.

33. In making its determination of this application, it does not concern the issue of whether any service charge costs are reasonable or indeed payable by the [NAME]. The Tribunal’s determination is limited to this application for dispensation of consultation requirements under [POSTCODE] of the Act; in this case, on terms.

[NAME]

11 July 2025

7 Rights of appeal

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 either party is dissatisfied with this decision, they may apply for permission to appeal to the Upper Tribunal (Lands Chamber) on any point of law arising from this Decision.

Prior to making such an appeal, an application must be made, in writing, to this Tribunal for permission to appeal. Any such application must be made within 28 days of the issue of this decision to the person making the application (regulation 52 (2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rule 2013).

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.

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.

If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).