MSA Properties Limited v The Drapery Northampton Ltd [2026] EWHC 1420 (KB)

[2026] EWHC 1420 (KB)Case No KB-2024-002846
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 June 2026
Before
Elizabeth O’Neill (sitting as Deputy Judge of the High Court)
Between
MSA Properties LimitedClaimantThe Drapery Northampton LTDDefendant
David Warner (instructed by Arax Law Limited ) for ClaimantSarah Walker (instructed by Spencer West LLP ) for DefendantHearing Hearing dates: 15, 16 and 17 April 2026JUDGMENT

Elizabeth O’Neill (sitting as Deputy Judge of the High Court):

[1]The Claimant is the freeholder of a building called 1/1A The Drapery, Northampton (“the Building”), title to which is registered at HM Land Registry under title number NN56521. The Defendant is the long lessee of the first to fourth floors of the Building, which contain 25 residential flats.[2]The first to fourth floors are let to the Defendant pursuant to a lease dated 24th December 1999 that was granted for a term of 999 years from 25th December 1998 (“the Lease”) by the Claimant’s predecessor in title to the Defendant’s predecessor in title. The unexpired term of the Lease was assigned to the Defendant on 3rd February 2016. The Claimant acquired the freehold reversion on 16th May 2017.[3]On the ground floor of the Building there are two commercial units, which are let to commercial tenants, as well as a large space consisting of a loading bay and refuse bin store.[4]On 16th August 2022 part of the ceiling of the loading bay below flats 16 and 17 (“the Flats”), on the first floor of the Building, collapsed. The collapse revealed evidence of historic water leaks and that a number of the structural ceiling joists supporting the first floor, located below the Flats, were rotten.[5]The parties are at odds with regards to the extent of the repairs required to the joists, and the manner in which the repairs should be effected.[6]The Claimant’s case is that in order to undertake repairs to the ceiling of the loading bay, which is its obligation under the Lease, it needs to replace the structural floor joists that are located below the Flats. The Claimant considers that for all practical purposes the work to replace the structural joists can only be undertaken from above, requiring removal of the bathrooms and the floor finishes of the Flats, together with the partition walls of those flats. The Claimant’s estimation of the duration of the works is 10 weeks, during which time the Flats will have to be vacated.[7]The Claimant relies on the terms of the Lease as providing an entitlement (on giving reasonable notice) to enter on the upper floors demised to the Defendant for the purpose of inspecting and carrying out works of construction, maintenance and repair.[8]The Claimant issued proceedings on 2nd September 2024, seeking specific performance of clauses 16.1(a) and 16.(1)(d) of the Lease dated 24th December 1999, together with an injunction compelling the Defendant to: - Permit the Claimant, its agents, experts, contractors and sub-contractors to have access to the Flats to carry out an inspection of the state and condition of those properties pursuant to clause 16.1(a) for a period of two days; - Permit the Claimant, its agents, experts, contractors and sub-contractors, and all public officials requiring access to discharge any statutory or regulatory function or duty in relation to the works, to have free, continuous, uninterrupted and unfettered access to the Flats pursuant to clause 16.1(d) for a period of ten weeks; and - Take all necessary steps to ensure that the Flats are unoccupied for the above periods.[9]The Defendant’s position is that the defective joists can be repaired and do not require full replacement. In any event, even if the joists require to be fully replaced, it considers that the Claimant could undertake the works from the ground floor loading bay below, and that it does not need access to the Flats on the first floor of the Building. The Defendant relies on the terms of the Lease regulating the Landlords’ rights of access and repair and the Lessee’s right to quiet enjoyment under the Lease to submit that in the circumstances, the Claimant has no right of access.[10]The Defendant also makes a counterclaim. Following the ceiling collapse, in November 2023 Northamptonshire Fire Service served an enforcement notice prohibiting the occupation of the Flats. The Defendant alleges that this happened because the Claimant was in breach of its repairing covenant in that it failed to repair the loading bay ceiling by putting in place fire retardant panels in reasonable time. The Defendant alleges that breach caused a loss of rental income amounting to £9,404.3.[11]The Claimant denies any breach of covenant and asserts that any delay in the repair of the defective ceiling was caused by the Defendant.[12]The parties agreed the following four issues arise in relation to the main claim: 1) Do the defective joists require replacement or can they be repaired? 2) Is the Claimant entitled to choose to replace rather than repair the joists? 3) Can the necessary works be practicably undertaken by the Claimant without access to the Flats? 4) Does the Defendant have a proper and lawful basis under the Lease to refuse the Claimant’s requests for access to the Flats for the purposes of inspection and undertaking structural repair works?

