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

In light of the damage caused, RTM instructed John Rivett, MRICS, of Berrys to examined the state of the Property and report on the cause of damage including whether adequate steps were being taken to protect the Property from water ingress. Inspections were undertaken by Mr Rivett and colleagues on 17 and 18 August 2021 and on 13 December 2021, leading to a report dated 21 December 2021. The report contained a schedule of condition of the flooding following the water ingress in July and August 2021 and a schedule of remedial works following further water ingress in September 2021.

It is unnecessary to replicate the detail of the schedules to the report. It is sufficient to say that Mr Rivett recorded the condition, particularly in respect of evidence of water ingress, in all the common parts and each of flats nos. 1 to 14 and exhibited many photographs to support his observations.

Mr Rivett was provided with instructions as to the circumstances of the water ingress in July and August 2021. In his first report, he expressed an opinion on the sequence of works which was drawn from what colleagues with greater expertise had told him. This was the sequence of works relied upon by the claimants. In short, however, and as he said in cross-examination and in answer to a question from the court, the real failing was in no putting in place a sacrificial membrane – the roof should not have been left exposed without a sacrificial membrane. Although these type of works were not, therefore, specifically within his expertise, this evidence served to reinforce the conclusions I have reached.

The further water ingress on 14 September, was after the date of Mr Rivett’s first inspections. He had been sent a video of water ingress through the ceiling of flat 8 and had reports of further damage to flats 11 and 13. He reported that the contractor had only installed temporary tarpaulin sheets to the modular units and the roof which had failed adequately to keep water out of the building.

Mr Rivett did not consider the drying out works to be adequate – there was an insufficient number of dehumidifiers and they were standard room dehumidifiers which, in his experience, would be inadequate. Specialist methods, such as high pressure vacuum drying were likely to be required and undertaken by a specialist. There was also no systematic approach to identifying and monitoring moisture levels.

Mr Rivett provided a supplemental report in the form of a letter dated 29 March 2022. In that he addressed in particular the drying out certificates which had been provided for the communal parts and individual flats from a firm called Restorations (UK) described as fire and floor restoration specialists. The drying certificates for each of flats nos. 1 to 14 were produced at trial. They were mostly dated 26 October 2021 with others dated November 2021 and a couple dated in January 2022. They followed a similar pattern with each stating that Restorations (UK) declared that the property was dry to an acceptable level following their visit to take damp meter readings with “our protimeter mm (2)”.

In his letter, Mr Rivett repeated that his inspection had recorded very high moisture levels and mould to the walls in the common parts. The meter readings provided for the drying out certificates were undertaken using a standard surveyor’s Protimeter MMS2 moisture meter and the certificates did not indicate whether any intrusive inspections, such as trial holes through the walls, had been carried out to establish whether the cavity insulation was wet or dry and there had been no intrusive inspections to establish whether the concrete floor slabs were dry. In his experience a specialist drying out contractor would carry out such investigations. He continued:

“The specialist would normally provide a Schedule and Method Statement for the drying out, and different methods are likely to be employed in the various structural elements such as floor slabs and cavity walls. No such drying out methodology has been provided. Only surface testing has been undertaken by Restorations (UK) using standard surveying moisture meters.”

Mr Rivett further repeated that on his inspection he had seen considerable quantities of mould spores on the plasterboard in the common parts and that there would, inevitably, be mould growth in the structure behind the plasterboard. Removal of mould, he said, ought to have been carried out by an accredited professional and certified and there was no mention of mould removal in the certificates.

He concluded:

“It is my opinion that, without the background methodology supporting the Drying Certificates, they cannot be relied upon, and further information is required. Whether the dehumidifiers installed by Click were adequate or not to properly dry the building is difficult to assess based on the limited information and methodology within the drying reports provided.”

In February 2023, Mr Rivett also produced condition reports on flats 15 and 17 in which, amongst other things, he noted that a rubberised roof covering had been applied which had not bonded properly to the sub-base and, in his view, was installed to an insufficient fall. As a result the covering was debonding and water was ponding and he expressed the view that would shorten the life expectancy of the roof from the 15-20 years life expectancy that it should have.

In this first report, Mr Rivett also identified further areas for investigation.

Firstly, he expressed concerns about the loadbearing structure of the building and the rooftop flats. He noted that, at the time of his inspection, the modular units were not properly aligned but were being levered into alignment. He was, however, concerned, (i) that the supporting steelwork for the corner of one unit was significantly short and when it was properly in place the corner would not be supported on the steelwork; (ii) that the end of the steel transfer beam which was to take the load of the unit was unsupported on the building structure; and (iii) that the steelwork was cantilevered and did not appear to be properly supported on the external or loadbearing wall. Mr Rivett noted that he was not a structural engineer and recommended that a structural engineer or the Building Control Officer advised on the adequacy of the supporting load transfer structure and the supports for the specific module he had referred to.

Mr Rivett also said that he had been informed that the modular units had a factory applied GRP waterproof roof covering but that he was informed by the site foreman that a gap between the units and the GRP needed to be filled to make the roofs watertight. The modular units are constructed in steel which could expand and he was, therefore, concerned about the detail of expansion joints and again recommended the instruction of a structural engineer to advise.

Lastly, Mr Rivett expressed concern about (i) the adequacy of fire separation between the top floor flats and the underside of the modular units and (ii) the creation of a void between the original ceilings and the modular units with electrical cables running through the void which posed a fire risk. He recommended the instruction of a Fire Engineer to advise.

At trial, Mr Rivett was called to give evidence and, in the usual way, verified his reports, and was then cross-examined by Mr Emmett. Some of that questioning was related to the concerns Mr Rivett had expressed about structural and fire safety issues but these questions took matters no further because Mr Rivett had simply raised his concerns and advised that further advice be taken.

In relation to the views he had expressed in his first report about the actions taken to dry out the property, Mr Rivett was asked whether he was aware that the work was being undertaken by Restorations (UK) and whether knowing that would change his views. He was not aware of that and had not seen any specialist on site at the time of the inspection. He repeated the reasons he had given in his March 2022 letter as to why the certificates (issued later) did not appear adequate. It was put to him that the certificates were issued after his inspection so that it was not fair to assume that intrusive inspections and adequate readings had not been carried out. Mr Rivett responded that that was unlikely based on the certificates which only referred to one standard piece of equipment having been used. He expanded on these points in re-examination, pointing out that there was very little detail in the certificates, that he would normally expect to see detail of the method of drying out, the locations of the readings and how they were taken. His evidence also was that without “force drying out”, in which the structure is sheeted and air pumped, the timescale between the water ingress and the certificates was unlikely to be sufficient for drying out.

I note that the drying certificates did not state the Restorations (UK) had carried out the drying out, although that had been Mr Emmett’s evidence in interlocutory proceedings. They certainly did not state how this had been done and there was no other evidence of any kind of force drying out being undertaken. I agree with Mr Rivett’s view that it is difficult to know whether there was adequate drying out by the time of the issue of the certificates. In my view they are a wholly unsatisfactory basis on which to conclude that there was adequate drying out and/or that the issues of mould had been addressed.