Landlord and tenant — Repairs — Service charge — Whether proposals by landlord to recover roofs and repair windows of large shopping mall within covenant to keep premises in good and substantial repair and condition — Whether recoverable under service charge
The plaintiff landlords are the owners of
the Milton Keynes shopping centre, the largest such building in Europe. In 1991
they carried out repairs to the low-level roofs and upper windows. The
defendant, a representative tenant, contended that the cost of the work was not
recoverable under the service charge provisions of the leases. The flat
low-level roofs, which were constructed in 1975 and 1976 with a maximum life
expectancy of 20 years, were recovered under a phased programme. The tenants
argued that the replacement of the roof covering was premature and the
specification was increased to a point where there was an irrecoverable excess,
and that the work to the windows was due to rust which could have been
contained with timeous maintenance.
all the cost claimed, save for 45p per m2 for the priming of certain
roof troughs. The repairs to the roof were repairs which a reasonably minded
building owner might undertake and they did not amount to giving back to the
landlord something different from that which existed before. It was reasonable
to commence them when the landlord did, notwithstanding
accept the recommendations of the experts on certain improvements to the
specification. However, no useful purpose was served by priming the galvanised
roof troughs which showed no evidence of deterioration. The works to the
windows and cladding were repairs, and, in so far as the landlord may have been
guilty of delay in carrying out such works, that was more than balanced by the
saved costs of earlier repaintings.
No cases are referred to in this report.
This was an action by the plaintiff
landlord, Postel Properties Ltd, against a representative tenant, Boots the
Chemist, concerning the validity of service charges recoverable from some 150
tenants of a shopping centre.
Kim Lewison QC and Nicholas Dowding
(instructed by Herbert Smith) appeared for the plaintiffs; David Neuberger QC
and Guy Fetherstonhaugh (instructed by Walker Morris, of Leeds) represented the
defendant.
Giving judgment, Ian Kennedy J said: This action is
brought to determine whether certain repairs which the owners put in hand in
1991 to the low-level roofs and to the upper-level windows of the Milton Keynes
shopping centre are chargeable to the tenants under the terms of the subleases.
The centre itself was built between 1975
and 1979 at the instance of Milton Keynes Development Corporation. It is said
to be the largest such building in Europe. The flat roofs, whose repair is now
in question, run to something over 12 acres or seven football pitches. On April
3 1989 Postel Properties Ltd became the owners of the centre and later in the
same year they shared that ownership with the second plaintiffs [Dai-Ichi
(Property) London Ltd]. There are something in the order of 150 tenants in the
centre, as I understand it holding common form leases, and the named defendant
is sued to settle a dispute between the landlords and the tenants association.
The relevant provisions of the lease are
these. By clause 5 the defendant covenanted to pay a service charge, the
service charge to consist, in the first place, of a proportionate part of the
expenses and outgoings reasonably and properly incurred by the landlords in
connection with the provision of services and the other heads of expenditure
set out in the third schedule, a supplementary sum equal to the whole of the
expenses reasonably and properly incurred by the landlords in, among other things,
provision by the landlords of services in addition to the specified services.
There is a provision for payments in advance.
The landlords covenanted by clause 6:
(2) with all due diligence to keep the
common facilities and the covered square and foundations roofs main walls main
structural members and the supporting columns of the demised premises in the
Shopping Centre in good and substantial repair and condition.
(3) to paint or otherwise preserve and
cleanse all outside wood metalwork paintwork brickwork and stonework of the
demised premises in the Shopping Centre and to repair the same as may be
necessary.
There is an express undertaking to
undertake this work economically and efficiently.
The third schedule of the sublease refers
to the heads of expenditure which are covered by the service charge, and they
include the repairs, redecoration and maintenance which includes partial but
not wholesale replacement of any installation and cleansing which the landlords
covenants to carry out and also the cleansing and general maintenance of the
common facilities and the covered square.