Evidence

[13]The trial took place over three days from 15 to 18 April 2026. The Claimant was represented by Mr David Warner, the Defendant by Ms Sarah Walker. Documentary evidence consisted of an agreed bundle running to approximately 1300 pages.[14]The following witnesses were called on behalf of the Claimant: i. Mr Antony Joseph Ellis, a director of the Claimant, who is responsible for the management of its operations; ii. Mr Jonathon Mark Grove, a chartered buildings surveyor and project manager retained by the Claimant to advise on the collapsed loading bay ceiling since August 2022.[15]The Claimant additionally relied on the report and oral evidence of a structural engineer of 43 years’ experience, Mr. David Smith B.Sc. (Hons), C.Eng., M.I.C.E., F.I. Struct E., CM.a.P.S, MFPWS, FCABE, ACIArb, as an expert witness on the nature of the works required to repair the defective joists. I found that all the Claimant’s witnesses sought to assist the court in giving evidence.[16]The following witnesses were called on behalf of the Defendant:a. Mr Andrew Silver, a director of UK Rooms National Ltd, the property management company which manages the Defendants’ premises;b. Mr Tom McGahan-Lyne, of TJM Group Ltd, a company providing services including repairs maintenance and construction.[17]The Defendant additionally relied on the report and oral evidence from a structural engineer of in excess of 20 years’ experience, David Haggan of David Haggan Structures Ltd, as an expert witness on the nature of the works required to repair the defective joists. I found that all the Defendant’s witnesses sought to assist the court in giving evidence.

Expert evidence of Mr Smith

[18]Mr Smith undertook a site visit and inspection of the Building on 19June 2025. He conducted a “head and shoulders” structural survey of the defective floor joists and the timber boarding above them through a small opening in the ceiling, having gained access by ladder. In addition to a visual inspection, he tested the extent of degradation of certain of the joists by inserting his screwdriver into the joists. Mr Smith also visited the apartments above to consider existing space usage above the degraded joists.[19]Mr Smith relied on a number of relevant materials produced by the parties in the context of their earlier discussions on the damaged joists, including several reports by Dr Singh, a building mycologist instructed by the Claimant to determine the extent of the rot in the affected structural joists, and a report by Mr Haggan dated 15 February 2023. At paragraph 3.17 of his report, Mr Smith references and appends an earlier report prepared by his colleague, Mr.Tom Garrod, on which he also relies.[20]Mr Smith’s qualifications and experience in structural engineering are extensive. He is a fellow of the Chartered Association of Building Engineers and of the Institution of Structural Engineers, as well as a Member of the Association of Project Safety.[21]Counsel for the Defendant invited me to view Mr Smith’s explanation of the relevance of the Construction (Design and Management) Regulations 2015 (the CDM Regulations) as a monologue which revealed that he was wedded to the Claimant’s case. I do not accept that submission. Mr Smith’s oral evidence on this issue was directly relevant to his opinion on the nature of repairs, which expressly relied on the CDM regulations. Although Mr Smith brought an annotated version of his expert report into the box, this was not done in a covert manner and he promptly set it aside. It was also suggested that his evidence was undermined by discussions with Mr Garrod which were not recorded in his report. However, as noted above, his report expressly references and appends Mr Garrod’s earlier report. Contrary to the Defendant’s submission, I found Mr Smith’s evidence to be well-considered and transparent.

