First-tier Tribunal Grants Remediation Orders for Fire Safety Defects

OUTCOME: Allowed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case References : MAN/00BY/HYI/2023/0016

MAN/00DA/HYI/2023/0012

Property : [NAME], 44-58 [ADDRESS] [POSTCODE]

[NAME], [NAME],

[ADDRESS] [POSTCODE]

Applicant : [redacted]

Representatives : [COUNSEL] and [COUNSEL], instructed by [COUNSEL] [RESPONDENT]

Respondent: [redacted]

Tribunal : Judge J [NAME]

[NAME] of Decision : 13 June 2024

DECISION

© CROWN COPYRIGHT 2024

DECISION

Remediation orders should be made in the terms of the orders accompanying this decision.

REASONS

Background

1. These proceedings concern two applications for remediation orders under section 123 of the Building Safety Act 2022 (“the BSA”). Both applications are made by the Secretary of State and are part of a series of similar applications by which the Applicant has sought to enforce the Respondent’s duties to remediate defects in various large residential buildings it owns across the country.

2. The two buildings (“the Buildings”) which presently concern us are:

• [NAME], 44-58 [ADDRESS] [POSTCODE] (“[NAME]”); and

• [NAME], [NAME], [ADDRESS] [POSTCODE] (“[NAME]”).

3. [NAME] is a 10-storey building in Manchester city centre which was constructed as an office block in the 1960s and converted for residential use between 2015 and 2017. It now contains 115 residential apartments which are subject to long leases. The Respondent acquired the freehold in December 2017.

4. [NAME] is part of the [NAME] development in Leeds. That development comprises three buildings, two of which were originally constructed in the 19th century and had been vacant for many years before being converted for residential use in about 2003. [NAME] is a new-build seven storey building and contains 25 residential apartments which are subject to long leases. The Respondent acquired the freehold in December 2018.

5. It is not disputed that both Buildings have significant fire safety defects. These defects concern each Building’s external wall cladding systems, internal compartmentation and other fire safety measures.

6. On 15 September 2023, the Applicant applied for remediation orders. Following a case management hearing in December, and in compliance with directions issued by the Tribunal, the parties (and their respective experts) worked co-operatively to agree schedules of [NAME] defects in relation to each Building and programmes of appropriate remedial works to rectify them. Nevertheless, the Respondent maintained its position that the applications were unnecessary and that it would be inappropriate for remediation orders to be made.

7. The Respondent revised its position following the Tribunal’s decisions to make remediation orders in two other cases involving the same parties (concerning buildings known as Vista Tower in Stevenage and [NAME] in Bournemouth ). On 17 April, the Respondent’s solicitors wrote to the Tribunal to say that, in light of the Vista Tower decision, the Respondent was prepared to submit to a remediation order in respect of each of the Buildings. Draft remediation orders were enclosed with that letter and the Respondent proposed that their terms should be approved at a pre-trial review hearing (“PTR”) which had already been listed for 24 May. It was acknowledged that the parties had not reached complete agreement as to the terms of the orders.

The PTR, the issues remaining outstanding, and the final hearing

8. The then current state of play was reviewed at a PTR on 24 May, when both parties assured the Tribunal that:

8.1 In respect of each Building, the parties were in agreement, both as to the specification of works needed to remediate [NAME] defects, and as to the duration of the resulting programme of remedial works.

8.2 12 May 2025 was a reasonable completion date for the works to [NAME].

8.3 29 May 2026 was a reasonable completion date for the works to [NAME].

9. Whilst the Respondent accepted in principle that remediation orders should be made in respect of each Building, it maintained that:

9.1 the specified dates by which the orders must be complied with should be subject to extensions of time granted under the [NAME] construction contracts or for other reason, up to a maximum extension of six months. Any extensions beyond that period would require tribunal oversight/approval; and

9.2 the orders should provide that the Respondent may comply with its obligations to remedy the specified [NAME] defects by procuring that its design and build contractor carries out and completes the agreed specification of works.

