Guy Fetherstonhaugh QC: What price safety after Grenfell?

Those charged with the maintenance of towers are now facing difficult decisions, says Guy Fetherstonhaugh QC. In the immediate aftermath of the Grenfell Tower fire, Camden Council carried out inspections of tower blocks under its control, and ordered the evacuation of a number of them on fire safety grounds. While it must have come as some comfort to the beleaguered Royal Borough of Kensington & Chelsea to gather that it was not the only party to use combustible aluminium composite material (ACM) cladding on local authority tower blocks, the news appeared to suggest that the only responsible reaction to the presence of ACM cladding is to replace it immediately. A little digging into Camden’s reaction appears, however, to suggest that may not be the appropriate response. It has been reported that the Camden blocks fell short of fire safety in a number of respects beyond the ACM cladding. Local authorities in other areas may feel that if their blocks are otherwise compliant, they can assess the evidence before taking any decision regarding recladding. This chimes with the advice given by the Department of Communities and Local Government (DCLG). The statement dated 30 June 2017 from the Independent Expert Advisory Panel set up by the department states that it is to engage with experts across the country to consider whether ACM cladding can be used safely as part of a wider building external wall system, and therefore “could remain on a building under certain approved circumstances”. It would therefore appear that any rush to reclad pending the outcome of that expert research would be premature, provided that in the meantime local authorities take the recommended interim fire safety measures issued by DCLG on 22 June 2017 (sprinklers, fire doors, fire patrols and so forth). Private sector landlords Although safety standards apply across the board, local authority landlords in some respects owe different responsibilities to private sector landlords, for whom service charge considerations pose difficult problems. The standard long lease mechanism that governs leases of tower blocks in the private sector requires the landlord to maintain the structure and exterior, in return for reimbursement of the cost. If a landlord replaces ACM cladding without regard to this mechanism, it may find itself struggling to recoup the cost. The proposition that the cost of work to replace ACM cladding may not be recoverable may seem counter-intuitive, but it is merely a reflection of the fact that obligations in leases rarely go beyond the ordinary repair/statutory compliance drafting found in almost all leases. There is protection for both parties in such drafting: the landlord does not want to be subjected to extravagant demands for works; while its tenants do not want to be billed for extravagant sums. So, in the ordinary course, the service charge covenant by the landlord will rarely go further than obliging it to keep the structure and exterior of the building in repair, and to ensure that it is statutorily compliant. In terms of repair, this will only bite if the ACM cladding is in disrepair. Applying the usual test, this will only be so if it has deteriorated since installation. All such cladding is of recent vintage, and it is quite unlikely that any of it will actually be in significant disrepair. So, this will not usually provide a means by which a landlord can carry out the work and recover the cost. As to statutory compliance: while Part B of Schedule 1 to the Building Regulations 2010 stipulates that the external walls of a building shall adequately resist the spread of fire, such provisions commonly only apply to building works – as opposed to buildings to which works were carried out often decades ago. Likewise with the Regulatory Reform (Fire Safety) Order 2005. In default of assistance from either of these provisions, landlords may take some comfort from the “sweeper” clauses commonly to be found in service charge mechanisms, which allow for works to be carried out, and the landlord reimbursed, where they are for the general amenity of the occupiers. Traditionally, the courts have been averse to sweeper provisions being used to recover the cost of specific and substantial works that could have been separately allowed for. However, the courts are unlikely to apply quite the same degree of rigour to works that may be very necessary, but which cannot be carried out without making the landlord insolvent. In the absence of a suitable sweeper clause, unless there is other specific drafting in the lease that requires action, or until specific further legislation is passed, landlords may find that, much as they might like to take the precaution of recladding, they would be out of pocket were they to do so. The scale of the problem In the early days after the fire, samples sent by local authorities to DCLG for combustibility testing were reportedly all found deficient, with the government revealing on 2 July that 181 tower blocks in 51 local authority areas had failed fire cladding safety tests. When all high-rise buildings – schools, offices and hospitals – are added to these results, the potential problem is likely to extend to thousands of properties. If all are reclad, the overall cost will be huge. Cost is not, of course, a reason for skimping on safety measures. But before embarking on such works, those responsible should look very carefully at the technical guidance, while private landlords in particular will wish to consider the extent to which the cost of any requisite remedial works is recoverable, and plan accordingly.  Guy Fetherstonhaugh QC is a barrister at Falcon Chambers Picture credit: ©Wayne Tippetts/REX/Shutterstock