While the centre remained in the
ownership of the development corporation, its management was in the hands of a
company, Central Milton Keynes Shopping Management Company, owned by or
answerable to the development corporation. That same company is now a
wholly-owned subsidiary of the plaintiffs or of one of them. Its role has been
much reduced in that Bernard Thorpe (now DTZ Debenham Thorpe) have been
introduced to advise the plaintiffs on management both in terms of letting and
of repairs. Little documentation or information seems to have come from the
company’s first period. Precisely why is not clear. There was a suggestion that
some of its staff were anxious about job security following the changes in
ownership, and I sense that there may have been some unwillingness to
co-operate in consequence of the lesser role now played by that company. It has
not been possible to discover, for example, whether there was indeed a maintenance
plan, though there is reference to a written policy in a contemporaneous
document.
With what was, naturally enough, a new
building it is easy to see that a planned maintenance schedule was in the early
years largely a formality, and I conclude that there was nothing in operation
worthy of this description, though it is clear that the company was responding
to want of maintenance as it arose, and certainly there appears to have been
repainting in 1985 and 1986.
The first half of the case concerns the
low-level roofs. These were built in 1975 and 1976. They were designed to have
a fall of 1 in 60, but I accept that in practice it is impossible to achieve so
slight a fall with any precision, and to all intents and purposes these were
flat roofs. The strength of the roofs was in galvanised mild steel sheeting of
ridge and valley profile, held up by steel beams. The roof covering consisted
of (going from the steel sheeting upwards) a layer of roofing felt called the vapour
barrier or vapour check — more accurately ‘check’ because few membranes deserve
the description barrier; a 25mm insulation fibreboard which bridged the valleys
and so left a level surface for the next layers; a layer of underfelt; a layer
of capping felt, and finally a scattering of limestone chippings bedded in
bitumen which were there to reflect the rays of the sun and so reduce the
temperature within the roof covering sandwich. Each layer was bonded to the
next by hot-applied bitumen, and the whole was stuck to the steel with a
bitumen adhesive, though the steel was primed with paint to allow the bitumen
to adhere to the galvanising. The whole roof covering thus became of a sandwich
construction and, where repairs or renewals had to be undertaken, it was not
possible to separate the layers.
Though this was not so clearly recognised
at the time of the original construction as it is now, such a roof is to a
significant extent liable to attack from condensation rising from the interior
of the building through any apertures in the steel sheeting.
The questions that remain on this half of
the case are these. Can the plaintiffs charge the tenants for the costs of
replacing the roof covering at the time they did, and did they increase the
specification to a point where there is an irrecoverable excess?
As the tenants took occupation of the
various holdings, they introduced items of plant, in some cases quite extensive
and numerous items, which had to be sited on these roofs. To that end
structures were built to support the plant, and this involved piercing both the
thicknesses of the roof covering and the steel sheeting. In other instances
tenants fixed suspended ceilings to their interiors and pierced the steel
sheeting with their hangers. The presence of the plant on the roof involved
traffic over it, and mischances during servicing that plant caused local damage
to the roof covering.
When the centre was built, the roof
covering that was employed was of good quality. However, the maximum life that
could reasonably be expected from that type of covering is 20 years, though
they have been known to fail in 10–15 years. Much will depend on the quality of
maintenance, which largely consists of removing leaves and other debris lodged
on the roof, and not allowing the chippings where they have been separated from
the coverings to lie in heaps, instead keeping them spread out as they were
originally intended to be. Local repairs can be effected by cutting out and
replacing any damaged sections, but tracing back from an internal leak to the
defect causing that leak may be a difficult matter. The one, the leak, is by no
means immediately under the defect. Care is needed in bonding a new section
into old work. It is important to cut back to sound insulation board else any bond
will be suspect.
Clearly it is a matter for experience and
judgment when the time has come to renew a roof. The cost of replacement must
be balanced against the likely increasing cost of patch repairs. A
consideration is that patch repairs are expensive in terms of the preliminary
elements in
replacement has to be phased over four or more years, to spread the cost and to
minimise disturbance to the tenants’ businesses.
When the plaintiffs first bought in April
1989, they commissioned Bernard Thorpe both to manage the building and advise
on a programme and to supervise the execution of that programme, though day to
day defects remained the responsibility of the management company’s staff.
Devising the programme took a considerable time, something that is relevant
when I come to the second part of the case. A plan was eventually produced in
which the various sections of the roof were listed in order of priority.
