The Tribunal has notably made the first Remediation Order under Part 5 of the Building Safety Act 2022 (“the Act”). Following the tragedy at the Grenfell Tower fire in 2017, the Act was introduced to tighten up the building safety regime particularly in relation to higher risk buildings above 18 metres or 7 storeys and contains two or more residential units.
The Order obliges the freeholder, Kedai Limited, to remedy the relevant defects in the building, specified within the schedule to the Order, within the specified time (the majority of the works must be completed by September 2025). The building that is the subject of the Order, 2-4 Leigham Court in London, has defective cladding and internal compartmentation and external wall system defects.
The Application was originally brought by one long leaseholder of Block B of the building, with 30 other leaseholders joining the Application in respect of both Blocks A and B, after being invited to do so by the Tribunal.
Section 123 of the Act creates a new power for Tribunals to make remediation orders, which are defined at subsection (2) as “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”. The definition contains several phrases defined elsewhere in the Act. The Tribunal did not consider it was restricted in its interpretation of Section 123 by reference to other statutory provisions or case law. It found that fundamentally, the purpose of the Act was to remove a “relevant defect”.
The following points are of note from the Tribunal’s decision:
- Within the definition of “relevant defect” is (to paraphrase) a reference to something which causes a “building safety risk”. There is no guidance in the Act which specifies how the Tribunal should assess the risk to people’s safety, or the scope of works required to remedy the defects. This is deliberate and allows the Tribunal to consider the most appropriate solution for each individual case, without being bound by stringent tests.
- In a similar vein, the Tribunal’s approach to burdens of proof in this decision was commercial, recognising that it was an evidence-based exercise they were undertaking; it did not consider it helpful to assign formal burdens of proof.
- Again in the same way, the decision made clear that an Order has to strike a balance between being sufficiently precise so the Respondent knows what it must do to remedy the relevant defects, and also not being prescriptive as to the works required, given that the Act does not necessitate this.
- The Tribunal focused its approach on the meaning and effect of Section 123 of the Act. The leaseholders had requested a number of directions from the Tribunal which went beyond the scope of Section 123 and were refused by the Tribunal including a request that the Applicant’s review the scope of the works or that the landlord be ordered to pay the Applicant’s costs of pursuing the remediation order.
The point is that both the Act and the approach of the Tribunal are practical, commercial and outcome-focused, and the Tribunal is not unduly fettered. The Tribunal decision contains a copy of the full Order made detailing the remediation works to be carried out and all parties were given permission to apply to the Tribunal if during the course of the works alternative works were required or to extend time to comply with the Order.
After a consideration of the evidence before it, and the submissions made by Counsel for each party, the Tribunal found that the conditions for making a remediation order had been met.
“Having considered the evidence and submissions in this case, the Tribunal is satisfied that the conditions for the making of a remediation order against Kedai Limited have been met. A remediation order of the two blocks in the Development accompanies this decision.”