Following our recent Building Safety Act – one year on update, the First Tier Tribunal has now handed down the first reported remediation order under the Act. This is a significant decision which is likely to have a wide-reaching impact on the individuals and companies affected by applications for remediation and provides an insight into how these applications may be approached.
What is a remediation order?
Under section 123 of the Building Safety Act ("BSA"), an "interested person" may make an application for a remediation order, which will force the landlord to remedy a specified defect within a set period of time. An interested person will often be a leaseholder but may also be the Health and Safety Executive, a local authority, a fire and rescue authority, or anyone else who may be identified as such by the legislation. The defect which is the subject of the application must be one which the landlord was already responsible to remedy under statute and which they have failed to resolve.
An application is heard by a Tribunal and if they decide to make a remediation order against the landlord, that order will be enforceable in the County Court.
Waite & others v Kedai Limited and its wider application
As was anticipated in our recent update, some landlords remain reluctant to remedy safety defects due to the substantial expense of doing so, which means that leaseholders may need to resort to applications for remediation orders to compel their landlords to complete these works. The case in question is the first to reach the First-Tier Tribunal and receive a decision. In this case, the application was made by a group of five leaseholders at 2-4 Leigham Court Road, London, who sought a remediation order to compel their landlord to replace defective cladding at their building.
The Tribunal acknowledged that this is an entirely new area of law with no previous authority to assist in how the BSA should be applied. Interestingly, in awarding the remediation order, the Tribunal found that it is able to exercise its own judgement in deciding whether remediation to a particular building is required, including through inspections of the building and its own experience of similar matters, together with any evidence of defects put forward by the applicants, such as expert reports. They did not agree with the landlord, however, that the applicants were required to evidence all defects and propose resolutions to the same. Crucially, the Tribunal stated that it would not be constrained by "formal burdens of proof" in such applications. Once it has been established that a relevant defect exists at the building in question, the Tribunal may exercise its discretion in reaching a decision led by the evidence.
Following on from this, in relation to the actual works to be completed, the Tribunal also found that, for largely practical reasons, it would not be the responsibility of the leaseholders to dictate the exact remediation required or prepare a scope of works. Nor did the Tribunal itself have to set out specifics of the works to be carried out. Rather, the order need only set out the result to be achieved. The responsibility and cost of setting a scope of works will therefore usually be borne by the landlord.
This approach is consistent with the BSA being seen as 'leaseholder friendly' legislation, with the over-riding principle being to ensure that buildings are made safe, and to protect leaseholders as far as possible from the costs involved in doing so.
The Birketts view
While this first decision shines a light on how future applications for remediation orders may be approached, the clear message from the Tribunal is that each application will be assessed on its own facts and evidence. However, one potential implication of the Tribunal not applying formal burdens of proof is that landlords cannot avoid a remediation order by forcing leaseholders to prove the full extent of defects with the building and the scope of remediation required. If the Tribunal is sufficiently satisfied that defects exist, then it appears that the Tribunal will be content to make a remediation order nonetheless. If that order is made, this is likely to be set in general terms requiring a defect to be rectified to a certain standard, and that the burden and cost of working out exactly how to rectify the defect will fall to the landlord.
As more applications reach Tribunal, it will be interesting to see how they are decided where the facts are substantially different than those in the present case.
If you are a leaseholder looking to apply for a remediation order, our Property Litigation team has a wealth of experience advising on the BSA and is well-placed to assist with your application and any queries you may have.
Alternatively, you may be a landlord proactively looking to carry out remedial works, or you may already be subject to an application for a remediation order. If this is the case, our Construction and Engineering team is happy to assist with any queries you may have in relation to carrying out the necessary works to ensure that your property is safe and complies with relevant regulations and legislation. Where the requirement for remedial works has arisen due to defective and/ or non-compliant construction, and you require advice on potential action against the construction and design team responsible, please do not hesitate to contact us.
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.