Blue Manchester Ltd v North West Ground Rents Ltd
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 20 October 2020 |
| Neutral Citation | [2020] EWHC 2777 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 20 October 2020 |
| Docket Number | Case No: D50MA026 |
[2020] EWHC 2777 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Manchester Civil Justice Centre
1 Bridge Street West
Manchester, M60 9DJ
HIS HONOUR JUDGE Stephen Davies
(Sitting as a Judge of the High Court)
Case No: D50MA026
Mr. Paul Darling QC (instructed by Freeths LLP, Birmingham) appeared for the Claimant.
Mr. David Sears QC (instructed by JMW Solicitors LLP, Manchester) appeared for the Defendant.
Hearing dates: 15, 16, 28 September 2020
Draft judgment circulated: 2 October 2020
Approved judgment handed down: 20 October 2020
APPROVED JUDGMENT: DEFENDANT'S APPLICATION TO VARY ORDER FOR SPECIFIC PERFORMANCE
This judgment was handed down remotely to the parties and by publication at 2pm on 20 October 2020
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment once approved and handed down and that copies of this version as handed down may be treated as authentic.
His Honour Judge Stephen Davies
This is my judgment on the defendant's application made on 15 May 2020 to vary the order for specific performance made on 11 February 2019 (“the order”) made pursuant to my judgment following a trial which took place between 7 and 11 January 2019.
The most significant issue at trial was whether or not the defendant ought to be ordered specifically to perform its landlord's repairing covenant by undertaking works to a number of shadow box units (‘SBUs’) forming part of the glass curtain walling system comprising the external façade of the 47 floor Beetham Tower in Manchester (“the tower”). The tower comprises a Hilton Hotel from ground level to level 23, owned and operated by the claimant, and a number of flats owned by various leaseholders at higher levels.
As I said in paragraph 1 of my original judgment, the tower has been described as an iconic feature of the Manchester skyline, partly because of its slim rectangular shape with a distinctive cantilevered overhanging section from mid-height level upwards and also because its external elevations are fully glazed, the façades being made up of glass panels which form a sleek uninterrupted wall of glass because there are no visually intrusive connections between the panels.
The SBUs are so named because they have a glass outer panel and an opaque panel inside. The purpose is to achieve a fully glazed external appearance but to prevent anyone being able to see into through the SBUs into areas such as the hotel bathrooms where privacy is required. Where privacy is not required the units are fully glazed.
It is worth repeating what I said at [103] of my previous judgment as to the impact of the original designed effect as compared with the temporary stitch plate repair existing as at the date of the trial:
“… As the authorities referred to above demonstrate, the starting point is the position as it existed at the time of the lease and aesthetic considerations are in principle relevant matters to be taken into consideration. Whilst various witnesses have expressed differing views as to the aesthetics of the tower, there can be no doubt that the unitised appearance of the glass facades, which depends upon there being no obvious externally visible fixings between the separate panels, is an important aspect of the overall design and original appearance of the building. Moreover, whilst various witnesses have expressed differing views as to the impact of the stitch plates, again there can be no doubt that they have a significant adverse impact on the unitised appearance of the glass facades and that they are more intrusive and more ugly than would be the case even if the glass facades had been designed and constructed to have externally visible connectors between the separate units from the outset …
As well as seeing photographs in the trial bundle I have, as I notified the parties at the beginning of the trial, walked past the hotel and looked up at the facades. The stitch plates are so called because they give the appearance of the panels being stitched together by some giant hand, around 16 stitch plates in total to each panel. Whilst the glass panels do not completely abut each other, because there is a thin strip of weather-seal separating them, without the stitch plates the facades have a clean, modern and unitised appearance which is significantly and adversely affected by the presence of the stitch plates. In my view there would have to be some compelling reason why a tenant such as the claimant should have to accept this as a repair for a building such as this other than as a temporary time-limited repair pending a permanent repair to restore the tower to its original appearance.”
