15 Heyford Avenue, London SW8 1EA LON/00AY/LDC/2019/0065
DECISION
[1]The tribunal grants the applicant dispensation from the statutory consultation requirements of S20 of the Landlord and Tenant Act 1985 (“the Act”) in respect of works to be carried out to 15 Heyford Avenue, London SW8 1EA (“the building”) in respect of repairs to the roof. The costs to be incurred in respect of the works is said to be in the region of £3,720.00 plus VAT. The background[2]In February 2019 after various other repair work had been carried out at the property the landlord’s managing agents, Bridgeford & Co, became aware of a leak from the roof affecting the property which they instructed a firm called Trace & Access to investigate. As a result of the investigation they were advised that the only possible source of the water ingress at the building was the roof repair to which would require scaffolding access the cost of which on its own would exceed the threshold for S20 consultation. Bridgeford & Co took the view that because of the continuing and worsening damage being caused by the leak which in their view the repair of which was a landlord issue with the cost recoverable through the service charge it would be inappropriate to delay the works whilst a full S20 consultation was carried out.[3]A firm called Maddox Services visited the site on Bridgeford’s instructions and an undated estimate of the costs involved in effecting repairs to the flat roof Madox Services identified the problems they found on their inspection as being: - “(1) The fire wall has cracks that should be repaired;(2) The lead flashing on the party wall is too long and there is evidence of cracking in render where lead laps up behind. This should be taken out and renew(ed) in small strips;(3) The downpipe was found to be disconnect(ed) due to a broken section that needs to be renewed; (and)(4) Because of the defective downpipe it has effected the pointing in this area which needs approx. 1 sqm chases out and renewed.” Their quotation for effecting these repairs was £1,650 plus VAT whilst they put the scaffold cost at £1,450 plus VAT.[4]On 29 April Bridgefords made this application copies of which they said would be sent all leaseholders of the flats at the building.[5]Directions in respect of this application were made by the tribunal on 7 May 2019. These provided for the leaseholders an opportunity to agree or oppose the application by completing a form included in the directions to advise their support of or opposition to the application to the tribunal.[6]The directions provided for the application to be determined on the papers directed to be submitted to the tribunal unless any of the parties requested an oral hearing; none did and the tribunal considered the application and the supporting documentation on 17 June 2019.[7]Details of the statutory provisions relevant to this application are set out in Appendix 2 to this decision. The tribunal’s decision[8]The leading authority in relation to s.20ZA dispensation requests is Daejan Investments Ltd v Benson [2013] 1 WLR 845 (“Benson”) in which the Supreme Court set out guidance as to the approach to be taken by a tribunal when considering such applications. This was to focus on the extent, if any, to which the lessees were prejudiced in either paying for inappropriate works or paying more than would be appropriate, because of the failure of the landlord to comply with the consultation requirements. In his judgement, Lord Neuberger said as follows:[44]Given the purpose of the Requirements is to ensure that the tenants are protected from (1) paying for inappropriate works or (ii) paying more than would be appropriate, it seems to me that the issue on which the LVT should focus when entertaining an application by a landlord under section 20ZA(i) must be the extent, if any, to which the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements.[44]Thus, in a case where it was common ground that the extent, quality and cost of the works were in no way affected by the landlord’s failure to comply with the Requirements, I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be – ie as if the Requirements had been complied with.[9]None of the leaseholders is opposed to the application or suggests that the works to be carried out are inappropriate or unnecessary. Nor is there any evidence that the leaseholders will be asked to pay more than is appropriate for the cost of the works. The tenant of the First Floor Flat clearly supports the application as the only tenant to return the pro-forma slip.[10]The factual burden of identifying some relevant prejudice is on the leaseholders. They need to show that they have been prejudiced by the failure of the landlord to comply with the statutory consultation procedure. If a credible case of prejudice is established, then the burden is on the landlord to rebut that case.[11]The tribunal is satisfied that no relevant prejudice has been identified. Whilst compliance with the consultation procedure would have enabled the leaseholders to suggest alternative contractors and make observations on quotes received, there is no evidence to suggest that failure to comply with the consultation requirements will lead to the applicant incurring costs in an unreasonable sum, or lead to works being carried out that fall below a reasonable standard. No alternative quotes have been provided that would support such a contention.[12]That these works are urgently required is clear as in the tribunal’s experience an actual leak from a roof into living accommodation below will usually result in greater damage and more costs unless dealt with expeditiously. There is nothing before the tribunal to suggest dispensation should not be granted and the tribunal is satisfied that it is reasonable to dispense with the non-complied with requirements of the Service Charge (Consultation Requirements)(England) Regulations 2003. Nothing in this decision to grant dispensation should be taken as limiting any leaseholder’s rights to challenge a subsequent service charge demand on any grounds save as to compliance with the consultation requirements. Name: P M J Casey Date: 24 June 2019 APPENDIX 1 RIGHTS OF APPEAL[1]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.[2]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.[3]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.[4]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.