Sprinklers and Access

Quiz - how well do you understand your lease?

Understand the key things you should know about your lease. If you are a purchaser, this can help make sure your solicitor has covered all of these points and explained them clearly to you.

By Kavita Bharti – Legal Adviser

July 2020

A sprinkler system is one of the tools available to prevent the spread of fire in tall buildings. The Statutory Guidance in England meant that only buildings taller than 30 metres and constructed since 2007 were recommended to have sprinklers fitted and existing high-rise buildings in England must have them fitted if a fundamental change is made to the structure or use of the building. Currently, there is no requirement for existing buildings (that is, those built before 2007) to fit sprinklers.

On 26 May 2020 the Department for Levelling Up, Housing & Communities published amendments to the guidance in Approved Document B (fire safety) volume 1 following their consultation on sprinklers and other fire safety measures in new high-rise blocks of flats which was launched in September 2019. The changes are:

Sprinkler systems in accordance with BS 9251 (or BS EN 12845 for residential blocks of flats outside of the scope of BS 9251) should be fitted throughout blocks of flats with a top storey more than 11m above ground level. BS 9251 is the British Standard for fire sprinklers, which covers (amongst others):

- Individual dwellings (houses, flats and maisonettes)
- Houses of multiple occupancy (HMOs)
- Boarding houses
- Blocks of flats
- Residential care premises

2. Wayfinding signage for the fire and rescue service should be provided in blocks of flats with a top storey more than 11m above ground level. It was agreed that there should be a more consistent approach to wayfinding signage for fire and rescue services in Approved Document B.

This change in guidance came into force on 26 November 2020. The 2019 edition will continue to apply where a building notice or an initial notice has been given to, or full plans deposited with, a local authority before 26 November 2020 and either the building work to which it relates:

has started before that day; or
is started before 29 January 2021.

The circular letter sent by the Department for Levelling Up, Housing & Communities states that the Approved Documents will continue to note that sprinklers in residential blocks of flats do not need to be provided in common areas when these are fire sterile. It is also important to note that new accommodation, formed by building work, should meet the relevant requirements having considered the guidance in the approved document. This means making sure that the standard of fire protection for the occupants of the new accommodation is as would be provided for a new building under the approved document.

In the majority of cases, therefore, sprinkler protection and wayfinding signage will be necessary in any newly formed accommodation that falls above the new 11m trigger height. It may also be necessary to consider additional protection for the existing parts of the building where needed to ensure that the extension is compliant with the applicable requirements of Schedule 1.

Equally, it will be necessary to satisfy regulation 4(3) by ensuring that the level of fire protection in the building as a whole is made no worse.

There may also be situations where the risk assessment for the building (provided under the Fire Safety Order) requires further work to be done. Regardless of the minimum requirements of the regulations there is, of course, merit in providing additional protection throughout the building.

There are two significant cases which touch on the topics of sprinklers and also access to the leaseholder’s property that we will discuss further.

Further information on wayfinding signage is available here and on our website here.

London Borough of Wandsworth

Following the fire at Grenfell in 2017, the London Borough of Wandsworth (“LBW”) took the decision to retrofit sprinklers in blocks of more than 10 storeys within the borough.

They made an application to the First Tier Tribunal (Property Chamber) to make sure that they had the authority to carry out and charge for the suggested works in the leasehold properties. The application was to seek a ruling that:

they are entitled to enter the leasehold flats without the leaseholder’s consent and
to include the expenses of both fitting and maintaining the sprinkler systems as part of the service charge costs towards which the leaseholders will have to pay

This application to the Tribunal affected approximately 2,500 leasehold properties.

In December 2019 the application was struck out by the Tribunal and was not able to proceed further. It was decided that (“LBW”) were not entitled to ask for a blanket determination of leaseholder rights. The Tribunal said that if LBW wish to fit the sprinkler systems then they must consider each block of flats individually and if necessary make an application to the Tribunal on a block by block basis. Due to LBW not taking the “necessity” of the installation of the sprinklers on a block by block basis into consideration, there was no reasonable prospect of them being able to show that the service charge costs were recoverable under the leases. Each block was constructed in a different way with one of the arguments put forward by the leaseholders being that sprinklers were not necessary for all the blocks and if the Tribunal were to make a decision it would be an abuse of process.

The Tribunal did not make a decision on the key points at issue, and these issues still remain unsolved for those wishing to make such improvements.

Oxford City Council v Peichnik

The County Court did explore the leaseholder’s right to quiet enjoyment when the landlord insists on access to for fire safety works in the case of Oxford City Council v Piechnik [2020] EWHC 960 (QB)

This was a situation where a lease had been granted under the Right to Buy (RTB). The lease contained provisions allowing for service charges, quiet enjoyment and the landlord’s covenant to maintain the building. Under the lease, the Council was allowed to enter the premises to repair any part of the building, provided notice was given. The Council wanted to carry out major works which involved installing insulation and cladding, putting in a sprinkler system and ventilation units, replacing windows and other miscellaneous works.

There were proceedings before the Tribunal which addressed the question as to whether the service charges for these major works were payable under the terms of the RTB leases. It was held that the majority of the charges were not recoverable as the leases did not allow for costs to be recovered in relation to improvements.

Dr Piechnik (the leaseholder) refused access to the contractors so the Council applied for an injunction to force Dr Piechnik to provide access. This resulted in an agreement where limited access was to be provided. This agreement had, however, been without prejudice to the parties’ respective rights and remedies. After the completion of the works, Dr Piechnik sought (amongst other things) an order for damages for breach of covenant, namely interference of his right of quiet enjoyment.

It was initially held that, because a local authority could insist on access for these purposes when the flat was let on a secure tenancy meant that there was an implied right of access in a RTB lease. Their argument was that Schedule 6, Housing Act 1985 includes an implied right of entry – as previously found in Lee v Leeds City Council [2002] 1 WLR 1488, CA.

However the High Court allowed the appeal in part but held that a local authority landlord does not have an extended right of entry implied into such leases in order to carry out works which would avoid the risk of death or personal injury. The Schedule 6 provisions are directed to different rights, namely the rights to the access of light and air to a building or part of a building, not to rights of access.

Take-aways

Approved Document B has been updated to reduce the height threshold for the inclusion of sprinklers in new residential blocks of flats to 11m, along with guidance for more consistent wayfinding signage in new residential blocks of flats with a top floor of more than 11m from ground level.
Landlords cannot take a “blanket” approach when looking to carry out works, it is important to take into account whether or not the works are necessary and applicable in the circumstances.
Despite the implied clauses in RTB leases, the landlord does not have an extended right of entry implied into such leases in order to carry out works which would avoid the risk of death or personal injury.
Be aware that there is no “one-size fits all” ruling. In the Wandsworth decision, the key issues were not decided upon, and the decision in Peichnik is specific to RTB leases. It does not apply to private freeholders or housing association landlords.