HT-2022-000311 & HT-2022-000254 - [2024] EWHC 3179 (TCC)

As the case was pleaded and opened, there were a number of other defects unrelated to fire safety on which Mr Ferguson’s opinion had been sought.

One was an allegation that the defendants had failed to install vapour barriers within the softwood parapet studwork leading to the build-up of condensation and increasing the likelihood of timber decay. This allegation was derived from Mr Rivett’s first report in which he had said that there did not appear to be vapour barriers and that could lead to condensation and additional maintenance costs. He recommended a planned maintenance programme. Mr Ferguson was not able to comment on whether there was a vapour barrier or the risk of condensation. This was the limit of the evidence. It was, in my view, at best speculative and I am not satisfied on the balance of probabilities that there was any breach in this respect.

It was also alleged that the defendants had failed to install any or adequate sound proofing between the old and new top floor flats. Again that allegation was derived from a comment by Mr Rivett that there did not seem to be any formal sound protection materials to comply with the Building Regulations. Mr Ferguson addressed this issue in his report. He was unable to state definitively that the as constructed detail would satisfy the Building Regulations but he would expect the materials installed to provide a reasonable level of acoustic separation. Further, in answer to the question posed to him “Did the First Defendant install any adequate sound protection materials in the Property as part of the works?” his answer was:

“Yes. The First Defendant installed adequate sound protection materials in the roof void above Flats 11,12,13 and 14. I have seen no evidence to suggest that the construction detail failed to meet the Building Regulations requirement for acoustic separation.….”

In light of this evidence, I cannot be satisfied on the balance of probabilities that there was any breach in relation to sound proofing.

There was a specific allegation relating to the installing of boiler flues exhausting into the roof void. I have referred to this above. Although elsewhere in his report, Mr Ferguson referred to flues in the plural, he identified only one boiler flue. However, there is also photographic evidence which appears to show two flues. In any case, I am satisfied that the installation so that the flue discharges (or flues discharge) into the void is a breach of clause 5.2 of the FPA and of the covenant of quiet enjoyment.

A further allegation was that the original soil vent pipes had not been extended through the ceiling void and instead connected by flexible PVC ducting to air bricks. Many of the ducts were twisted and torn giving rise to a smell of foul waste below. That allegation was supported by the observation and evidence of Mr Ferguson and photographic evidence. It clearly amounts, in my judgment, to a breach of the obligation in clause 5.2 to carry out the works in a good and workmanlike manner and a breach of the covenant of quiet enjoyment.

A further allegation was that ductwork in the ceiling void was propped up with loose pieces of wood and blocks. That was again supported by the expert evidence and clearly a breach of the obligation to carry out the work in a good and workmanlike manner and similarly a breach of the covenant of quiet enjoyment.

More troublesome, and of greater significance, is the complaint that the original pitched tile roof was not replaced with a like for like replacement but with a lightweight flat roof with at most half the life of the previous roof. The FPA does not, as such, provide for or require a like for like replacement. It does require Click St Andrews to carry out the Works in accordance with the Planning Permission. Mr Ferguson states in his report that “the original planning consent” specified that the roof would be finished with Marley Modern interlocking roof tiles which have a reasonable life expectancy of 60 years. I have not been referred to any amendment to the consent but neither does there seem to be any suggestion that there has been a breach of the planning consent. In his report on quantum, Mr Daly makes reference to the Granit planning application drawings which describe the roof as having a Mariseal liquid roofing system which implies that there was some change.

Mr Ferguson further states that a “single ply” roof is a synthetic rubber membrane (EPDM) which, with maintenance, can be expected to last 30 years. In this case, his understanding is that that roof has been coated with glass reinforced polyester (GRP) which could be expected to have a similar life-span. However, the material is less able to cope with movement in the substate so that the construction details would have to be carefully considered to address movement at junctions. He concluded:

“I therefore cannot definitively say that the new roof has an equivalent performance to the original concrete tiles. In principle I do not consider it a significant downgrade, if properly detailed and installed, however I note Mr Rivett’s inspection report dated 22 February 2023 highlighted poor workmanship on the roof and defer to his opinion on the quality of construction.”

Later he said that he did not agree that the new roof is an inadequate replacement that will require more onerous or expensive maintenance or has a significantly reduced life span when compared with the tiled original.

I note further that Mr Ebbatson, whose evidence I address below, said simply that, in the absence of design details, the position on the adequacy of the roof was unclear.

Drawing the threads together, I am not satisfied that there was any breach in the selection of materials but I am satisfied, on the basis of Mr Rivett’s reports, that there are defects in workmanship which will reduce the lifespan of the roof which it is, therefore, reasonable and appropriate to replace.

I would add for completeness that Mr Rivett was not challenged on this evidence about the condition of the roof. Rather, in addition to the argument that the roof was adequate, what was relied on by the defendants was a 10 year guarantee of the Mariseal overlay to the roof. That guarantee from RJ Evans Flat Roofing Ltd. was provided to the court with the defendants’ closing submissions. That there is a guarantee does not, in law, mean that there could be no claim for damages for breach against Click St Andrews. But, in any case, the guarantee was highly unsatisfactory as it provided that it ceased to apply where ownership of the property was changed. Since the purpose of the FPA was to transfer the freehold to RTM, that made the guarantee pointless.