10. Essentially, therefore, the Respondent argued that the remediation orders for [NAME] and [NAME] should be in similar terms to the order recently granted in relation to Vista Tower. The Applicant disagreed, arguing that the orders should simply require compliance by the anticipated completion dates mentioned above, without any right to automatic extensions of time, and without qualification of the Respondent’s duties to remedy the [NAME] defects. The Applicant argued that it would be sufficient for the orders to include a straightforward mechanism enabling the Respondent to apply to the Tribunal for an extension of time (as remediation orders granted in other cases, including [NAME], had done).

11. The Tribunal declined the parties’ invitation to determine the issues remaining outstanding (i.e., those at 9.1 and 9.2 above) at the PTR, preferring instead to encourage the parties to make further attempts to reach a complete agreement in advance of a final hearing which had already been listed for 10-14 June. Nevertheless, given the parties’ agreement about the matters noted at 8.1 – 8.3 above, and following assurances from counsel that no witness evidence would be required at the final hearing (if indeed such a hearing was still necessary at all), it was agreed that the final hearing should be converted from a 5-day in-person hearing to a one-day video hearing, the sole purpose of which would be to settle the terms of the remediation orders.

12. On 10 June 2024, the final hearing proceeded on this basis. Unfortunately, the parties had not managed to resolve their remaining differences during the period since the PTR. Indeed, if anything, those differences had grown (as far as [NAME] was concerned anyway).

13. Final position statements filed with the Tribunal on 6 June revealed that, notwithstanding the assurances offered at the PTR, a point of disagreement had been identified concerning the timing of one element of the remediation works: being works required to remedy internal compartmentation defects at [NAME]. Put simply, the Respondent’s position was that these works could not be undertaken at the same time as works to [NAME]’s exterior, whereas the Applicant maintained that this was perfectly feasible. This difference of opinion resulted in a six-month disparity in views about what is a reasonable overall completion date for the works to [NAME] (the Respondent now contending that that date is 26 November 2026).

14. The Applicant therefore sought permission to rely on expert evidence at the final hearing in support of his contention that all necessary works to [NAME], including compartmentation works, could reasonably be completed by 29 May 2026. The Tribunal refused to grant such permission, and we made no finding about which view is to be preferred in respect of this issue. We adopted this approach for two reasons. First, the length and format of the final hearing had been changed on the express understanding that no witness evidence would be called. It is therefore regrettable that the existence of this disputed issue had not been identified sooner by the parties. Second, given the contentious nature of the evidence on which the Applicant sought to rely, it would have been unsatisfactory, and potentially unfair, to admit it without also giving the Respondent opportunity to rely on expert evidence of its own. That would have required an adjournment of the final hearing, which neither party requested (or appeared to want) and which, in our view, would have unnecessarily delayed the final determination of the proceedings.

Grant of remediation orders

15. The fact that the Respondent consents, in principle, to the grant of a remediation order in respect of each of the Buildings obviously makes the Tribunal’s task in these proceedings considerably more straightforward than in was in cases such as Vista Tower and [NAME]. Nevertheless, before proceeding to consider the terms of the remediation orders for [NAME] and [NAME], it is appropriate to record two fundamentally important findings:

• First, we are satisfied that the Tribunal has jurisdiction under section 123 of the BSA to make a remediation order in relation to each of the Buildings (and there is no dispute about this, of course).

• Second, we are also satisfied that it is appropriate to make such orders in the present circumstances.

16. Those circumstances clearly include the fact that the Respondent consents to the making of the orders, and we have no reason to doubt the Respondent’s assurance that it now intends to progress the agreed programmes of remediation works for both Buildings (it seems unlikely that the Respondent would be consenting to the making of remediation orders otherwise). However, we echo the Tribunal’s observation in the Vista Tower decision that the focus of the BSA is on leaseholder protection and (in the same way as the Tribunal did in that case) we consider it appropriate to make remediation orders in these proceedings to provide reassurance to the Applicant and to leaseholders of the Buildings that the necessary works will indeed be done and that they will be done within reasonable timescales.

