[2024] UKUT 56 (LC)

In January 2023 the applicant applied to the FTT for dispensation from the consultation requirements in respect both of the work done from March to September 2021 and of the later asbestos removal. Its Statement of Case explained the contents of Mr Partridge’s and Mr Payne’s reports and set out the work that it undertook in 2021 and the additional work that was required following problems revealed by those works. It said “Due to the emergency nature of the Works and the unforeseen Additional Works, the Applicant was unable to comply with the consultation requirements prior to their commencement and completion.”

The appellant in its Statement of Case went on to explain the extent to which it had complied with the consultation requirements and set out the relevant law on consultation and dispensation. Exhibited to the Statement of Case were the two reports as well as information about the works done and their cost, which was £123,150.52, and copies of the transfer to it of the freehold and of the registers of title.

The appellant also filed a witness statement by Mr Partridge in which he explained the content of his report in April 2021 and the work that he had recommended.

The FTT gave directions on 3 February 2023, which required the applicant (the present appellant) to serve the proceedings on the respondents, and required the respondents to complete a reply and to say what it would have done differently if the applicant had complied with the consultation requirements.

The respondents filed a statement of “Objections to the Application” in which they said that the applicant was not the freehold owner; the freehold owner was, it said, Eastacre Estates Limited (of which the respondents’ representative, Mr Waites is a director). It seems that Mr Teitelbaum bought the property from National Westminster Bank as mortgagee in possession. The respondents said that the bank was not entitled to sell. I need hardly say that that was not relevant to the dispensation application. What the respondents said about the works was that they were not advised about the detail of the works and that the works were unnecessary.

The FTT conducted a hearing, sitting as a panel of three: a judge, a surveyor member and (I think) a lay member. I have been provided with the transcript of the hearing. I have to summarise the way the hearing was conducted in order to provide context for the FTT’s findings.

Following counsel’s opening, the panel took exception to the fact that the appellant’s Statement of Case was verified by a statement of truth by the appellants solicitor (despite that being normal practice in the FTT and indeed in this Tribunal), and required a director of the appellant to give evidence and verify the contents of the appellant’s pleadings. Ms Melanie Meigh was present and confirmed the truth of the Statement of Case. The panel then asked the respondents’ representative if he wanted to ask Ms Meigh any questions ad he did not. At that point therefore the appellant had produced evidence of the work that had been done, of the reasons for doing it, and of the extent that it had followed the consultation procedure and that evidence was uncontested.

The panel then cross-examined Ms Meigh for most of the rest of the day. I use the word “cross-examination” deliberately; this was not simply the panel members asking questions about matters they might not have understood from the bundle. It was very much a challenge to what was said in the appellant’s Statement of Case. The panel repeatedly asked Ms Meigh to justify the assertion that the work was urgent. Ms Meigh of course had not anticipated having to give evidence, and had to answer detailed questions about engineering issues. Ms Bloomfield suggested that Mr Payne, the other director of the appellant, who was present at the hearing, would be in a better position to answer the FTT’s questions but the FTT refused to allow him to give evidence.

At that point one of the panel members asked Ms Meigh if Mr Payne was also the director of RPA Consultancy Limited whose report was relied upon by the appellants; on confirmation that he was, the judge expressed concern that his report was “not exactly an independent report”.

Mr Partridge was not able to attend the hearing because he was out of the jurisdiction, and therefore it was not possible for Mr Waites to cross-examine him. Mr Waites did not express any concern about this at the hearing.

In its decision of 4 May 2023 the FTT refused a dispensation. Its decision is very brief (despite a hearing lasting a full day). It appears to have refused the application for two reasons: first, that as the transfer of the freehold to the appellant had not been registered when the works were carried out, it was not entitled to enter the property to do the works and had no standing to apply to the FTT for a dispensation from the consultation requirements, and second because the works were not urgent. At its paragraph 19 the FTT said:

“… the Applicants argues that the case of Daejean Investments Ltd v. Benson [2013] UKSC 54 states that dispensation must be given unless there is evidence of actual prejudice being caused to the Respondents and no such prejudice had been asserted or proved in this case. The Tribunal agrees that the Respondents have not

addressed prejudice, but lack of prejudice does not correct the lacunae in the Applicants arguments as discussed above. First, they have a potentially insuperable problem in attempting to obtain a dispensation for works carried out to a property which they did not at that time own and secondly, they have not satisfied the Tribunal that the works were so urgent and necessary that they could not wait two or three months before being started.”

The statement that the respondents “have not addressed prejudice” is puzzling and I think what is meant is “have not asserted prejudice”. I have read the transcript of the hearing and it is clear that that was the case, and in its refusal of permission to appeal the FTT referred to the lack of prejudice to the respondent. I take it therefore that the FTT found as a fact that there was no prejudice to the respondents as a result of the failure to follow the consultation procedure in full.

In its closing paragraphs the FTT said:

“22.

In the present case the works which were done have been described by the Applicants as both structural and urgent. However, insufficient evidence has been produced to support this assertion, and the evidence that has been produced by Mr Payne is conflicted as he has a direct interest in the property. This interest was not declared to the Tribunal, and only became apparent at the Hearing. In addition to the reports from an independent surveyor and structural engineer detailing the works to be carried out the Tribunal would have expected to see full estimates for the proposed works and a schedule of works.

23.All the works are said to have been completed but there is no documentary evidence of their satisfactory completion.

24.

Having considered the submissions made by the Applicants the Tribunal is not satisfied that they have demonstrated the urgency of the works nor explained in detail the extent or costs of those works.

25.

Neither can it consider giving a retrospective dispensation in relation to a property which the Applicants did not own at the time when the works were carried out.

26.This is not therefore a situation in which the Tribunal considers it appropriate or reasonable to exercise its discretion under s20ZA in favour of the Applicants and accordingly refuses the Applicants’ application.”