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Citiscape: Tribunal says leaseholders must pay for cladding

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Note: Since this case Barratt, the builders, has agreed to pay for the cladding and firewatch.

The property tribunal considering who should pay for possibly unsafe cladding on a pair of London tower blocks, Citiscape, has delivered a blow to the leaseholders who own the individual flats. It has confirmed they must pay huge bills for replacement cladding after the Grenfell Tower tragedy highlighted dangers.

Leaseholders in the Croydon, South London, blocks had argued that the cladding – presumably perfectly legal when it went up – should now be treated as defective owing to post-Grenfell changes in regulation. They argued the freeholder, Proxima GR Properties, ultimately owned by the Tchenguiz family trust of property tycoon Vincent Tchenguiz, should pay. Or else the managing agent, FirstPort, should pay and then find who the money is due from: freeholder or developer or insurer or cladding manufacturer or possibly even the Government.

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Citiscape cladding case at the Property Tribunal: report

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Note: The Tribunal has now [March 2018] ruled against the leaseholders; report here.

The first battle in the tortuous struggle over who pays what for post-Grenfell tower block cladding has shown how complex this issue is going to be – but also offered some clues as to how the battle lines will be drawn up. One of the leaseholders of the Citiscape blocks in Croydon, south London, made a compelling submission to the Property Tribunal in London to explain why leaseholders should not have to pay for replacing allegedly dangerous cladding.

New government regulations require blocks to be stripped of cladding of the sort assumed to have been the cause of the Grenfell Tower fire tragedy in Kensington, west London, last year.

The issue of who pays will come down, not to who has the most money – freeholders or leaseholders – nor to the “moral case” according to Sajid Javid, Secretary of State for Housing (that “the tab should be picked up by the freeholders of those properties”). It will come down to interpretation of the leases between freeholders, who own the land (and hence are paid annual ground rents), and leaseholders who have bought flats in the blocks up and down the country (and hence have to pay the annual service charges for work on the buildings and administration).

The flats are bought on leasehold which means they revert back to the freeholder after a term of years – in the Citiscape case 999 years in total (they were built in 2004). This period is deemed “almost freehold” (ie almost as if the leaseholders owned outright), and that fact may have a bearing on the eventual outcome of the case. Note also that not all leases are the same, so the Citiscape case may give clues for other cases (of which there are likely to be many) but won’t be a precedent.

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The Karen Buck Bill: Has the Government got developers off the hook?

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Has the UK Government done a devious deal to protect its favoured business interests among property developers and construction firms from a post-Grenfell crackdown on dangerous homes? Suspicious minds might think so.

After some years of prevarication and filibustering by the Tories, the Government has agreed to back a Private Member’s Bill from Labour MP Karen Buck requiring homes to be “fit for human habitation”. With one proviso: a single simple clause that would do most to help people living in potential Grenfell Towers – catastrophically dangerous homes – has been removed.

In its original form the Buck bill included a provision that would have had a huge and positive benefit: simply to bring into effect a piece of legislation that is already on the statute books and has been sitting there for more than 30 years.

If it were implemented by the Government,  Section 38 of the Building Act 1984 would make it much easier for tenants to sue for breaches in building regulations – the very issue that (it is alleged by some) may have led to the disaster at Grenfell Tower with 71 people killed by the fire.

The Government seems to have headed off Karen Buck’s calls for reform by backing her bill but with the clause that would have implemented Section 38 excluded. That 1984 legislation will remain uselessly in limbo.

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Grenfell Tower: was the cladding really banned material?

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So, was London’s Grenfell Tower, scene of a horrific fire that killed dozens of people, covered in “banned” flammable cladding?   The  answer – worryingly – is probably no. And if that is the case, it exposes the shocking flaws in Britain’s regulatory system for high-rise developments.

The Department of Communities in initially answering this question – before any tests were made on the actual material – said this: “Cladding using a composite aluminium panel with a polyethylene core would be non-compliant with current Building Regulations guidance. This material should not be used as cladding on buildings over 18m in height.”

But this is not the case. Such cladding – described officially as “material of low combustibility” (MOLC) is lawful and recommended above 18 metres, as is the more fire-resistant cladding described officially as “non-combustible”. Composite aluminium panels with a polyethylene core may well meet the standard as MOLC. So, as long as the suppliers didn’t do some sort of substitution with inferior stuff, such panels are lawful. Read the rest of this entry

Great Repeal Bill Brexit row: Keep Henry VIII’s name out of it

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One wonders whether the outrage over the “Great Repeal Bill” has been a little overdone. The White Paper explaining how the UK Government will handle all the mass of EU legislation that needs to remain in place after Brexit notes that much of it, while remaining in force, will need “correcting” by delegated legislation – powers given to ministers by Parliament. 

