Tony Bingham: Dereliction and duty

It’s tricky territory for you local authority folk when a building in your town is ready to fall down and the owner is sitting on his hands. Smack in the middle of Swindon is the old building known as the Mechanics’ Institute. The institute was a railway workers’ educational centre. They closed and left in the mid-eighties after 125 years. A developer bought the empty premises 10 years ago. It’s a grade II-listed building. The roof began to look iffy. The owner, Forefront Estates, was asked to do something to keep it safe. Nothing much happened, so Swindon council stepped in.

This is where things can become tricky. Swindon got on with the work, then sent Forefront a bill for £393,000 for emergency roof works. The firm refused to pay. It argued that the claim by Swindon made under the Building Act 1984 gave no authority to move in on Forefront’s property and nothing was therefore payable. The Building Act does authorise a local authority, but Forefront said that there is a special procedure required that was not followed. You must first apply to a magistrates court for an order requiring the owner to deal with a dangerous building, and in default, only then can the public body take the task into its own hands and send the bill.

Six weeks later, the engineer sang a different tune. There had been lateral movement to the walls. Trusses had drooped. He said it was not safe

Nobody appears to deny that the old building was in a dangerous condition. The High Court judge, in deciding whether Forefront was liable, stated as much. The snag with the Building Act is that if the local authority does not go to the magistrates court for an order, the authority can only take measures itself if it is “necessary for the council to take immediate action to remove the danger”. As the judge said at trial: “Merely because a building is in a dangerous state or condition does not, in itself, justify the council taking the emergency measures.”

In effect, it is necessary for the council to carry out a risk assessment and to consider the risk in terms of the consequences of the dangerous state of the building, the likelihood of those consequences occurring and the seriousness of the situation if they do. It might strike you that while you are doing all that, you might just as well pop across the road to the magistrates court and get them to issue an order to the owner, then proceed to do the work under a safely hoisted flag of authority, if the owner ignores the order.

On the Mechanics’ Institute, the roof was investigated by an expert structural engineer. In July 2010 he said it was not likely to collapse imminently, then covered himself by saying, “but in certain weather conditions it may be more prone to this”. Beware, that’s not enough for the local authority to do the work without a magistrates’ back-up order.

Six weeks later, the engineer sang a different tune. There had been lateral movement to the walls. Trusses had drooped. He said it was not safe. Asbestos was discovered. Then at last, some weeks later, the roof was said to be in danger of collapse.

All this is still tricky. There has to be some certainty that immediate action is necessary. The get-out that Forefront was aiming for is the wording in the Building Act. It says: “In proceedings to recover expenses the court shall enquire whether the local authority might reasonably have proceeded instead under section 77 [the rule about a magistrate’s order], and if the court determines that the local authority might reasonably have proceeded instead under that subsection, the local authority shall not recover the expenses or any part of them.”

So Swindon was at risk for nigh on £400,000 worth of expenditure. Do you see how attractive it is to go to the magistrates court instead of getting stuck in?

The judge decided that Swindon acted correctly. The Mechanics’ Institute occupies a huge block of land with all sorts of business and domestic folk on all sides. In the event of a collapse, roads would have been closed and some 450 people would have to be advised to stay inside because of contamination.

So Swindon got an order for its money, or nearly all its money. The judge, Mr Justice Ramsey, had to put his quantity surveying hat on. He asked for evidence of reasonable expense reasonably incurred. Swindon’s claim for £393K saw them awarded £332K against Forefront. Legal fees added another £60K. But I guess the roof is now tickety-boo.