Terms of remediation orders

17. Each remediation order must obviously specify an end-date for compliance, and it is not in dispute that they should also include a mechanism by which the time for compliance may be extended if the circumstances at the time are such as to make this appropriate. However, the parties disagree about the appropriate compliance dates and about the circumstances (if any) in which the Respondent should be entitled to an extension of time without first obtaining the Tribunal’s approval.

18. The Respondent made the point that the orders will require complex programmes of major works to be implemented in respect of each Building. Those works are (or will be) the subject of a building contract and a separate grant funding agreement (governing the terms on which government funding is to be provided by the [NAME]). The Respondent argued that extensions of time may be permitted, or even required, under those agreements and that the remediation orders should therefore have machinery built in to cater for such extensions, with the Tribunal’s supervisory jurisdiction being invoked only if the Respondent proposes to delay completion by more than six months beyond the original compliance date.

19. The Applicant did not accept that such machinery is either necessary or appropriate in the present circumstances. Ms [NAME] argued that the orders should simply require compliance by the dates mentioned in paragraphs 8.2 & 8.3 above, subject to the possibility of extensions of time granted by the Tribunal upon application by the Respondent.

20. We agree with the Applicant to the extent that the provisions in the remediation orders enabling time for compliance to be extended need not be complicated. Whilst we note the terms of the remediation order granted in respect of Vista Tower, there is no requirement for the orders in respect of [NAME] or [NAME] to be made in the same terms, even if the material circumstances of the cases were the same. But, in any event, the circumstances are not the same: unlike Vista Tower, some (if not all) of the building contracts and/or grant funding agreements for [NAME] and [NAME] have not yet been finalised and/or entered into. The machinery contended for by the Respondent would therefore introduce a degree of uncertainty into the remediation orders which we consider undesirable and unnecessary. Our preferred course is simply to permit the Respondent to apply for extensions of time if required. Any such application should be capable of being dealt with relatively swiftly and would, of course, be determined on its merits. We do not agree that the need to apply to the Tribunal for an extension of time would be unduly burdensome.

21. Nevertheless, we also share the concern which the Tribunal voiced in the Vista Tower decision about not letting the remediation orders get in the way of the arrangements which are being put in place anyway to remediate the Buildings. In our view, the proportionate course in the present circumstances – and bearing in mind that we have made no adverse findings about the Respondent’s conduct – is to specify a date for compliance with the orders which incorporates a reasonable margin beyond the anticipated completion dates for the works. This should reduce the likelihood of the Respondent needing to make application for an extension of time, but it will enable the orders to serve their proper purpose: as a “backstop” to ensure that the works are done.

22. A similar approach was taken by the Tribunal in [NAME] case , and the possibility of doing the same again for [NAME] and [NAME] was discussed during the final hearing. Ms [NAME] primary position was that incorporating an additional margin of any length was unnecessary. Alternatively, however, she suggested that a margin of two months would not be unreasonable. We have nevertheless concluded that, as in [NAME] case, a more generous margin of six months (beyond the dates mentioned at paragraphs 8.2 & 8.3 above) would provide the reasonable margin which is appropriate given the nature and complexity of the works in question. In coming to this conclusion, we note the Respondent’s concession that, notwithstanding its position about the timing of the compartmentation works to [NAME], such a margin would be acceptable.

23. Finally, we turn to the issue mentioned at paragraph 9.2 above. We do not agree that the remediation orders should provide that the Respondent may comply with their requirements by procuring a contractor to carry out the agreed works. The Respondent will obviously engage contractors to carry out the works. Nevertheless, section 123(2) of the BSA defines a remediation order as “an order … requiring a [NAME] landlord to remedy specified [NAME] defects …”. The Respondent is [NAME] for present purposes and, as such, it is the Respondent who will be required by the orders to remedy the [NAME] defects.

