[2023] UKUT 209 (LC)

When it was constructed, Park Rise was an office building on 9 floors standing 28m tall. Its height may have been increased by the addition of a further storey on top of the building as part of works undertaken in 2017 and 2018 to convert it to residential use. The developer responsible for the conversion of the building was Mandale Homes but leases of the flats were granted by a company named Hazelloch Limited.

The freehold interest in the building was acquired by the appellant in August 2018. By that time most of the flats in the building had already been let on long leases which included provision for a service charge to be payable by the leaseholder to meet the costs incurred by the landlord in providing the usual services.

One of those leases was granted on 12 February 2018 to the respondents, Mr and Mrs Meeson, for a term of 250 years.

On 24 January 2018, before the work to convert the building had been completed, a fire risk assessment was undertaken on behalf of the developer by H A Woolley Ltd. The completion of a fire risk assessment is an obligation of the building owner under the Regulatory Reform (Fire Safety) Order 2005 (the “Fire Safety Order”).

The assessment was a detailed document of 27 pages with a schedule of photographs attached. At section 5 it was recorded that the building was not occupied at the time of the survey and was due to be handed over. At paragraph 17.4 it was noted that one means of escape in the event of fire was a route across the roof of the building between the two stair heads, and area which was due to be filled with additional flats.

At page 23, after reviewing the fire protection and procedural arrangements observed by the assessor at the time of his inspection, the assessor recorded that the likelihood of fire at the premises was “medium” and that there was a risk of “moderate harm” in the event of a fire. That rating was explained as meaning that an outbreak of fire could foreseeably result in injury (including serious injury) of one or more occupants but was unlikely to result in multiple fatalities. It was therefore considered that the risk to life and fire at the premises was “moderate” and it was said to be “essential that efforts are made to reduce the risk”.

On the front of the document it was suggested that the risk assessment should be reviewed by a competent person by January 2019 or earlier if there had been significant changes. A more detailed explanatory text on page 3 informed the reader that the assessment should be reviewed at regular intervals, usually not exceeding 12 months, and must be reviewed when material alterations were made to the structure or the layout of the building, or when there were changes in the use of the building, or significant changes to the occupancy type or numbers or changes to the management of the organisation to whom the document was addressed.

There is no evidence that the appellant, or Inspired Property Management Limited, its managing agents, took any steps to review the fire risk assessment or to commission a further assessment after the appellant acquired freehold of the building on 15 August 2018.

Article 9 of the Fire Safety Order imposes a duty on the owner of a building to make a “suitable and sufficient” fire risk assessment. Article 9(3) requires that the responsible person review the assessment so as to keep it up to date, particularly if there is reason to suspect that it is no longer valid or there has been a significant change in the matters to which it relates.

On 18 December 2018 the Ministry of Housing, Community and Local Government advised that “building owners or their appointed competent professional advisers should check that the external wall systems on their buildings are safe.” No such check was carried out by the appellant or its managing agents.

On 30 May 2019 water leaked onto the fire alarm control panel in the building and caused it to malfunction. The malfunction registered automatically with the Fire Service and either on the same day or the following day a fire officer attended the building to investigate. He expressed concern over a number of features of the building. He observed multiple failings of fire compartmentation including holes above ceiling tiles; he formed the view that neither of the lifts was adequately protected from fire given the height of the building; he was concerned that the cladding on the exterior of the building was of unknown material which appeared to him to be an aluminium composite; and he observed a high level of short-term occupancy within the building. His advice (backed by a threat of a prohibition order if it was not complied with) was that a waking watch be implemented with immediate effect. By 3 June that advice had been followed and a two-person waking watch had been introduced. The waking watch was reduced after 7 days when repairs were made to the fire alarm panel.

On 7 June the fire officer served an enforcement notice informing the appellant that, in the opinion of the fire authority, it had failed to comply with the requirements of the Fire Safety Order in the following respect:

“The fire risk assessment for the premises is not suitable and sufficient and does not identify the general fire precautions required to ensure the premises are safe specifically in relation to the spread of fire on the premises.”

The breach was identified as being of article 9 of the Fire Safety Order and the following explanation was given:

“The fire risk assessment for the premises pre-dates the occupation of the premises and is not suitable and sufficient. There is a risk of internal fire spread because of breaches in compartmentation and these have not been identified or addressed as part of the fire risk assessment. The fire risk assessment does not identify the materials used as part of the external wall system and whether the external wall system poses a risk of external fire spread.”

The enforcement notice required the appellant to undertake a fire risk assessment to identify the fire precautions needed to ensure the safety of occupants. That assessment was to include “an invasive/destructive assessment of compartmentation throughout the premises including the separation between flats, flats and communal areas, and communal areas and staircase.”

Further discussion took place between the fire officer, the appellant, and Mandale Homes, the original developer. On 13 August the fire officer confirmed that he would accept a survey undertaken by a third-party accredited compartmentation contractor confirming that the problems he identified had been remedied, and confirmation from a suitable qualified person that the façade of the building was of limited combustibility. A joint inspection was undertaken on 19 August at which it was established that the external surfaces of the building were clad in painted glass rather than a composite cladding material. The scope of the necessary compartmentation remediation works was also agreed. By 20 September the fire officer’s requirements had been satisfied and the waking watch was discontinued.