[2025] UKUT 298 (LC)

We adopt the description of CPH from the decision of the FTT:

“1.

Centre Point Tower, sitting at the intersection of New Oxford Street, Charing Cross Road and St Giles High Street in WC2H and at the crossroads of Oxford Street and Tottenham Court Road, was commissioned by millionaire property tycoon Harry Hyams during the commercial rents boom of the early 1960s. It was one of the first London skyscrapers to be developed. It was a controversial development. Many questioned how permission was granted by the local authority for the 34-storey Tower in the then-relatively low-rise London skyline on a busy traffic junction. It was designed by Richard Seifert and Partners, engineered by Pell Frischmann, and constructed by Wimpey during 1963 – 1966.

2.

Mr Hyams was determined that it would be occupied by a single commercial tenant, and it remained empty until 1975. In 1974, it was unlawfully occupied for a short period by housing activists, including Jim Radford, Ron Bailey, and the late Mr John Eugene Joseph Dromey (known as Jack; later to become an MP who continued in the campaign for housing), in protest over the vast space remaining unoccupied while a housing crisis deepened, and people slept rough at its doorstep. The charity Centrepoint, set up by Reverend Ken Leech in the basement of St Anne’s church in Soho in the shadow of the Tower, took its name from the building, calling it an “affront to homelessness”. In 1995 it, and its neighbouring buildings in the estate, were given Grade II listing status.

3.

This case is about its humbler but no less experimental neighbour, Centre Point House, 15A St Giles High Street, London WC2H 8LW (‘CPH’). Little is known about why it was constructed or Mr Hyams’ intentions in respect of it. It is thought by the experts in this case that perhaps CPH was intended also to be leased by whichever single wealthy commercial occupant Mr Hyams had in mind, possibly to offer on-site overnight accommodation for its employees. It too appears to have lain empty for a very substantial period. It is believed that in or around 1987 the substantial part of CPH was finally converted to residential leasehold flats.

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5.

CPH is connected with Centre Point Tower by a ‘link’ building, which is also commercial/retail/restaurant space. Within the six residential storeys are situated 36 duplex flats, which interlock with each other ‘Tetris’-like in a stepped-L pattern. There is no number 13, and so the numbers run from 1 at the lowest storey to 37 at the upper. Entrance corridors are on the 3^rd, 5^th and 7^th floors only, onto north and south stair cores (which form no part of this application). We understand that 10 flats are retained in the ownership of Almacantar Group Limited. The remainder are in residential occupation by their owners or sub-tenants.

6.

Each of the flats has a projecting balcony. The east and west elevations comprise timber framed glazing and a spandrel glazing ‘wrap’ around the projecting balconies (accessed by a timber sliding door set into the glazed screen), formed by an internal timber ladder frame, with external aluminium pressure plates, glazing panels, and window lights.”

The hardwood timber-framed window façade has deteriorated over a number of years. To understand that deterioration it is necessary to know a little more about CPH’s construction. The FTT found that:

“ 7. The framing system is unusual, in that the dominant structural element is at the horizontal instead of the vertical… The upper horizontal frame sits on a metal bracket… Mortise and tenon joints join the vertical members into the structure. The horizontal members are only fixed back to the building at the ends, by metal restraint fixings designed to take wind load.

8.

……Where the glazed façade passes between party walls or floor slabs, glazed back-painted annealed glass spandrel panels have been inserted. Behind each of the spandrel panels is a thin layer of polystyrene insulation, and then a gap before the dwarf blockwork or concrete wall, behind and onto which the window lights are fixed.

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10.

The glazing was constructed by pressing glazing tape against the timber frames, pressing the glass panels onto the tape, and then applying two layers of glazing tape to aluminium clamp strips which are aligned with the frame and pressed to the outside of the glass. Fixing screws are then driven in and tightened to ensure that the clamp strip is fixed tight against the nosing of timber at the front edge of the frame. Joints are then sealed with mastic.”

In consequence the FTT said that:

“11.

The difficulty with this construction is that small gaps between the pressure plates to allow for movement between adjunct frames will result in water ingress, as do any screw holes in respect of which the sealant has failed. Once water is in the system, there is limited ability for it to evaporate off (as it would in a normal timber system), as it is sealed in by the impervious aluminium clamp strip, glass and glazing tape. It therefore remains in the timber, forming interstitial condensation which in turn leads to degradation and (eventually) rot of the timber members. Further over-sealing the system will only keep such water as has made its way past the gaps in the system, exacerbating the problem and promoting further decay.”

As a result the FTT found at paragraph 138 that “…. The façade at CPH is not in good and substantial repair and condition, has been inherently defective from the date it was completed and its physical condition has deteriorated over time as a consequence.”

The scheme to address the deterioration is referred to as “the Proposed Scheme” which was described by the FTT as follows:

“13.

It is proposed by the Applicants that in order to resolve this problem a steel stick curtain wall system including bespoke steel hollow section frames with integrated double glazed vision panels and opaque insulated spandrel panels be superimposed on the existing timbers and fixed to the concrete structural frame, rendering those timbers non-structural (‘the Proposed Scheme’)”.

The FTT’s decision is based on its findings about the state of repair of the façade to the building and its construction of the occupational lease terms. The application before the FTT was made by Almacantar under section 27A(3) of the Landlord and Tenant Act 1985 (the 1985 Act). In the proceedings Almacantar sought a determination of the payability of the cost of proposed works to remedy the defective façade. The FTT determination dealt with a number of issues which are not relevant to the appeal. The FTT’s decision is comprehensive, clear and carefully reasoned.

At first instance, a key issue for determination was the assertion by a number of the lessees at CPH that Almacantar had no right under their leases to carry out the proposed work to the defective façade and accordingly that no service charges would be payable for the work. The FTT’s decision was that the works did fall within the landlord’s repairing obligations and that the lessees would be liable under the service charge provisions to contribute to the cost. However, the FTT also found that a number of lessees were entitled to rely on Part 5 of the BSA and by reason of the “leaseholder protections” afforded by the legislation were not required to pay any part of the service charge attributable to “cladding remediation.” The question of whether the FTT were correct in reaching this conclusion is the subject of this appeal.