Oddfellows Heights Management Company LimitedApplicantThe leaseholders named in the applicationRespondent
Before
Mary Hardman FRICS IRRV(Hons)Date 4 February 2025Property: Oddfellows Road Newbury RG14 5AEType of application: For dispensation from consultation requirements - Section 20ZA of the Landlord and Tenant Act 1985
DECISION
[1]Description of hearing This has been a remote determination on the papers which the parties are taken to have consented to, as explained below. A hearing was not held because it was not necessary, and all issues could be determined on paper. The documents that I was referred to are in an indexed bundle from the Applicant. I have noted the contents, and my decision is below.[2]The tribunal’s decision The tribunal determines under section 20ZA of the Landlord and Tenant Act 1985 to dispense with the consultation requirements in respect of commissioning an intrusive survey in connection with structural issues.[4]Reasons for the tribunal’s decision The application(1) The landlord has applied for dispensation from the statutory consultation requirements in respect of commissioning an intrusive survey in connection with structural issues.(2) The relevant contributions of leaseholders through the service charge towards the costs under these agreements 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.(3) In this application, 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.(4) The only issue here for the tribunal is whether it is satisfied that it is reasonable to dispense with the consultation requirements.(5) This application does not concern the issue of whether any service charge costs under the relevant agreements will be reasonable or payable or by whom they are payable. The Property and parties(6) The applicant says the property consists of a 5-storey purpose built block of flats with timber frame, rain cladding and render panels.(7) The application is made by Oddfellows Heights Management Company Limited, the Resident Management Company on behalf of the landlord, Premier Ground Rents No 4 limited. The application was made against the leaseholders of the relevant properties (the “Respondents”) Procedural history(8) The Applicant says that dispensation is sought, as explained below.(9) Initial case management directions were given on 4 December 2024 and amended on 12 December 2024 to extend the dates for compliance due to a delay in issuing the initial directions. The directions included a reply form for any leaseholder who objected to the application 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 20 January 2025.[6](10) The directions further provided that this matter would be determined on or after 4 February 2025 based on the documents, without a hearing, unless any party requested an oral hearing. (11) On reviewing these documents, the tribunal considered that an inspection of the Property was neither necessary nor proportionate to the issues to be determined and that a hearing was not necessary. (12) No request for a hearing was made by the parties. The Applicant’s case. (13) The applicant seeks dispensation with the statutory consultation requirements in respect of commissioning an intrusive survey in connection with structural issues. (14) The cladding and render panel system at the subject property has been identified as a significant structural concern with defects that pose potential health and safety risks to residents. (15) A Defects Analysis Report has been prepared by surveyors and the key issues include failure of expansion joints, water ingress, structural instability, and fire safety implications. (16) There is a lack of information regarding how the panels are affixed to the main structure which prevents a definitive decision on the most suitable remedial approach. To obtain this information an intrusive survey is required involving further investigation by surveyors and contractors using borescopes and access equipment. (17) The applicant states that given the serious nature of the defects and the length of time residents have been affected it is essential that this intrusive survey is carried out without further delay. This would allow for full assessment of the cladding system and determine the most appropriate remedial action. (18) The fee for the work would appear to be £5175 plus VAT and disbursements. (19) Proceeding through the standard Section 20 consultation process would cause unnecessary delays, leaving residents at continued risk and prolonging uncertainty regarding potential costs and solutions. The Respondents’ position. (20) As mentioned above, the directions provided for any Respondent who wished to oppose the application for dispensation to complete the reply form attached to the directions and send it to the tribunal and the Applicant. (21) The tribunal has not received any response or statement of case opposing the application, or comments on the Applicant’s statements in the application form. In the circumstances, the tribunal concluded that the application was unopposed.[9](22) 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 consult This application for dispensation from the consultation requirements was not opposed by the Respondents, who have not challenged the information provided by the Applicant in the application 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.[10](23) The tribunal is satisfied that it is reasonable to dispense with the consultation requirements in relation to the survey work as described above. (24) It therefore determines under section 20ZA of the 1985 Act to dispense with all relevant consultation requirements in relation to these works. (25) This is not an application for the tribunal to approve the reasonableness of the contracts or the reasonableness, apportionment or payability of any service charge demand. (26) I make no finding in that regard and the leaseholders will continue to be able to make an application under section 27A of the Act in respect of the reasonableness of the agreements and/or the reasonableness, apportionment or payability of the service charge demand for them. (27) There was no application to the tribunal for an order under section 20C of the 1985 Act. (28) The Applicant shall be responsible for serving a copy of this decision on all leaseholders.[15]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 application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. 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).