Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 56
with the FSO. LPC was found to be a “responsible
person” under the FSO in relation to the structure
and exterior (including the cladding), and its duties
under articles 8, 10 and 12 of the FSO required
replacement of the Category 3 ACM panels. The
Court rejected LPC’s argument that the FSO’s
enforcement
regime
prevented
contractual
enforcement, holding that su昀케ciently clear lease
provisions can make statutory duties actionable
between the parties.
of the lease distinguishes this case from most
landlord and tenant relationships, and was
almost certainly a factor in the tenant pursuing
the landlord in the way that it did.
Speci昀椀c performance: order to
replace cladding
The Court ordered LPC to: (a) remove the Category
3 ACM cladding panels within 6 months; and (b)
complete re-cladding within an overall period of 18
months, all at LPC’s own cost.
Court upholds hotel closure decision
The Court held that Essendi’s decision to close the
hotel was caused by LPC’s breaches, was reasonable
in all the circumstances, and entitled Essendi to
proceed to an assessment of damages.
Key takeaways: What this means for
commercial lease 昀椀re safety obligations
•
•
•
“Good condition” covenants can require
cladding replacement: A landlord’s covenant
to put and keep a building in “good condition”
may extend to removing and replacing cladding
which presents a 昀椀re safety risk, even in the
absence of physical disrepair. This is a strict
liability obligation, with landlord knowledge
of the defect being irrelevant. Landlords and
tenants of buildings (particularly, given the
post-Grenfell context, of taller buildings in
which people live and sleep) with 昀椀re safety
defects should review their lease obligations
accordingly, but note that the exact wording of
the lease is key to understanding the extent to
which the obligations stretch.
Post-Grenfell context is key: The judgment is
expressly rooted in the post-Grenfell context
and the passing of the Building Safety Act 2022.
Whether this reasoning extends to other types
of safety defects is a question of fact and degree
and will be determined on a case-by-case basis,
with particular attention placed on the wording
of the lease provisions.
•
Combustible materials ban for new hotels:
However, those procuring new-build hotels,
hotels formed by material change of use, or
recladding works to hotels which are over 18
metres in height should be aware of the ban
on combustible materials introduced by the
Building (Amendment) Regulations 2018 –
which was extended in 2022 to cover hotels,
hostels and boarding houses. Following this
extension, materials in the external wall of
buildings falling into those categories must
meet the same performance requirements as
the higher risk buildings previously covered by
the ban i.e. A2-s1, d0 or better.
Mr. Michael Butters
Chartered Surveyor and Construction
and Engineering Survey professional.
MRICS, MCInstCES
Chartered Surveyor and Construction Professional with more than 40 years’ experience
across Civil Engineering, Mechanical Engineering, Nuclear, Petrochemical, Infrastructure
and Land Surveying projects throughout the United Kingdom, Europe, the Middle East,
Africa and Asia.
Member of the Royal Institution of Chartered Surveyors (RICS) and the Chartered Institution
of Civil Engineering Surveyors (CICES), with extensive expertise in topographical surveys,
boundary disputes, land rights investigations, engineering control, construction verification,
laser scanning and preparation of technical evidence for legal and contractual matters.
An alternative route outside the Building
Safety Act 2022: Hotels and other buildings
outside the scope of the BSA regime may be
able to compel landlords to carry out cladding
remediation through standard legal obligations
in lease covenants via the Regulatory Reform
(Fire Safety) Order 2005, where the landlord is
the responsible person. The Court con昀椀rmed
that su昀케ciently clear legal obligations provisions
can make FSO duties contractually enforceable
between the parties.
Experienced in acting for private clients, contractors and property owners in matters
involving boundary encroachment, land ownership disputes, private road construction
issues, speed calming disputes, construction setting out discrepancies and technical
surveying investigations.
Highly experienced in the preparation of AutoCAD drawings, survey exhibits, technical
reports, evidential photography, dimensional analysis and court-ready documentation
suitable for litigation support, mediation and dispute resolution proceedings.
Career includes senior surveying and construction management roles on major
infrastructure and industrial projects including nuclear power stations, petrochemical
facilities, structural steel developments, highways, water treatment works and heavy civil
engineering schemes throughout the UK and overseas.
Cost proportionality alone is not a defence:
The Court rejected arguments that the
estimated cost of replacement (£5–7 million)
or the absence of a service charge mechanism
made replacement disproportionate. The fact
that the tenant was not liable to pay the cost
of the cladding replacement under the terms
EXPERT WITNESS JOURNAL
•
Contact: Michael Butters
Telephone: 07809 391 504
Mobile: 07711 619 438
Email: michael@geomatics-uk.com
Website: geomatics-uk.com/
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AUGUST 2026