Sections listed for renewal in any one year were not necessarily contiguous
because the roof was constructed in bays, delineated by low upstands, and it
was possible to work a bay at a time. Naturally considerations of economy of
operation would tell in favour of repairing defined areas as much as possible
at the one time.
Mrs Sarah Fraser [arics] (then Miss Fletcher) of Bernard Thorpe was effectively
in charge of this planning, answerable to Mr Jonathan Fitton [frics] and assisted by Mr Daniel Joss [arics]. She was experienced and fully
qualified to undertake this work. She had available to her a report obtained by
the management company in 1988 from Peter R Dickinson, chartered building
surveyors, in which a number of suspect areas were identified. Still earlier
reports spoke of blistering and ponding, which were indicative of incipient
failure of the covering.
It was her conclusion, after walking the
roof and making her own survey, that the point had been reached at which a
phased replacement of the roof covering was more economic than continuing with
patch repairs. It has to be remembered that at this time the covering was
within five years of attaining the maximum expected life, a life expectancy
which was not improved by the presence of various items of plant on the roofs.
I am quite unpersuaded that Mrs Fraser’s decision was premature. It has to be
remembered that she had to look five years ahead, and it was highly undesirable
that roof covering should be left to threaten an emergency in which large
sections failed at the one time.
While it is true that every leak, however
small, put the plaintiffs in breach of covenant, I believe that the risk of
proceedings is not the primary consideration. Sensible work of repair to
preserve the fabric in a realistic way is entirely consistent with the duty to
perform the landlord’s obligations efficiently and economically, which was an
express term of the sublease. One benefit from the replacement is that the
manufacturers of the sheeting have given an insurance-backed guarantee against
failure of the coverings in the next 10 years. Thus, accidental damage apart,
there need be no anxiety over roof repairs for 10 years.
The point was taken that some of the
areas which Mrs Fraser had given the highest priority were not repaired in the
first year. This was because of opposition from the tenants. I do not think
that it is a valid criticism that the landlord did not force matters through.
There has to be some give and take in the sensible management of a centre such
as this. It is also true that some of the parts that remain to be replaced this
year have not yet failed, but that does not, to my mind, prove that the
decision was wrong when it was taken.
A further point was taken that the
‘copious notes’ to which Mrs Fraser referred in a report advising the
recovering amounted only to three sheets of A4. So it was said that that
exaggeration showed that the work could not be justified without that
exaggeration of the inquiry process. There were in fact six sheets when Mrs
Fraser examined the uncopied files, but she said (and I accept) that at the
time there were notebooks and other papers which do not appear to have
survived. No criticism is to be made of counsel for taking this point, for so
many pages had been copied to which no reference has been made that it was not
an unreasonable assumption that the three pages were indeed all that there were
or ever had been.
I pass to the three criticisms of the
fashion in which the roof coverings were replaced. I have listened to various
expert witnesses, Mr Colin Manners-Smith [frics]
of Fuller Horsey Wills, Mr Saunders of the Building Research Establishment and
Mr Howell of Profile Consultancy, assisted by Mr Nigel Lindley [frics] of the associated firm, Carter
Jonas.
Mr Saunders, unsurprisingly, is concerned
with research into the performance of roof coverings and the early detection of
problems. By the use of a device that his establishment has made, he was able
to plot the extent of damp penetration in a part of the roof which had not yet
been repaired. His evidence largely confirmed that the remaining original roof
had reached the end of its useful life, though there were bays which had not
leaked and which could therefore be left for the time being.
I have to say that I was not impressed by
Mr Howell’s report, the Profile report being primarily of his composition. If
its criticism of Bernard Thorpe’s decisions and actions had been more
discriminate, they could have been described as sniping. Mr Howell’s evidence
did nothing to correct that impression. I instance only his explanation of
having imputed to Bernard Thorpe his own muddle about the composition of the
existing roof.
Mr Lindley, who was present to assist Mr
Howell in technical matters, does not deserve the same criticism. Indeed, he
made a number of significant concessions which reflected a more balanced
approach.
The first matter of dispute concerns the
replacement of the one-inch fibreboard with a two-inch (strictly 50mm)
polyurethane, described as PUR, board. Fibreboard, though still available, is
no longer considered suitable for this application. Technology has advanced.
