By Harry Scoffin
A High Court judge has ruled against Oxford City Council for forcing entry into a 1960s flat to carry out an elaborate and hotly contested programme of major works.
The action was taken by Oxford University academic Dr Stefan Piechnik, 53, who is incensed by the council’s plans which he feels are unnecessary and have devalued his home.
Dr Piechnik, a Polish biomedical researcher, was one of 50 leaseholders who successfully overturned the council’s original demand for £50,000 each to pay for what were deemed enhancements at five high-rise blocks.
The bills were some of the highest faced by local authority leaseholders, although bills of tens of thousands of pounds are routinely dumped on leaseholders in London boroughs.
In spite of the court decision, Oxford continued with the works at its own expense.
Dr Piechnik’s partial High Court victory last month is the latest twist in his own private battle with the council, on which he claims to have spent more than £50,000.
Dr Piechnik took issue with a written judgment from the Oxford County Court, made in September 2019, and appealed to the High Court.
While he has been given the green-light for a further showdown in litigation with the council, possibly at the Court of Appeal, Dr Piechnik failed to convince the High Court to make past tribunal decisions fully binding on the council.
He did, however, win on the point that Oxford had no obvious right to force its way into his property to finish the job when it came to the works it had argued were essential to health and safety.
Should Dr Piechnik choose to take the dispute further, he is at risk of a legal bill that is anticipated to be in the six figures.
So far, Oxford’s major works project has involved the county court, the first-tier tribunal and numerous requests for injunctions, with some leaseholders braving judges as litigants-in-person and others with the backup of a direct access barrister.
The four-year dispute has seen Oxford lawyer up with Justin Bates, of Landmark Chambers, meaning a costly affair for all involved.
In the light of the tragic fires at Lakanal House and Grenfell Tower, many local authorities have commenced major fire safety works schemes in tower blocks. One common problem that has been encountered is that leases granted under the Right to Buy rarely make express provision for rights of access to install sprinklers or make similar fire safety improvements.
Legal commentators Giles Peaker and Sue Bright have pondered the knock-on effects of these disputes on all owners of leases of ex-council flats.
A couple of leasehold cases, one on flat entrance doors and, one on rights of access through those doors. First, Fivaz v Marlborough Knightsbridge Management Ltd (LANDLORD AND TENANT – BREACH OF COVENANT) (2020) UKUT 138 (LC), a skirmish in what appears to be an ongoing war between freeholder and leaseholder.
Other social landlords handling similarly extensive major works schemes will no doubt be studying the judgment and taking advice.
The High Court decision in Piechnik v Oxford CC considers when a landlord under a Right To Buy (RTB) lease has an implied right to enter a flat.
Plowman Tower was the last of the city’s five ageing apartment buildings to have work commence. Council refurb plans for the block included:
- Provision of external cladding and insulation
- Replacement of communal ventilation with in-apartment ventilation systems
- Installation of a new sprinkler system
- Provision of new electric sockets/isolation switches
- Provision of new water boiler insulation
- Provision of new in-apartment digital aerial sockets
- Provision of new windows and fully enclosed balconies
- An option to have the heaters changed
In October 2017, the council was admonished in the First-tier Tribunal for not building up reserve funds “to avoid sudden large bills”.
Judge Bruce Michael Edgington agreed with leaseholders over the unreasonableness of the sums, slashing the final major works bill from £2.7m to around £216,000.
It was established that the works were unnecessary all along.
Judge Edgington found that the works being advanced by Oxford were actually “improvements”, whose cost was not recoverable in law from the leaseholders:
“Thus, whatever the laudable intentions of Oxford City Council may have been when starting upon these works, the fact of the matter is that they knew or ought to have known that much of the work involved improvements to the building and the cost of such improvements would not be recoverable from the long leaseholders.”
Therefore, they were not – as the council had insisted – works of “repair or maintenance”.
After Oxford City Council pushed ahead with the works, Dr Piechnik initially denied the contractors access to his flat.
The academic was forced to back down by an injunction.
Mr Bates had persuaded the County Court judge there is a scope to imply wider rights of entry in the lease, a decision which Dr Piechnik appealed.
In the High Court judgment handed down on April 27, Mrs Justice Amanda Tipples QC found that Oxford was “misconceived” over its use of a clause buried away in the Housing Act 1985, the law governing the rights and responsibilities of both landlord and tenant in right-to-buy property.
The council relied on the sub-paragraph in the legislation to claim its contractors had authorisation to enter Dr Piechnik’s premises and complete the disputed works.
