Emergency ahead! Works in progress

Project iStock 000000224397XSmall 146x219Michael Salau reports on a significant ruling for local authorities seeking to persuade owners of derelict buildings to carry out repair works.

Earlier in 2012 the Technology & Construction Court (TCC) handed down a decision which will be of interest to local authorities considering how they are going to pay for emergency works to buildings where the owner is avoiding or unable to carry out those works.

Swindon Borough Council pursued a claim against a developer known as Forefront Estates Limited in relation to a Grade II listed building. The case concerned the dangerous state of a building known as the Mechanics Institute, which is a stone and brick building constructed by the Great Western Railway and private subscriptions in 1855. The Institute is located in a historically important area of Swindon and is surrounded by cottages and a hospital which was erected for railway workers. It presently sits in a conservation area. The Institute had not been used for its original purpose for a number of years and had not been properly maintained.

After Forefront Estates acquired the Institute in 2003, it obtained planning permission to create flats within the property and some work had been carried out to implement this permission. However, in the main, the building had simply decayed over a number of years and following receipt of a report by a group of consultants, the council determined that urgent works were required.

In 2009 Swindon BC proceeded to carry out works relying on s78 of the 1984 Building Act. Sections 77 and 78 of the 1984 Act apply in circumstances where: “a building or structure or part of a building or structure, is in such a [state/condition] or is used to carry such loads as to be dangerous”.

The difference between the provisions is that under s78 there is an additional requirement that ‘immediate action should be taken to remove the danger’. Section 78(2) requires a council (if it is reasonably practical to do so) to give notice to an owner of a building.

The court explained that s78 is intended to be used in cases where it is necessary for the council to take immediate action to remove the danger. Section 78(5) states that if the council: “might reasonably have proceeded instead under section 77(1), then the council cannot recover the expenses of taking the section 78 measure”.

Section 77(1) applies where there is a dangerous building or structure, but it is not necessary to take immediate action to remove the danger. In those circumstances the council applies to the Magistrates’ Court for an Order and it is only if the owner fails to comply with the Order within the time specified that the council is then entitled to execute the works and recover the expenses from the owner.

Forefront Estates asserted that the council should have asked it to carry out the works under s77 of the Act rather than under s78. The court found for the council in this instance, but explained that as the council had identified that there were key risks to the building, primarily the possible collapse of the roof and contamination in the event of collapse. It had identified that there was white, blue and brown asbestos within the building and that much of the paint work was carried out using heavily contaminated lead paints of the type used in the railway industry at the relevant time. As a result, it was evident that there was an obvious danger to the health and safety of the public either through collapse or contamination via the release of asbestos and lead. The court ruled that the council was also able to recover its costs of carrying out the works (assessed at £344,492.40 and including remedial works, consultancy fees etc). In addition, the council also recovered its costs of the action which were summarily assessed at £60,128.30.

This judgment will be of comfort to councils. It offers appropriate guidance for consideration when determining whether or not works should be undertaken under s77 or s78. It is clear from the judgment that the court will take a close look at the requirement for the work, and in his judgment HHJ Ramsey warned that the fact that the required building work is dangerous will not of itself be sufficient to carry out work under s78. Additionally, he was not persuaded that the failure by the developer to carry out urgent works necessary to preserve a listed building and its general poor performance as to health and safety issues in relation to the work, would alone make it reasonable for the council to proceed under s78.

Summary

The fundamental question to be asked by any council is: is it necessary to take immediate action to remove danger? If it is, then it is appropriate for the council to use s78, but if it is not, the fact that the owner of the works may not proceed satisfactorily (or at all) within the s77 works is not a reason for pursuing a remedy under s78 when s77 would be the appropriate provision.

At a time when many buildings are falling into disrepair because of the current challenging economic circumstances, this case is a useful aide-mémoire to councils in persuading owners of derelict buildings to carry out important and necessary works if there is a danger or risk to health and safety.

Michael Salau is a partner at Berrymans Lace Mawer. He can be contacted on 020 7865 3369 or by This email address is being protected from spambots. You need JavaScript enabled to view it..