Remediation orders under the Building Safety Act

Robert Bowker and Pauline Lam analyse the first known making of a remediation order under the industry-changing legislation. In Waite and others v Kedai Ltd (LON/00AY/HYI/2022/0005 & 0016, 9 August 2023), the First-tier Tribunal determined an application made by a group of leaseholders for a remediation order under section 123 of the Building Safety Act 2022.  As far as the writers are aware, this is the FTT’s first decision dealing with an application for a remediation order. As such, to what extent will the decision assist developers, landlords and leaseholders to understand the FTT’s approach to Part 5 of the 2022 Act?  The legislation In answering that question, it is worth repeating some of the key statutory provisions. By section 123 of the 2022 Act, an interested person, including a person with a legal interest in the relevant building (such as a leaseholder), may apply to the FTT for an order requiring a relevant landlord to remedy specified relevant defects in a specified relevant building by a specified time. An interested person also includes the local authority for the area in which the relevant building is situated.  A relevant building for these purposes is a self-contained building or self-contained part of a building that contains at least two dwellings and is at least 11m high or has at least five storeys, subject to certain exceptions.  A relevant defect in relation to a building is a defect that arises as a result of anything done or not done, or anything used or not used, in connection with relevant works and which causes a building safety risk.  Relevant works include works relating to the conversion of the building if the conversion was completed in the relevant period, being the period after 28 June 1992.  A building safety risk in relation to a building is a risk to the safety of people in or about the building arising from the spread of fire or the collapse of the building or any part of it. The conversion of a building is its conversion wholly or partly for residential use.        2-4 Leigham Court Road Waite concerned 2-4 Leigham Court Road, London SW16, a converted former newspaper print works and offices now comprising 35 flats in two blocks and a commercial unit on the ground floor. It was converted in 2015-16.  A group of leaseholders, acting in person, issued an application for a remediation order in September 2022, alleging various defects including those in respect of ACM cladding panels, insulation, fibre cement panels, fire stopping, cavity barriers and internal compartmentation, balcony soffits and ceramic tiles. The leaseholders had acted in person throughout the proceedings, which included two substantial case management hearings. They did not instruct an expert and did not obtain formal professional advice. Just prior to the final hearing, they instructed solicitors. During the proceedings, the local authority was joined as an interested person.  The final hearing ran for three days. The FTT conducted a site visit and heard evidence from a fire safety expert called by the respondent landlord. Neither party called any witnesses of fact. The local authority did not play an active part in the proceedings and did not attend the final hearing.  The FTT made a remediation order in respect of certain specified defects – ACM cladding panels, insulation, fibre cement panels, fire-stopping, cavity barriers and internal compartmentation – and declined to make an order in respect of other defects – balcony soffits and ceramic tiles. The FTT also refused the leaseholders’ applications for various other items of relief which essentially fell outside the scope of section 123 and the FTT’s jurisdiction. The FTT made an order under section 20C of the Landlord and Tenant Act 1985 limiting the landlord’s recovery of costs to 20% (in respect of leases which are not qualifying within the meaning of section 119 of the 2022 Act). The defects specified in the remediation order are required to be completed by 19 September 2025. Lessons from the decision  The FTT’s reasoning included the following key points on the approach to Part 5 of the 2022 Act: Sections 116 to 125 of Part 5 of the 2022 Act, which relate to remediation of certain defects, constitute a self-contained code, containing their own specific definitions and their own statutory test for the making of a remediation order.  This part of the 2022 Act, and section 123 in particular, is drafted very broadly indeed and gives wide powers to the FTT, which did not consider itself restricted in the interpretation of section 123 by reference to other statutory provisions or case law.  The FTT is also not bound by other statutory regimes in assessing the quality and standard of the conditions to apply, or the extent of the FTT’s power.  The objective of the 2022 Act is (with occasional overlap) different from all other regimes in that it is simply to remove a relevant defect.  The distinction between the 2022 Act and other statutory regimes also extends to the standards which the FTT must apply to its assessment of whether defects in the building are relevant defects and the extent of any building safety risk which they cause.   If future decisions in the FTT follow this approach, which remains to be seen, developers, landlords and leaseholders can be reasonably confident that Part 5 of the 2022 Act, including applications under section 123, will be treated as a self-contained code. The FTT’s decisions will focus on outcome and, in order to achieve that outcome, the FTT’s overall approach to cases is likely to be highly flexible. Robert Bowker is a barrister at Tanfield Chambers and Pauline Lam is a senior associate in the property litigation team at Russell-Cooke LLP Photo © Klaus-Peter Wolf/imageBROKER/Shutterstock (5050576a)