[2025] UKUT 298 (LC)

It is therefore necessary for us to go on to consider whether or not the FTT was correct to decide that the service charges in question were in respect of “cladding remediation” within paragraph 8.

The first point made on behalf of Almacantar is that there is no “cladding” at CPH which could form part of any “cladding system” which is something either attached to an external wall or forms part of it but is not the external wall itself. In the appellants’ submission the façade at CPH is not an outer skin, instead it forms the exterior of the building itself.

No definition of “cladding” is provided in the BSA. The FTT dealt with this point at paragraphs 255 to 257 of their decision:

“255.

Insofar as there is a starting point for a definition, the Oxford Dictionary of Construction, Surveying and Civil Engineering’s definition of cladding (‘the ODC’), on which the Applicants rely, is that cladding is “the non-load-bearing external envelope or skin of a building that provides shelter from the elements. It is designed to carry its own weight plus the loads imposed on it by snow, wind and during maintenance. It is most commonly used in conjunction with a structural framework.”

256.

In their Skeleton Argument, the Applicants contended that cladding “refers to the outer skin, applied to a high-rise building, to increase thermal efficiency or improve aesthetics, while not adversely affecting weather resistance. The cladding element is not load-bearing, which means it is not structurally integral to the building itself”. That is said to derive from the RICS Advice and Guidance Article dated 21 June 2022 contained in the Applicants’ authorities bundle.

257.

The RICS Guidance appears at [AAB 516]. The remainder of the quotation that follows is:

“Cladding can be either retrofitted to an existing building or incorporated into the design of a new building…..

There are many different types of cladding systems available, ranging from traditional looking brickwork or rendered systems to more modern looking metallic rainscreen systems or curtain walls made from glass. Cladding systems can be complicated constructions with voids, breather membranes, cavity barriers etc but the two main cladding materials are the thermal insulation and front facade panel...

Facade panels can be made from a wide variety of materials including wood, metal, brick or vinyl, and are often made from composite materials. Two types of composite which have been highlighted in the news are ACM and HPL.”

The FTT concluded that CPH meets those definitions. They said:

“259……There is an underlying structural framework – the concrete building. Onto that framework have been fixed the timber ladders, in preassembled blocks one storey x 3 metres into which the glazing has been inserted. The facade has then been built up, by inserting a wall or blockwork that has taken some of the weight of the fenestration (whether by accident or design). After that blockwork is a gap, an insulation panel, and spandrel inserts. Onto the glazing have been screwed aluminium clamp strips, which have been over-sealed. The ladder frame system is tied back to the concrete frame with metal ties. That makes up the building ‘envelope’ at the east and west elevations. The function served by the whole is to keep the elements out. The design is to transfer wind load to the concrete structure, not to support that concrete structure. The dwarf walls do not provide structural support to the building as a whole, though may provide some support to the envelope. The metal ties tying back the timber ladders to the concrete are also not providing structural support, but do help to transfer wind-load. That design, it seems to us, is apt to meet the description of cladding.”

On behalf of Almacantar, Mr Hutchings contended that the FTT was wrong to find that there is cladding at CPH that could form part of a “cladding system”. In making his submissions he acknowledged that it was not open to the appellants to challenge the underlying findings of fact made by the FTT.

Firstly, he said that we should have regard to other provisions of the BSA and in particular section 149 which deals with past defaults relating to cladding products which he says underline the fact that “cladding” is recognised as being something which is either attached to an external wall or perhaps forms part of it but is not the external wall itself. Secondly, he relied on the OED definition of cladding as being “A coating or covering applied to the surface of an object, a building etc; the application of such a coating.” This, he said shows that cladding connotes something which is applied to the outside of a building as a covering or coating rather than forming the structure of the building. For the same point, Mr Hutchings relied on PAS9980:2022 (the British Standard Institution code of practice) and commentary within the UT decision in Lant Street which referred to a note to the code as follows:

“NOTE: Such systems are normally attached to the primary structure of a building to form non-structural, non-loadbearing external surfaces and can comprise a range of facing materials/cladding panels, including metal composite panels or non-loadbearing masonry, along with insulating materials, rendered insulation systems...and insulated core sandwich panels, which are attached to the substrate. Combinations of, for example, cladding panels and insulation foam cladding systems, and such systems might include cavities, which can be ventilated or non-ventilated. The cladding system also encompasses the supporting rails and bracketry, as applicable to attach the cladding to the building and cavity barriers where applicable. Systems that constitute the entire thickness of the external wall, by definition, cease to be cladding systems and are the external wall, e.g. curtain walling.”

In Mr Hutchings’ submission it is inapt to describe the make-up of CPH’s façade as incorporating cladding. He contended that the façade forms the exterior of the building consisting of vision and opaque glass and conventional timber window frames, set into the timber ladder frame. He referred us to Irvine’s Estate v Moran (1992) 24 H.L.R. 1 at first instance where it was held for the purposes of section 11 of the 1985 Act, that the structure and exterior could extend to windows and found that the structure did not need to be limited to load-bearing elements.

It is our view that the question of whether a building includes cladding is one of fact. In this case, the FTT had regard to the technical definitions of cladding and had heard evidence over a period of five days, including evidence from experts, and had carried out a site view. The FTT’s clear conclusion was that the façade at CPH was “cladding” for the purposes of the BSA. We do not consider that Irvine v Moran takes the matter any further. It was concerned with different legislation and was not intended to set out wide-reaching and final principles.

There is no justification at all for us to depart from the FTT’s finding; it was clearly an assessment that it was entitled to make. It found that there was an underlying structure to which the cladding was attached. The findings are consistent with PAS9980:2022 and so far as this appeal is concerned are unassailable.

The next question is whether the Proposed Scheme involves “cladding remediation” for the purposes of paragraph 8. Paragraph 8(2) provides that cladding remediation means:

“….the removal or replacement of any part of a cladding system that –

(a)

forms the outer wall of an external wall system, and

(b)

is unsafe.”

On behalf of Almacantar it is said that the legislation clearly contemplates that there are two systems: the cladding system and the external wall system and that there is a distinction between them. It is pointed out that PAS9980:2022 states:

“External cladding systems involve the combination of several different components, including cladding panels, ventilated cavities, thermal insulation, breather membranes, cavity/fire barriers and support systems.”

Mr Hutchings says that what is specifically not regarded as cladding, or components which form a cladding system, is the entire external wall itself. Furthermore, he says, if there is no inner wall then there cannot be an outer wall. In summary it is said that the façade at CPH is not a separate system but one composite system. It constitutes the entire thickness of the entire wall and there is no outer wall in what might be regarded as an “external wall system.”

On behalf of the respondents it is said that the meaning of “cladding system” within paragraph 8 was considered by the UT in Lant Street where the meaning of “outer wall” of an external wall system was described at paragraph 144 as follows:

“The other requirement of paragraph 8 is that the cladding system must form the “outer wall” of the external wall system. Paragraph 8 is not concerned with a cladding system which forms the inner wall of an external wall system. If an external wall comprised an outer wall and an inner wall, with a cavity between them, only a cladding system which formed the outer wall would be covered by paragraph 8.”

It is submitted that this makes it clear that paragraph 8 does not require two systems. Rather, if an external wall system contains an inner wall and an outer wall within an external wall system, only the outer wall could be within the definition.

We adopt that analysis and consider that the FTT was correct in finding that the façade at CPH comprises “the outer wall of an external wall system.” We reiterate that the finding is a finding of fact. There is no justification for limiting the applicability of paragraph 8 to structures with two separate systems and the clear words in paragraph 8 do not require there to be two separate systems. We agree that if there had been only one composite wall, the requirement would not be met but that is not what the FTT found.