Outcome

24. For these reasons the Tribunal will make remediation orders in the terms proposed by the Applicant, save that the specified dates for remedying the [NAME] defects shall be 12 November 2025 (in respect of [NAME]) and 29 November 2026 (in respect of [NAME]).

Signed: [NAME]

Judge of the First-tier Tribunal

Date: 13 June 2024

Case Ref: MAN/00BY/HYI/2023/0016

IN THE FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

IN THE MATTER OF [NAME], 44-58 CHARLES STREET, MANCHESTER [POSTCODE] – TITLE NO: MAN332521

AND IN THE MATTER OF AN APPLICATION FOR A REMEDIATION ORDER PURSUANT TO SECTION 123 OF THE BUILDING SAFETY ACT 2022

BETWEEN

SECRETARY OF STATE FOR

LEVELLING UP, HOUSING AND COMMUNITIES

Applicant

- and -

[RESPONDENT]

Respondent

REMEDIATION ORDER

In Respect of [NAME], 44-58 [ADDRESS] [POSTCODE] (the Building)

UPON the Tribunal considering the Applicant's application for a remediation order pursuant to section 123 of the Building Safety Act 2022 (the BSA 2022), and the evidence and representations of the parties in these proceedings, and upon considering the provisions of the BSA 2022,

AND for the reasons set out in the Tribunal’s decision dated 13 June 2024,

IT IS ORDERED AS FOLLOWS:

1. By no later than 12 November 2025 the Respondent ([NAME]), shall remedy the [NAME] defects (and for the avoidance of doubt which fall within the meaning of 120 of the BSA 2022) at the Building as specified by and in accordance with the attached Schedule (the Works).

2. The parties have permission to apply in relation to paragraph 1 and the attached Schedule. In particular, the Respondent has permission to apply:

a. to be permitted to undertake different works to the Works, if it is revealed by investigation and analysis by a suitably qualified consultant that reasonable alternative works will remedy the [NAME] defects; and

b. to extend the time for compliance with this Order.

3. Any application made under paragraph 2 must be made using the Tribunal’s Form “Order 1”. The application must be supported by a witness statement endorsed with a statement of truth, with detailed evidence explaining the reason for the application and a proposed draft order setting out the variation sought. There is permission for the parties to rely on [NAME] expert evidence in connection with the application. The application must also include a realistic time estimate for the application to be heard and be served on the Applicant.

4. The Respondent shall notify the Tribunal, the Applicant, and also the leaseholders of the residential apartments in the Building, within one month of the certified date of practical completion of the Works, and shall send them copies of plans showing the Building as altered by the Works within three months of such notification.

5. By section 123(7) of the BSA 2022, this Order is enforceable with the permission of the County Court in the same way as an order of that Court.

Signed: [NAME]

Judge of the First-tier Tribunal

Dated: 13 June 2024

Attached: Schedule

MAN/00BY/HYI/2023/0016

Schedule of [NAME] and Works Required to Remedy Them in respect of [NAME], 44-58 [ADDRESS] [POSTCODE]

By 12 November 2025, [RESPONDENT] is required to remedy the [NAME] defects in [NAME], 44-58 [ADDRESS] [POSTCODE] as specified below:

[NAME]

Wall Type 1 -Fibre cement board rainscreen cladding (To all elevations where it exists)

The following works will be required:

(a) Erection of scaffolding/access equipment.

(b) Remove existing fibre cement board and cladding rails

(c) Removal of insulation.

(d) Install new cladding system complete with all necessary accessories and support system

(e) Installation of new vertical and horizontal fire barriers.

(f) Installation of new insulation.

(g) Remove existing windows and replace with anodised aluminium windows

(h) Install cavity barriers around the windows.

(i) Provide new ventilation ducts and grills

(j) Installation of cavity barriers and firestopping to vents

Wall Type 2 -Trespa Meteon panel rainscreen cladding (To all elevations where it exists)

(a) Erection of scaffolding/access equipment.

