The First Remediation Order under the Building Safety Act

The first remediation order has been made against Kedai Ltd, the freeholder of a multi-unit residential building, under the new Building Safety Act 2022 (“BSA”). Until now, no application for a remediation order has reached the stage of a final hearing.

In this blog, we discuss what a remediation order is and the key points to take away from the recent decision by the First-Tier Tribunal (“FTT”) in Waite & others v Kedai Limited [2023].

What is a remediation order?

Historically, landlords responsible for the maintenance and repair of residential complexes would pass on costs of repair to leaseholders through a service charge. For building safety defects, the BSA has changed this balance and now prevents landlords passing these costs onto leaseholders. The BSA also introduces new powers to compel landlords to undertake, and pay, for building safety remediation works, including the power to grant a remediation order.

A remediation order is made by the FTT to require a landlord to remediate specific fire safety or structural defects in a building within a specified timeframe.

For a remediation order to be granted, the following criteria must be met:

• the order must be made against a “relevant landlord,” which can include a freeholder or a management company where it has an obligation to repair;
• the defects must cause a risk to the safety of people in or about the building arising from the spread of fire or the collapse of a building; and
• the building must be over 11 metres high or have five or more storeys, and contain at least two residential dwellings.

Who can apply for a remediation order?

An application can be made by an “interested person,” which includes leaseholders, the Building Safety Regulator, a local authority, a fire and rescue authority, the Secretary of State or any other person with a legal or equitable interest in the building.

The remediation order made against Kedai Limited

In Waite & others v Kedai Limited a group of leaseholders applied for a remediation order against the freeholder in relation to fire safety defects it claimed were present in the 35-unit residential development. The FTT granted the order in relation to most of the fire safety defects claimed by the leaseholders and that Kedai Limited must remedy those defects within 115 weeks.

Key takeaways stipulated from the decision

• Applications for remediation orders involves an evidence-based exercise, led predominantly by inspection reports and expert evidence to enable the FTT to decide whether relevant defects exist. Applicants and landlords involved in remediation order proceedings should be prepared to engage expert witnesses to analyse the defects present in the building.
• A remediation order needs to be sufficiently precise to enable the landlord to know what defects need to be remediation, however, the FTT stated that the BSA does not require a detailed scope of works to be specified at the time of the order. In most cases, a broad specification of works will be sufficient.
• The FTT was clear that the purpose of the BSA was not to impose a costly burden on leaseholders, rather it is intended to protect leaseholders.
• The FTT required that the works carried out to remedy the relevant defects must comply with building regulations at the time the remedial works are carried out, and at the very least a post-works Fire Risk Appraisal of External Walls (“FRAEW”) under PAS 9980:2022 should not prevent a satisfactory EWS1 from being issued.
• Despite applications by the leaseholders, the FTT did not require Kedai Limited to agree the scope of works with the leaseholders, or to obtain an independent report at completion to evidence that the fire risk to external cladding is sufficiently reduced. Instead, the FTT said that there would be an opportunity to comment during the planning permission process and that any works are likely to be subject to building control approval.

Conclusion

This decision reinforces that the focus of the BSA is on building safety and protecting leaseholders from remediation costs for building safety defects. As the FTT said, “…it is incumbent upon the relevant landlord to remedy the specified defects, largely at its own cost. That is the whole intention of the BSA.”

This judgment will provide some clarity to applicants and landlords as to how applications for remediation orders will be decided. Moving forward we expect to see more orders from the FTT as leaseholders, local authorities and other “interested persons” seek that relevant landlords remediate building safety defects.

If you have any questions about, or wish to apply for a remediation order, the Building Safety Fund or any building safety issue, Edwin Coe are well placed to assist. Please contact any member of the Building Safety and Cladding team.

 

 

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