The opposing argument is that 35mm PUR board would have sufficed. The extra
cost of the last 15mm of insulation is £1.65 a m2, a substantial difference in
terms of these areas. 35mms gives adequate support for the waterproof layers
and the manufacturer’s guarantee required no greater thickness. This
stipulation came first from the plaintiff’s own building surveying staff.
The argument is about insulation values.
When this building was first constructed, the building regulations imposed no
insulation factor for flat roofs on such buildings as this. The replacement of
roof covering is not a notifiable event under the regulations, and so no
insulation standard is enforceable to this day. Subsequently a standard was
imposed and today that standard is higher again. 35mm PUR board gives an
insulation factor four times higher than did the fibreboard, but it does not
quite attain the insulation standard which applied at the time when the
replacement was begun. 50mm does, but only raises the comparison figure with
fibreboard from four to five; too much for too little, argue the tenants.
The point was made that the plaintiffs
have to deal with the building inspectors over other works in and about the
centre. So, it is said, it is wise to keep them happy when one can. I do not
discount the importance of keeping on good terms with the enforcement agencies,
but the point is to my mind insignificant in the present context. The
regulations requirements are generally assumed to represent good practice. Mr
Lindley said that he would recommend to a client that the insulation should be
brought up to regulation standard.
To my mind, it matters not that the
plaintiffs themselves stipulated the use of 50mm board. An experienced building
surveyor made the decision. This is not some layman’s whim. I believe that I
can take into account that there would be some countervailing advantage to the
occupiers of the building in terms of lower heating charges, and also that
building insulation is a subject which is receiving increasing legislative
attention. So, while none can predict what the future may bring, there is
something to be said for having complied with the accepted standards when the
opportunity offered.
The next question concerns the
specification for the cap sheet. A material called Elastophene was specified
for the first phase of the repairs. It is a perfectly acceptable material for a
roof of this character and attracts the same guarantee. When Bernard Thorpe
went to the later phases, they used Sopralene 250 but they paid as if for
Sopralene 180. The cost over of Sopralene 180 against Elastophene 180 was 43p a
m2. The manufacturers agreed to
supply the better material at the lower price. Thus by paying another 43p the
plaintiffs obtained distinctly more than 43p worth of quality.
The reason Bernard Thorpe made the
change, said Mrs Fraser, was that the later areas had more plant and carried
greater traffic than the first area. Mr Adams, of the manufacturers, had
advised that Sopralene, which has a polyester carrier or reinforcement, would
better resist traffic than the earlier material with its glass fibre
reinforcement. Having heard the evidence of Mrs Fraser and Mr Adams, I accept
that this was the reason for the change, and that, whether or not the areas
were very distinctly different in terms of traffic load, the choice was a
reasonable one for a building owner. In my view, the offer of the 250 material
for the price of the 180 was an added and properly accountable advantage.
Finally, there is the priming of the
troughs. Pulling up the old covering necessitated the repriming of the ridges
of the galvanised steel to allow the bitumen to stick the new sandwich to the
roof structure. The ridges represented, Mrs Fraser said, 30% of the surface of
the steel, the remainder being the troughs and the shoulders. Nothing turns on
precise percentages.
The plaintiffs’ same building surveyor
also stipulated that the entire upper face of the steel should be primed. His
argument was that while the surface was accessible it was sensible to provide
this added protection. There was no evidence that the galvanising showed any
evidence of deterioration by any condensation from the occupied spaces which
was arrested by the vapour barrier and so be trapped in the voids of the
troughs. Naturally where holes had been cut in the steel sheeting there would
be unprotected mild steel. I quite follow that it would be extremely difficult
to protect those cut edges with paint because it would tend to drip down
through, but I cannot understand how priming would protect any new holes that
might be cut in the future. There would again be raw edges.
Mr Manners-Smith, whose evidence I found
to be persuasive, was at his least convincing when dealing with the decision to
paint the troughs also. He pointed out that in painting the ridges paint would
dribble down the shoulders into the troughs, and seemed to offer this as some
justification for the decision. Dribble it certainly would, but cosmetic
considerations were of exactly no relevance. I have reached the conclusion that
no useful purpose was achieved by this detail.
