Housing After Grenfell
In this short piece Susan Bright, Professor of Land Law, McGregor Fellow, shares some of her research on Housing After Grenfell.
Since the terrible fire at Grenfell Tower in June 2017, it has emerged that thousands of other buildings suffer from a range of fire safety problems, including the use of combustible materials on the external walls and balconies, and also defective construction, such as missing fire stop barriers, and wooden balconies. This is a national scandal.
Focussing on this problem from the perspective of those living in the affected buildings, Sue Bright has been investigating how the law can help those seeking remediation. Her research has focused on a series of blog posts and conversations on Twitter @suejbright, as well as conference papers, published papers, and lectures that expose the failures of law to provide justice.
In a number of posts she explains how property law, and private law more generally, has left leaseholders disempowered, and unable to compel action. The government’s rhetoric that ‘building owners should do the right thing and not pass costs onto leaseholders’ has achieved little by way of remediation and is undermined by lease wording through which costs of remediation can be passed onto leaseholders, as noted in Tribunal decisions she discusses here. In related socio-legal research, with David Weatherall and Roxanna Willis, she illustrated the complexities that occur with retrofit of mixed tenure (social and private) apartment blocks and, more broadly, how building governance is a determinant of the costs and outcomes of refurbishment projects. This focussed on a detailed study of a large refurbishment project of five tower blocks by Oxford City Council, involving external wall insulation and other energy efficiency measures. The Oxford Tower Block case study also shows how freeholders can be prevented from making fire safety improvements by the ‘zone of autonomy’ conferred on leaseholders by the property concept of exclusive possession, as shown in an analysis of Piechnik v Oxford CC. Leasehold law thus makes it difficult to retrofit fire safety measures such as sprinklers, as apparent in the First Tier’s Tribunal consideration of the application by LB of Wandsworth to retrofit sprinklers in all high-rise blocks which is discussed here. Further, her comprehensive study of how the Landlord and Tenant Act 1987 can be used to vary long residential leases has been exercised (published with Philip Morrison in 2019 Conveyancer 332) demonstrates the way in which Tribunals appear to balance individual rights-based concerns against more utilitarian and collectivist goals. The narrowness of this jurisdiction means that there is little opportunity to vary existing leases in pursuit of broader agreed policy objectives, that could include enabling both energy upgrades and making fire safety improvements, as she shows here. Overall, as argued in the Annual Property Law Lecture at Liverpool University, property law as currently structured fails to provide an effective means to address the problems that are emerging post-Grenfell.
Nor can public law provide an easy answer to the problems. Both the Fire Service and Local authorities have powers to bring enforcement action where buildings fail to meet required safety standards, as she discusses in several blog posts. With Douglas Maxwell she has published a paper examining whether human rights law offers an effective avenue for redress, illustrating the UK government’s failure to implement an effective regulatory system for the building and refurbishment of high-rise buildings and considering whether this constitutes an ongoing violation of various rights under the European Convention on Human Rights. They argue that the government’s response does not go far enough to discharge the state’s positive obligation to preserve life.
This is a problem far from being solved. Legislation currently being considered is discussed in her blog, and although this may improve building standards at the construction stage the proposed management of the occupation phase of residential buildings makes things worse for leaseholders.
This ‘cladding crisis’ is now getting much-deserved media and political attention. It presents a major failing of our system of principle-based regulation, and as is emerging from the ongoing Grenfell Tower Inquiry, has also involved moral failings within the construction industry. For those leaseholders trapped in their flats, the law has provided little hope. This is the story that Sue’s research seeks to expose.