Expert evidence of Mr Haggan

[22]Mr Haggan first inspected the Building on 30January 2023, when he viewed the affected joists and prepared an initial report dated 15 February 2023 for the Defendant. This report, not prepared for the purpose of court proceedings, recorded that:
“a number of joists at this end are very rotten and have extensive section loss. There are areas where the new framework cannot be fixed to the underside of the joists as it is either missing or completely rotten”
. The report contains photographs of the seven affected joists, which were fully exposed.[23]Mr Haggan’s expert report was produced following a site visit on 2 July 2025. By that stage, the ceiling had been covered up with fire retardant panelling. A small opening to the ceiling had been made in the area of the affected joists, enabling “a head and shoulders” inspection from a ladder positioned below.[24]Although Mr Haggan states at paragraph 4.1.1. of his report that he undertook a limited inspection from a ladder, in oral evidence Mr Haggan indicated that he had chosen not to examine the joists closely during that visit, as there was no obvious place to safely position his ladder. He considered that he had a better view of the affected area during his earlier January 2023 inspection, although neither that inspection nor the associated report are referenced in his report.[25]Mr Haggan expressed dissatisfaction with the access available at the time of inspection and described his inspection as “limited”. However, he did not seek assistance to obtain closer access, nor did he request that further sections of the joists be exposed, notwithstanding that Master Sullivan’s Order of 28 April 2025 expressly provided for expert access to the relevant area and this had been made available to him.[26]Mr Haggan’s report did not consider or draw on all the available evidence. Although he confirmed that he was aware of Dr Singh’s reports on the extent of fungal degradation (and these reports are agreed between the parties to be evidence of the extent of fungal degradation), his report only lists one of Dr Singh’s reports, and he was unable to confirm whether he had considered all of them at the time of reporting. Nor did his report refer to, or draw on, the closer examination of the relevant joists which he himself undertook in January 2023, when the relevant joists were exposed, or his follow-up report of February 2023.[27]On behalf of the Claimant, it was submitted that I should place less weight on Mr Haggan’s opinion, for a number of reasons: i) his more limited qualifications and lack of prior experience or training as an expert witness; ii) the fact that a substantial portion of his report addressed the cause of the ceiling collapse, which was not an issue in these proceedings; iii) his decision not to undertake a close inspection of the joists, and his failure to seek further access under CPR Part 25; iv) his failure to consider all of the available evidence, including the most recent and relevant reports by Dr Singh on the extent of fungal degradation.[28]Mr Haggan’s opinion was subject to caveats. He considered it premature to reach a final view on the nature of the remedial works in the absence of a fuller inspection and a joint meeting between the parties’ structural engineers, observing that this would have informed an agreed design solution and provided a safe, practical, and cost-effective way forward. As a result, he did not consider that either party could definitively determine the extent or nature of the works, or the appropriate approach, cost, or timeframe (expert report, [3.3.3]). Mr Haggan insisted that the ceiling should have been fully uncovered and made available for inspection and that the Claimant had not done this. However, this was erroneous – the ceiling had been fully uncovered by the Claimant in November 2023, and the Claimant had written to the Defendant to inform it of that fact.[29]In my view, Mr Haggan’s repeated emphasis on the inability to reach a definitive view in the absence of further engagement between the parties, together with his failure to consider all of the available evidence and to take available opportunities to inspect the joists more fully or to request additional access in July 2025, reflects some conflation of his role as a contractor engaged in negotiations with the Claimant and his duties as an expert witness.[30]Whilst Mr Haggan’s experience as a structural engineer enabled him to provide useful insight into potential remedial options, the fact that his report did not engage with all the available evidence—particularly Dr Singh’s reports addressing the nature and extent of the rot—and his failure, at the July 2025 inspection, to undertake or seek a fuller examination of the joists, meant that his evidence did not fully address the issues before the court. It was therefore less comprehensive and less helpful than it might otherwise have been.

