Tribunal Grants Dispensation from Consultation Requirements for Certain Works

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AH/LDC/2023/0290 Property : 73 [ADDRESS], [POSTCODE] Applicant : [redacted] : [NAME] Respondents : [redacted] : n/a Type of [NAME] : [NAME] for dispensation from consultation requirements under S.20ZA of the Landlord and Tenant Act 1985 Tribunal : Judge N O’Brien Date of decision : 13th March 2024

DECISION

2 Decision of the tribunal (1) The tribunal dispenses with the statutory consultation requirements in respect of the works set out in the [NAME] notice namely the replacement of the roof over a bay window and associated works, and the installation of lead flashing to the main roof of the property. (2) The tribunal waives the requirement that the [NAME] and the directions be displayed in the property insofar as it is necessary to do so. The [NAME]

1. By [NAME] dated 4th July 2022, but not sent to the Tribunal until 24 November 2023, made by the landlord’s managing agent on behalf of the landlord, the landlord/applicant applies for dispensation from the statutory consultation requirements in respect of works carried out in June 2022. The tribunal has also received an additional [NAME] from the landlord’s representative (reference LON/00AH/LDC/2022/0136) for dispensation from the consultation requirements in relation to additional works carried out to the same building in July 2022. That [NAME] is the subject of a separate determination.

2. Directions were given by the Tribunal on 13th December 2023 setting down the [NAME] for a paper hearing in the week commencing 11th March 2024.

3. By paragraph 1 of those directions the applicant was directed to send a copy of the [NAME] and the directions to each [NAME] by 3rd January 2024 and also directed to display a copy of the [NAME] in a prominent place in the property. By email dated 15 December 2024 the applicant’s representative confirmed that a copy of the [NAME] had been sent to each [NAME]. It is not clear whether the applicant complied with the direction to display the [NAME] in a prominent place in the property, however the mirror direction in case ref LON/00AH/LDC/2022/0136 was complied with.

4. By paragraph 4 of the directions dated 13th December 2023 the applicant was directed to include in the bundle either copies of any replies from the respondent OR confirmation that there were no responses received. The applicant has filed a bundle containing a written statement of case in support of the [NAME] signed by a Ms [NAME] dated 26th February 2024. It states that no comments were received from any of the [NAME] regarding the s20ZA [NAME]. The [NAME] is therefore unopposed. The background

3 5. The property which is the subject of this [NAME] is a converted block of 4 self-contained residential flats. It is believed that the building was constructed in the 1920s. It is not known when the building was converted into flats but the tribunal notes that the specimen lease attached to the [NAME] is dated 10th November 1988.

6. Neither party requested an inspection and the tribunal did not consider that one was necessary, nor would it have been proportionate to the issues.

7. The respondent [NAME] each hold a long lease of their respective flats. A specimen lease is included in the bundle. By clause 4(1) of that lease the landlord/applicant covenants to maintain the external walls and roofs of the property. By clause 3(i) of the lease the tenant covenants to contribute towards the maintenance costs by way of a variable service charge.

8. On 14th October 2020 the applicant issued a Stage 1 consultation notice to the [NAME] in relation to internal and external redecoration of the property and roof repairs. A copy of that notice is included at page 4 of the bundle. The applicant’s agent subsequently invited 4 contractors to tender for the work and a Stage 2 notice was issued to the [NAME] confirming the identity of the contractor and the cost of the works. A copy of the Stage 2 notice is included at page 8 of the bundle.

9. The works commenced in June 2022. In the course of the works the contractor informed the applicant’s agent that additional emergency works to replace the roof over the ground floor bay window were required to ensure it remained watertight. The cost of these works was £2350. Additionally the contractor informed the applicant’s agent that lead flashing was required to the main roof at an additional cost of £2100. By letter dated 24th June 2024 the Applicant’s agent informed the [NAME] that the works had been undertaken and that as they were outside the scope of the Stage 2 notice that an [NAME] would be made to the tribunal for dispensation from the statutory consultation requirements.

10. The tribunal notes that the works which are the subject matter of case reference LON/00AH/LDC/2022/0136 arise from maintenance works carried out in July 2022 and relate to the additional cost of repointing brickwork to the side of the property which had apparently deteriorated to the point that it was no longer watertight. The additional cost of those works was £4100. That [NAME] is also unopposed. The total sum in relation to which dispensation is sought in respect of both applications is therefore £8550. The Law

4 11. By virtue of section 20 of the Landlord and Tenant Act 1985 and the Service Charges (Consultation Requirements) (England) Regulations 2003 a landlord must comply with statutory consultation requirements before embarking on any works the cost of which exceeds £250 per [NAME] in any accounting period. Section 20ZA of the Landlord and Tenant Act 1985 provides that the tribunal may dispense with all or any of the consultation requirements in relation to any qualifying works if it is satisfied that it is reasonable to dispense with such a requirement.

12. When considering whether it is reasonable to retrospectively dispense with the consultation requirements the tribunal will focus on the extent, if any, to which the [NAME] have been prejudiced by the failure of the landlord to comply with the consultation requirements ( see [RESPONDENT] v [NAME] et Al [2013] UKSC 14) The tribunal’s decision 13. The tribunal dispenses with compliance with the consultation requirement in respect of the works set out in the [NAME]. This determination does not concern the issue of whether those service charges are reasonable or payable.

14. The tribunal waives the requirement that the [NAME] and the directions be displayed in a prominent place in the property insofar as it is necessary to do so. Reasons for the decision 15. None of the [NAME] have objected to the [NAME]. According to the applicant the respondents never raised any objection to the additional works when they were initially notified of them in 2022. There is no evidence of any prejudice to the respondents if retrospective dispensation from the consultation requirements were granted.

16. It would not be proportionate for the tribunal to adjourn or dismiss the determination by reason of any failure to display the [NAME] given that the respondents have been notified of the [NAME] and the directions by post both by the applicant and by the tribunal.

Name: Judge N O’Brien Date: 13 March 2024

Rights of appeal

5 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. 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).