Missed Remediation Order deadlines: extension or enforcement?

The recent decision in Millroyd Mill provides a useful reminder that a deadline imposed by a Remediation Order ("RO") is not simply an indicative target, and there is no guarantee it will be extended where remedial works fall behind programme.

Background

In November 2024, the First-tier Tribunal ("FTT") made an RO pursuant to s.123 of the Building Safety Act 2022 ("BSA") requiring fire safety works to balconies at Millroyd Mill. The RO required the works to be completed by 29 May 2026. The works concerned timber elements to the balcony decking and balustrades.

Shortly after the deadline expired, the management company of the property (the "Applicant") applied for a 28-day stay pending delivery of a final programme of works and a subsequent application for an extension. The FTT treated this as an application to vary the RO, given it was apparent that the works could not be completed within that period.

The FTT refused the application.

The Decision

The FTT took a robust approach both to compliance with the RO as well as to the evidence required to justify an extension.

The Applicant had not provided a properly evidenced plan for completing the works, nor any expert evidence and/or clear supporting documentation which would have given the Tribunal clarity on funding approval, confirmed project timelines or design or construction contracts. The FTT was therefore not satisfied that the works could be delivered within a reasonable timescale. 

The FTT was also critical of the applicant’s engagement with the proceedings, including its failure to comply with directions and the very late service of a witness statement on the morning of the hearing.

What does this mean in practice?

Perhaps the clearest takeaway comes from the FTT’s observation that "just because a remediation order has not been complied with by a certain date it does not automatically follow that a Tribunal must vary the Order and apply new timelines" (paragraph 21).

The consequence of the FTT refusing the extension is quite significant. Section 123(7) BSA provides that an RO is enforceable (with the permission of the County Court) in the same way as an order of that court. The FTT expressly stated in this case that "the most appropriate way forward would be for the courts to use their enforcement powers", rather than simply agreeing to move the deadline for completion. Precisely how the courts will choose to use their enforcement powers in respect of ROs remains to be seen. Potential routes include the courts' powers in respect of non-compliance with mandatory orders under CPR 70.2A and, in an appropriate case, contempt proceedings under CPR Part 81. Millroyd Mill may therefore provide an early opportunity for the enforcement mechanics of section 123(7) BSA 2022 to be tested.

Millroyd Mill demonstrates that parties subject to an RO should not assume that, if the remedial works programme slips, the FTT will simply provide a revised deadline.

Where additional time is required, the party seeking it should ensure it explains why the existing deadline has been missed, why the delays were not unreasonable, and provide sufficient evidence demonstrating how, and when, the works will actually be delivered.