The Law

[31]It is common ground that it is necessary to repair the seven joists supporting the first floor below the Flats, and that responsibility to effect these repairs falls to the Claimant, as Landlord, pursuant to the covenant contained in Clause 25.2 of the Lease.[32]The parties accept that where more than one way of remedying disrepair is available, it falls to the covenantor, in principle, to make the choice as to the works necessary to give effect to its covenant: Holy v Brentford Lock Island Residents’ Association Ltd [2026] UKUT 44 (LC).[33]It is also common ground that the choice made by a landlord as to what works are necessary to give effect to its repairing covenant must be reasonable; it is not untrammelled, as Nugee J (as he then was) explained in Century Projects Limited v Almacantar (Centre Point) Limited [2014] EWHC 394 (Ch) (“Century”) §45:
“(3) Where repairs are needed, in any but the simplest of cases, there will always be choices that have to be made as to what repairs are done, when they are done, how they are carried out, who is engaged to do them and the like. Prima facie, it is for the landlord or the person who is responsible for the repairs to make all these decisions…One would not normally expect anyone else, be it the tenant or the court, to be able to dictate to the landlord how to go about it or who to employ. (4) However, one can readily see that where there is a tenant in occupation, occupying under a lease for a particular purpose and enjoying the benefit of a landlord's covenant for quiet enjoyment, the landlord's duty and right to do repairs does not give him carte blanche to carry them out in whatever way he likes, regardless of the impact upon the tenant's business. It is not at all surprising that the landlord should be under a duty in those circumstances to act reasonably in the choices he makes since they can have a serious impact on the tenant. (5) …where a landlord has let premises for a particular purpose and the lease contains both a covenant for quiet enjoyment and an obligation or right on the landlord to do repairs, neither provision trumps the other. On the contrary, they have to be made to fit together. […] The way the two provisions fit together is that the landlord can carry out work provided he acts reasonably in the exercise of his right.”
[emphasis added][34]In making its choice between the various methods of repair available to remedy the disrepair, a landlord, acting reasonably, may not overlook the tenant’s interests. It is common ground that where the nature of the proposed repairs may interfere with the tenant’s right to quiet enjoyment, the landlord is obliged to take this impact into account in making its choice.[35]The Defendant’s case goes beyond this: it relies on McGreal v Wake (1984) HLR 107 (“McGreal”) to submit that the landlord cannot reasonably choose to effect repairs by a method that involves a tenant vacating the premises, unless the chosen method is the only possible method by which the repairs can be effected.[36]In McGreal, however, the court was not concerned with the reasonableness of the landlord’s choice between available methods of repair; rather, it was considering the scope of an implied licence to enter for the purpose of carrying out identified works:
“[…] However, it does seem to us that this right to enter and occupy must be limited to that which is strictly necessary in order to do the work of repair. The obligation to allow the landlord to enter and occupy in order to effect repairs does not seem to us to involve a further obligation to give the landlord exclusive occupation unless this is essential for the execution of the repairs. Nor does it involve an obligation to give him access to all parts of the house at the same time unless again this is essential.”
[37]In circumstances where, at the point of entry, identified works which the landlord wishes to undertake do not require a tenant to vacate the premises (in McGreal it was redecoration of the premises), it would be inconsistent with the tenant’s quiet enjoyment for the landlord to rely on an implied right of entry to secure exclusive occupation unless this was strictly necessary to undertake the works.[38]That analysis, however, operates at a different stage and in different circumstances. It does not justify the Defendant’s further proposition that, at the anterior stage of determining the appropriate method of repair, a landlord may never reasonably select a method of repair which involves the tenant vacating the premises unless this is the sole possible method of repair. To impose such a constraint would be to convert a limitation tied to the scope of an implied licence to enter for the purpose of identified works into a general limitation on the landlord’s performance of its repairing covenant.[39]An inflexible rule of the kind suggested by the Defendant, particularly in the context of lengthy leases such as the one at issue, would unduly restrict the landlord’s ability to carry out effective repairs. Its effect would be to confine the landlord to piecemeal repairs, precluding more comprehensive solutions apt for a lease of this length, so that a leaky roof would forever be patched up, and never wholly replaced, where the latter course would involve the tenant vacating premises.[40]More fundamentally, it is inconsistent with the authorities, which establish that the reconciliation of the covenant to repair and the covenant for quiet enjoyment is a fact-sensitive exercise, in which neither provision prevails over the other in principle. Whilst the covenant to repair does not exist in a vacuum and must be read alongside the right of quiet enjoyment, and consideration of the extent of any right entry is relevant, the authorities do not support the automatic curtailment of the landlord’s choice of method as submitted by the Defendant.[41]In Goldmile Properties Ltd v Lechouritis [2003] 2 P&CR 1 (another case considering the implied licence to enter) the Court of Appeal expressly considered and rejected an “all possible steps” approach to the landlord’s obligation to minimise disruption to the lessee, opting instead in favour of a standard of reasonableness: “the obligation to keep the building in repair has to coexist with the tenant’s entitlement to quiet enjoyment of the premises he is paying rent for. This by itself points towards a threshold, for disturbance by repairs, of all reasonable precautions rather than all possible precautions” (Sedley LJ at [11]).[42]What is reasonably necessary to give effect to the landlord’s covenant to repair is fact-sensitive. In particular, the terms of the lease are material, as they may inform both the scope of the landlord’s repairing obligation and its right of access to the premises, as well as the tenant’s right to quiet enjoyment. Other relevant considerations include the extent of the disrepair, the effect, risks and advantages associated with the various methods of repair, and their impact on the tenant’s interests. A method of repair that requires a tenant to give up possession for the duration of the works constitutes a significant interference with the tenant’s interests, which calls for correspondingly weighty justification.

