[2024] UKUT 356 (LC)

In his skeleton argument Mr Ormondroyd submitted that the same basic approach as had been applied in Monk should be applied at least to all cases which, viewed objectively, involve works of “renewal, refurbishment or improvement” or works of “reconstruction” rather than works of repair such as might be done pursuant to a repairing obligation in an occupational lease. It should therefore be applied to cases where a building is subject to works to correct structural defects or defects of design or construction which produce a better building than the one which existed when it was first constructed.

Mr Ormondroyd made a second submission in writing to the effect that if a property is not capable of rateable occupation it is not a hereditament and thus there can be no question of applying the repairing assumption. He suggested that the Tribunal’s decision in Jackson v Canary Wharf supports this application of the reasoning in Monk, and said that the Tribunal held in that case that if premises are not capable of beneficial occupation they are not a hereditament. The repair assumption should not be applied to premises which are incapable of beneficial occupation unless objective evidence shows that the cause of that condition is what Mr Ormondroyd called “simple damage, rather than forming part of any intentional plan to change or improve the premises”.

In his oral submissions Mr Ormondroyd shied away from the second of these submissions and placed no reliance on Jackson v Canary Wharf. He conceded that the simple fact that a building is incapable of beneficial occupation is not sufficient on its own to mean that the repair assumption does not apply. He nevertheless submitted that where works are being undertaken and the hereditament is incapable of beneficial occupation it should appear in the list as a building undergoing reconstruction with a nominal rateable value. He also placed reliance on Post Office v Aquarius which he said was analogous as there was no evidence of damage to the structure of the Property. In the absence of a state of disrepair, the statutory repair assumption did not require that the defect which permitted water to enter the Property should be assumed to have been rectified.

For the respondent VO, Mr Donmall submitted that the repair assumption applied on 28 March 2020 because the building had been in a state of disrepair and had experienced damage in that, after a dry period following the resin injection carried out in 2018 the water had returned, indicating there had been a failure of the previous repair and a deterioration from the 2018 condition. This had given rise to extensive mould and fungi which represented a risk to health and had caused damage to partition walls. The existence of damage was sufficient to distinguish this case from Post Office v Aquarius and it should therefore be assumed that the remedial work had been carried out by the material day.