Pan Peninsular, 1-2 Pan Peninsular Square, London E14 9SL LON/00BG/LDC/2025/0664
FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No LON/00BG/LDC/2025/0664
Between
(1) Ballymore Millharbour Limited (2) Blazecourt LimitedApplicantThe leaseholders listed in the applicationRespondent
Before
Judge TagliaviniMr Andrew Thomas RBI FRICS MBA MIFireEMr Lorenzo Leoni, counsel for the ApplicantMr Ken Burroughs (leaseholder) An application under s.20ZA Landlord for the RespondentVenue 10 Alfred Place, London WC1E 7LRDate 20 August 2025Hearing 2025-08-14Property: Square, London E14 9SL (1) Ballymore Millharbour LimitedType of application: and Tenant Act 1985 Judge Tagliavini
DECISION
The tribunal’s decisions(1) The tribunal grants the applicants dispensation from consultation pursuant to s.20ZA Landlord and Tenant Act 1985 in respect of: (a) The refurbishment, testing and commissioning of four low temperature hot water (LTHW) and four chilled water (CHW) PHXs with new plate and gasket packs; and (b) The provision of all lifting and enabling works, amendment and reinstatement of any associated services and ancillaries to facilitate the replacement works and all testing, commissioning and handover documentation.(2) The tribunal makes an order under s.20c of the Landlord and Tenant Act 1985 so that only the costs of and incidental to the oral hearing may be added to the service charges. The application[1]The applicants seeks dispensation from consultation under section 20ZA of the Landlord and Tenant Act 1985 in respect of works to refurbish the mid-level east and west plate heat exchangers forming part of the communal heating and cooling systems installed within the common parts of Pan Peninsular, 1-2 Pan Peninsular Square, London E14 9SL (‘the Building’). The parties[2]The first applicant is the registered freehold proprietor of the Building. The second applicant is the tenant by way of two intervening leases each dated 23 March 2016 whereby the private residential units were demised by the First Applicant to the Second applicant for a term of 1,000 years from and including 8 January 2010. Consequently, the first applicant is the landlord and the second applicant the tenant under the intervening leases. Under each private lease the second applicant is the landlord and the leaseholders the tenants. The Property[3]The subject Propoerty comprise two blocks of 40 and 50 stories respectively, containing a total of 765 residential units on both private and shared ownership leases. The Background[4]In 2024 the applicants obtained a scope of works report which was put out to tender by the first applicant’s project manager Building Maintenance Solutions Limited. Although the applicants sent an Initial Notice of Intention to carry out the necessary works dated 24 February 2025, this was in tandem with the tender process which subsequently attracted three compliant returns. However, the applicant had already decided upon the successful contractor on the basis they already knew the Building although this was not known to the leaseholders. Consequently, the applicants selected the tender produced by the Vali Group and the total cost of the works was estimated at £158,490. However, the continued deterioration and increasing costs of the intended works prompted the applicants to make this application in respect of:(a) The refurbishment, testing and commissioning of four low temperature hot water (LTHW) and four chilled water (CHW) PHXs with new plate and gasket packs; and(b) The provision of all lifting and enabling works, amendment and reinstatement of any associated services and ancillaries to facilitate the replacement works and all testing, commissioning and handover documentation. The hearing[5]An oral hearing was requested by the respondents, 26 of whom had objected to the application. All 26 leaseholders were members of the Pan Peninsular Residents Association (PPRA)who were represented by Mr Andy Yardley, Secretary of PPRA.. However, on the day of the hearing Mr Yardley failed to attend to represent the respondents, due allegedly to urgent ‘work’ related issues. Consequently, the respondents were represented by Mr Burroughs (leaseholder) who made an application for an adjournment in order for Mr Yardley to be able to attend. The applicants objected to this application. The tribunal refused the application to adjourn as all matters relied upon by the respondents were included in the hearing bundle of 194 digital pages and considered the respondent was not prejudiced by the absence of Mr Yardley. The applicant’s case[6]The applicant stated that in the interim period between the making of this application and its hearing, the works have been concluded, with a total final bill of £159,610. As these costs are apportioned between the 765 leaseholders, only some 187 leaseholders are liable to pay more than the £250 required to engage the consultation requirements found at sections 20 and 20ZA of the 1985 Act.