The relevant clauses of the Lease

[43]Clause 25 of the Lease, headed Quiet Enjoyment, contains the following covenants:
“25.1 The Landlord covenants with the Tenant from and including Possession Date until the Determination of the Term to permit the Tenant peaceably and quietly to hold and enjoy the Premises without any interruption or disturbance from or by the Landlord or any person claiming under or in trust for the Landlord. 25.2 The Landlord shall repair maintain decorate renew clean and upkeep with reasonable materials available the structure floors ceilings walls foundations and exterior of the Building which is not the responsibility of the Tenant under this Lease”
[44]The covenant to repair extends beyond repair, encompassing renewal and upkeep of the structure floors and ceilings. Given the breadth of this covenant, and the length of the Lease (999 years), it must have been in the reasonable contemplation of the parties that the landlord might be required to undertake substantial repairs.[45]At Clause 16.1 of the Lease the Tenant covenants:
“The Tenant shall permit the Landlord...the right to enter the Premises…: (a) to inspect the Premises to ascertain whether the Tenant is complying with the Lease or to view their state and condition or to make surveys or to show the Premises to prospective tenants or purchasers or for any other reasonable purpose under the Lease; […] (d) to execute works of construction maintenance repairs decorations or of any other nature which the Landlord may or must carry out under the provisions of the Lease to the Premises and/or the Building and to carry out repairs or decorations or other works on any adjoining or neighbouring premises owned by the Landlord.”
(emphasis added)[46]The right of entry provided to the landlord is generous, granting it the right to enter not only for works which it must undertake, but also providing entry for the purpose of works which it may undertake under the Lease.[47]That right is, however, subject to an express proviso:
“Provided always that the person entering shall cause as little damage and disturbance as is reasonably practicable and make good as soon as practicable any physical damage to the premises so caused”
[48]In a similar vein, Clause 27.2 provides:
“A person exercising a right of entry granted or reserved under the Lease in order to carry out works must:- (a) Give reasonable prior notice to the relevant Party (except in emergency); (b) Exercise the right in a manner which causes as little damage and inconvenience as is practicable in the circumstances; and (c) Make good any physical damage caused as soon as is reasonably practicable.”
[49]This provision reinforces the qualification provided at Clause 16. It does not, in my judgment, impose any further substantive limitation on the landlord’s specific right of entry provided at Clause 16, beyond the qualification that is provided for in that section.[50]Looking at the Lease in the round, the covenant for quiet enjoyment and the repairing covenant are included in the same clause. The inclusion of covenant to repair in the clause entitled Quiet Enjoyment makes clear that effecting repairs is not inconsistent with the right to quiet enjoyment. The repairing obligation itself is broadly defined and, in the context of a lease of this length, plainly contemplates the undertaking of substantial works. Clause 16.1 confers an express and generous right of entry to the landlord to undertake repairs, extending beyond works the landlord must carry out to those it may undertake. That breadth indicates that the parties envisaged that works affecting the tenant’s occupation might from time to time be carried out at the landlord’s instance. The right to enter is, however, expressly qualified by the requirement that it be exercised so as to cause as little damage and disturbance as is reasonably practicable in the circumstances.

