Southwark LBC v Various Lessees of the St Saviours Estate

[2017] UKUT 10 (LC), January 12, 2017

HHJ Gerald

The Upper Tribunal has held, in dismissing the authority’s appeal, that a front entrance or communal door within a block of flats is not in disrepair merely because it has been modified or replaced. A door, which was designed to provide 20 or 30 minutes’ fire resistance, will only cease to be in repair if there is evidence, following an assessment by an expert in fire resistance, that the physical condition of the door is such that it is no longer able to provide the same fire resistance as when originally constructed.

Sam Madge-Wyld appeared on behalf of the 80 respondent lessees.

Factual Background

The eighty respondents were long leaseholders of flats situated within ten blocks of flats on the St Saviours Estate in Southwark. The appellant authority owned the freehold of each block. Each lease obliged the authority to, amongst other things, keep the ten blocks of flats in repair; this included the front entrance doors and all other parts of the building retained by the authority, e.g. communal entrance doors, refuse chutes and cupboard doors. Between March 2013 and April 2014, the authority carried out major works to each block, which included the replacement of the lessees’ front entrance doors, most of the communal doors and other works to improve the fire resistance of the blocks such as replacing cupboard doors and refuse hatches. In advance of the works, the authority carried out fire risk assessments of each block; those assessments recommended the replacement of a small number of front entrance and communal doors that no longer complied with fire safety requirements. Generally, those assessments recommended that further assessments of each door should be undertaken before any major works programme was carried out. The authority’s contractors did not, in advance of carrying out the works, undertake a survey of the condition of each door; instead, a surveyor took a photograph of each front entrance door. The authority subsequently sought to recover the costs of those works from each of the respondent lessees as a service charge.

Application to First-tier Tribunal

The respondents applied to the First-tier Tribunal for a determination under s27A, Landlord and Tenant Act 1985 that the costs of the works were not payable. At the hearing, the parties agreed that the authority could only recover the cost of replacing the doors if the doors were in disrepair. The authority adduced photographic evidence which showed that almost all of the front entrance doors had been replaced or modified, e.g. by the insertion of locks or letterboxes, by the respondent lessees, but which otherwise did not disclose that they were in disrepair. A surveyor, employed by the authority’s contractors, contended that these modifications or replacements had compromised the fire resistance of each door so that they were no longer able to provide 20 minutes’ fire resistance as would have been the case for the original doors and this meant that the doors were in disrepair. The respondents, while conceding that a door which had been built to provide a measure of fire resistance and which no longer did so because of a deterioration to its physical condition could be in disrepair, argued, with the support of evidence from fire safety experts, that the mere fact that a door had been modified or changed did not mean that it was no longer able to provide the equivalent fire resistance. The answer to that issue could only be determined by an assessment of the door by an expert with knowledge of fire resistance.

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 First-tier Tribunal therefore decided that the cost of replacing each front entrance door was not recoverable other than where the authority’s own fire risk assessments had recommended a door’s replacement. The Firs-tier Tribunal also decided that the authority was limited to recovering 50% of the costs of the works in respect of the other fire resistance measures, as while it was not disputed that some of the doors, cupboards and refuse chutes had been in a poor condition, some of the works may not have been needed if a full survey had been undertaken.

The Upper Tribunal

The authority appealed to the Upper Tribunal on the grounds 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. The authority 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 First-tier Tribunal had accepted that a door which had deteriorated from its original condition and was no longer able to provide fire resistance for a period of 20 minutes was in disrepair. It had therefore identified the correct test. The First-tier Tribunal had then correctly asked itself whether there was any evidence that the condition of the front entrance doors was such that they were no longer able to provide equivalent fire resistance. It had been entitled to reject the evidence of the authority’s surveyor and find that, other than that set out in the fire risk assessments, there was not. The evidence of the authority’s surveyor that the doors were in disrepair was inadequate as he had not assessed the fire resistance of any of the doors and did not have the expertise, knowledge or experience to do so. The fact that the respondents had not adduced any evidence of the condition of the doors was immaterial; the First-tier Tribunal was entitled to decide the question on the evidence, whatever its source, before it. This was not a case where it was necessary to resort to the burden of proof, but had there been no evidence of disrepair the consequence would have been that the cost of replacing all of the doors would not have been recoverable.

As to the fire resistance measures, the First-tier Tribunal had been entitled to adopt a broad brush approach; the figure of 50% had not been plucked out of thin air but based on an assessment of the evidence that was before the First-tier Tribunal.

Arden Chambers is a leading set specialising in property, housing, local government and planning. Arden Chambers has a strong and experienced team who provide a full range of services for freeholders and leaseholders in relation to residential property including enfranchisement, lease extension, right to manage and service charge disputes. Chambers has extensive experience of FTT litigation and advisory work, with members appearing both in the FTT and Upper Tribunal on a regular basis.

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