Tribunal Grants Urgent Repairs Dispensation Without Hearing

OUTCOME: Allowed

Case Reference : MAN/00BN/LDC/2021/0081

[NAME] : [ADDRESS] [POSTCODE]

Applicant: [redacted] : [NAME]

Respondents : [redacted] Landlord & Tenant Act 1985 – Section 20ZA

Tribunal Member : Judge L Bennett

Date of determination : 6 July 2022

Date of Decision : 26 July 2022

_______________________________________________

DECISION ____________________________________

© CROWN COPYRIGHT 2022

FIRST - TIER TRIBUNAL [NAME] ([NAME])

2 Application

1. [APPELLANT] applies to the Tribunal under Section 20ZA of Landlord and Tenant Act 1985 (the Act) for dispensation from the consultation requirements of Section 20 of the Act and the Service Charges (Consultation Requirements)(England) Regulations 2003 (SI 2003/1987) in respect of repairs to the communal heating and hot water system(the Works) carried out at [ADDRESS] [POSTCODE] ([NAME]).

2. The Respondents are [NAME] of apartments at [NAME] and listed at the Annex to this decision.

Grounds and Submissions

3. The application is dated 3 November 2021.

4. The Applicant is the [COMPANY] with responsibility for the building.

5. [NAME] is a purpose-built block of flats, which was constructed in 2003. It

shares the site with a nursery building. Which occupies the larger footprint of the

ground and first floors of the development. [ADDRESS] occupies the smaller

footprint tower, which extends above with 9 residential floors containing 35

apartments. It is constructed of reinforced concrete with concrete floor slabs and is

designed around a central atrium which extends the full height of the building. It is

energy efficient and features a solar thermal water heating system, computer

controlled windows at the head of the atrium and a roof mounted wind turbine.

6. On 14 April 2022 Deputy Regional Judge Bennett made directions requiring the

service of documents by the Applicant on each of the Respondents. The directions

provided that in the absence of a request for a hearing the application would be

determined upon the parties’ written submissions.

7. In response to directions the Applicant has provided a statement of case with

supporting documents.

8. The Applicant’s statement of case sets out a chronology of events leading up to the

application for dispensation.

9. The deterioration of the containment casing to the 3 domestic hot water cylinders,

which provide all hot water requirements to the residential apartments, was

discovered by one of [NAME] managers on 26 October 2021. This was reported

immediately to [NAME], who has been maintaining the

communal heating and hot water systems for over 10 years. The contractor

attended that same day.

10. [NAME] reported that the hot water cylinders were showing

signs of deterioration, particularly where they have severely rusted at the base of the

cylinder walls, adjoining their base. They advised that the cylinders needed to be

replaced because of the potential to burst and create a massive leak. Water was

already running down the walls of the stairway. If the cylinders burst a huge

amount of water would cascade through the building to the adjacent lift shaft and

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escape staircase, down service risers and into residential properties below the plant

room.

11. [NAME] submitted a quotation in relation to the proposed

works dated 3 November 2021. The total cost being £25,032 inclusive of VAT. The

Applicant has indicated that there is more than sufficient funding within the sinking

fund to pay for the works.

12. The Tribunal did not receive any submissions from a [NAME].

Neither the Applicant nor a Respondent requested a hearing.

13. The Tribunal convened without the parties to make its determination on 6 July

2022.

Law

14. Section 18 of the Act defines “service charge” and “relevant costs”.

15. Section 19 of the Act limits the amount payable by the lessees to the extent that the

charges are reasonably incurred.

16. Section 20 of the Act states:- “Limitation of service charges: consultation requirements

Where this Section applies to any qualifying works…… the relevant contributions of tenants are limited……. Unless the consultation requirements have either:- a. complied with in relation to the works or b. dispensed with in relation to the works by …… a tribunal. This Section applies to qualifying works, if relevant costs incurred on carrying out the works exceed an appropriate amount”.

17. “The appropriate amount” is defined by regulation 6 of The Service Charges

(Consultation Requirements) (England) Regulations 2003 (the Regulations) as

“……. an amount which results in the relevant contribution of any tenant being more

than £250.00.”

18. Section 20ZA(1) of the Act states:- "Where an application is made to a Tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works ……..….. the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements."

Tribunal’s Conclusions with Reasons

19. I have determined this matter following a consideration of the Applicant’s case but

without holding a hearing. Rule 31 of the Tribunal Procedure (First-tier Tribunal)

([NAME]) Rules 2013 permits a case to be dealt with in this manner

provided that the parties give their consent (or do not object when a paper

determination is proposed). In this case, the Applicant has given its consent and

the Tribunal has not heard from a Respondent in response to the application.

Moreover, having reviewed the case papers, I am satisfied that this matter is

indeed suitable to be determined without a hearing. Determining this matter

does not require me to decide disputed questions of fact.

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20. It is not necessary to consider at this stage the extent of any service charges

that may result from the works payable under the terms of the Respondents’

leases. If and when such is demanded, and if disputed, it may properly be the

subject of a future application to the Tribunal.

21. I accept from the details provided by the Applicant the urgent nature of the work. I

further accept that [NAME] manager acted swiftly when the issue was

discovered; that the contactor who maintains the communal heating and hot

water system is on hand to complete the work; that should there be any delay there

is a high risk of the cylinders bursting causing a high level of damage to the

building. I acknowledge that [NAME] wrote to all [NAME]

on 4 November 2021, regarding the issue with the hot water cylinders.

22. Balancing the need for urgent action against dispensing with statutory

requirements devised to protect service charge paying [NAME], I conclude the

urgency outweighs any identified prejudice. Dispensation from consultation

requirements does not imply that any resulting service charge is reasonable.

23. I conclude it reasonable in accordance with Section 20ZA(1)of the Act to dispense

with the consultation requirements, specified in Section 20 and contained in

Service Charges (Consultation Requirements)(England) Regulations 2003 (SI

2003/1987).

24. Nothing in this determination or order shall preclude consideration of whether the

Applicant may recover by way of service charge from the Respondents any or all of

the cost of the work undertaken or the costs of this application should a reference be

received under Section 27A of the Landlord and Tenant Act 1985.

Order

25. The Applicant is dispensed from complying with the consultation requirements in

respect of the work specified in the application.

Laurence J Bennett Tribunal Judge 6 July 2022

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[NAME]/First/[NAME] 1 Dr. [NAME] [NAME] 2 Dr. [NAME] [NAME] 3 Chee Ho Chan Apartment 4 [NAME] [NAME] 5 Ms [NAME] 6 [NAME] 7 [NAME] 8 Tanveer, Nasier, Saghir & Nadeem Ahmed Apartment 9 [NAME] 10 [NAME] [NAME] [NAME] 11 [NAME] 12 [NAME] & [NAME] 14 [NAME] and [NAME] 15 [NAME] 16 [NAME] 17 [NAME] 18 [NAME] 19 [NAME] 20 [NAME] 21 [NAME] 22 [COMPANY] 23 [NAME] 24 [NAME] [NAME] 25 [NAME] & [NAME] 26 [NAME]

6 Apartment 27 [NAME] 28 Deconcourt Hotels Apartment 29 [NAME] [NAME] 30 [NAME] [NAME] 31 [NAME] [NAME] 32 [NAME] [NAME] [NAME] 33 [NAME] & [NAME] [NAME]