Fawcett Gardens (Driffield) Management LimitedApplicantThe Residential Long Leaseholders (See Annex A)Respondent
Before
Tribunal Judge J.E. OliverS. A. KendallWatson for the ApplicantDate 10 April 2024Property: Fawcett Gardens, Driffield, YO25 5NR Fawcett Gardens (Driffield)Type of application: 1985 – Section 20ZA Tribunal Judge J.E. Oliver
DECISION
[1]The application to dispense with the consultation requirements imposed by Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and The Service Charges (Consultation Requirements) (England) Regulations 2003 relating to Qualifying Works (“QW”) is granted.[2]The QW relates to the upgrading of the fire doors to the ground and first floors and the additional work required to the second floor of the Property as referred to in a quotation from Paling dated 5th October 2023 as follows:-(i) Ground Floor- 1 door(ii) First Floor – 2 double set doors(iii) Second Floor -an enclosure to be formed as specified(iv) The cost of a skip in relation to the works. Background[3]This is an application made by Fawcett Gardens (Driffield) Management Ltd (“the Applicant”) for the dispensation of the consultation requirements imposed by Section 20 of the Landlord & Tenant Act 1985 (“the Act”) and The Service Charges (Consultation Requirements) (England) Regulations 2003 (“the Consultation Requirements”). The work relates to the urgent upgrade of the entrance doors to the individual flats within the Property, the communal fire doors and additional fire prevention to the second floor of the Property as required by Humberside Fire and Rescue at Fawcett Gardens Driffield (“the Property”).[4]The Applicant instructs Watson to act on its behalf in the management of the Property.[5]The Applicant advised an Enforcement Notice had been served by Humberside Fire and Rescue on 26th July 2023 requiring remedial work to be completed by 19th October 2023. The deadline had been extended to 7th December 2023. The cost of the necessary work would require the Applicant to comply with the requirements of Section 20 of the Act, including the need for quotes, and this could not be completed within the time limits given.[6]The Applicant therefore applied for dispensation from the requirements of s.20 of the Act due to the urgency of the work and applied to the Tribunal for that dispensation on 14th November 2023. Directions were issued on 24th January 2024 providing for the filing of any objections by the Respondents and for the application to be listed for a paper determination.[7]No representations were received by either the Applicant or the Tribunal and the matter was thereafter listed for determination on 15th April 2024. The Law[8]Section 20 of the Act provides:(1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsection (6) or (7) (or both) 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 tribunal(2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement(3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount.(4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement- (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount.(5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be the appropriate amount- (a) an amount prescribed by, or determined in accordance with, the regulations, and (b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with the regulations.(6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is limited to the appropriate amount.(7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in accordance with, the regulations is limited to the amount so prescribed or determined”[9]In the event the requirements of section 20 have not been complied with, or there is insufficient time for the consultation process to be implemented, then an application may be made to the First-tier Tribunal pursuant to section 20ZA of the Act.[10]Section 20ZA of the Act provides:(1) Where an application is made to a tribunal for a determination to dispense with all or any consultation requirements in relation to any qualifying works, or qualifying long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements(2) In section 20 and this section- “qualifying works” means works on a building or any other premises, and “qualifying long term agreement” means (subject to section (3) an agreement entered into, by or on behalf of the landlord or a superior landlord, for a term of more than twelve months.[11]In Daejan Investments Ltd v Benson [2013] UKSC 14 it was determined that a Tribunal, when considering whether to grant dispensation, should consider whether the tenants would be prejudiced by any failure to comply with the Consultation Requirements.[12]In Wynne v Yates and others [2021] UKUT 278 LC Upper Tribunal Judge Elizabeth Cooke said: “There must be some prejudice to the tenants beyond the obvious fact of not being able to participate on the consultation process.” Submissions[13]The Tribunal was provided with a copy of a sample lease for Flat 5 within the Property, copies of the enforcement notice and the quote obtained from Paling for the remedial work.