Marine Court Mansions Solent Court Mansions CHI/24UF/LDC/2019//0027
DECISION
[1]The tribunal concluded that the application to dispense with the consent of the leaseholders in relation to anticipated works relating to fire risk is refused. The Application:[2]The application is dated 26th March 2019 and was issued on the 29th March 2019.[3]The application is by Cedar Harp Limited in their capacity as Managing Agents on behalf of the landlords, Solent and Marine Court Managements Ltd. They are the landlords of ;(i) Flats 1-8 Solent Court Mansions, Marine Parade West, Pier Street, Lee on Solent PO13 9DD [hereinafter referred to as “Solent Court Mansions) and(ii) Flats 1-8 Marine Court Mansions, Marine Parade West, Pier Street, Lee on Solent PO13 9DD [hereinafter referred to Marine Court Mansions.”][4]The property is described in the application as a 3 storey building comprising of 16 flats in total, above ground floor retail units. The details of the occupiers of the retail units in unknown. The property is split into two adjoining blocks., both of which have separate entrances and common parts. The building is said to be of traditional brick construction with rendered masonry walls under a flat roof.[5]A determination is sought pursuant to the Landlord and Tenant Act 1985 Section 20ZA for a dispensation of the requirement to consult the lessees in relation to qualifying works in accordance with Section 20 of that Act.[6]The application requests dispensation as to the requirement to consult in relation to works relating to fire risks as identified Directions:[7]Directions were given on the 1st April 2019 and provided for a paper hearing unless any party objected within 14 days of receipt of the directions.[8]A copy of the application was to be served on all leaseholders immediately on receipt of the directions by the applicant. The applicant was to confirm to the tribunal that this had been done by 8th April 2019. In default of such notice being given the application was to be struck out without further notice.[9]Thereafter the respondents were to reply by 15th April 2019 and if they oppose such application send a statement in response along with any copies of documents upon which they wish to rely.[10]It was directed that a bundle was to be agreed between the parties, to be paginated and indexed and a copy to be sent to the tribunal and all respondents by 24th April 2019.[11]The matter was to be listed for a paper determination during the 7 days commencing 30th April 2019.[12]It appears that several respondents did not copy in the applicants as required by the directions. This has caused delay due to the fact that information was then requested about the Respondents in order that a bundle could be sent.[13]The respondents to the application who have responded in writing are as follows; Mr S Lannin Mrs J Baldwin Mr A Gill G Fraser and CP Williams Mr and Mrs M Pryce[14]The bundle sent to the tribunal is date stamped 21st May 2019. Clearly this is not in compliance with the timetable given in the directions.[15]No party has asked for an oral hearing.[16]The bundle does not contain confirmation of service of the application and the directions in compliance with paragraph 7 of the directions however the response found at page 113 of the bundle from Mr Lannin states that he received the documents on 11th April, some 3 days after the deadline for compliance with the directions. . Nor does it appear that the applicants filed a copy of the bundle on the tribunal by 24th April 2019 in compliance with paragraph 9 of the directions.[17]Despite this non compliance the tribunal has taken the view that it shall determine this application in light of the issues involved. The Background:[18]The building is a mansion block divided into two self contained blocks each with its own entrance and communal area.[19]On 1st May 2018 Hampshire Fire and Rescue Service visited the properties for the purposes of evaluation of fire safety.[20]In relation to Solent Court Mansions the Fire Service wrote on 10th May 2018 the Service notified the Landlords of work which was required to be carried out. A timescale was given for completion of works by 1st October 2018. The letter is at pages 1 to 13 of the bundle. In particular the letter referred to the schedule contained within the letter and that this work is required to “improve fire safety”. The letter continued that the landlord should “appoint competent people” .[21]The letter referred to the need for a fire risk assessment which will “identify the safety measures you have in place and any further measures you might need to take. “ and that this assessment should be both recorded and reviewed “regularly.” And further that the fire authority would expect an annual review “on the basis that the current FRA dated 15 March 2107 requires attention. “ and “To stop your fire safety falling below an acceptable standard again you should put in place a system of planning, organising, controlling, monitoring and reviewing the performance of each of the fire safety measures you have I place. “[22]There then followed 1o items described as “necessary”. The tribunal does not repeat those items here.[23]In relation to Marine Court Mansions the Fire Service wrote on 10th May 2018 the Service notified the Landlords of work which was required to be carried out. A timescale was given for completion of works by 1st October 2018. The letter is at pages 3 to 16 of the bundle. This letter too referred to the schedule contained within the letter and that this work is required to “improve fire safety”. The letter continued that the landlord should “appoint competent people” .