The First Tier Tribunal has issued its first Remediation Order under the Building Safety Act 2022 (the BSA).
The decision demonstrates that Remediation Orders are a powerful tool for leaseholders to require their landlords to carry out work to remediate fire safety (or structural) defects. The Tribunal has given helpful guidance on when and how it will exercise this power.
One question that remains is how leaseholders will fund these applications. The Tribunal declined to award leaseholders the costs of the proceedings, despite it evidently being a time-consuming process, involving solicitors, counsel and experts.
Part 5 of the BSA brought in a number of leaseholder protections, designed to deal with remediation and redress for fire and structural safety defects.
Section 123 gives the First-tier Tribunal the power to make Remediation Orders. A Remediation Order is an order requiring a relevant landlord to remedy relevant defects in a relevant building.
In summary, for these purposes:
- a relevant landlord is a landlord under a lease of a relevant building, or any part of it, who is required to repair or maintain anything relating to the relevant defect;
- a relevant defect means a defect that arises a result of construction works completed between 28 June 1992 and 28 June 2022 and causes a building safety risk;
- a building safety risk means 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;
- a relevant building (with some limited exceptions) is a building that contains at least two dwellings and is at least 11 metres high, or has at least 5 storeys.
In Waite & others v Kedai Ltd, long leaseholders (the Leaseholders) of residential flats at Block A and Block B, 2-4 Leigham Court Road, London (the Development) sought a Remediation Order against Kedai Limited (the Landlord).
Block A of the Development, originally an office block, was converted to residential units and one commercial unit. Block B is a new build block of flats. Both blocks are over 11 metres high and together comprise 35 residential flats and one commercial unit on the ground floor. The works were completed in 2016.
Following the Grenfell Tower fire in June 2017, concerns were raised about external wall systems which comprised aluminium (ACM) and fibre cement with Kingspan K15 insulation on the top two storeys of each block, missing cavity barriers and the internal compartmentalisation. Numerous reports were obtained between 2019 and 2023.
By the time of the hearing, the parties had agreed that the ACM and fibre cement external wall systems, and the lack of fire stopping, cavity barriers and compartmentation were relevant defects causing a building safety risk. The parties disagreed on whether certain elements, by themselves, constituted a relevant defect and therefore whether they could be retained as part of a remedial scheme.
The Tribunal granted a Remediation Order against the Landlord, finding that the majority of defects complained of were relevant defects. The Landlord was ordered to remedy the defects specified in a schedule to the order by 19 September 2025.
Leaseholders who are considering whether to seek a Remediation Order, and landlords who are faced with such an application, might find the following points interesting:
- How long does the process take? The applications were made in September and December 2022 and the Tribunal made its decision in August 2023. Evidently, this is a long period and it is not clear whether this was due to the amount of evidence in this particular case, or the Tribunal's case load.
- Which party has the burden of proof? The Tribunal was clear to point out that "the Act must work and be made to work for leaseholders in a straightforward way". This was relevant to the burden of proof; the Tribunal held that the leaseholders had to establish a prima facie case. After this, the Tribunal did not consider it helpful or necessary to assign formal burdens of proof to either party. The Tribunal decided that the exercise is evidence based, led by inspection reports and expert evidence, but also informed by the Tribunal's own experience and expertise in building matters, and what it saw at its own inspection. The Act is not specific about the burden of proof so this guidance on the approach from the Tribunal is welcome.
- Will the Tribunal order disclosure of documents? Although the process does not involve a full disclosure process, the Tribunal did order the landlord to produce a Health Safety & Fire Risk Assessment report which it had obtained in 2019. The Tribunal considered that, although the report was later superseded, it was relevant to show the progression of the Landlord's knowledge.
- Is it relevant that works complied with Building Regulations when they were completed? The Tribunal decided that the date for considering whether a relevant defect creates a building safety risk is the date of the hearing. Whether or not work done did or did not comply with the Building Regulations at the time is not the issue. The question is whether the work creates a building safety risk in the light of today's knowledge. This is a different standard to contractual or DPA claims, where the court will consider whether the works met the relevant standards as at completion.
- In what detail will the Tribunal specify the remedial works? The Tribunal decided that it is important for any Remediation Order to be sufficiently precise so that the respondent can know what it must do to remedy the relevant defects and for enforcement purposes. However, the extent of precision will vary from case to case. In this case, the order was accompanied by a reasonably detailed schedule of defects and the result to be obtained in relation to each of them. The Tribunal said that the Landlord could always apply to vary the order if necessary.
- What standard must the remedial works achieve? The Act does not specify a standard or benchmark for the remedial work. The Tribunal decided that, in this case, the remedial works must (1) comply with the Building Regulations applicable at the time the remedial work is carried out; and (2) at the very least, be capable of achieving a 'satisfactory' EWS1 form. It is not clear what EWS1 rating would be 'satisfactory' (presumably a B1 or A1, but this is not clear).
- What about costs? The Leaseholders sought their costs in pursuing the Remediation Order, but this was rejected by the Tribunal on the grounds that the Tribunal is a 'no costs jurisdiction' (save where a party has acted unreasonably, which was not the case here). The Leaseholders also sought an order to prevent the Landlord from passing its costs of the proceedings through the service charge. Under Schedule 9 to the BSA, no qualifying leaseholder has to pay for the landlord's costs of proceedings relating to relevant defects. In relation to non-qualifying leaseholders, the Tribunal decided that the Landlord could only pass 20% of its costs through the service charge.
This detailed decision from the Tribunal contains useful guidance about when it will grant a Remediation Order and the terms on which it will be granted. So far, the courts have implemented the BSA in a purposive way to ensure that leaseholders can benefit from its protections. It is evident that the Tribunal took a similar approach in this case.