It has been nearly four years since the tragedy at Grenfell Tower, and despite the disruption of Covid-19 over the last year, the focus on resolving the cladding crisis has maintained momentum.
There has already been significant coverage and discussion on the progress of the draft Building and Fire Safety Bills, along with the increased value of the Building Safety Fund and the need to address the issue of EWS1 certification and building insurance.
We have also witnessed mounting concern regarding the realistic timeframes for works to be completed under the safety programme – given the scale of the matter, the number of buildings qualifying, latent defects that are uncovered and the pool of available, qualified resource to investigate and conduct works, there are still many issues to address.
Recognising the urgency with which safety measures need to be implemented, many landlords and their agents have sought to provide interim safety solutions whilst the process of consultation and scoping for major remedial works are undertaken. In many blocks and multi-occupancy dwellings, this has included the introduction of waking watches – a system whereby suitably trained persons continually patrol all floors and the exterior perimeter of the building. The aim of a waking watch is to ensure there is sufficient warning in the event of fire to support the building’s evacuation strategy - a measure that is required when the presence of dangerous cladding or fire safety issues means the evacuation policy on a block changes from stay put to simultaneous evacuation.
A key concern for both landlords and leaseholders has been the issue of the additional cost of implementing the waking watch: Government statistics published at the end of last year indicated that the average (median) monthly cost for a watch at a block is £11,361 – which equates to an extra £137 per leaseholder, rising to £256 in London. Additional considerations include that the contention around cost variability will be informed by the individual scale and scope of requirements per location, that liability is determined pursuant to the terms of the lease (and recoverable via the service charge) and, given the prioritisation of resident safety against cost, whether the timeliness and urgency with which measures have been adopted are deemed to be reasonable - thereby supporting dispensation from consultation requirements and negating further appeal.
On this latter point, our team has recently been involved some notable cases which highlight the challenge that landlords face. A recent Tribunal matter reiterated that despite clear errors in the Section 20 consultation process, its jurisdiction was solely focused on the reasonableness of dispensing with the consultation requirements, clearly differentiating that that lessees would have opportunity to raise issues as to reasonableness and payability of the cost of the works and to further question the costs if they so desired. With no evidence for financial consequences being suffered as the works were deemed necessary for health and safety, dispensation was granted. In another case, which was subject to appeal, we successfully argued for the dispensation from consultation in respect of qualifying works to install a fire alarm system at the property in order to reduce the extent of the waking watch in place and also to reduce the financial burden to leaseholders by the operation of the waking watch. Secondly, we secured variation of all long residential underleases at the property, to allow inclusion of interim expenditure under the service charge clauses. This was predicated on the original need to vary the lease which arose from the need to insure the property - and to protect the leaseholders from the risk of fire. It did not give rise to any higher service charges overall, but again reaffirms the underlying rationale of reasonableness and timeliness in these matters.
Where We Are Now:
On the 17th December 2020, the government announced a new £30 million Waking Watch Relief Fund, with applications opening at the end of January. The purpose of the fund is to support the installation of fire alarm systems in high-rise buildings with cladding, thereby removing or reducing the need for waking watches. Noteworthy application criteria included:
The fund assumes waking watches will already be in place and appropriate assessments conducted, applying to buildings over 17.7m in height
The fund will only apply to up-front capital costs and be retrospectively dated to systems installed after December 17th last year
It is the “responsible person” (person, group, company or entity responsible for ensuring safety under Regulatory Reform – Fire Safety – Order 2005) who would submit applications
Section 20 consultation requirements would be dispensed with, however there is an obligation to have kept leaseholders informed of application progress
Applications are confined to situations where, under leases, waking watch costs were being passed to leaseholders
Where costs are not deemed to be reasonable, the responsible individual will need to consider the options for meeting potential shortfall.
In summary, with the application process closing (or subject to change) by the time of this article is published, it will be interesting to note the volume of successful applications, and the challenges which will arise from these criteria - particularly around contesting reasonableness, how shortfall issues are addressed and whether the tight timelines have enabled thorough, eligible applications. We will keep watching and keep you posted.
Phil Parkinson, Legal Director at JB Leitch
Katie Edwards, Associate at JB Leitch
Should you wish to discuss any of our comments in the article further, or how we can help you’re your building safety matters, please contact us.