[7]The applicant asserted the burden of identifying relevant prejudice falls on the leaseholder objecting to the dispensation application. It has been said that in order to resist a landlord’s application for dispensation, the leaseholder must engage with some evidence. The respondents will not be able to resist the application unless they can demonstrate prejudice beyond the simple fact of not having been consulted or of having had to contribute to the cost of the works: it is not for the landlord to demonstrate, in the absence of any evidence of relevant prejudice, that the tenants were not prejudiced; Wynne v Yates [2021] UKUT 278. Further, despite having sent an Initial Notice to the respondents no observations were made by or received from any leaseholder in respect of the proposed works.[8]The applicant asserted the application should be granted following Daejan Investments v Benson [2013] UKSC 14. Further, the application should be granted unconditionally, as the conditions sought to be imposed by the respondents were irrelevant of not within the jurisdiction of the tribunal. The respondents’ case[9]The written objections received from the respondents indicated that in principle they agreed the works were necessary and did not object to the application on condition it did not prejudice their right to make an application pursuant to s.27A challenging the reasonableness of the works and their costs. Further, it was not known by Mr Burroughs how many of the 26 respondents who objected were required to contribute more than £250 towards these works.[10]In the Statement accompanying the Reply Forms, the respondents asserted they had been financially prejudiced by the way the procurement process had been conducted. The respondents asserted ‘that if dispensation is granted, it must be subject to strict conditions to preserve leaseholder protections under Section 19 and 27A and to ensure future transparency and accountability.[11]Despite stating the respondents did not object to the application in principle, the respondents’ Statement went on to record their dissatisfaction with the applicant’s apparent failure to plan for known risks not only on this occasion but over the last 15 years allowing the need for repairs to become urgent. The respondents also queried the procurement process and asserted that the contract was awarded to the most expensive contractor and there was no opportunity to challenge the choice of contractor. Consequently, the lack of transparency and independent oversight creates a strong perception of bias and raises legitimate questions about procurement governance.[12]The respondents asserted that had the respondents been meaningfully consulted(i) lower cost contractors may have been identified;(ii) the decision to appoint the most expensive contractor could have been challenged and(iii) Ballymore’s selection criteria and procurement standards could have been scrutinised.[13]The respondents sought the imposition of4 conditions which included the preservation of rights under ss. 19 and 27A L&T 1985; the making of as a s.20C order; the disclosure of all tender submissions and other associated documentation and the declaration of any conflicts of interest on the part of Ballymore and its employees. The tribunal’s decisions and reasons[14]The tribunal determines it is reasonable to grant the applicants the dispensation sought in respect of:(a) The refurbishment, testing and commissioning of four low temperature hot water (LTHW) and four chilled water (CHW) PHXs with new plate and gasket packs; and(b) The provision of all lifting and enabling works, amendment and reinstatement of any associated services and ancillaries to facilitate the replacement works and all testing, commissioning and handover documentation.[15]Notwithstanding the respondents’ in principle absence of objection to the application, the tribunal finds the respondents have in any event failed to identify or provide any evidence in support of the alleged financial prejudice suffered due to the lack of consultation. The tribunal would have expected the respondents to have obtained some sort of report in support of its assertions. In its directions the tribunal made clear the tribunal would not consider the reasonableness or cost of the works. These issues remain subject to any s.27A the respondents might seek to make.[16]The tribunal was however, less than impressed by the applicant’s failure to follow the consultation process when there appeared to have been sufficient time to do so, had it been more organised.[16]The tribunal also considered whether an order under s.20C should be made prohibiting the applicants from adding the costs of this application to the service charges. The applicants informed the tribunal that it would be reasonable for the costs of and incidental to the hearing to be added to the service charges as the applicants had requested a ‘paper’ hearing. The respondents had requested an oral hearing but their representative had failed to attend or provide any evidence in support of their assertions of prejudice. Therefore, the tribunal makes an order under s.20c to the extent that only the costs of and incidental to the oral hearing may be added to the service charges. Name: Judge Tagliavini Dated: 20 August 2025 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 application for permission must be made to the First-tier Tribunal at the Regional Office which has been dealing with the case. The application should be made on Form RP PTA available at https://www.gov.uk/government/publications/form-rp-pta-application-for-permission-to-appeal-a-decision-to-the-upper-tribunal-lands-chamber 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).