[24]The letter referred to the need for a fire risk assessment which will “identify the safety measures you have in place and any further measures you might need to take. “ and that this assessment should be both recorded and reviewed “regularly.” And further that the fire authority would expect an annual review “on the basis that the current FRA dated 15 March 2107 requires attention. “ and “To stop your fire safety falling below an acceptable standard again you should put in place a system of planning, organising, controlling, monitoring and reviewing the performance of each of the fire safety measures you have I place. “[25]There then followed 12 items described as “necessary”. The tribunal does not repeat those items here.[26]In both letters the applicants were warned about the consequence of non compliance, namely service of an enforcement notice.[27]The applicants wrote a covering letter on 16th May 2019 containing further information as follows;• It is said that upon receipt of the reports (dated 10th May 2018 the applicants instructed building surveyors Bennington Green to carry out a survey of the property. This report was received on 1.8.2018 (pages 29-50 of the bundle).• The contact at Bennington Green apparently left the firm and a new contact name was provided. He was requested to prepare a schedule of works.• A meeting is said to have taken place on 5th October 2018 (stated 2019 but must be 2019) .• The specification was sent out on 7th November 2018 (stated 2019 but must be 2018) .• Detailed and scaled plans were recommended in order to receive accurate tenders. Tenders were not issued until January 2019.• Tenders were received and are summarised at pages 71 and 72 of the bundle. The two tenders received amount to £187,625 and £129,365 respectively. These were summarised in a letter dated 21st February 2019 from Bennington Green to the applicants landlords (being the document at pages 71 and 72 of the bundle)[28]The application refers to an extension of the fire officers deadline to 1st April 2019 (page 89 of the bundle)[29]The application of 26.3.2019 refers to the reasons why dispensation as follows; “Given the urgent nature of the works and the fact that they relate to matters of fire safety we felt that if we were to consult under the provisions of Section 20, we would be compromising the safety of residents living in the flats. We therefore dee it necessary to carry out the works without further delay. In addition, the Fire Office placed a time limit for the works to be completed by 1st April 2019.” The lease:[30]A sample lease has been provided at pages 128 to 162 of the bundle. The tribunal makes no findings in relation to service charges either as to liability or reasonableness. The law: Section 20 of the Landlord and Tenant Act 1985 provides that in the case of “qualifying works” the relevant contributions of tenants are limited unless the consultation requirements have been either;(a) complied with in relation to the works or agreement or(b) dispensed with in relation to the works or agreement by (or on appeal from) a leasehold valuation tribunal. Section 20 (3) provides that Section 20 applies to qualifying works if relevant costs incurred on carrying out the works exceed a certain amount. The amount is currently £250 per leaseholder. Section 20 ZA (1) of the Landlord and Tenant Act 1985 provides (2) of the Act defines “qualifying works” for the purposes of consultation as “works on a building or any other premises”. Inspection[31]The tribunal did not carry out an inspection. It was considered not only disproportionate but also unnecessary to inspect either the apartment in question but also the block as a whole. The hearing:[32]The matter was listed for a paper determination.[33]The tribunal read and took into account the entire contents of the bundle.[34]In particular the tribunal noted the chronology as set out above. Determination[35]Whilst the tribunal read and acknowledged that some delay was due to change of personnel at Bennington Green the tribunal does not accept that the applicant has applied themselves to the requirement for these works to be undertaken with any or any reasonable diligence, nor that in May of 2018 these works were described as “necessary” and related to potential fire risk hazards to those in occupation.[36]The tribunal is also concerned that despite the reasons given in the application and that tenders were received in February 2019 that the applicants waited in excess of 4 weeks before applying to the tribunal for dispensation.[37]The amount of the proposed works are significant and the current tenders are £129,365 and £187,625 respectively.[38]The leaseholders may have little confidence that even if dispensation were given these works would be undertaken with any due diligence given the delay to date.[39]In the circumstances the tribunal do not find that it is reasonable not to consult with the relevant leaseholders.[40]There appears to have been a significant lapse of time in every step of the process from the time of first identification of necessary works.[41]In the circumstances this application is dismissed. Rights of Appeal[42]A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.[43]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.[44]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.[45]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. Name: Miss T A Clark (Judge) Dated: 10th June 2019