Skip to main content
BPP University BPP Professional Education probono@bpp.com

Strike-Out Application Success

Hannah Lennox, Trainee Solicitor in pro bono reflects on a  recent case

Summary

Wandsworth Council sought a decision of the Tribunal that they were entitled under the terms of 2500 leases to install water sprinklers in leasehold properties of which they were the freeholder, enter those properties to be able to do so and then charge the leaseholders for doing so.  Several leaseholders successfully argued the application should be struck out because the Tribunal did not have jurisdiction to determine the case, the application was an abuse of the Tribunal process and, in any event, the application was bound to fail.  The Tribunal found each of these 3 grounds were made out.  You can read the decision in full here.

The application

Following the Grenfell Tower tragedy, Wandsworth Council, as landlord of an extensive portfolio of tower blocks, considered what steps it could take to address fire safety within its properties.  One option the Council decided to explore is water sprinklers.  However, as part of its fiscal responsibilities as a public body the Council considers that if the water sprinklers are to be installed the cost of that installation must be recovered from the leaseholders within the relevant properties, if possible.  To be chargeable, the leaseholders’ liability must be found within their lease.  The Council therefore applied to the Tribunal for a determination of their rights to install the sprinklers and the leaseholders’ liability under the leases. The Council made their application under section 27A(3) Landlord and Tenant Act 1985:

An application may also be made to [the appropriate tribunal] for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to—

  1. the person by whom it would be payable,
  2. the person to whom it would be payable,
  3. the amount which would be payable,
  4. the date at or by which it would be payable, and
  5. the manner in which it would be payable.

Strike-out applications

The leaseholders were, and remain, concerned that the Council made its application without reviewing the efficacies of water sprinklers being installed in any particular block.  My clients, for example, are confident in the compartmentalisation that exists within their block and fear the installation of water sprinklers would breach this effective fire safety measure.  24 leaseholders, as respondents to the Council’s application, therefore applied to strike out the Council’s application on three grounds.  Those grounds, found in Rule 9 of the Tribunal Procedure (First-tier Tribunal) Property Chamber Rules 2013, were

  1. The Tribunal had no jurisdiction to determine the application
  2. The Council’s application was an abuse of the Tribunal process
  3. The Council’s application had no reasonable prospect of succeeding

Case Complexities

In order to explore each of these arguments it is important to note the Council’s application and the strike-out applications were complicated by several factors.  Firstly, there continues to be uncertainty over the decisions the Council have made in regards to the installation of water sprinklers.  Numerous decisions within the Council were discussed at the hearing and in submissions but it remains unclear whether the Council is resolved to install sprinklers at all.  The most recent discussions of the Council have deferred any further decisions until the outcome of the Grenfell public inquiry.  Hopefully, the decision would also eventually be taken on a block-by-block assessment of risk and necessity basis.

Secondly, the Council chose to limit their application to tower blocks they owned with a height of at least 10 storeys.  There was some discussion during the strike-out application hearing over the reasons for this apparently arbitrary dividing line but in the end it does not appear to have been decisive in the Tribunal’s judgment.

Thirdly, the inclusion of 100 tower blocks meant that around 2500 leaseholders became respondents to the application.  The Tribunal enlisted the support of the Council in trying to ensure that each respondent was properly informed of the application and hearings.  The Council uploaded most of the case documents to a dedicated webpage and the Tribunal directed the Council to do the necessary mailing of notices to the respondents.  The Council acknowledged at the hearing that the number of respondents made handling this case very difficult.  However, it was pointed out that it was the Council that had chosen to make their application regarding such a large group of respondents.

Furthermore, the inclusion of 100 blocks meant that approximately 2500 individual flats, and therefore leases, were included.  Somewhat surprisingly, the Council’s review of these leases determined that the relevant clauses of the leases fell into only 4 different sets of wording.

Finally, the application the Council made asked the Tribunal to determine the following:

The Applicant is proposing to instal [sic] automatic sprinkler systems in each of its high rise residential blocks.  Each block will require an independent, pressurised water supply to be provided which will require the installation of additional pumps and tanks.  Pipework will be run through communal areas at high level and into each property.  The pipework will be enclosed in a duct and sprinkler heads will be located in each room of the property with the exception of the bathroom.  No sprinkler heads will be fitted in the communal means of escape (corridors, lobbies and staircases)”  This description was the most detailed explanation provided by the Council of the works they were seeking to carry out.  It was argued that this request strayed very close to asking the Council to make an abstract declaration of liability, quite far removed from the purpose of section 27A(3) which relates to works of a “specified description”.

Crucially, it was the failure of the council to consider how the installation of the sprinklers would be effected in the individual blocks which caused concern amongst leaseholders and led the Tribunal to determine that they did not have jurisdiction.

Jurisdiction

The leaseholders argued the Tribunal did not have jurisdiction to determine the Council’s application because the Council’s application did not provide a specified description of the work it planned to carry out, as required by section 27A(3) LTA 1985.  The Tribunal’s decision highlighted this was particularly the case as the Council sought to rely on sections of the leases which included leaseholder liability for costs associated with the leaseholders’ block – the leases allowed the Council as landlord to “do such things as the Council may decide are necessary to ensure the efficient maintenance [and] administration [and security] of the Block”.

Abuse of the Tribunal process

The Council sought via their application to understand whether they had the right to install water sprinklers, and then to charge leaseholders for doing so, under the leases they had granted.  Usually when a landlord is unsure whether they have the right to do something under the terms of a lease they instruct a solicitor to provide advice.  In effect, it is believed the Council were asking the Tribunal to give such an opinion on the interpretation of the leases, analogous to the public law process of providing a statutory declaration.  This is because there was no tangible dispute any individual leaseholder could have with the Council regarding the necessity of water sprinkler installation within their particular block.  The Tribunal had no power under section 27(A)3 Landlord and Tenant 1985 to provide such an opinion/declaration.  For that reason, in the context that no plan for works had been considered in respect of any individual block, it was argued and accepted that the application was an abuse of the Tribunal’s process.  The Tribunal found that they needed a specification of the works “specific enough that the Tribunal can be satisfied that [the service charges] are payable under the lease.”

No Reasonable Prospect of Success

The Tribunal considered that the lack of consideration given to the installation of any proposed water sprinkler system, and the acknowledgment by the Council that any further preparation was likely to be delayed until the outcome of the second stage of the Grenfell Tower Public Inquiry, meant that the application was bound to fail if it were allowed to continue to a final hearing.  The Tribunal stated that “if… there has been no consideration of “necessity” on a block by block basis, then there is no reasonable prospect of Wandsworth succeeding in showing that the service charge costs will be recoverable under the terms of the leases.”

Unique Experience

It’s not every day a Trainee Solicitor represents a client in an over-sized Tribunal room, before 3 senior London Tribunal judges, alongside and against a QC and counsel.  But each side can only be as good as the case allows them to be.  I think I was on the right side.  It was very helpful to have the support of two student assistants from BPP’s Tribunal Services and Legal Advice Clinic team at the hearing – thank you Maite and Cecilia!

One aspect of this case which struck me the most was the vast number of diverse respondents.  On the morning of the strike-out application hearing I observed experienced barristers taking the time out of their preparations for the hearing to explain to confused individuals the purpose of the hearing and the process the Tribunal had to go through.  Judge Siobhan McGrath took some time at the opening of the hearing to explain that process again and to highlight that the Tribunal is only able to focus on the issues for which it has jurisdiction – a very different atmosphere to the public meetings leaseholders had previously attended in the Council offices in regards to the fire safety proposals.  I look forward to being able to make justice more accessible for such individuals in this way as I move forward in my career.

.