The extent of the remedial repairs required

[51]The first issue identified by the parties is whether the defective joists require replacement or whether it is possible to repair them without replacing the damaged joists. It is not disputed by either party that seven structural joists below the Flats are rotten and that repairs are required to remedy the structural consequences of the rot that was uncovered in August 2022. The Claimant’s case is that it is obligated, pursuant to Clause 25.2 of the Lease, to repair the damage to the joists, and that this requires the replacement of seven damaged joists. The Defendant’s case is that the damage to the joists can be remediated by localised repairs and that it is not necessary to replace the joists.[52]Mr Smith, on behalf of the Claimant, gave evidence that the state of the relevant joists is such that the degradation is too significant for any localized repairs to be carried out. His inspection of the joists revealed that he was able to insert a screwdriver all the way through certain of the floor joists closest to him as part of his assessment. In reaching his assessment, he had regard to several reports produced by Dr Singh, a building mycologist who undertook an environmental fungal infestation survey of the joists at the Claimant’s request. These reports were shared with the Defendant in the course of the discussions that took place following the discovery of the rotten joists in August 2022 and are agreed in relation to evidence of the fungal degradation of the joists. Mr Singh’s findings, as recorded in his report of April 2023, were that three of the joists were decayed up to 2.3 meters by wet rot, a further three joists were decayed up to two meters, and a further joist by 1 metre.[53]Mr Smith’s opinion was that given the length of the joists (which measured approximately between 3 and 4.5 metres), the extent of the infestation, and the need to cut back beyond the infested area to entirely unaffected wood, localised repairs would not be adequate and it was necessary to replace the damaged joists entirely to effect the repairs. He conceded in evidence that one joist, which was least affected by degradation (one metre only), might be remedied by a localised repair but given the replacement of the others it was appropriate to replace this.[54]Mr Haggan, on behalf of the Defendant, was of the view that it was premature to reach a conclusion as to whether the seven joists required full replacement or should be repaired until he and the Claimant’s structural engineers had effected a fuller inspection of the relevant area. However, in his report he opines that, although a mix of approaches might be required, depending on the extent of degradation, from his limited inspection “localised strengthening orthe provision of additional joists would be more than adequate to provide satisfactory support of the floor and ceiling”.[55]Given Mr Smith’s closer inspection of the relevant joists, his fuller consideration of Mr Singh’s reports on the extent of the fungal infection in the affected joists, and his extensive experience as a structural engineer, and the fact that in Mr Haggan’s opinion a repair might include placing two entirely new joists placed alongside the original joist, I prefer Mr Smith’s evidence and I find, on the balance of probabilities, that given the extent of the disrepair to the joists, in order to undertake effective remedial repairs it is necessary to replace six of the seven rotten joists with entirely new joists, and that localised repairs are not sufficient to remediate the damage to the joists. That being the case, the second issue identified by the parties, namely whether the Claimant would be entitled to choose to replace the joists, even if replacement were not required to remedy the disrepair does not arise on the facts of this case.

The proposed methods of repair and the risks and advantages of each

[56]Much of the dispute as to whether the joists should be repaired or replaced proceeds on the assumption that a localised repair could be effected from below, whereas replacement of a joist would have to be undertaken from above, with only the latter requiring the Defendant to vacate the premises.[57]However, Mr Smith’s evidence was that, irrespective of whether the joists were replaced or merely repaired, the works could only safely be undertaken from above. Conversely, Mr Haggan considered that, even if the joists were replaced, the works would not necessarily have to be carried out from above.[58]In those circumstances, the central issue between the parties is not, in truth, whether replacement of the joists is required (although I have found for the Claimant on that issue), but whether the necessary remedial works can, as a matter of practicality, be undertaken without proceeding from above (Issue 3). This is reinforced by the Defendant’s acceptance that it would not object to replacement of the joists per se, provided that the works could be carried out from below.[59]Mr Smith’s opinion was that replacing joists from below was not feasible and carried substantially more risk. Bearing in mind the principles of the Construction Design & Management Regulations 2015, which require those effecting works to minimise the risks associated with works and choose the safest method of execution, he opined that the works must be carried out from above. His view was that to safely undertake the work, the Flats would have to be vacated, and the bathrooms and boiler cupboard, and partition walls removed. He emphasised that a holistic, multi-factorial approach to gauging risk had to be adopted, but the key factors to which he had regard in reaching his opinion were: the risks to the occupants of the Flats, the workers and other users of the Building of undertaking the works with the tenants in residence which would involve propping the ceiling with the additional weight of the boiler, bathroom and tenants and their effects above; the risk of injury to the occupants in particular from the use of drills and circular saws from below; the risk to the workers from working “blind” as they would not be able to identify where the service infrastructure such as electric wiring and plumbing lay without removing floorboards from above. He also had regard to the fact that undertaking the works from below would mean that the flats above would lose the benefit of fire retardant panelling that was currently in place below the floor to those flats, resulting in a fire hazard, and that there would be no crash platform to protect the workers.[60]Mr Haggan’s evidence was that it was premature to reach a definitive view, but that there are alternative methods by which to manage the risks identified by Mr Smith, such as undertaking propping and staggering the removal of individual joists to reduce the risk associated with the additional weight of allowing the occupants to remain in place, and using a fire marshal. In his view, a number of alternative measures could be taken to reduce risks and enable the works to be undertaken from below.[61]Having regard to the evidence of both experts, I prefer Mr Smith’s opinion. The multiple risk management suggestions advanced by Mr Haggan in his evidence did not comprehensively address the risks Mr Smith identified with proceeding from below– such as the risks of working with no visibility of the service areas such as would be obtained by lifting the floorboards. Nor were the alternative proposed risk management measures Mr Haggan proposed consistent with CDM principles to prevent risks arising and to replace dangerous processes with less dangerous processes.[62]Accordingly, I accept Mr Smith’s assessment, and find, on the balance of probabilities, that given the risks associated with the works, the replacement of the joists must be undertaken from above in order for the landlord to undertake the works safely and in a manner that is consistent with the risk-avoidance approach required by the CDM Regulations.

