Montagu Court, Montague Avenue, Gosforth, Newcastle upon Tyne NE3 4JL. MAN/00CJ/LDC/2019/0039
DECISION
[1]Moorside Maintenance Limited applies to the Tribunal under Section 20ZA of Landlord and Tenant Act 1985 (the Act) for dispensation from the consultation requirements of Section 20 of the Act and the Service Charges (Consultation Requirements) (England) Regulations 2003 (SI 2003/1987) in respect of work to correct a spontaneous failure in one of the brick skin elevations (Face G) to the tower block at Montagu Court, Montague Avenue, Gosforth, Newcastle upon Tyne NE3 4JL. (the Property).[2]The Respondents are Leaseholders of flats at the Property. The Leaseholders are also members of the Applicant company with each member having a right to vote on the usual company matters, such as the election of directors at the annual general meeting. Grounds and Submissions[3]The application was received by the Tribunal on 23 September 2019.[4]The Applicant is the Lessor named in the Respondents’ Leases.[5]On 14 October 2019 Deputy Regional Judge Holbrook made directions which provided that in the absence of a request for a hearing the application would be determined upon the parties’ written submissions.[6]The Property is a 1960s 17 storey reinforced concrete tower block with an attached 7 storey wing, comprising 86 2 and 3-bedroom apartments. The block has brick skin elevations, which do not provide structural support to the building and instead the weight of the brickwork is carried by a concrete nib which projects from each reinforced concreter floor slab. Each concrete nib is designed to carry the weight of one floor’s brickwork.[7]The Applicant stated in the application form that it was previously aware of an inherent defect in the building’s construction which allows the weight of the brickwork to be transmitted to the floors below, thereby overloading the lower concrete nib. Following compliance with Section 20 consultation requirements a programme of remedial works was already underway when “on 5 July 2019 it was noticed that a spontaneous failure of the brick skin had occurred at level 6 of Face G”.[8]“In consultation with a structural engineer, a building surveyor, Fire and Rescue services, Police and the local authority Building Control officer”, an exclusion zone was established. This zone encompasses the main entrance to the tower and residents can now only access the building via a tradesman’s entrance in the basement and there is no longer an entry phone system accessible to accommodate deliveries or visitors.[9]The Applicant contends that: “Further spontaneous failure of brickwork could occur at any time and could involve a collapse. For safety reasons it is important to repair the whole of Face G as soon as possible. We have an engineer’s solution. We have specialist brickwork contractors on site” and “scaffolding halfway up the tower”. The Applicant is particularly concerned that with the onset of winter, bad weather and high winds will places additional stress on the brickwork and so it would be irresponsible to delay the works being carried out to allow for further consultation and the competitive tendering of the works.[10]The estimated cost of the emergency repairs to Face G is £53,000. The estimated additional cost of the remaining work to stabilise the whole of Face G is £102,000.[11]In accordance with directions the Applicant has provided a sample Lease and a statement of case which included copies of relevant correspondence with Leaseholders, structural engineers and various contractors. The application has been made because of the urgent need to avoid any further brickwork collapses and out of concern for the convenience of residents, which requires action before a consultation process can be completed.[12]The Tribunal did not receive submissions from a Leaseholder in accordance with directions.[13]The Tribunal convened without the parties to make its determination on 27 November 2019. Law[14]Section 18 of the Act defines “service charge” and “relevant costs”.[15]Section 19 of the Act limits the amount payable by the lessees to the extent that the charges are reasonably incurred.[16]Section 20 of the Act states:- “Limitation of service charges: consultation requirements Where this Section applies to any qualifying works…… the relevant contributions of tenants are limited……. Unless the consultation requirements have either:-a. complied with in relation to the works orb. dispensed with in relation to the works by …… a leasehold valuation tribunal. This Section applies to qualifying works, if relevant costs incurred on carrying out the works exceed an appropriate amount”.[17]“The appropriate amount” is defined by regulation 6 of The Service Charges (Consultation Requirements) (England) Regulations 2003 (the Regulations) as “……. an amount which results in the relevant contribution of any tenant being more than £250.00.”