First Remediation Order made under the Building Safety Act 2022

A group of leaseholders at 2-4 Leigham Court Road in Streatham Hill, London (the Premises) have successfully obtained the first remediation order under the Building Safety Act 2022 (BSA) against their landlord (Kedai Ltd) for defective external cladding and other safety issues. Until now, no other application for a remediation order has reached the stage of a final hearing.

The BSA is the legislative response to the Grenfell Tower fire in June 2017. On 28 June 2022, the provisions of Part 5 of the BSA came into force, which introduces new powers to compel landlords to carry out and pay for building safety remediation works rather than pass on the costs of these repairs to leaseholders through service charge. Furthermore, section 123 of the BSA gives the First Tier Tribunal the power to make Remediation Orders requiring the landlord to remedy defects in the building, provided the landlord is a ‘relevant landlord’, the defects are ‘relevant defects’ and the building is a ‘relevant building’ for the purposes of the BSA.

Facts

In this case, there were two consolidated applications for a remediation order under section 123 of the BSA, relating to two blocks at the Premises (Block A and Block B), comprising 35 residential flats and one commercial unit on the ground floor. 30 of the 35 long leaseholders joined the proceedings as Applicants.

Initially, the Premises were the commercial offices of the South London Press. Between 2015 and 2016, building and construction works were carried out to convert the existing offices mostly to residential flats and to add a new residential block. The works were completed in 2016, and at the time, the building was deemed compliant under the Building Regulations 2019 by the appointed inspector.

However, following the Grenfell Tower fire in June 2017, concerns were raised about the external wall systems, in particular the gold-coloured aluminium cladding on the upper two storeys of each of the two blocks and the internal compartmentalisation of the blocks. In 2019, the landlord produced a report which was unable to determine if the cladding on the external elevations met current standards of fire performance and installation. Numerous further reports were produced between 2019 and 2023, however no remedial action was taken to address the concerns raised. Accordingly, the leaseholders made an application to the First Tier Tribunal for a remediation order under the BSA in September 2022.

Decision

The Tribunal considered the facts, inspection reports and expert evidence as well as visiting the site personally on 10 July 2023, and concluded the following:

1. The Blocks at the Premises were a ‘relevant building’ under s.117(2) of the BSA – meaning that the blocks contained at least two dwellings and were at least 11 metres high or had at least five storeys.
2. Kedai Ltd was a ‘relevant’ landlord under s.120(5) of the BSA – meaning they are a landlord of a ‘relevant building’ and are required to repair or maintain anything relating to a ‘relevant defect’.
3. The lease was a ‘qualifying lease’ under s.119(4)(c) and the defects were a ‘relevant defect’, meaning the defects arose as a result of construction works completed between 28 June 1992 and 28 June 2022 and posed a building safety risk.

Accordingly, the Tribunal made a remediation order under s.123 of the BSA in respect of the two blocks at the Premises. The landlord was ordered to remedy the defects specified in the schedule to the order by 19 September 2025. Additionally, the Tribunal ordered that 80% of the landlord’s costs of the proceedings could not be passed on to non-qualifying leaseholders through the service charge.

Key takeaways

Since the introduction of the BSA, there has and continues to be some uncertainty around the approach the Tribunal might take in determining whether a remediation order should be made. This application, being the first that has made its way to a final hearing, sheds some light on how the Tribunal is likely to deal with such applications, however the decision still contains limited guidance about what factors the Tribunal will consider in making their decision.

Applicants and Landlords should take note that an application for a remediation order involves an evidence-based exercise led by expert evidence and inspection reports, but also informed by the Tribunal’s own experience and expertise in building matters. The Tribunal was clear that whilst the leaseholders had to establish a prima facie case, it was not necessary to assign formal burdens of proof to either party.

In terms of the leaseholder’s costs for bringing the application, the Tribunal held that the leaseholders would have to bear their own costs, on the grounds that the Tribunal is a ‘no costs jurisdiction’. This will continue to place leaseholders at a disadvantage. Also, the application took just under a year to progress to the hearing, so the process is by no means a quick one.

Furthermore, the Act does not specify a standard or benchmark for the remedial work. The Tribunal decided that, in this case, the remedial works must (1) comply with the Building Regulations applicable at the time the remedial work is carried out; and (2) at the very least, be capable of achieving a ‘satisfactory’ EWS1 form. This decision was not binding on other Tribunals, but it will likely inform how the Tribunal approaches remediation orders.

Nevertheless, the FTT were clear that the purpose of the BSA was to protect leaseholders and not subject them to significant costs for remedial works under the legislation, pointing out that “the Act must work and be made to work for leaseholders in a straightforward way.” This application shows that remediation orders are a powerful tool in a leaseholder’s arsenal to require their landlords to carry out work to remediate structural or fire safety defects.