[14]The Enforcement Notice specified the work required at the Property included the replacement of the entrance doors to the individual flats. At the time of the application this included 17 flats, one owner having already carried out the necessary work. The doors to the communal areas also required upgrading, being one door on the ground floor and 2 sets of double doors on the first floor. On the second floor further fire-proofing work was required. The cost of this work, including the provision of a skip, was £9007 plus Vat.[15]The cost of replacing the individual entrance doors was £1428 plus VAT per flat.[16]K. Kirby of Watson suggested to the Applicant that it would be beneficial if all the work was consolidated into one project and the cost could be charged back to the individual leaseholders through their service charge accounts.[17]One quote for the work was obtained from Paling. The Applicant did not require any further quotes, being content to instruct Paling to carry out the work. Determination[18]The Tribunal is being asked to exercise its discretion under section 20ZA of the Act. Section 20ZA (1) provides the Tribunal may do so where “if satisfied that it is reasonable to dispense with the requirements”.[19]The Tribunal cannot grant dispensation to the work to the individual entrance doors since they are part of the individual flats and are therefore the responsibility of the individual leaseholders and do not form part of either the Common Parts or the Retained Premises for which the service charge is payable.[20]Section 20 (2), as referred to above, provides it applies where: “…he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works…”[21]The sample lease provided to the Tribunal specifies those matters to which a contribution must be made through the service charge.[22]The First Schedule of the sample lease describes the flat as: “Firstly flat….including …….(v) the doors and door frames and the windows and window frames together with all glass therein.”[23]The Second Schedule describes the Retained Premises as:(1) The main structural parts of the Block including (but not by way of limitation) the roofs walls foundations floors all walls bounding or within individual flats (other than non-structural walls) and all external parts of the Block including fascias and iron work thereon and external doors.(2) All Service Media ……(3) The Common Parts(4) The Service Media so far as the same serve the Common Parts(5) The Private Access Road.[24]The Common Parts “means all parts of the Development and the Block not intended to be included in the lease of any Flat including any Service Media used in common by any two or more of the Flats”.[25]The service charge is payable for the provision of services. The Fifth Schedule of the lease describes the services to be provided by the Applicant which pertain to the Retained Premises and the Common Parts and consequently does not include the entrance doors to the flats.[26]In respect of the remaining work, the Tribunal, having considered the submissions made by the Applicant, is satisfied there is good reason to dispense with the Consultation Requirements. The Applicant has confirmed remedial work was urgently required to comply with the Enforcement Notice issued by the Fire Authority. If the Notice had not been complied with further action would have been taken.[27]The Tribunal noted the cost of this work alone would still exceed the £250 threshold for the consultation requirements of section 20 of the Act.[28]The Tribunal does not consider there is prejudice to the Respondents by the Applicant’s failure to comply with the requirements of Section 20 prior to carrying out the works.[29]The granting of dispensation does not affect the Respondents’ rights to the challenge the reasonableness or the payability of the service charges under a separate application pursuant to section 27A of the Act. Rights of appeal[1]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.[2]If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission to appeal must be made to the First-tier Tribunal at the regional office which has been dealing with the case.[3]The application for permission to appeal must be arrive at the regional office within 28 days after the Tribunal sends written reasons for the decision to the person making the application.[4]If the application is not made within the 28 day time limit, such applications 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.[5]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 rounds of appeal and state the result the party making the application is seeking.[6]If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber). Annex A Ms S A Jones Mr K G Jones Mr J C & Mrs J M Girtchen Mr B H Redpath Mr G Johnson Mr J Young Mr R Burdon Mr R A Mulloy Mr N Robinson Mr L H Radkov Mr R & Mrs S Calam Mr C W Fox Mr R & Mrs S Crow Mr M W & Mrs J C Edwards Miss E Grant Burgin Property Investments Mr L J & Mrs P A Lowde Mr P D & Mrs A E Lilly