185 Kingsway, Hove, East Sussex BN3 4GL CHI/00ML/LDC/2021/0115
DECISION
[16]Dispensation from the consultation requirements of S.20 of the Act may be given where the Tribunal is satisfied that it is reasonable to dispense with those requirements. Guidance on how such power may be exercised is provided by the leading case of Daejan v Benson referred to above.[17]The question the Tribunal must ask itself is therefore whether the Respondents will be prejudiced by not being consulted prior to carrying out the proposed works to the rear roof. Any deficiencies in the previous S.20 consultations whether or not they occurred do not form part of and are not relevant to the application.[18]The Tribunal accepts that in any building work, particularly where the roof is concerned lack of access may give rise to unexpected additional work being required. Contractors can be asked to provide quotations on both what is initially evident but also what might be discovered on closer inspection. Alternatively, as in this case where additional work discovered, once scaffolding has been erected and closer inspection made possible. Both alternatives have their merits, but neither can be deemed to be unreasonable.[19]As referred to above, the test is what prejudice are lessees likely to suffer? Clearly Mr and Mrs McMullan in their capacity as lessees may suffer if the prevention of further water ingress is delayed unduly. However, the lessees suggest that temporary repairs could be carried out whilst tenders are sought. On the other hand, is the lessees’ loss of the opportunity to comment on the proposals, to nominate a contractor and for competitive quotations to be obtained.[20]The Respondents’ objections regarding the ownership of the flats and their desire to purchase the freehold are not relevant to whether dispensation should be granted. The Freeholder’s maintenance obligations under the leases remains the same in whoever’s ownership the freehold may rest. Likewise, this decision is solely in respect of dispensation, not whether any costs are reasonable that being a matter for an application under S.27A of the Landlord and Tenant Act 1985.[21]Given that the Applicant is only obliged to “consider” the lessees comments in any consultation process rather than be bound by them and the Applicant’s reply indicating a willingness to engage with the lessees in obtaining alternative quotations it is the Tribunal’s view that, subject to conditions, dispensation from consultation should be granted.[22]The Tribunal therefore grants dispensation from the consultation requirements of S.20 of the Landlord and Tenant Act 1985 in respect of additional works to the rear roof subject to the following conditions;a. Copies of all quotations received for the additional works to be provided to the Respondents within 7 days of this decision.b. If within 10 days of receipt of the copies referred to above any Respondent comments on those quotations or nominates a potential contractor, the Applicant will reply within 7 days and if an alternative contractor is nominated a quotation shall be sought from them.[23]In granting dispensation, the Tribunal makes no determination as to whether any service charge costs are reasonable or payable. D Banfield FRICS 14 February 2022 RIGHTS OF APPEAL[1]A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application by email to rpsouthern@justice.gov.uk to the First-tier Tribunal at the Regional office which has been dealing with the case.[2]The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.[3]If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.[4]The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.