The plaintiffs then argue that the
unnecessary expenditure, whose cost is estimated at 45p a m2, is de minimis. It was
no more than £22,500 of a £1.6m exercise and therefore some 1.4%. I am by no
means sure that it is a permissible answer to an unjustified claim that it is de
minimis. I could see de minimis as an answer if the cost of the cap
sheeting had exceeded what was reasonable to use by a small margin, but this
was a separate exercise or a separate part of the exercise and, to my mind, not
a chargeable item within the covenants.
Having reached the conclusion that in the
first two respects the expenditure was such as was reasonable for a building
owner to incur, it follows that these costs are recoverable, and this
notwithstanding the express stipulation to plan and repair efficiently and
economically.
Whether I look at each item individually
or, as I believe I should, at the replacement roof covering as a whole, I reach
the same conclusion. These are repairs such as a reasonably minded building
owner might undertake, and they do not amount to giving back to the landlord
something different from that which existed before. Although the new cap
sheeting has a laboratory life of 40 years, Mr Adams did not propose that in
practice the roof would last more than 20 years. Arguments about the length of
the remainder of the term are, to my mind, not in point.
The other half of the case concerns the
glazing at high level. Rust has so affected the steel glazing frames that mere
redecoration will no longer afford the necessary protection. The glass must be
removed, the steel cleaned of rust, inhibited and redecorated and other works
performed to exclude or at least minimise the risk of a recurrence of the
problem.
The defect in the cladding appears to be
rooted in a design fault, though the defendants’ case is that it could have
been contained with timeous maintenance. They say that the vast cost of the
present works, perhaps £2m, is the result of lack of maintenance during the
plaintiffs’ ownership. They argue that these works, which the defendants agree
now need to be done, are the result of not repainting in 1990 or thereabouts.
It is here that the complaint that Bernard Thorpe took too long to make and
implement a planned maintenance schedule comes into play.
Each pane of glass is held in its own steel
frame, which frame is in its turn bolted or fixed to the structure. The fixing
design is shown as to the bottom of any pane by the sketch at B99 and as to the
top and sides by that at B100. As designed, the pane, which is first fixed by
an adhesive glazing tape, is secured by an F-section aluminium extrusion, which
itself is held against the frame by mild steel self-tapping screws. The inner
corner of the glazing bar would be loaded with linseed oil putty before being
screwed into place, and in that way the putty would fill the available space,
any excess being knifed off afterwards. It is, however, uncertain whether the
putty would actually fill space as completely as is shown in the drawing, which
drawing I note is about life size.
In this design moisture could get into
the fixing in various ways through any defective putties, through the metal to
metal contact between the frame and glazing bar, particularly at the sides and
top of the panes, and also in way of the securing screws. Good maintenance would
seal these points of access — in theory, say the plaintiffs; in practice, say
the defendants. Though there would be differential expansion as between steel
and aluminium, rubberised paint could, say the defendants, accommodate that
movement. If moisture did get in, it would react with swarf and the screw holes
and rust would begin to form. In a few instances the frames had not been
properly painted in the first place. There, naturally, the potential for
rusting is the more obvious.
Linseed oil putty dries out over time,
when its ability to maintain a waterproof seal depends upon the movements of
the materials to which it adheres. Here the glass would flex under the
influences of wind and temperature, and the aluminium would move also. Another
problem was that, as designed, the component parts of the fixings would move as
one piece, and this would increase stresses at the points where moisture might
obtain access. Mr Manners-Smith added that the aluminium glazing bars could
distort along their length, and so exacerbate these problems. Finally, though
the aluminium would be formed by extrusion and so be in practical terms
perfectly formed, the manufacturing processes for the frames themselves would
be unlikely to produce an equally fair surface; thus the aluminium steel
contact would be interrupted. In any event, the metal to metal contact raised
the risk of electrolytic action.
Problems with rusting frames appeared as
early as 1983. Some early documents are missing. Mr Howell saw in particular a
report which no longer survives, from Professor Lithgow, who has since died.