The impact of the proposed works on the tenant

[63]The Claimant’s case is that it requires exclusive possession of the Flats for a ten week period to undertake the works. The Defendant considers two weeks would suffice.[64]In his evidence for the Claimant, Jonathon Grove explained that the construction work was likely to take three to four weeks: the ten-week period provided contingency to order materials, finalise sub-contracts, and for English Heritage to examine the original flooring. In his expert report for the Defendant, Mr Haggan assessed the duration of works as lasting for six to eight weeks.[65]The Defendant’s primary position is that undertaking the works from below would preserve its right to quiet enjoyment, as the occupants would not need to vacate the Flats. However, in evidence, Mr Haggan accepted that the staggered removal of joists from below, and the associated risks of cutting through the flooring, would likely necessitate the temporary vacation of the flats above for a period of one and two weeks.[66]It appears from the evidence above that the disparity between the competing methods of repair, in terms of their impact on tenants, is less marked than the parties’ initial positions suggested. Proceeding from below would likely require the occupants to vacate for a period of one to two weeks, whereas proceeding from above would require a longer period of displacement, lasting between four and six weeks, rather than the ten weeks contended for by the Claimant.

In the circumstances does the landlord have a right of access under the lease?

[67]The structural damage to the Building is significant. As regards the extent of the repairs, I have found, in light of the expert evidence, that given the extent of the damage to the joists, at least six of the seven rotten joists require to be replaced with new joists to remedy the disrepair effectively.[68]As to the manner in which the works are to be undertaken, the remediation required is complex and gives rise to risks not only to the occupants of the Flats but also to workers and to other users of the Building, including those making use of the loading bay and bin store below.[69]Responsibility for managing those works, and the associated risks, rests with the landlord, who will be accountable for their safe execution.[70]The landlord has elected, on the basis of expert advice, to carry out the works from above. The landlord shared the advice it received and explained the reasons for its preferred approach with the Defendant on several occasions.[71]That choice is supported by the expert evidence. I have found that, in order to undertake the works safely and adopt an approach consistent with the risk‑avoidance principles reflected in the Construction (Design and Management) Regulations 2015, the works should be undertaken from above. Undertaking the works from below, as proposed by the Defendant, would give rise to materially greater risks and would not accord with those principles. 72. Although the Defendant did not agree with the Claimant’s choice, it is common ground that the landlord’s obligation to act reasonably does not extend to securing the tenant’s agreement to the proposed method of effecting the works, though the landlord is obliged to have regard to the impact on the tenant in making its choice.[73]Further, despite the deterioration in the relationship between the parties, I have seen no evidential basis for concluding that the Claimant’s decision was influenced by irrelevant considerations, such as its own convenience or cost savings. It has acted on the basis of considered professional advice, in circumstances where there are a number of factors to weigh that are relevant to its choice of method, such as the safety of the occupants of the building and the builders, as well as the impact on the tenant.[74]In these circumstances, and having regard to the breadth of the covenant in Clause 25.2 and the express and generous right of entry, the landlord’s decision to replace the joists (including the seventh, which is less extensively affected but proposed to be treated in the same manner) and to undertake the works from above constitutes a reasonable means of discharging its repairing obligation, notwithstanding the significant disruption to the tenant.[75]Further, I find that this course was reasonably necessary. On the basis of the expert evidence, while it may be possible in a broad or theoretical sense to undertake the works from below, that approach would introduce materially greater risks, would reduce safety for occupants of the building and builders and would not be consistent with the risk‑avoidance principles reflected in the 2015 Regulations. In those circumstances, proceeding from above was the only method which could reasonably be adopted in carrying out the works, and the additional disruption to the tenant, of some four to five additional weeks of vacating the premises, is justified.[76]Even if the competing approaches had been more finely balanced, so that more than one method might have been compatible with the relevant safety principles, I would have accepted that the landlord, acting reasonably, was entitled to a margin of judgment in determining how best to manage the risks associated with complex structural works of this nature. In a case of this kind, involving potentially significant risks to occupants, workers and others using the Building, it is in principle open to the landlord, acting on appropriate professional advice, to adopt the method it reasonably considers best manages those risks, even where this entails a more significant intrusion on the tenant’s right to quiet enjoyment than would otherwise be the case.