(b) Removal of Trespa cladding panels and cladding rails.

(c) Removal of insulation.

(f) Installation of new insulation.

(h) Install cavity barriers around the windows.

(i) Provide new ventilation ducts and grills

Wall Type 4 -Aluminium insulated core panel (To all elevations where it exists)

(a) Erection of scaffolding/access equipment.

(b) Remove aluminium core cladding including the aluminium outer face, polystyrene insulation and aluminium inner face

(c) Remove the internal substrate. which is assumed to be timber.

(f) Installation of new insulation.

(g) Remove existing windows and replace with anodised aluminium windows.

(h) Install cavity barriers around the windows.

(i) Provide new ventilation ducts and grills.

(j) Installation of cavity barriers and firestopping to vents.

Wall Type 5 - Steel insulated core panel (To all elevations where it exists)

(a) Erection of scaffolding/access equipment.

(b) Removal of steel core cladding including the steel outer face, rigid insulation and steel inner face.

(c) Remove timber frame and internal substrate.

(d) Install new cladding system complete with all necessary accessories and support system.

(f) Installation of new insulation.

(h) Install cavity barriers around the windows.

(i) Provide new ventilation ducts and grills.

Automatic Opening Vents (To all elevations where it exists) (a) Remove the existing AOV panels, set aside for re-use.

(b) Re-fit the AOV panels complete with all necessary trims/flashings and accessories and firestops/cavity barriers as required.

All insulation and other materials installed during the remediation must satisfy Regulation 7(2) of the Building Regulations 2010 as amended 2018, and not covered by the exceptions in Regulation 7(3)1, where:

“building work shall be carried out so that materials which become part of an external wall, or specified attachment, of a [NAME] building are of European Classification A2-s1, d0 or A1, classified in accordance with BS EN 13501- 1:2007+A1:2009 entitled “Fire classification of construction products and building elements. Classification using test data from reaction to fire tests” (ISBN 978 0 580 598616) published by the British Standards Institution on 30th March 2007 and amended in November 2009”.

All proprietary fire stopping products, fire barriers and cavity barriers should be installed in accordance with the manufacturer’s instructions in accordance with design details supported by fire testing and or certification under a scheme which is adequate for the purposes of the Building Regulations[1].

All works should be documented and all [NAME] information provided in accordance with Regulation 38 – Fire Safety Information of the Building Regulations.

Case Ref: MAN/00DA/HYI/2023/0012

IN THE FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

IN THE MATTER OF [NAME], [NAME], LEEDS, [POSTCODE]– TITLE NO: WYK674915

BETWEEN

SECRETARY OF STATE FOR

LEVELLING UP, HOUSING AND COMMUNITIES

Applicant

- and -

[RESPONDENT]

Respondent

REMEDIATION ORDER

In Respect of [NAME], [NAME], Leeds [POSTCODE] (the Building)

UPON the Tribunal considering the Applicant's application for a remediation order pursuant to section 123 of the Building Safety Act 2022 (BSA 2022), and the evidence and representations of the parties in these proceedings, and upon considering the provisions of the BSA 2022,

IT IS ORDERED AS FOLLOWS:

6. By no later than 29 November 2026 the Respondent ([NAME]), shall remedy the [NAME] defects (and for the avoidance of doubt which fall within the meaning of 120 of the BSA 2022) at the Building as specified by and in accordance with the attached Schedule (the Works).

7. The parties have permission to apply in relation to paragraph 1 and the attached Schedule. In particular, the Respondent has permission to apply:

c. to be permitted to undertake different works to the Works, if it is revealed by investigation and analysis by a suitably qualified consultant that reasonable alternative works will remedy the [NAME] defects; and

d. to extend the time for compliance with this Order.

