Helpful insight on intrusive works

It may not be precedent-setting, but a recent decision provides guidance on what the tribunal will look at before permitting an operator to undertake investigative works against a site providers’ wishes, writes Laura West. In Cornerstone Telecommunications Infrastructure Ltd v St Martins Property Investments Ltd and others [2021] UKUT 262 (LC); [2021] PLSCS 176, the Upper Tribunal has considered whether an operator should have the right to carry out “investigative works” during a multi-skilled visit (MSV). Earlier this year, CTIL updated its MSV agreement. The process provided for is as follows: First, the operator must serve an investigative works notice on the site provider. This must set out the details of the investigations proposed, relevant risk and method statements, and the target and proposed completion dates. The notice must be served not less than 21 days before the proposed works. The second stage permits the site provider to make representations to the operator within 14 days of the notice. These are limited to what are described as “reasonable representations”. Where no representations are made, the operator shall be permitted to carry out the works specified in the notice. The third stage involves the operator considering the contents of any reply by the site provider. The operator shall have “due regard” to the site providers’ representations; it must respond in writing within 14 days of the same with the detail of any amendments. Following that response, the operator may carry out the investigative works set out in the notice. The fourth stage involves the preparation, by the operator, of a photographic schedule of condition of the property to be subject to the investigative works, at its own cost. If requested, the same must be provided to the site provider “promptly”. Finally, on completion of the works, the operator is under an obligation to reinstate the property as soon as reasonably practicable and to produce a further final schedule, which again is to be provided to the site provider. It is notable that the site provider’s comments must be limited to “reasonable” representations and there is no conclusive definition of “investigative works” (defined only as “works, if any, to be undertaken pursuant to section 7 of the agreement”, which sets out the process described above). However, perhaps the most significant feature of the drafting is that it confers carte blanche on the operator to do works on or to the site providers’ property without agreement or permission; all that is required is to have “due regard” to comments made by the same. There is no dispute resolution procedure or other “hand brake”. So long as the correct process is followed, the operator is permitted to do whatever works it wishes. CTIL v St Martins In this case, the site concerned was 1 London Bridge, a prominent and high-spec office building. In principle, the occupier was willing to provide access, but arrangements concerning compensation could not be agreed and ultimately a second paragraph 26 notice was served in April 2021. There were several issues between the parties, including duration of the agreement, investigative works, compensation and health and safety. With regard to the investigative works, the first concern was that the drafting was circular because the same conferred unrestricted works for undefined works, constrained only for the purpose by which they were to be undertaken. Subsequently, however, a further definition of “investigative works” was provided, relevant to the building in question. These included cutting the roof covering, drilling holes in the roof and/or walls of the building, and removing plaster board and/or cladding to determine the materials used beneath. With regard to the heavily weighted rights sought by the operator, the tribunal noted that “there is no doubt that the tribunal has power to impose rights authorising an operator to investigate the structure of a building to ascertain suitability.” And further, “By para 23(2) the agreement must contain such terms as the tribunal thinks appropriate and by para 23(5) these must include terms ensuring that the least possible loss and damage is caused by the exercise of the rights” (para 19). However, to date it had not imposed rights for intrusive works against a site provider’s wishes. Martin Rodger QC, the deputy president, continued: “The owner of any valuable, high-quality building will understandably be reluctant to allow contractors over whom it has no authority or control to interfere with the structure of its building.” He went on to conclude that: “There are no doubt buildings of no particular architectural or engineering merit or complexity where there is little risk to the integrity of the building from relatively modest destructive investigations.” However, this building, being high-spec, did not fall into that category. As a result, the parties were sent away so that the operator could undertake non-intrusive investigations and for further discussions once the results of those were known. The operator was given an indication that the tribunal would want to see more detail in relation to the intrusive works proposed. An informative read The case therefore does not set any particular precedent, but does inform the industry of the sorts of things that the tribunal will look at before permitting an operator to undertake investigative works against a site provider’s wishes, notably, architectural and engineering merit or complexity. In all likelihood, it will not only be the owners of high-quality buildings who will be reluctant to allow unfettered, uncontrolled access. Indeed, older and lower-specification buildings with complex issues concerning the structure and exterior, most notably those with fire safety and cladding issues, are likely to be the ones giving site providers most concern. Laura West is a senior associate (barrister) in the real estate litigation team at Penningtons Manches Cooper