Council defeats legal challenge over £19m plans to fund retro-fitting of sprinklers on tower blocks

Birmingham City Council has successfully defended a judicial review challenge over a decision of its Cabinet to fund – at a cost of £19m – the retro-fitting of sprinkler systems to all the tower blocks it owns.

On 24 May 2019 the Cabinet at Birmingham decided to confirm its decision of 27 March 2019 approving an amended capital spending budget that included the £19m. The decisions were taken in the wake of the fire at Grenfell Tower in London.

The claimant, Robin Clarke, considered the sprinklers decision to be a waste of public money.

In Clarke, R. (On the Application of) v Birmingham City Council [2019] EWHC 1728 he argued that the council had not investigated in any detail whether the Birmingham blocks were subject to any material risk of a catastrophic fire such as occurred at Grenfell Tower (he contended they were not) or for any other reason, such that any additional contribution to reduction of risk of such a fire that might be achieved by fitting sprinklers, over and above the protection afforded by existing measures already incorporated into their design and construction, would be worth the substantial additional cost involved.

HHJ David Cooke said Mr Clarke, who appeared in person, had pointed out that although Birmingham had had a large number of such tower blocks in place for many years, during which time there had been numerous fires in individual flats, the existing fire protection measures had always been sufficient to contain those fires and prevent them spreading to the whole block or any substantial part of it.

The claimant contended there was no reason to think this would not continue to be so in future. "In his view, the decision to fit sprinklers was a panic response by politicians keen to be seen to be doing something in response to the Grenfell tragedy, when a more considered evaluation would have shown that it was not necessary or justified," the judge added.

HHJ David Cooke said: “What the Cabinet had to decide…. was the question whether it should or should not enter into this more detailed analysis before proceeding to approve the budgeted expenditure. Mr Clarke's objection is in substance that the Council did not decide to conduct such an analysis, which implies that, as a matter of law, there could only ever be one proper answer to the question asked.

“But that in my judgment is unsustainable. If it is assumed for present purposes that the Cabinet was obliged by its own procedural rules to address the question that had been put to it by the Scrutiny Committee in its ‘call-in’ request, that cannot impose an obligation to answer the question in one particular way and actually conduct the analysis that the Scrutiny Committee had requested it to consider.

“In the absence of any express statutory obligation to consider such matters of detail, it is only if its decision not to do so could be considered to be Wednesbury unreasonable that it could be challenged. Mr Clarke however has been refused permission to bring a challenge on Wednesbury grounds.”

The judge said that, reading the transcript of the Cabinet discussion, it was in his view apparent that it did address the question asked. “It could no doubt be said that much of the discussion is not particularly well structured, and some of the points made are not particularly coherent. But points were made about the statements made by Chief Fire Officers in London and the West Midlands that sprinklers ought to be fitted (such statements being sometimes described as 'scientific evidence' and at other points as 'expert advice'), about the possible lack of justification for a distinction between any new blocks in which sprinklers would be required by revised Buildings Regulations and older blocks in which they would not be required by law to be retrofitted, and about the Scrutiny Committee's concern that there had not been ‘a due process following scientific research to have got to [the decision to fit sprinklers]’.”

The judge noted that the chair of the meeting had put the matter to a vote with the concluding remarks ‘I would just reiterate that the advice from both the Fire Officer here in the West Midlands and indeed the Fire Commissioner in London is crystal clear, we cannot delay on this matter any further. So can I put the recommendation to Cabinet please, is that agreed?’. There was then a unanimous approval.

HHJ David Cooke said: “The Cabinet therefore decided against instituting the detailed investigation that the Scrutiny Committee had requested it should consider, and which Mr Clarke would prefer it to have undertaken.

“It was in my judgment entitled to do so. It was a matter for its discretion whether the policy imperatives that it identified were outweighed by the advantages of longer or more detailed scrutiny of the balance between the safety benefits and the costs, and it plainly decided that they were not.”

The judge said that even if it was assumed in favour of Mr Clarke that there was an obligation in the present case to identify reasons sufficient for a citizen potentially interested in challenging a decision to be able to determine what had been decided and why, it was in his view clear that such a standard was met.

“The Cabinet decided not to embark on the more detailed analysis that had been suggested, because it considered that the reasons for proceeding without further delay identified in the ‘executive response’ and referred to in the course of discussion outweighed the potential advantages of further investigation. Mr Clarke does not agree with that decision. No doubt there might be others who would take the same view.”

However, in HHJ Cooke’s judgement it was “a decision properly taken by the Cabinet in respect of which no legal error has been identified and the challenge to it must be dismissed”.