This case pertains to a gated development of 174 flats and houses grouped around five squares near the Thames riverside. The property's landlord, Holding & Management (Solitaire) Limited, commissioned a fire risk assessment in June 2020. The survey identified concerns about fire stopping and recommended a further assessment. The risk was identified as level 4, so action was recommended within three months.
More than a year later, in July 2021, another assessment was conducted to look at the fire safety measures of the building. The report found insufficient measures to stop fires in certain areas, like the risers and loft spaces. It was recommended that the authorities quickly put a waking watch in place or install simple smoke detectors in each flat. They also suggested looking into a long-term solution, like a fire alarm system for the whole building.
The building owner hired people to keep watch, costing 10,000 each week. The bill was paid using the funds set aside for building services. They also started talking to residents about the fire alarm system. They even got quotes from different companies, but the talks didn't succeed as the owner sought the cheapest option. They explained that they planned to ask for special permission from the FTT (First-tier Tribunal) for the fire alarm. They were sure there would be no hindrance because the work was urgent, and getting permission would mean they could stop the expensive waking watch.
The FTT approved the dispensation but criticised the landlord for hurriedly opting for an expensive waking watch without considering more economical alternatives like battery-operated alarms.
Delay in application to the Tribunal for section 20 consultation dispensation could impact the outcome
The FTT questioned the delay in the landlord's actions after the 2020 fire risk assessment. It pointed out that the earlier investigation could have allowed for a proper consultation and potentially reduced waking watch costs.
Despite acknowledging the necessity of fire safety works, the FTT granted dispensation under the condition that waking watch costs are covered by the landlord, not the service charge. Additionally, the dispensation is contingent on a Section 20C order. It prevents the landlord from passing legal proceedings costs to leaseholders through the service charge.
The landlord appealed the FTT's decision to the Upper Tribunal (UT). The UT overturned the FTT's stipulations, concurring in the conditions imposed as irrelevant. In reviewing the landlord's appeal, the UT stressed the established test for the FTT when granting dispensation is assessing if leaseholders would suffer prejudice due to the failure to consult. The UT overturned the FTT's conditions, stating that any conditions must be relevant and address the specific prejudice to the leaseholders arising from the lack of consultation.
The leaseholders argued that the waking watch was integral to the works, highlighting concerns about delays in fire risk assessments and the rushed implementation of the waking watch without consultation. The UT sided with the landlord, stating that the waking watch's necessity or not was not the FTT's concern in a dispensation application.
The UT set aside the FTT's decision regarding the waking watch costs, deeming it irrelevant to dispensation. The Section 20C order was also set aside, as it was based on the same reasoning as the irrelevant condition about funding the waking watch costs.
Upper Tribunal Ruling: test in granting a section 20 dispensation is relevant prejudice
The UT said the FTT was wrong in denying the landlord its contractual right to recover costs through the service charge when there was no relevant prejudice to the leaseholders.
The landlord implemented a waking watch costing 10,000 per week and initiated discussions about the recommended fire alarm system. The FTT criticised the landlord for hastily choosing the expensive waking to watch without considering more cost-effective options, such as battery-operated alarms.
The landlord, Holding & Management (Solitaire) Limited, commissioned a fire risk assessment in June 2020 due to concerns identified in the initial survey about fire stopping. A July 2021 fire risk assessment identified insufficient fire safety measures, particularly in risers and loft spaces. It recommended the immediate implementation of a 'waking watch' or the installation of simple smoke detectors. A long-term solution, such as a fire alarm system, was also suggested.
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