The problem which has led to this litigation is that in 2014, some 8 years after completion of the tower, it was discovered that in some of the SBUs in the lower half of the tower there was a failure of the structural sealant bond between the glass and the carrier frame of the SBUs, leading to a risk that the glass might blow off which would, of course, pose a very grave risk to the safety of pedestrian and other traffic below. Carillion, the well-known former construction company, had built the tower and was asked to investigate. It provided a temporary fix, which involved using screw stitched pressure plates to secure the glass to the carrier frames, and provided protective hoardings at ground level for further protection, but had neither designed nor implemented a permanent remedial scheme before going into liquidation. The claimant was dissatisfied with what it perceived to be the failure of the defendant as its landlord to resolve the problem and the continued impact of the temporary fix and protective hoardings. Accordingly, it brought these proceedings seeking, amongst other things, an order for specific performance of the defendant's landlord's repairing covenant.
It was ordered that there should be a trial of the preliminary issues of liability, including the issue as to what, if any works, the defendant was liable to undertake pursuant to its obligations under the lease, but not the issue of the quantification of the cost of such works.
For the reasons stated in my judgment, neutral citation number [2019] EWHC 142 (TCC), which is readily accessible through the Bailii website, I determined that the claimant was entitled to specific performance to compel the defendant to undertake a permanent remedial scheme which would restore the external façade to its condition immediately before the discovery of the defects in the SBUs and the undertaking of the temporary remedial works subsequently carried out.
The order was intended to and did reflect the judgment as handed down. It included the following material provisions:
“4. The Defendant shall:
(a) Remove the existing stitch plates from the SBU's to the external Façade of the Building;
(b) Remove the existing SBUs (and frames as appropriate) from the Façade;
(c) Reinstate or replace SBUs (and frames as appropriate) so that the new SBUs, their frames, and component parts are securely affixed to the structure of the Building in such a way as provide substantially the same external appearance as was present at the date of the Lease and prior to June 2014, and preserves the design intent for the function of the curtain wall system; and
(d) Make good any damage caused to the Façade (“the Repair Works”).
5. The Defendant shall complete the Repair Works by no later than 31st July 2020.
…
8. The parties shall have a liberty to apply in relation to compliance with paragraph 4 and 5 above.
9. In particular, the Defendant shall have a liberty to apply:
(i) to be permitted to undertake some different remedial scheme if the Repair Works required by this order are revealed by investigation and analysis by a suitably qualified consultant to be not reasonably practicable other than at disproportionate cost; and
(ii) to extend compliance with paragraph 5 above.”
The application as presented at the hearing on 15 and 16 September 2020 seeks to vary those provisions to the following effect:
“1. Paragraph 4 of the Order dated 11 February 2019 be and is hereby varied so that, instead of removing and reinstating the SBUs, the Defendant should:
(a) Provide aluminium pressure plates to the vertical edges of all the SBUs forming part of the external envelope of the Building, using mechanical fixings at circa 300 mm to which aluminium plates are to be fitted;
(b) Provide cosmetic cover caps for the aluminium plates; and
(c) Make good any damage caused to the façade.
2. Paragraph 5 of the Order dated 11 February 2019 be and is hereby varied so that the Defendant should complete the Repair Works (as hereby varied) by 31 July 2021.”
The defendant's case is that its application falls fairly and squarely within the specific permission to apply provision contained in paragraph 9 of the 11 February 2019 order. In short, the defendant's position is that during the period from February 2019 onwards its investigations have revealed that the remedial scheme as ordered has been shown to be not reasonably practicable other than at disproportionate cost, whereas the alternative remedial scheme which it propounds is reasonably practicable and can be undertaken at proportionate cost and more speedily than the ordered scheme. The defendant also submits that whichever scheme it is now required to implement the time for compliance should be extended to reflect the time reasonably required to undertake it.
The claimant's case is that that the court cannot and should not vary the order for the following reasons, as articulated by Mr Darling QC in his skeleton argument (I shall explain the references to the various remedial works...
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