Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC)

I’m not going to go into great detail on this case, despite its various enticing complications – an iconic new Manchester building (pictured above), Carillion (the contractor on construction) going into receivership, and the idiosyncratic view of the Manchester weather of HHJ Davies, sitting as a High Court judge: “It is also because its external elevations are fully glazed, the façades being made up of glass panels which form a sleek uninterrupted wall of glass, reflecting the sunlight in which Manchester is – despite common belief outside Manchester to the contrary – frequently bathed.”

Instead, I will focus on one particular point of broader application concerning temporary repairs and whether a defendant was in breach of its repairing covenant when temporary repairs had been done.

The problem here was that shortly after completion, it became apparent that the bond holding the glass panels to the frames was failing on a number of window units, some 153 of 1350, with the potential for more to fail. This could have meant glass panels falling out the structure. Temporary repairs were carried out by Carillion by adding pressure plates to all the glass panels in 2014, as a short term remedy pending investigation and installation of a permanent solution. Then Carillion went bust.

Blue Manchester Limited, the leaseholder of the hotel in the building, brought proceedings against the freeholder for breach of the landlord’s repairing covenant:

“at all times to keep in good and substantial repair and when necessary as part of repair to reinstate replace and renew where appropriate the Retained Property and the Common Parts PROVIDED THAT the Landlord shall not be liable for a defect or want of repair reinstatement replacement or renewal relating to the Property unless the Landlord has first had notice thereof and sufficient opportunity to remedy it nor for defects or wants of repair decoration reinstatement replacement or renewal which are the subject of obligation under the Tenant’s covenants in this Lease”.

The key question, for our purposes at least, is that NWGR, the freeholder, argued that the pressure plates (or ‘stitch plates’) meant that there was no structural safety issue at present and amounted to good and substantial repair, pending full scale remediation at some unspecified future point.

The court was not impressed. While there was no immediate risk of windows falling out:

1. In the absence of the stitching plates, the window units would be in disrepair.
2. The 2014 temporary repairs had a projected three year life span. While that could extended for a further period with regular inspection and checking, the time limit on this could not be established by the expert witnesses.
3. The central issue was that the defendant had done nothing in the meantime about progressing full repairs:
   

   the SBUs as they stand could only be regarded as structurally safe as at the present time, which includes looking at their structural safety into the short and medium term, if the landlord had already commissioned, or at the very least had a stated and credible intention to commission and obtain in the short term, a full investigation, analysis and report from a suitably qualified facade consultant with a view to following the recommendations of that consultant in terms of maintenance and repair in relation to the existing arrangement and in terms of the appropriate longevity of that arrangement and any necessary additions or alterations to it from the perspective of structural safety, so as to give reasonable confidence as to the structural stability of the current arrangement either indefinitely or for some specified period from the present date. That, however, is not what the defendant has done[4], nor is it the defendant’s stated position at this trial, nor has it acted in a way at any time up to and including this trial such as would afford either the claimant or the court any confidence that it would do so if it had an unconstrained choice.

   This is itself was enough to find disrepair. In addition…

4. The stitch plates could cause ‘long term stress issues’ according to expert evidence.
5. The regular checks to the stitch plates needed would cause disruption to the claimant and its clientele.
6. Aesthetics:
   

   As the authorities referred to above demonstrate, the starting point is the position as it existed at the time of the lease and aesthetic considerations are in principle relevant matters to be taken into consideration. Whilst various witnesses have expressed differing views as to the aesthetics of the tower, there can be no doubt that the unitised appearance of the glass facades, which depends upon there being no obvious externally visible fixings between the separate panels, is an important aspect of the overall design and original appearance of the building. Moreover, whilst various witnesses have expressed differing views as to the impact of the stitch plates, again there can be no doubt that they have a significant adverse impact on the unitised appearance of the glass facade.

7. There was an issue on planning permission, whether the stitch plates amounted to a chage of the appearance of the building that would require planning consent. There was no evidence this had even been considered.

Comment

It is not unusual to find defendants arguing for patch or interim repairs as sufficient – for example to a roof, or drainage or heating system – on the basis that major works will be carried out at some unspecified date in some unspecified form in the future. Two key points to take away from this case would be a) what is the projected life span of the patch repairs, and b) what steps has the defendant take to scope and prepare for the full remedial works, over what time scale.

On the basis of this case, it is arguable at least that patch or interim repairs leave a property in disrepair, even if they temporarily solve the immediate effects of the disrepair.