Tribunal Grants Urgent Roof Repairs Dispensation Without Consultation

OUTCOME: Allowed

Case Reference : MAN/00CJ/LDC/2021/0016

Property : 27-[ADDRESS], Quayside, Newcastle upon Tyne [POSTCODE]

Applicant : [redacted] [APPELLANT] : [COMPANY]

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

Tribunal Member : Judge L [NAME] of determination : 16 December 2022

Date of Decision : 16 December 2022

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DECISION ____________________________________

© CROWN COPYRIGHT 2022

FIRST - TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

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Application

1. [NAME]) [RESPONDENT] 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 roof works (the Works) carried out at 27-[ADDRESS], Quayside, Newcastle upon Tyne [POSTCODE](the Property).

2. The Respondents are Leaseholders of Flats at the Property.

Grounds and Submissions

3. The application was received by the Tribunal on 8 March 2021.

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

building.

5. The Tribunal did not carry out an inspection but understands that the Property is a

4 block building situated on Newcastle Quayside. The highest point being 5 stories.

Each block has its own separate entrance.

6. On 31 March 2021, a Tribunal Judge 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 explaining why the

application was made to the Tribunal together with supporting documents.

8. On 21 January 2021, [NAME] received a phone call from a [NAME]

Director regarding a significant flood coming in from the roof. Video and

photographic evidence was provided, and an emergency call out instructed. HEP

Services attended with a cherry picker on 22nd January 2021 to investigate and

quote.

Carry out curved roofing repairs to upper level on block including apartment

number 44

* Replace box profile sheets (approximately x8)

* Supply and use all appropriate roof flashings/eve drips

* Replace damaged insulation boards

* Use all appropriate waterproof sealings

* Rigid scaffolding to be used

* As requested whilst on site – install pigeon deterrents 9. Discussions were then held with the Directors of [NAME])

[COMPANY] and with HEP building services, once final prices

had been confirmed, instructions were received from the Directors of the

Management Company to proceed with these works immediately. HEP carried out

the roof repairs W/C 8th February 2021 and completed on 24th February 2021. This

included scaffolding which was erected to carry out the repairs. HEP advised

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that at the time it was icy weather conditions and the roof needed de-icing prior to

work commencement.

10. This work was deemed an emergency and was agreed with the full co-operation of

the Directors of the Management Company. The invoice of £9,000.00 (including

VAT) has been paid to HEP Building Services. If [NAME])

[COMPANY] had applied a Section 20 in this matter, then the

consultation process would have lasted a minimum of three months BEFORE any

works could have been organised. Therfore, the necessary steps were taken.

11. The Tribunal did not receive any submissions from a Respondent Leaseholder.

Neither the Applicant nor a Respondent requested a hearing.

12. The Tribunal convened without the parties to make its determination on 16

December 2022.

Law

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

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

charges are reasonably incurred.

15. 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”.

16. “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.”

17. 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

18. 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

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

does not require me to decide disputed questions of fact.

19. 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.

20. Having considered the submission made by the Applicant I accept the urgent nature

of the works. Carrying out a Section 20 exercise would be time consuming and add

to delays to the works.

32. In [COMPANY] v Benson [2013] UKSC 14 it was determined that

a Tribunal, when considering whether to grant dispensation, should consider

whether the tenants would be prejudiced by any failure to comply with the

Consultation Requirements. Balancing the need for urgent action against

dispensing with statutory requirements devised to protect service charge paying

Leaseholders, I conclude that the urgency outweighs any identified prejudice.

Dispensation from consultation requirements does not imply that any resulting

service charge is reasonable.

Order

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

respect of the work specified in the application.

[NAME] Tribunal Judge 16 December 2022

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