Remediation Order
Under the BSA, s123 provides that a Remediation Order may be granted by the FTT in favour of a "relevant person" in relation to "relevant defects" affecting a "relevant building" against a "relevant landlord" – each have the following meaning:
1. A relevant person includes a person with a legal or equitable interest in a building, among others;
2. A relevant defect is a defect that causes a building safety risk and arises from work undertaken in the period from 28 June 1992 to 28 June 2022;
3. A relevant building contains at least two dwellings and is at least 11 metres high and / or has five storeys; and
4. A relevant landlord is a landlord under a lease of a relevant building.
If granted, a Remediation Order can require a landlord to remedy specified relevant defects within in a specified time.
Background
The leaseholders of Block A and Block B of Leigham Court Road, London, SW16 (the "Property") applied to the FTT for a Remediation Order under s123 of the BSA against Kedai Limited, the freeholder/landlord ("Kedai") after fire-safety reports, procured by both Kedai and the leaseholders, identified fire safety defects.
In particular, the fire-safety reports identified the presence of Aluminium Composite Material cladding panels and combustible Kingspan K15 insulation behind the cladding panels.
Kedai confirmed that it was a relevant landlord and that Block B was a relevant building but reserved its position as to whether there were relevant defects on the basis that technical evidence was required to determine whether the alleged defects amounted a building safety risk.
Kedai applied to postpone the hearing date on the basis that, among other reasons, it required further time to procure a specialist façade engineer and / or architect report. However, the FTT decided that the reports submitted to the FTT and the respective position statements of the parties already provided sufficient information for the FTT to determine the s123 criteria for a Remediation Order. Consequently, the FTT decided that the hearing should proceed as planned.
On the morning of the hearing (10 July 2023), at 10am, the Tribunal members inspected the Property in the presence of the leaseholders, Kedai and their respective solicitors. The inspection corroborated some of the observations of the fire-safety reports. That afternoon, at 1:30pm, the FTT hearing took place.
In light of the reports, the submissions made on behalf of the leaseholders and the FTT's inspection of the Property, the FTT granted the Remediation Order against Kedai.
The Remediation Order required Kedai to remedy the fire-safety issues within 26.5 months of the hearing date (by 19 September 2025).
Notably, the FTT also granted disclosure of a 2019 H&S Fire Risk Assessment report in favour of the leaseholders.
The Take Away
This decision is an important indication of how such applications are likely to play out before the FTT.
In that regard, the following points are of note:
1. The FTT confirmed that the burden of proof for a Remediation Order rests with the applicant to establish a prima facie case. The FTT explained that this meant "a coherent, initial case that there were relevant defects…that caused a building safety risk".
2. Whilst there is no specified standard or criteria for the remedial works under the BSA, the FTT underlined that remediation works must comply with the Building Regulations applicable at the time the remedial work is carried out and, at the very least should not prevent an EWS1 form from being issued.
3. The FTT took a pragmatic approach to the remediation works timetable, choosing to stipulate the length of time that Kedai said would be required to undertake the remedial works (26.5 months) over the leaseholders requested timetable (18 months).
There is no doubt that Waite & others v Kedai Ltd will provide a useful reference point for prospective Remediation Orders however as was clear, each Application will be assessed on its own facts and evidence.
