Remediation Order under s123 of the Building Safety Act 2022

The First Tier Tribunal (the “Tribunal”) has made a Remediation Order pursuant to s123 of the Building Safety Act 2022 (“BSA”) in respect of 8 Artillery Row, London, against the Respondent freeholder/landlord in favour of the Applicant leaseholders. s123 of the BSA gives the Tribunal a power and discretion to make a remediation order on the application of an “interested person”, requiring a “relevant landlord” to remedy specified “relevant defects” in a specified “relevant building” by a “specified time”

Relevant facts

8 Artillery Row, London was formerly an office block. It was reconstructed in 2015 so that it now contains 22 luxury apartments (including one penthouse) above ground floor retail units. 

On 28 February 2024, some of the apartment leaseholders issued an application for a remediation order under s123 of the BSA, requiring the landlord/freeholder to commence remedial works within 4 months and complete them by the end of November 2025. The application was made on the basis that, in December 2020, the property had been given an EWS1 rating of B2 following an External Wall System Fire Review (the EWS1 process having been introduced following the Grenfell Tower fire). A B2 rating indicates that there are combustible materials within the external walls of a building, that an adequate standard of fire safety has not been achieved and that remedial works/interim measures are required. Irrespective of this, the Respondent had still not commenced remedial works.

The Respondent accepted that:

• the defects complained of were “relevant defects”;
• the Respondent was a “relevant landlord” in respect of some of those “relevant defects” (the Respondent argued that it was not a relevant landlord in respect of required work to the balconies); and
• the property was a “relevant building”.

However, the Respondent argued that a remediation order should not be made or, alternatively, if a remediation order was made it should reflect the programme for works proposed by the Respondent, for which inspections would not commence until pre-tender support funding had been approved by the Building Safety Fund.

During the proceedings the Applicants extended the basis of the application for a remediation order to include additional defects in the external walls and internal partitions of the penthouse and plantroom on the 8th and 9th floors. The penthouse and plantroom had previously been omitted from inspections and the scope of remedial works due to the Respondent’s mistaken belief that the penthouse was a duplex apartment (and therefore a single dwelling and, as such, was not considered to contribute to apartment-to-apartment fire spread). In actual fact, the penthouse is fully connected to the rest of the property and shares a lift opening, riser and staircase. The plant room is situated above part of the penthouse and so there is an obvious risk of fire between the plant room and penthouse.

Factors taken into account by the Tribunal

The BSA does not specify the factors which the Tribunal should take into account when deciding whether to make a remediation order. In this case, the Tribunal said that: 

• It should take all relevant factors into account in determining what is just and equitable.
• It was satisfied that all of the statutory criteria in s123 BSA had been met and so the starting point was that a remediation order should be made.
• It had also considered the following (albeit noted that they were secondary considerations):
  • BSF funding is no justification for any delay in putting the necessary works in hand. The primary concern is the safety of occupants; the funding of the works is a secondary concern.

  • The fact that a remediation order imposes an irrecoverable substantial financial burden on the Respondent cannot be a factor of significance, being an inevitable consequence of the BSA.

  • There had been unacceptable delays and, whilst it was not strictly necessary for the Tribunal to consider the cause of those delays, it was clear that the Applicants bore no responsibility for any delay

  • The delays had caused unnecessary stress and anxiety to the Applicants and other occupiers of the property.

Remediation Order 

The Tribunal made a Remediation Order. The key provisions of the Remediation Order are as follows:

1. It applies to all defects complained of by the Applicants, including in the balconies, penthouse and plantroom; 
2. It specifies a start date for the remedial works of 1 March 2025 and a completion date of 1 December 2025; and 
3. The Respondent must obtain a post-Works Fire Risk Appraisal of External Walls (FRAEW) together with a an EWS1 rating of A1 within one month of practical completion of the remedial works.

Order under s20C of the Landlord and Tenant Act 1985 (“LTA”)

The Tribunal also made an Order pursuant to s20C LTA which prevents the Respondent from seeking to recover the cost of the proceedings from the Applicants by way of the service charge.

Tribunal fees

The Respondent was also ordered to refund the Applicants the tribunal fees which they had paid.

Summary

It is clear from this latest decision of the First-Tier Tribunal that the Tribunal are taking a no-nonsense approach to delays by landlords/freeholders in commencing remedial works, particularly in circumstances where the s123 criteria in the BSA has been met, and that landlords/freeholders will not be able to use Building Safety Funding not being in place as an excuse for any delays.

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