Tribunal Permits Urgent Replacement of Automatic Opening Vents

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/26UJ/LDC/2021/0012 HMCTS code (paper, video, audio) : P:PAPERREMOTE

Property :

1, 5, 9, 19, 21, 25, 29, 31, 33 Pollards and 10, 18, 22, 28, 32 Pollards, Maple Cross, Hertfordshire [POSTCODE] and 18 Bradbery, Maple Cross, Hertfordshire [POSTCODE]

Applicant: [redacted]

Respondents : [redacted] [NAME] of [NAME] : For dispensation from consultation requirements - Section 20ZA of the Landlord and Tenant Act 1985 Tribunal members : [APPELLANT] [NAME]([NAME]) Date of decision : 10 June 2021

DECISION Covid-19 pandemic: description of hearing This has been a remote determination on the papers which the parties are taken to have consented to, as explained below. The form of determination was P:PAPERREMOTE. A hearing was not held because it was not necessary, and all issues could be determined on paper. The documents that I was

2 referred to are in a 166 page bundle from the Applicant. I have noted the contents and my decision is below.

The tribunal’s decision The tribunal determines under section 20ZA of the Landlord and Tenant Act 1985 to dispense with all the consultation requirements in respect of replacement of the automatic opening vents (AOVs) in the communal windows in the relevant blocks. Reasons for the tribunal’s decision The [NAME]

1. This is an [NAME] to dispense with the statutory consultation requirements in respect of the replacement of the automatic opening vents (AOVs) in the communal windows in 6 blocks at the above development.

2. The applicant has made this [NAME] to dispense with the statutory consultation requirements in respect of qualifying works (as described in the [NAME] form) to replace automatic opening vents (AOVs) in the communal windows in the relevant blocks.

3. It says that a consultation process was carried out in respect of works to replace the communal and flat windows, which anticipated only moving/refitting the existing AOVs, and those works are due to start. It says that the [NAME] advises the AOVs are obsolete and need to be replaced. It proposes urgent replacement of the AOVs as a safety measure and to minimise overall costs by avoiding additional scaffolding costs of replacing the AOVs later.

4. The relevant contributions of leaseholders through the service charge towards the costs of these works would be limited to a fixed sum unless the statutory consultation requirements, prescribed by section 20 of the Landlord and Tenant Act 1985 (the “1985 Act”) and the Service Charges (Consultation etc) (England) Regulations 2003: (i) were complied with; or (ii) are dispensed with by the tribunal.

5. In this [NAME], the Applicant seeks a determination from the tribunal, under section 20ZA of the 1985 Act, to dispense with the consultation requirements. The tribunal has jurisdiction to grant such dispensation if satisfied that it is reasonable to do so.

3 6. In this [NAME], the only issue for the tribunal is whether it is satisfied that it is reasonable to dispense with the consultation requirements.

7. This [NAME] does not concern the issue of whether any service charge costs of the relevant works will be reasonable or payable or by whom they are payable. [NAME] and parties 8. [NAME] is a series of 6 three- storey purpose-built blocks of apartments, originally owned by the local authority.

9. The [NAME] is made by the landlord under the leases, [APPELLANT[COMPANY]. The [NAME] was made against the leaseholders of the flats (the “Respondents”) Procedural history 10. The Applicant said that the works are urgent, as explained below.

11. Case management directions were given on 23 April 2021, requiring the Applicant by 7 May 2021 to serve on the Respondents copies of the [NAME] form and these directions and filing with the tribunal a certificate to confirm that this has been done and stating the date(s) on which this was done.

12. On 14 May 2021 the Applicant emailed the tribunal to confirm that this had been done on 26 April 2021 13. The directions included a reply form for any leaseholder who objected to the [NAME] to return to the tribunal and the Applicant, also indicating whether they wished to have an oral hearing. Any such objecting leaseholder was required to respond by 21 May 2021.

14. The directions further provided that this matter would be determined on or after 7 June 2021 based on the documents, without a hearing, unless any party requested an oral hearing.

15. No leaseholder has responded, and no party has requested an oral hearing.

16. On reviewing these documents, the tribunal considered that an inspection of [NAME] was neither necessary nor proportionate to the issues to be determined and that a hearing was not necessary

4 The Applicant’s case 17. The Applicant states that following a survey the [NAME] advised that the AOVs are obsolete and need to be replaced. It proposed urgent replacement of the AOV’s at the same time as fitting the new windows so as not to leave the blocks without operating AOV’s, which are a safety feature for safe evacuation in the event of fire. This would also minimise overall costs by avoiding the additional scaffolding costs of replacing the AOVs later. The works on the windows are due to start imminently.

18. Letters to leaseholders in the bundle indicate a total additional cost of between £2,973.76 and £3718.74 per block with leaseholders required to pay 16.66% of the cost for their block.

19. A letter outlining the proposed additional work was sent to all leaseholders on 30 March 2021.

20. One response was received to this letter from a leaseholder in respect of timing and payment arrangements for the work. The Respondents’ position 21. As mentioned above, the directions provided for any Respondent who wished to oppose the [NAME] for dispensation to complete the reply form attached to the directions and send it to the tribunal and the Applicant.

22. The tribunal has not received any response or statement of case opposing the [NAME], or comments on the Applicant’s statements in the [NAME] form. In the circumstances, the tribunal concluded that the [NAME] was unopposed. The tribunal’s decision 23. Following the Supreme Court decision of Daejan Investments Ltd. v Benson [2013] UKSC 14, the only issue for the Tribunal is whether the Respondents have suffered prejudice in dispensing with the requirements.

24. This [NAME] for dispensation from the consultation requirements was not opposed by the Respondents, who have not challenged the information provided by the Applicant in the [NAME] form, identified any prejudice which they might suffer because of the non- compliance with the consultation requirements, nor asked to be provided with any other information.

5 25.

Accordingly, in the circumstances set out in this decision, the tribunal is satisfied that it is reasonable to dispense with the consultation requirements in relation to the works.

26. For the purposes of this [NAME], the tribunal determines under section 20ZA of the 1985 Act to dispense with all the consultation requirements in relation to the replacement of the automatic opening vents (AOVs) in the communal windows in the relevant blocks.

27. This is not an [NAME] for the tribunal to approve the reasonableness of the works or the reasonableness, apportionment or payability of the service charge demand. I make no finding in that regard and the leaseholders will continue to enjoy the protection of section 27A of the Act.

28. There was no [NAME] to the tribunal for an order under section 20C of the 1985 Act.

29. The Applicant shall be responsible for serving a copy of this decision on all leaseholders.

[NAME] [NAME]([NAME]) 10 June 2021

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 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, [NAME] and the case

6 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).