In Marshall v Northumberland & Durham Property Trust Ltd [2022] UKUT 92 (LC); [2022] PLSCS 56 the Upper Tribunal (Lands Chamber) has provided useful guidance to the First-tier Tribunal in respect of how it should approach an application for dispensation from the statutory consultation requirements where a landlord has had to carry out urgent works.
The respondent was the landlord of Kelvin Court, a block of 16 flats at 40/42 Kensington Park Road, London W11. The appellant was a long leaseholder of one of the flats in the block.
In 2020 the landlord applied to the FTT for dispensation from the consultation requirements set out in section 20 of the Landlord and Tenant Act 1985, following urgent boiler works at the block. The works were necessitated due to a systematic failure of the boilers that provided heating and hot water to the flats in the block and the presence of legionella.
The appellant had acquired his interest in his flat shortly after the section 20 works had begun. He argued that he had suffered prejudice because he had not been consulted at all in respect of the works due to his details not being added to the leaseholders’ distribution list for future communication in respect of the works.
The FTT granted the landlord unconditional dispensation. It was satisfied that the landlord had entered into some limited consultation. Further, it had kept the leaseholders informed until the works had become sufficiently urgent. The FTT determined that in light of the urgent nature of those works, the landlord was entitled to carry them out without waiting for the statutory consultation process to be completed. The appellant appealed.
The UT underscored that the starting point for the FTT when faced with an application for dispensation was the guidance set out in Daejan Investments Ltd v Benson [2013] UKSC 14; [2013] 2 EGLR 45; [2013] EGILR 4 and Aster Communities v Chapman [2021] EWCA Civ 660; [2021] EGLR 33.
Additionally, the UT provided further specific guidance to the FTT as to the approach it should adopt when a landlord applied for dispensation before completing the consultation process or seeking dispensation from the same due to the urgency of the works.
Firstly, the FTT should systematically identify the steps that the landlord had taken and those which it had omitted to take and for which it required dispensation. Secondly, the FTT was required to ask itself what were the consequences of those steps having not been complied with. The purpose of this was to identify if any leaseholder had been prejudiced by the failure to consult. As the Court of Appeal stressed in Aster “the exercise of the jurisdiction to dispense with the consultation requirements stands or falls on the issue of prejudice”. The UT commented that an absence of prejudice could not be assumed simply because there was a need to undertake work urgently resulting in the full statutory consultation procedure not being carried out.
Additionally, the UT emphasised the importance of every leaseholder having the opportunity to be involved in the statutory consultation process. The UT found that the FTT had erred in finding that the failure to consult one leaseholder could not form the basis of an objection to dispensation.
Elizabeth Dwomoh is a barrister at Lamb Chambers
