On the 18 August 2023, the first ever remediation order was handed down by the Tribunal under the Building Safety Act 2022 (BSA).
The result of this order sets the stage for further cases in the near future, so it is vital to consider the key findings and what the practical consequences are likely to be.
What is a remediation order?
It is important to first understand what a remediation order is.
Under section 123 (2) of the BSA, a remediation order is an order made by the First-tier Tribunal on the application of an "interested person", requiring a "relevant landlord" to remedy specified "relevant defects" in a specified "relevant building" by a "specified" time. These terms are specifically defined by the Act and are set out below:
"relevant building"
= means a self-contained building, or self-contained part of a building, in England that contains at least two dwellings and (a)is at least 11 metres high, or (b)has at least 5 storeys.
"interested person"
= this includes but is not limited to the regulator (the Health and Safety Executive) a local authority , a fire and rescue authority or a person with a legal or equitable interest in the relevant building or any part of it.
"relevant defects"
= in relation to a relevant building, means a defect as regards the building that (a) arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and (b) causes a building safety risk.
"relevant landlord"
= in relation to a relevant defect in a relevant building, means a landlord under a lease of the building or any part of it who is required, under the lease or by virtue of an enactment, to repair or maintain anything relating to the relevant defect.
"specified"
= means the date specified in the order made by the First-tier Tribunal.
A remediation order can be made on either broad or specific terms, which will vary from case to case. They are expected to be precise enough to ensure that the respondent is aware of the works required, but the BSA is not prescriptive as to the works that will be necessary to remedy the relevant defect(s).
Key findings on this case
This case was brought by a group of leaseholders against their landlord, the freeholder of the property, in relation to defective external cladding, amongst other issues.
The leaseholders were successful in their claim and Tribunal made a remediation order against the landlord, in respect of the two blocks in the development. The landlord was given 115 weeks to carry out the required works, which included amongst other things, replacing facades, replacing insulation, and remediating fire stops and cavity barriers.
The Tribunal also ordered that 80% of the landlord's costs of the proceedings could not be passed on to the non-qualifying leaseholders through the service charge.
There are some key takeaway points from this case, which are worth considering:
For the majority of the case the leaseholders acted without legal representation, preparing their own statements of case, up until just before the final hearing;
The leaseholders did not instruct their own expert to produce expert evidence for the Tribunal to consider. Instead they relied on a fire safety expert engaged by the landlord; this expert evidence which was initially obtained by the landlord as a response to directions issued by the Tribunal;
The leaseholders didn’t have any support or funding from their local authority, despite them being added as an interested party to the claim; and
Despite the landlord arguing that the burden of proof was on the leaseholders to establish the defects and propose necessary remediation steps, the Tribunal was not concerned with the formal burdens of proof. Once the Tribunal determined that relevant defects existed that caused a building safety risk, it was prepared to make an order for the landlord to remedy the defects.
It is evident that the Tribunal is prepared to provide leaseholders with support and an element of leniency in these types of claims. Even though the applicant leaseholders did not have legal representation for much of the proceedings, had not commissioned expert evidence, did not have external support or funding, the Tribunal still found in their favour.
What does this mean going forward?
It is clear from the above points that the Tribunal's focus is on applying the overarching objective of the BSA to ensure the safety of buildings and in order to do so, the protection of the leaseholders remains its central focus.
It is also clear that a lack of expert evidence by applicant leaseholders will not be fatal for these types of applications succeeding. The Tribunal's decision emphasised this and made it clear that the purpose of the BSA is not to impose a costly burden on leaseholders by requiring them to obtain detailed specification of works.
This first remediation order is helpful and persuasive for cases going forward on the accountability of building owners and developers and reiterates the message that unsafe building safety standards will no longer be tolerated, and that leaseholders will be protected.
Our dedicated Building Safety Group can provide advice on remediation orders and all matters concerning the Building Safety Act. For more information contact Jenna Russell, Daniel Barrett, Bhavini Patel or Mark Pritchard.
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