The Building Safety Act 2022 & dispensation of the section 20 consultation requirements:
Whether dispensation pursuant to s.20ZA of the Landlord & Tenant Act 1985 should be granted
J B Leitch acted for the landlord in this application seeking dispensation from the consultation requirements contained in s.20 of the Landlord and Tenant Act 1985.
The background
On behalf of the landlord, J B Leitch made an application to the First-tier Tribunal (“FTT”) under section 20ZA Landlord and Tenant Act 1985 for dispensation of the consultation requirements in respect of remediation works at a purpose-built residential block, each unit of which is held on a long lease.
Fire safety reports undertaken in respect of the premises identified building safety works required, including internal compartmentalisation works, removal and replacement of external cladding, installation of a new fire alarm system and an interim waking watch.
The landlord’s application sought dispensation from the statutory consultation requirements in respect of the compartmentation works, cladding works and fire alarm installation on the grounds (amongst others) that the works should be undertaken as soon as practicable and owing to the nature and progress of the works project, without unnecessary delay which may be caused by consultation under section 20.
A number of leaseholders objected to the application on grounds which included supply of information regarding the works, disputing the costs of the works, and the appointment of the contractor. The Tribunal concluded in its judgment that these objections were less focused on the landlord’s inability to consult under section 20 and were intended more to prevent the landlord from having ‘carte blanche’ to carry out unlimited works.
Referencing the provisions contained at s.20ZA LTA 1985, and the Supreme Court decision in Daejan Investments v Benson [2013] which is the key authority as to how the FTT should apply its discretion, the Tribunal considered whether the leaseholders had suffered any prejudice as a result of the landlord’s inability to consult, and whether it was reasonable to grant dispensation.
The decision
The FTT granted dispensation unconditionally, concluding that the works were required to be undertaken urgently and finding no evidence of prejudice that had been, or may be, suffered by leaseholders.
Complying with consultation requirements would have resulted in further delay, which the Tribunal found was to be avoided. The bundle presented to the Tribunal evidenced that the landlord had attempted to keep the leaseholders informed, undertaking at least partial consultation.
The Tribunal did not comment on the waking watch, the costs of which did not form part of the application, and it remained open to the leaseholders to challenge the associated service charges under s.27A LTA 1985.
