[2023] UKUT 271 (LC)

For the purposes of the appeal, I can set out the relevant background very briefly. The findings and decisions made in the Reviewed Decision are not challenged in this appeal, save for the decision to impose the Costs Condition. Accordingly, I can take my summary of the relevant background from the Reviewed Decision and from the documents in the appeal bundle.

Hippersley Point comprises land and buildings on the north side of Felixstowe Road, London. The freehold title to the land and buildings is registered under title number TGL4758. The Appellant was registered as freehold proprietor of these premises on 12^th April 2017.

The Building itself comprises a 10 storey mixed-use building, with commercial premises on the ground floor and the 32 residential flats (“the Flats”) above. The height of the Building exceeds 18 metres. As I have said, all of the Flats are let on long leases. The Respondents are the long leasehold owners of the Flats. The leases of the Flats contain provisions for the payment of a service charge. The appeal bundle contained a sample lease of one of the Flats. I will refer to the service charge payable under the leases of the Flats as “the Service Charge”.

In the latter part of 2020 investigations revealed that the external construction of the Building was in an unsatisfactory condition, in terms of fire risk. Substantial remedial works were required to deal with the defects in the external construction. In addition to this, interim fire safety works were required. I will use the collective expression “the Works” to refer to all of these various works. For the purposes of this decision, it is not necessary to go further into a description of the Works. A description of the Works can be found in paragraphs 3-5 of the Reviewed Decision.

The Works were qualifying works, within the meaning of Section 20ZA(2) of the 1985 Act, to which Section 20 of the 1985 Act applied. As such, the amount of the cost of these Works which could be recovered by the Service Charge was limited to £250 per flat unless the consultation requirements referred to in Section 20 were either complied with or were the subject of a dispensation order made by the FTT. The consultation requirements are those set out in the Service Charges (Consultation Requirements) (England) Regulations 2003 (SI 2003/1987).

In these circumstances the Appellant made an application to the FTT for a determination that the consultation requirements be dispensed with, pursuant to the power of dispensation in Section 20ZA(1). This is the application, dated 15^th September 2021, to which I am referring as the Dispensation Application. The essential grounds upon which the Dispensation Application was made were identified in the following statement by the Appellant, in the application form, explaining why there was special reason for urgency:

“Following guidance relating to the construction of the external wall system it has been discovered that the construction comprises combustible materials and poses a risk of fire spread. Accordingly, remediation works are required to the external façade of the Premises (the “Cladding Works”) and interim fire safety measures (“Interim Works”) are also required. The Applicant’s agent began the consultation process in relation to the Cladding Works. Due to the nature of the Cladding Works and the Design and Build method adopted, the Applicant is unable to complete the consultation process. Due to urgency of the Interim Works the Applicant is unable to complete the consultation process.”

The majority of the Respondents responded to the Dispensation Application. All of these Respondents filed statements with the FTT, opposing the Dispensation Application on various grounds.