Judge Tipples rejected this, even underlining the words that “cannot be ignored in order to give effect to the sub-paragraph in a completely different way.”
Ruling in favour of Dr Piechnik, Judge Tipples added:
“This paragraph in Schedule 6, as I have explained at paragraph 26 above, has nothing whatsoever to do with rights of entry to a building or part of a building in order to carry out works.
“I therefore agree with the defendant that the recorder was wrong to find that ‘the claimant has the right to enter the premises for the purposes of carrying out works in order to avoid the risk of death or personal injury, or to remedy a state of affairs which is injurious to health’, which he described as ‘the extended right of access’. There is no such right or ‘extended right’ implied into the lease.”
The offending sub-paragraph strictly related to “the rights to the access of light and air to a building or part of a building” and did not give carte blanche to the council to implement its major works programme.
The recorder at the County Court had determined that this right of access did not need to be explicitly covered in the lease terms or any legislation:
“In my judgment there is a limited right of access which arises independently from the express terms of the lease or the implied term derived from statute, where the tenant’s refusal of access interferes with powers otherwise available to the landlord and which the landlord wishes to exercise so as to avoid the risk of death or personal injury or to remedy a state of affairs which is injurious to health. That far I am able to go …”
This determination was despite earlier in the ruling hinting at support for Dr Piechnik’s argument:
“The covenant for quiet enjoyment in the domestic context is in effect a contractual expression of the tenant’s right to a home life and privacy and should not be lightly interfered with, save as provided for in the lease.”
In his written judgment of September 2019, the recorder was ultimately satisfied that the council was correct “in eroding the tenant’s right to quiet enjoyment” insofar as “carrying out works of improvement which are not works of repair”.
On this aspect of the decision which Dr Piechnik contested, Judge Tipples at the High Court gave a nuanced view, sympathising with the council and the September 2019 County Court ruling. The council could enter to do some kinds of work which were improvements but not repairs, she said, but ultimately the High Court judgment green-lit Dr Piechnik’s argument against the works in the County Court, which is yet to be heard and could be an issue for the Court of Appeal.
Judge Tipples pointed to the various obligations Dr Piechnik made to the landlord when he acquired the lease, which contains a “broad covenant … permit[ting] entry in order to: (i) repair any part of the building; (ii) make, repair, maintain, support, rebuild, clean, light, keep in order and good condition, amongst other things, pipes, television aerials or other convenience which belongs to or serves or is used by any part of the building; (iii) lay down, maintain prepare and test drainage, gas, water pipes, electric wires and cable, television aerials and associated apparatus; and (iv) for any similar purposes for any similar purposes.”
But the key passage is:
“The recorder answered question one correctly, except he was wrong to imply ‘the extended right of access’ into the lease. The defendant’s appeal is therefore allowed in part as the lease does not give the claimant the right to enter the premises for the purposes of carrying out works in order to avoid the risk of death or personal injury, or to remedy a state of affairs which is injurious to health.”
The ruling is a reminder of how fiendishly complicated leases are.
The agreements have been criticised for being poorly drafted and encouraging litigation, with standardised rules and documentation a key argument for commonhold.
The landlord access loophole could be closed in heavily trailed building safety reforms. Government is expected to require sprinkler systems or fire alarms be installed in existing blocks of flats.
New legislation could override defective leases to give landlords express permission to enter buildings where improvements and repairs are only intended to address clear and significant fire hazards.
Dr Piechnik was unable to convince Judge Tipples that past tribunal decisions between the parties should be fully binding on the council.
Oxford had argued that they were binding “only to the extent that they have determined that any of the disputed works are improvements rather than repairs.”
Judge Tipples sided with the local authority:
“Indeed, as Mr Bates, counsel for the claimant, pointed out the FTT does not have any jurisdiction or power to determine the scope of the claimant’s rights of access to the premises under the lease and, unsurprisingly, did not make any determinations in relation to any such rights in its decisions.”
Speaking to LKP, Dr Piechnik said that while seeing the bills “slashed to only a couple of grand” in 2018 was a great moment, it was only a “pyrrhic” victory.
The taxpayer lost £230,000 in funding the council’s legal bills, according to press reports, and he believes it never expected to win the case.
“The absurd £50,000 service charge demands we received were something that the council never expected to be paid, they just had a go and the whole process seems to be a distraction, preventing the tenants from exercising the fundamental right of managing one’s own home and its environment.”
But Dr Piechnik won’t give up. “This right to manage my own home is something I consider worth fighting for,” he said.
The High Court ruling is here: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2020/960.html&query=(title:(+PIECHNIK+))