August EWJ 24 - Flipbook - Page 35
What is 'Good and Substantial
Repair and Condition' in the
Context of Defective Cladding?
As described in the recent First Tier Tribunal (FTT) decision in Almacantar Centre Point v
Various Leaseholders at Centre Point House, there is voluminous caselaw going back decades
as to the extent of a tenant's obligations to (put and) keep something in ‘good and substantial
repair and condition’. The obligation goes beyond mere repair, and may, if the circumstances
require, result in something better being put in place. In this FTT decision (England), the
"put and keep" standard is explored within the context of defective cladding; as well as a more
challenging issue about building & fire safety regarding whether cladding is to have been put
onto a building within the past 30 years in order for the Building Safety Act 2022 (Act), to bite.
system must in fact extend to all parts of that system.
The external façade of CPH was therefore, ‘cladding’
in the generic sense but, the Act contained its own
definitions and the FTT provided further analysis on
the point. Turning to explanatory notes for the Act,
the FTT said the note appeared to support an analysis that cladding can be the outer part of the external
wall system itself, and is not limited to a separate additional wall, skin or layer fixed on the external wall
system.
Background
Centre Point House (CPH) is a 6-storey building,
containing 36 deplux flats, which were originally converted in 1987. A dispute arose relating to the replacement of the cladding on CPH and whether the
service charge provision in the tenants' long leases,
permitted the landlord to recover the costs from tenants of its proposed remedial works. If it did, then: 1)
was the façade on CPH in fact 'cladding' within the
meaning of the Act? And if it was, then, 2) Did any of
the leaseholders qualify for protection under the Act,
meaning they would be exempt from paying towards
the costs of the works?
Was the cladding in disrepair?
In the leases, the landlord had the obligation to keep
the retained parts of CPH in good and substantial repair and condition. An obligation to ‘keep...in good and
substantial repair and condition’ is also an obligation to
‘put’ the retained parts in good and substantial repair
and condition, if the retained parts are not in that condition (Saner v Bilton (1877- 78) LR 7 Ch.D 815). The
leaseholders had the obligation to pay a fair proportion of the service charges for those works that fall
within the landlord's obligations.
What is cladding?
It is generally accepted that there is no universal
definition of a ‘cladding system’ or indeed ‘cladding’
in the construction industry, and some of the definitions and guidance contradict each other. The Oxford
Dictionary of Construction, Surveying and Civil
Engineering states that cladding is:
“the non-load-bearing external envelope or skin of a building
that provides shelter from the elements. It is designed to carry
its own weight plus the loads imposed on it by snow, wind and
during maintenance. It is most commonly used in conjunction
with a structural framework.”
On the expert evidence, the cladding was said to not
be in good and substantial repair and condition, it
had been inherently defective from the date it was
completed (i.e. 1987), and its physical condition had
deteriorated over time as a consequence.
At CPH, however, the landlord's proposal incorporated an external walling system, which was to comprise glazing and intermediate spandrel panels that
combine to form the external wall itself. Thermal and
weather resistance, fire stopping and visual appearance were being brought together as a unified system.
That would, it was said, put into good condition and
substantial repair the CPH façade, and eliminate continuing effects of the inherent defects. It would also, as
a side effect, improve the thermal properties of the
design.
What is the 30-year rule and does it apply to
defective cladding?
Only ordinary and clear meaning to the words of the
Act would be given. As a result, cladding remediation
is to be treated as a distinct, standalone, protection
under the Act. This right is not contingent on there
being a defined ‘relevant defect’ in connection with
works and which causes a building safety risk (as required elsewhere within the Act). The result is that
there is no requirement that cladding needs to have
been put on the building within the 30 years preceding 14 February 2022.
The FTT said that where the system was a composite
one such as here, the outer part of the external wall
EXPERT WITNESS JOURNAL
33
AUGUST 2024
