First remediation order under Building Safety Act 2022

The Building Safety Act 2022 (‘’BSA 2022’’) introduces new sanctions and enforcement powers, which empowers the First-Tier Tribunal (“FTT”) to make Remediation Orders and Remediation Contribution Orders in respect of buildings in which fire safety defects have been identified. At the beginning of 2023, the FTT made the inaugural remediation contribution order for a landlord to rectify the relevant defects, which paved the way for leaseholders to recover historic service charges associated with such defects.  This has been followed by the very first remediation order made in August 2023.

Defined terms under BSA 2022

• ‘‘Interested person’’ – It could be the Building Safety Regulator, someone who has a legal/equitable interest, or repairing obligation, such as the local authority.
• ‘’Relevant landlord’’ – It could be the freeholder or superior landlord at the qualifying time, i.e. 14 February 2022.
• ‘’Relevant defects’’ – Defects that put people’s safety at risk from the spread of fire or structural collapse, and it relates to the initial construction of the building.
• ‘’Relevant building’’ – It refers to high-risk buildings in England which contain at least two dwellings, where leaseholders do not have interest in the freehold, and it is at least 11 metres or 5 storeys in height.

What is a remediation order?

On the application of an ‘’interested person’’, the FTT has the power under section 123 of the BSA 2022 to require a ‘’relevant landlord’’ to remedy specified ‘’relevant defects’’ in a specified ‘’relevant building’’ by a specified time.

Recent case: Waite & others v Kedai Limited (‘’Waite’’)  

In this case, a group of leaseholders successfully applied for a remediation order against the landlord (freeholder) of the property, in relation to defective external cladding and other building safety issues.

FTT’s decision

The FTT made a remediation order and ordered that the landlord should bear its own costs of the proceedings as 80% of the costs could not be passed on to non-qualifying leaseholders through service charge under section 20C of the Landlord and Tenant Act 1985. The FTT found that the standard of works must comply with the Building Regulations at the time the remedial work is carried out. It is also highlighted that the Fire Risk Appraisals of External Wall constructions (FRAEW) is required to ensure compliance with the obligations under the Fire Safety Act 2021, it is however by no means an alternative to the EWS1 assessment, which is governed by the Royal Institution of Charter Surveyors for valuation purposes. The purpose of the FRAEW is to provide a more detailed assessment of a building’s construction and can be required as part of the EWS1 assessment for the ‘’relevant buildings’’.

Key considerations

1. Burden of proof

Although the concept of burden of proof remains somewhat uncertain to the remediation order applications, the landlord in Waite argued that the burden of proof was on the applicant (leaseholders) to establish the defects and propose any necessary steps to remedy them. It was held that this type of applications based on the ‘produce evidence’, led primarily by expert evidence and inspection reports, alongside with the Tribunal’s inspections of the ‘’relevant building’’ and expertise in building safety matters. Once the relevant defects are identified and established, the Tribunal will make an order to remedy those defects within a specified time. However, there is no doubt that the concepts of burden of proof and reasonable steps will evolve in future applications.

2. Schedule of defects

Whilst the BSA 2022 was not prescriptive, the remediation order made by the FTT in Waite included a schedule of specified defects and the works required to rectify them. Therefore, often a broad schedule of works will be sufficient in relation to showcasing defects.

3. Costs

Once a remediation order was made, it is most likely that the specification of works will be at the cost of the landlord. However, it is worth noting that when pursuing a remediation order in the FTT, it is under a ‘no costs’ regime. This means each party must bear its own legal costs, save for costs incurred as a result of a party’s unreasonable conduct or in ‘wasted costs’ situations in proceedings. It is also worth noting that the FTT has no power to award damages to leaseholders in lieu of any further losses, such as the devaluation of their leases, from the building with ‘’relevant defects’’,

Conclusion

Following the first remediation order being recently made under Waite, it provides much needed clarity to applicants and respondents alike as it reinforces the importance of building safety and improvement of standards under the BSA 2022. It also provides reassurance to leaseholders that the costs and remediation of relevant historic building safety defects remain on the landlord. However, it is important to bear in mind that each party must bear its own legal costs and therefore leaseholders will have to pursue remediation orders at their own expense.

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