Southwark Council v Various Lessees of the St Saviours Estate [2017] UKUT 10 (LC)
(Full disclosure – my firm acted for the Lessees).
The issue in this Upper Tribunal case was whether LB Southwark was entitled charge the leaseholders for works to replace communal doors and front entrance doors carried out during fire safety improvement works on the estate (some 10 block of flats).
In advance of the works, Southwark carried out fire risk assessments of each block, which recommended the replacement of a small number of front entrance and communal doors that no longer complied with fire safety requirements. The risk assessments also recommended that further assessments of each door should be undertaken before any major works. No such assessments were carried out. Instead, Southwark’s surveyor took a photograph of each front entrance door. Southwark then sought to recover the costs of these works from the lessees.
At First Tier Tribunal, Southwark abandoned its initial line of argument, that it was obliged to replace the doors under fire safety requirements, when faced with evidence that the pre-existing doors were adequate to meet regulatory requirements, but that Southwark had expensively ‘up-specc’d’ the doors when replacing them to a higher fire safety level than was actually required.
It was, then, common ground that Southwark could only validly charge for the replacement of the doors if they were in disrepair.
Southwark argued that the photos, showing that in most cases, front entrance doors had been modified with new locks or letterboxes, showed that the doors were in disrepair, because they would no longer meet fire safety requirements. The lessees accepted that in principle this could be so, but, supported by evidence from fire safety experts, argued that Southwark had quite simply not established that this was the case, in respect of each or indeed any, door, as it would have required a proper assessment, not a surveyor just taking photos of the doors.
The First-tier Tribunal rejected the evidence of the authority’s surveyor as he was not an expert in fire resistance. As such, other than where the fire risk assessments had recommended replacement, there was no evidence of the front entrance doors being in disrepair. The costs of replacing the doors was not recoverable except where there had been a specific fire safety assessment and recommendation.
In the absence of a full survey and assessment, Southwark was also restricted to recovering just 50% of other fire safety works, as their necessity could not be shown.
Southwark appealed to the Upper Tribunal.
Southwark argued that the First-tier Tribunal had been wrong to decide that a front entrance door which had been modified or replaced could still be in repair.
Southwark also argued that the decision that 50% of the fire resistance works was payable was arbitrary and unreasoned.
The Upper Tribunal dismissed the appeal.
The FTT had accepted that a door that had deteriorated from its original fire safety standards was in disrepair. But the FTT had been entirely entitled to find that there was no evidence – save for the specific fire safety assessments – that the doors were in disrepair. The evidence of Southwark’s surveyor was wholly inadequate. That the lessees had not put forward any evidence as to the condition of the doors was immaterial.
On the 50% reduction for the remaining fire safety works, this was a broad brush approach that the FTT was entitled to take on the evidence before it.
Comment
The key element here is that Southwark had charged headlong into replacing all the doors without a proper assessment of need, and apparently, initially, on the basis that ‘fire safety’ would cover any issues in charging for the works. Something of the lamentable state of Southwark’s investigations and rationale for the works can be discerned from this passage from the FTT decision
We found it somewhat puzzling that the Respondent placed no reliance on its own fire risk assessments and indeed did not refer to them throughout the hearing. We have no details about who had commissioned these reports and their purpose, It was the Respondent’s position that Mr Ottley had preferred his own condition survey and had disregarded the assessments although this conflicted with Mr Ottley’s oral evidence in which he said that he had not been aware of the assessments.
As well as the immediate financial consequences (88 lessees in the proceedings, and relevant works of about £3,000 each), this is likely to have a broader impact, not only on other Southwark estates where similar works are being carried out, but for other council landlords looking at similar exercises.
Doesn’t surprise me at all. I had to pay for new kitchen windows with electronic extractor fan – which I didn’t want – as part of major works. Council then wouldn’t connect fan to electrics because I was a leaseholder. Even then Head of Housing admitted it was illogical but I wasn’t able to do anything about it. Constant dissatisfaction with Swk council over 15 yrs. Have paid £20+K for major works during this time.
Quite apart from the basic questions- whose doors are they and who has liability for repair, if the alterations, which can and do degrade fire resistance, both ought to be first addressed via notice for the tenant to remedy their waste or disrepair, or in the alternative, their unauthorised alterations or repair to the landlords door. Replacing let alone upgrading is wildly disproportionate and high handed as well as wasting public funds. I take the view that pursuing this with no real foundation puts a landlord at risk of harassment and the change of doors a breach of quiet enjoyment. daft as it may sound a sheet of ply and a tin of paint can often remedy fire resistance…….
Southwark were seeking justification for a wholescale ‘upgrade’ of the doors – all replaced by FD30, when the original FD20 spec was adequate for fire regulations. When the ‘fire regulations’ statutory justification for the replacement fell apart during proceedings, they resorted to the ‘disrepair’ line.
But, the doors were Southwark’s responsibility under the leases, so this was not an issue of notice to tenant to remedy waste or disrepair. And if alterations amounted to trespass or damage to Southwark’s property, then it is not for the tenant to remedy. Replacement of the doors per se is also not capable of amounting to a breach of quiet enjoyment in law, not without more. So, I’m afraid your legal points, if not the practical one, are wrong.
Giles do you know if this case is now at an end? I was expecting a reissued invoice from Southwark council but on speaking to them just now have been told they are appealing to the Upper Tribunal. I thought they had lost the appeal. Is there another stage? I am selling my flat and Southwark have told me I will have to pay the original invoice and wait for the case to be finalised.
This was the Upper Tribunal appeal judgment!