The White Paper explains that this correcting will simply be to ensure the laws, all of which will be transposed into UK law, can continue to operate rather than become ineffective upon repeal of the European Communities Act 1979. Critics fear the Government will go further than this and use delegated legislation, or “Henry VIII powers”, to actually change or abolish laws and rights derived from the EU.     

But this post is more concerned about whether the respectable name of King Henry has been blackened by being dragged into this sordid modern row. “Henry VIII powers” are quite often included in parliamentary legislation (increasingly and controversially of late) to allow a minister to later change the statute by issuing a statutory instrument. 

The name (or nickname, really) of the powers has been mistakenly taken rather literally by some parts of the media with suggestions that the powers, legitimately given by a democratically elected Parliament, are actually derived from the despotic Henry VIII himself, that the Government has dredged up some arcane pre-democratic power and is about to swing Henry VIII’s very own axe to abolish EU law. Thus the Evening Standard: “Ministers defended so-called Henry VIII clauses dating back to 1539”. CNN took a similar line: “The British government wants to invoke controversial powers that date back 500 years to the time of King Henry VIII.” The Independent called them “ancient powers”. This is simply untrue.

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What if James Eadie was right about Brexit?

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Pity poor James Eadie QC, the lawyer tasked with swaying at least six Justices of the UK Supreme Court to his rather unappealing view that David Davis can sweep away 40-odd years of EU rights with the scrawl of his crabbed hand on an Article 50 notice.      

When smooth-as-silk Silk Lord Pannick stood to address their Lordships and Ladyship in the Gina Miller Brexit case, one could sense the hearts aflutter and knees atremble in chambers up and down the country as he caressed the precedents and drove his points home with firm but gentle force. Expect the CSI-effect to kick in during the next round of university applications – an upswing in applications to law schools from 18-year-olds who suddenly really want to be constitutional lawyers. There is, in contrast, no such thing as the Eadie effect.     

Where Pannick was a gallant schooner expertly managing the light zephyrs wafted his way by the assembled justices, deftly avoiding the gentle sandbanks and glittering coral reefs to reach his haven, Eadie was an oil-bespattered tramp steamer buffeted by blizzards, bouncing of rocks and barely making it into port.   

He found his craft beached in his final gasping moments on a very poor (and probably unconstitutional) point in which he seemed to suggest the Justices check what MPs had been doing in the Commons the night before (passing the Brexit motion) and somehow take it into account in their judgment.   

But what if (one can put it no higher) – what if Eadie turns out to be right? Even half right might be good enough. So, what does his somewhat incoherent case amount to?   Read the rest of this entry

Bedroom tax case: don’t forget the ECHR

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Not enough has been said about the human rights legal dimension to the successful bedroom tax cases in the Supreme Court. It is important for two reasons:

  1. The cases succeeded thanks to Britain’s adherence to the European Convention on Human Rights where homegrown “British” law was unable to help (apart from the Human Rights Act, giving access to ECHR remedies). Neither English Common Law nor British parliamentary anti-discrimination legislation could assist either the Rutherfords or Jacqueline Carmichael gain exemption from having housing benefit docked  for their “extra” bedrooms.
  2. An earlier judgment of one of the cases, when it came before Lord Justice Laws, was intended to place a clear marker down discouraging such  cases based on ECHR rights on the grounds that “the courts are not the proper arbiters of public controversy”. The Supreme Court has therefore repudiated Laws’ attack on ECHR remedies.

The legal cases
The cases challenged the bedroom tax regulation on the grounds that it failed to give entitlement to an extra bedroom (without having housing benefit reduced) in cases where the bedrooms were needed for disabled people. The regulation restricts exemptions to “a relevant person … who requires overnight care; or a relevant person [who] is a qualifying parent or carer” (Regulation B13 (6). The relevant person (in paragraph 9) is the housing benefit claimant, his/her partner or another person liable to pay rent and his/her partner (see regulations below in full). But, as Lord Toulson noted in the latest case: “A person who requires overnight care is defined in Reg 2(1) in terms which have the effect of not including any child”.
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