The extent of access and the order sought

[77]The landlord’s obligation, in exercising its rights of entry under the Lease, is to cause as little damage and disturbance as is reasonably practicable. Given Mr Grove’s evidence referred to above, I do not consider that the ten-week period of exclusive possession sought by the Claimant satisfies that obligation. On the evidence (including that of Mr Haggan), I find that a period of exclusive possession of six weeks would allow an adequate amount of time for the landlord to undertake the works, whilst minimising disruption to the tenant.[78]In addition to the exclusive possession sought for the works themselves, the Claimant seeks a further order allowing entry and for a two-day period of exclusive possession of the Flats in order to undertake a preliminary inspection of the Flats prior to the works. I accept that the Claimant requires access to inspect the Flats (in particular, to inspect the original floorboards to the Flats ahead of the works taking place). However, the request for a two-day period of exclusive possession for this purpose is not justified by any evidence before the court. I consider that it is disproportionate and inconsistent with the landlord’s obligation to cause as little damage and disturbance as is reasonably practicable. Accordingly, whilst I am prepared to make an order for entry for the purposes of inspection of the Flats prior to the works, I am not prepared to provide for the requested exclusive possession.

Counterclaim

[79]The Defendant’s case is that, in breach of the covenant to repair the Claimant allowed the ceiling of the loading bay to remain uncovered from around July 2023 onwards, leading to the Northamptonshire Fire and Rescue Service imposing a prohibition notice on 1 November 2023 which prevented flat 16 and 17 being used as sleeping accommodation due to the lack of fire-resisting construction to the ceiling. This prohibition remained in force until 6 March 2024. This failure to repair the ceiling in reasonable time materially interfered with the Defendant’s quiet enjoyment, and gave rise to a loss of £9,404.35 in rental revenue.[80]The Claimant’s case is that any delay to the repairs in reasonable time was attributable to the Defendant, whose experts required access to the exposed joists[81]It is clear from Mr Ellis’s evidence that, following the collapse of the ceiling on 16 August 2022, he arranged, on the advice of his contractor, for the ceiling to the loading bay to be promptly re-boarded with fire-retardant material, and that this was done and the ceiling reinstated by 10 September 2022. In April 2023, however the fire‑retardant panelling was removed to expose the joists for investigation by the experts.[82]It is also clear from Mr Ellis’s evidence that, following advice in July 2023 from the Defendant’s construction technology consultant, Dr Casson, that the ceiling should be reinstated without delay, the Claimant did not do so. Although Mr Ellis referred to advice from Mr Grove that the ceiling could remain uncovered so that the covering up work could be undertaken simultaneously with the joist repairs, that approach was contingent upon the repairs to the joists proceeding. The evidence establishes that the repairs to the joists were not envisaged to commence in the near term, and Mr Ellis accepted in evidence that leaving the ceiling exposed while these repairs were agreed served to exert pressure on the Defendant to agree to the proposed works.[83]Whatever difficulties the Claimant encountered in securing access to the Flats or the Defendant’s agreement to the substantive works, those matters do not provide a reasonable justification for its failure to reinstate the fire-retardant covering to the ceiling for such an extended period, in particular following Dr Casson’s clear advice in July 2023. I find that the Claimant failed to carry out these necessary remedial works within a reasonable time, thereby materially interfering with the Defendant’s right to quiet enjoyment by rendering the Flats unsuitable for use as sleeping accommodation.[84]As to the Defendant’s loss, although it appears that the sum originally pleaded may have been erroneous, the Defendant has not adduced any documentary evidence to establish the fact and extent of its loss. In those circumstances, although I find that the Claimant was in breach of its repairing obligation, the Defendant has not proved the fact and extent of its loss to the requisite standard, given the absence of documentary evidence supporting the rental loss. I do not conclude that no loss was suffered, I merely find that the evidence is insufficient for the counterclaim to succeed on the balance of probabilities, particularly in light of the erroneous quantum that was provided in the pleading.

Conclusion

[85]For the reasons set out above, I find that the Claimant has established, pursuant to the Lease, a right of access to the Flats for the purpose of inspection of the Flats in advance of the repair works, including inspection of the original floorboards, but not a right to exclusive possession for that purpose.[86]The Claimant has also established a right of entry to carry out the necessary repairs to the joists. I find that the Claimant is entitled to exclusive possession of the Flats for a period not exceeding six weeks for the purpose of carrying out those works.