In the first decision of its kind since the relevant parts of the Building Safety Act 2022 were brought into force, the First Tier Tribunal has made a remediation order in respect of two blocks of flats in London.
In a comprehensive judgment in Waite and others v Kedai Limited [2023], the First-tier Tribunal has made the first remediation order pursuant to section 123 of the Building Safety Act 2022, compelling a freehold owner to remedy fire safety related defects which had been identified at the blocks.
Background
The case concerned two blocks of flats in London, one of which was an office to residential conversion, the other was new build. The developer which carried out the works had since been dissolved, but its associated company Kedai Limited remained the freehold owner of the blocks.
Following the Grenfell Tower fire in 2017, a number of reports were commissioned and leaseholders had already applied for a remediation order in September 2022, before it was eventually established in March 2023 that the building was unsafe.
The First-Tier Tribunal's decision
In determining the application, the FTT stressed that this was an entirely new area of law with no previous authority, that the Building Safety Act 2022 must work for leaseholders in a straightforward way, and that this is a standalone regime designed to fix a particular problem, namely removing a relevant defect. This meant that the Tribunal was not restricted in its interpretation by reference to other statutes or case law.
Whilst the Tribunal acknowledged that the Applicants must establish a prima facie case that there are Relevant Defects (which they had done here), it went on to say that it is not necessary or helpful to assign burdens of proof and that the analysis in cases such as these would be an "evidence-based" exercise led by inspection reports, detailed independent expert evidence and the Tribunal's own experience and expertise and what it saw for itself at the inspection.
The Tribunal also pointed out that there is no guidance in the BSA as to exactly how the Tribunal should assess the risk to the safety of people in the building, the scope of works that might be required to remedy the Relevant Defect or the standard to which those works must be carried out.
The Tribunal found that relevant defects did exist, that these posed a building safety risk, and the it was therefore appropriate to make a remediation order requiring the freeholder to remedy specified relevant defects.
The terms of the remediation order
The FTT's judgment annexed a copy of the remediation order made, including a schedule of specified relevant defects and the works required to remedy them.
As to the scope of works, the Tribunal commented that the purpose of the legislation is not to impose a costly burden on leaseholders and so the Tribunal directed that it was for landlords to obtain specifications given that they will have conduct of the works and that this also allowed for a degree of flexibility in designing a remediation scheme.
As to the standard of works, the Tribunal found that there was no benchmark specified in the Building Safety Act 2022. It confirmed that in this case the works must comply with Building Regulations and at the very least ensure that a satisfactory EWS1 Form could be issued after completion.
In identifying the relevant defects, the Tribunal considered each of the items put forward and relied on independent expert evidence.
The leaseholders also sought other relief but did not obtain an order that they should not be liable for the costs of remediation including legal fees because they had not made a separate application for a service charge determination. However, the landlord indicated its awareness of Schedule 8 of the Building Safety Act 2022 and said it did not seek to recover costs which were covered by the applicable service charge prohibitions and caps.
The leaseholders separately applied for an order pursuant to section 20C of the Landlord and Tenant Act 1985 to prevent the landlord passing on any of its costs of the proceedings to non-qualifying leaseholders through the service charge. The Tribunal largely granted their wish, ordering that 80% of the costs of the proceedings could not be passed on, and noting that none of the legal costs could be recovered from qualifying leaseholders due to paragraph 9 of Schedule 8 to the Building Safety Act 2022.
This is a hugely significant decision, as the FTT took great care to explain its approach to a new statutory power for which there was minimal guidance or authority. Unless and until a remediation order is made or appealed to the Upper Tribunal (Lands Chamber), it is likely that future FTT's will follow the lead of this case when considering remediation order applications.