8. Any application made under paragraph 2 must be made using the Tribunal’s Form “Order 1”. The application must be supported by a witness statement endorsed with a statement of truth, with detailed evidence explaining the reason for the application and a proposed draft order setting out the variation sought. There is permission for the parties to rely on [NAME] expert evidence in connection with the application. The application must also include a realistic time estimate for the application to be heard and be served on the Applicant.

9. The Respondent shall notify the Tribunal, the Applicant, and also the leaseholders of the residential apartments in the Building, within one month of the certified date of practical completion of the Works, and shall send them copies of plans showing the Building as altered by the Works within three months of such notification.

10. By section 123(7) of the BSA 2022, this Order is enforceable with the permission of the County Court in the same way as an order of that Court.

Signed: [NAME]

Judge of the First-tier Tribunal

Dated: 13 June 2024

Attached: Schedule

MAN/00DA/HYI/2023/0012

Schedule of [NAME] and Works Required to Remedy Them in respect of [NAME], [NAME], Leeds [POSTCODE]

By 29 November 2026, [RESPONDENT] is required to remedy the [NAME] defects in [NAME], [NAME], Leeds [POSTCODE] as specified below:

[NAME]

Wall Type 3 -Timber Facade (To all elevations where it exists)

The following works will be required:

(k) Erection of scaffolding/access equipment.

(l) Remove existing timber strips on plywood backing

(m) Install new cladding system complete with all necessary accessories and support system including:

Wall Type 3 -Timber Facade (North & South Elevation 6th Floor) where existing timber cladding to the west elevation has been obscured by building on adjoining site (preventing access for replacement)

(k) The existing cladding is to be retained in-situ.

(l) A Fire Barrier/Cavity Barrier is to be provided at the north and south of the building, effectively encapsulating the timber element behind new, non-combustible construction.

(m) The closure detail will be an extension of the new cladding for the adjacent elevations comprising aluminium cladding over metal support work, over Rockwool fire barrier tight friction fitted (not fixed) to face of adjoining building and fixed to cementitious backing board and support framework – as sideways extension to new cladding system.

Wall Type 4 -Polycarbonate (To all elevations where it exists)

(n) Erection of scaffolding/access equipment.

(o) Remove existing polycarbonate panels double glazed glass units to staircase.

(p) Install new Aluminium clear double glass fixed window Removal of insulation.

(q) Install cavity barriers around the windows.

Wall Type 5 – Timber Infill Facade (South Elevation)

(k) Erection of scaffolding/access equipment.

(l) Remove existing timber strips on plywood backing

(m) Install woodgrain effect coated aluminium cladding, pressed to profile to emulate existing timber slats.

(n) Install new metal louvres to ducting to match timber effect cladding.

Wall Type 6 – Render Facade (South Elevation)

(k) Erection of scaffolding/access equipment.

(l) Remove existing render and PIR insulation.

(m) Install new non-combustible External Wall Insulation and Mineral Render system or equivalent dual density slab fixed to blockwork.

Cavity Barriers, Fire Barriers (c) Works to provide:

a. Fire Barriers at compartment lines.

b. Cavity Barriers to window and door openings.

c. Cavity Barriers to service penetrations, with fire stopping as required.

d. Cavity Barriers to edges of all cavities.

Timber Balconies a) Remove existing Timber balcony decking

(d) Install non-combustible decking replacement

Compartmentation (a) Carry out all compartmentation remediation work as set out in the TENOS Reports referred to in the CHPK FRAEW dated 27 January 2023.

Additional Works

1. Timber Soffit

a. North Elevation Overhang to first floor level.

b. South Elevation Overhang to first floor level.

c. a) Remove existing Plywood boards and timber supports

b) Install insulation fixed to underside of slab.

c) Install Rockpanel with metal support.

1. Timber roof soffit Projection

a. South Elevation

b. East Elevation b) Remove existing timber soffit lining panels

c) Install Rockpanel with metal support, (no insulation being installed).

2. Ventilation Ductwork a) Existing ventilation ductwork to be extended with non-combustible retro fit ducting kit.