Lithgow Associates, who describe themselves as corrosion protection
consultants, were paid fees of £1,450 in the financial year 1983–84, and spent
£75 on paint research. Thus, with the centre less than 10 years old, there
seems to have been trouble in getting the right paint to protect the cladding.
There are drainage holes drilled in the
bottom of the F-section bars. It is not clear whether these were in the
original design. It seems likely that they were, in a letter dated April 22
1985, Solaglass, the glazing contractors, speak of ‘extra drainage for
aluminium framing’. These proposed works involved: ‘Drill, slot and file and
clean out debris as far as possible from F-section beading to 2434 numbered
frames’, at a cost of £37,000.
A letter from Professor Lithgow of May 1
1995 refers to this work, but it is not clear whether it was all carried out.
He writes: ‘Inspection of window frames 28th April 1985’ and then he refers to
who is present. The purpose of the visit was:
… to carry out an inspection of the steel
window framing after the removal of the glazing beads and glass on two frames
and the removal of side glazing beads on three frames. The panels selected were
those where the largest areas of severe corrosion attack occurred on the steel
framing adjacent to the aluminium beading. All the frames selected were in the
block adjacent to the John Lewis building. This block is the one showing the
largest number of frames with visible corrosion defects.
Frame 1 — glazing and all beading
removed. The reason for the removal of the glazing is that the corroded areas
are adjacent to the bottom beam which supports the glazing. The worst affected
areas of the steel frame under the glazing beach showed no evidence of the
original paint system. Corrosion products are present along the substrate.
There are small areas of corrosion pitting and rust scale.
Frame 2 — glazing and all beading
removed. There is extensive corrosive action and in the original coating are
several areas of complete disintegration. The steel substrate is lightly
corroded with little evidence of pitting and no rust scale is present.
Frames 3, 4 and 5 — side beads only
removed. The pattern of corrosion
of the steel frame adjacent to the aluminium beading, carries on corroding
under the aluminium beading with various degrees of severity.
As a result of the inspection carried out
to date, there are approximately 10 frames which will require the removal of
the glazing and approximately 25–30 frames require the removal of the side
beading only.
I carried out several cleaning tests on
the corroded areas using manual wire brushing and I am satisfied that the
specification requiring a standard of cleaning to ST3 can be achieved using
power wire brushing. I am also satisfied that the paint system specified in the
contract documents, ie power wire brush bare steel to a standard of ST3, apply
two coats of red lead and one coat of PVC acrylic 5530 is the most satisfactory
system available for use in the sensitive corroded areas.
He finally says:
This report deals with phase 2. When
Solaglass commence drilling work on phase 1, I will make use of their access
platforms to carry out a service of suspect window frames in these areas.
A later letter, that of May 24 states:
On 23rd May, Mr McParland and I carried
out a detailed inspection of certain window frames on two elevations. The
inspection included the removal of number of aluminium side beads. Two
significant factors were established as a result of the inspection. Where signs
of corrosion down to bare metal was visible on the outer side of the steel
frame, on the removal of the aluminium side beads it was found that considerable
areas of corrosion were present on the steel work under the beads. It was also
established from a random check of side beads removed, where there was no sign
of exterior corrosion, that the existing protective coating under the beads is
in sound condition and does not require any remedial work. The number of frames
which do not show signs of corrosion appear from access available at present to
be at least 90 per cent of the total number of frames. If access becomes
available, I will, in addition to inspecting exterior corroded frames, carry
out random checks of frames which do not show signs of exterior corrosion to
ascertain that the pattern established to date is consistent.
Then he makes a recommendation about the
contract. From that letter, 90% of the frames showed no signs of corrosion.
The 1987 report, by which time the
remedial work and the decorative and protective paintings had been completed,
found some cracking and loss of C-fillets on high-level windows, some movement
of bolts which allowed water to get in, and missing washers between bolts and
beading. It also noted paint beginning to blister and rust-staining,
particularly along the lower edges. Mr Howell recorded from that report:
In all other areas there was moderate
evidence of blistering to paintwork, which appeared to be a developing problem
and would be of some concern in the coming years.