[18]Section 20ZA(1) of the Act states:- "Where an application is made to a Tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works ……..….. the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements." Tribunal’s Conclusions with Reasons[19]We considered the written evidence submitted in support of the application. Our conclusions are:-[20]It is not necessary for us to consider at this stage the extent of the service charges that would result from the works payable under the terms of the Respondent’s leases. If and when such is demanded and if disputed, it may properly be the subject of a future application to the Tribunal.[21]We accept from the details of the work proposed, the obvious health and safety consequences of failure to undertake both the emergency works and the wider works to stabilise all the brickwork at Face G. We therefore find that it is necessary for it to commence without delay. The lack of repair has the potential to significantly impact on the safety, utility and comfort of occupiers and visitors to the apartments at the Property.[22]Although formal consultation has not been completed in respect the emergency works, it is unclear to the Tribunal whether the broader stabilisation works to the brickwork of the whole of Face G have been the subject of the earlier consultation or not. Nevertheless, the Tribunal is assuming a dispensation is being sought in respect of all these works.[23]The Applicant has provided detailed information to the Leaseholders on the nature of the works, their costs and presented various options upon which the Leaseholders have voted upon to decide the preferred approach to undertaking these works, which the Applicant has had regard to. The Tribunal has had regard to the fact that the prices and design of the chosen special brickwork contractor “is in line with the original estimates provided by CSN Ltd”. Further the Tribunal notes that it is the Applicant’s intention to fully engage with Section 20 Consultation requirements in respect of the later phases of work. The Tribunal has not in the circumstances identified a specific prejudice to Respondent Leaseholders.[24]We therefore have no hesitation in concluding it reasonable in accordance with Section 20ZA(1) of the Act to dispense with the consultation requirements, specified in Section 20 and contained in Service Charges (Consultation Requirements)(England) Regulations 2003 (SI 2003/1987).[25]Nothing in this determination or order shall preclude consideration of whether the Applicant may recover by way of service charge from the Respondents any or all of the cost of the work undertaken or the costs of this application should a reference be received under Section 27A of the Landlord and Tenant Act 1985. Order[26]The Applicant is dispensed from complying with the consultation requirements in respect of the work specified in the application. Annex A MAN/00CJ/LDC/2019/0039 Mrs O Rourke (deceased) Mr D Emerson Mr K Johnson Mrs E Davies Mr PD Landau Mr T Barnes & Mr P Mogie Mrs V Davison Dr JC Appleby & Mr RI Davison Mr JA Furey & Mrs MT Furey Mr RL Dormer & Mrs SA Dormer Mr KJ Graham & Mrs M Graham Mr T Lee Mrs A Barlow Mrs MA Buchanan Ms LR Backhurst Mr NS Rawlinson & Mrs AS Rawlinson Mrs MJ Roberts Ms N Thompson Mr GR Bond Mrs J McAughtry Prof MJ Whittaker & Ms HM Edwards Mrs LG Harris Dr H Carrick & Mrs JSC Carrick Ms S Copley Mrs RH Newton Mr CAH Freedman & Mrs CM Freedman Mrs NM Rogers Miss S Safi Mr GT Wilson & Mrs VA Wilson Mr VP Hjardeng Mr MD Jacobson & Mrs AB Jacobson Mrs AE Stafford Mr DW Bewick & Mrs S Bewick Mr DW Buckle & Mrs D Miller Dr JM Hutchinson & Mrs JE Hutchinson Mrs G Scott Dr Y Wu & Mrs Qing Y Wu Mr B Taylorson & Mrs H Taylorson Ms R Rayner-Edwards Mr HV Hjardeng & Mrs H Hjardeng Mr J Marshall & Mrs A Marshall Mr M Eden & Mrs SE Eden Dr DK Dutta Mr J Gilhespie & M Gilhespie Mrs P Peterson Mr GJ Codona Dr A Al-Kaaki Mr AP Lindsay & Mrs M Lindsay Mrs VM Deines Mrs J Moorin Mr & Mrs B Bell Mrs A Linter Mr L Tao Ms K Lovely Ms C Wilson Mr JS Richardson & Mrs SW Richardson Miss CM Dodds Mr D Brown Mr B Olds Mr K Sehat & Mrs JA Sehat Mr M Fawcett Mr JWR Graham & Mrs M Graham Mr JN Wilkinson & Mrs C Wilkinson Mr BG McGee & Mrs V McGee Mr S Banks & Mrs J Banks Mr JA Scrivener & Mrs J Scrivener Mr B Crowder & Mrs I Crowder Mrs MD Tait Mr WJ Peacock & Mrs E Peacock Mr BP Stoddart Mrs A Thompson Mr HD Van Asselt & Mrs Van Asselt Mr AA Josephs & Mrs MA Josephs Ms V Di Girolami Mr E Steven & Mrs ME Steven Mr JF Harrison & Mrs SI Hepburn-Harrison Mr CJ Hilton & Mrs E Hilton Mr DD Deines Mr JR Lamb & Mrs B Lamb Mr J Mann Mr JS Charlton & Mrs JD Charlton Dr JB MacPhail & Mrs MacPhail Mr M Shoaib Mr MO Evans