"The second and third remediation orders have been issued under the Building Safety Act 2022 and published within just a few days of each other. With every decision in this new area of law helping building owners, managers and occupiers to understand their responsibilities and rights – we take a look at the key legal and practical takeaways."

Remediation orders and building safety

Under section 123 of the Building Safety Act 2022 (the BSA), a remediation order (or, RO) is an order requiring a relevant landlord to remedy certain defects in a building by a specified time. The introduction and award of remediation orders reinforces that the focus of the BSA is building safety and improvement of standards. See our previous article for relevant RO definitions and for details of the first remediation order to be granted by the First-tier Tribunal.

As of 15 January 2024, two more remediation orders have been issued. As this is a new area, all developments are useful in clarifying the law and the approach of the tribunals. As such, Walker Morris Real Estate Litigation and building safety experts, Asia Munir and Lewis Couth, highlight the key takeaways from the recent Orchard House 1and Centrillion Point 2decisions.

Orchard House remediation order

Orchard House is a building originally constructed in the 1960s as an office block and later converted to residential flats. It's located in Bristol and the RO in this case was issued by the Southern Tribunal.

This application, which wasn't contested by the landlord, was for works required to remedy fire safety defects. Key points include:

  • The first applicant leaseholder issued an application in August 2023, with the second applicant leaseholder issuing a further application in October 2023. A case management hearing was listed, and both applications were consolidated. A final hearing then took place in November 2023 – respectively 3 months and 1 month after issue, suggesting that tribunals are looking to ensure applications such as these, which often relate to serious fire safety defects, are concluded promptly.
  • A Fire Risk Appraisal of External Walls (FREAW), commissioned by the landlord, was relied upon by the applicant leaseholders to specify the relevant defects and the remedial works. This was accepted as sufficient by the Tribunal, which framed its order on the basis of that report.
  • The Tribunal held that the statutory test for section 123 of the BSA was met, and so an order was made requiring the landlord to remedy the specified defects.
  • No remedial works had been undertaken by the landlord at the date of the trial. One of the leaseholder applicants said that she had been advised, by the landlord's representative, that the works would commence within a month and would not take long. That was the only detail given to the Tribunal regarding timing of the works. The Tribunal used its own expertise to determine the timing for completion of the remedial works and specified six months for completion in this case.
  • The wording of the RO broadly follows the same wording as the first RO case (Kedai – Leigham Court Road).

Some key takeaways from the Orchard House remediation order

The case demonstrates that a full specification is not always necessary for a RO, and details within a FREAW may be sufficient for setting out the defects and remedial works.

Whilst there is currently no practice direction, listing a trial within less than three months aligns with the Tribunal looking to make decisions within six months of application in claims relating to the Electronic Communications Code.

Centrillion Point remediation order

Centrillion Point is a building originally completed in 2008 as an office block and subsequently converted into residential flats and adjoining mews houses. External works to remove combustible cladding had been carried out in the last couple of years and the application for the remediation order in this case was in respect of required internal remediation works – principally relating to lack of fire compartmentation.

Key points to note include:

  • The application was issued by one leaseholder in April 2023. 13 other leaseholders were subsequently joined-in at a case management hearing with the trial commencing in November 2023 (7 months post-issue).
  • Initially there had been a dispute about whether all the items pursued by the applicants were "relevant defects" for the purposes of section 123 of the BSA, but the point was conceded by the landlord/freeholder a few weeks before the final hearing. The issues for the Tribunal to determine were the wording of the RO and the timing for completion of the remedial works.
  • The main dispute concerned the level of specificity in the RO. The leaseholders wanted a full specification, whereas the landlord wanted a more general order, arguing that the Tribunal should not fetter how it carried out the works. The Tribunal agreed that a more general order was appropriate. Such an approach would particularly assist if it transpired that further or additional elements of works to a particular defect were required 3.
  • In relation to timing, the landlord sought a completion date of two years, whereas the leaseholders argued one year was sufficient. The leaseholders did not produce any expert evidence on this point, and the evidence from the landlord came from one of its own directors. The Tribunal recognised that the time limit imposed for carrying out the works ought not to be unrealistic or unachievable, but equally that there should not be any further or undue delay. It ordered that the works should be completed within 18 months.
  • The wording of the RO follows the same form as the Leigham Court Road and Orchard House ROs, save for it also included provision for the landlord to ensure that it achieves approval from the Building Safety Regulator. A consistency of approach in relation to the wording of ROs appears to be emerging.
  • Section 20C of the Landlord and Tenant Act 1985 allows a tenant to request that costs incurred by its landlord in connection with proceedings before the First-tier Tribunal not be passed on to it via the service charge. The Tribunal made a section 20C order to that effect in this case. In so doing, the Tribunal clarified that the effect of its decision should not be that a section 20C order should be made in every remediation order case unless the application was wholly unsuccessful. It confirmed that every case should be decided on its own facts. Matters such as the parties' conduct in relation to the remediation order application and the carrying out of building safety remediation works may be relevant to such a decision.

Key takeaway from the Centrillion Point remediation order

The Tribunal commented that section 123 of the BSA requires no more than listing of the specified defects that are required to be remediated – the Centrillion Point highlights that an order doesn't need to contain granular detail.

Remediation orders: How we can support you

Walker Morris' Real Estate Litigation specialists, working seamlessly with our other cross-discipline Building Safety Act experts, are uniquely placed to help clients from right across the Living sector to successfully navigate all of the legal, regulatory and practical changes brought about by the Building Safety Act.

Our long-standing experience and success in providing strategic risk management, transactional and dispute resolution advice for industry participants in all areas of the sector has contributed to our in-depth understanding of all parties' commercial perspectives. Our appointment to support the UK Government in relation to remediation orders also places us in the unique position of being able to share information and advice with our clients which is based on hands-on experience of issuing this entirely new form of claim to address unsafe cladding and/or defects.

Footnotes

1. The Orchard House remediation order decision.

2. The Centrillion Point remediation order decision.

3. The Tribunal referred to the approach in the Blue Manchester case – referenced in the Kedai/Leigham Court Road RO and linked above. That approach affords flexibility by allowing the parties to apply to the Tribunal to make a variation of the order.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.