Professor Lithgow stated that the rate at
which the blistering was occurring could only be determined by diligent
monitoring and the remedial action as and when required. Mr Howell comments, I
think correctly, that there is no evidence of anything being done before the
plaintiffs bought, and even then nothing until Bernard Thorpe examined sample
areas in 1991.
External painting, it is agreed, should
be done every five years if a building is to be properly protected. On exposed
sites — and this appears to be such a one — it may be necessary to paint as
often as every three years.
In 1985–86 rubberised paint was used.
Yet, as Professor Lithgow reported two or so years later, painting alone does
not seem to have been the solution. The conclusion reached by Bernard Thorpe
and supported by Mr Manners-Smith was that only radical treatment could hope to
solve the problem.
The preferred solution is shown on the same
drawings. All the beadings must be taken away; the glass and the glazing tape
removed to expose the frame behind the glass; all rust to be removed and the
steel prepared and protected; when the glass is replaced, it is to be contained
by plastic setting rods; a plastic seal to be inserted between the bead and the
frame so that one is not relying on paint alone for the integrity of the joint;
the beads to be refixed with stainless steel self-tapping bolts.
The point is fairly made that more mild
steel swarf will be caused when these bolts are screwed into place, because
they are necessarily marginally oversize. What is not so obvious from the
drawing is that the top (as it is seated) limb of the F-section is only to be
removed in way of two points where the weight of the glass is to be transferred
through two plastic blocks to the nib of the steel frame. In this way the glass
will no longer move monolithically with the beading, and stresses will be
reduced. The final sealing will be done with mastic in place of putty.
As I have said, there is no criticism of
the remedial treatment, nor of its present necessity. The point taken is the
delay since the landlords assumed control.
The original survey at the time of
purchase did not sound any note of alarm, speaking only of a potential
corrosion problem in the future. Having remarked that stainless steel fittings
would have been preferable, the writer continued:
From the limited inspection possible
there is no evidence of significant corrosion. Indeed the cladding design has
been carefully conceived by the installation of integral weep holes to avoid a
build-up of condensation and standing moisture which in certain conditions
could represent a possibility within the lower channelled section transoms.
Such corrosion as was found was described as being in isolated locations.
So, it is argued, if routine protective
painting had been done in 1990, when by ordinary conventions it was due the
renewed paint film would have prevented the ingress of water, whether at the
frame beading junctions or at the increasing shrinkage of the unpainted
putties. Poking out and clearing the weep holes would have added next to
nothing to the prepainting preparation. Works of the elaboration now necessary
would have been confined to those frames where the original painting had been
defective or where for some local reason the painting was ineffective.
I accept that Mr Fitton, who was the
senior Bernard Thorpe person responsible for the planned maintenance programme,
did not give a satisfactory explanation for the delay before the programme
survey nearly two years later. I also accept that there was marked
deterioration during those years. However, I am not satisfied that routine
painting would successfully have kept the corrosion problem at bay. There was
evidence of a corrosion problem from 1983, when the centre was less than 10
years old.
The remedial works during Professor
Lithgow’s period were not effective to remove the problem, as his being called
back again in 1987 shows. The 1989 report was over-optimistic in saying that
the fixings were carefully contrived. Carefully contrived they may have been,
but the design had the inherent weaknesses that the redesign is intended to
eliminate. Naturally the working out of those weaknesses was time-related. The
more frequent the painting, the more the weaknesses could be disguised, but
sooner or later the present works would have been required to most, if not all,
of the frames and windows.
The anticipated cost is enormous, but I
am satisfied that it would have been far more expensive to treat the frames in
batches as and when any frames showed clear evidence of rusting externally. I
am satisfied that Mr Manners-Smith is correct when he says that the major cost
lies in the removal of the cladding down to bare frames, and that the removal
of the more extensive rust which time has allowed to develop does not add
significantly to the overall cost. In my view, the plaintiffs are correct in
their contention that the works to the cladding were always repairs that would
become necessary and that, in so far as they may have been guilty of delay and
so increase the final cost in terms of the extent of the corrosion, that is
more than balanced by the saved costs of repainting in 1990 and conceivably
also in 1993 or 1994.
In the result I find that the plaintiffs
are entitled to recover all the costs claimed, save for the 45p a m2 for the priming of the
troughs.
