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Remediation orders – is the FTT being consistent?

16th May 2024

Robert Bowker takes a look at the take-away points from the recent decision by the FTT in Vista Tower (CAM/26UH/HYI/2022/004).  You can read the full decision here.

Introduction

This article examines whether the FTT’s recent decision in the Vista Tower case (CAM/26UH/HYI/2022/004, available on the FTT’s web-site) demonstrates a discernible pattern of decision-making following its first remediation order. The article will not comment on the terms of the order made in Vista Tower: that will be the subject of a later article. Instead, it will focus on the FTT’s approach to case management and whether its decision to make a remediation order was consistent with the reasoning in previous decisions. Obviously, consistency in approach, both in terms of case management and the final decision, will enable practitioners in this developing area of work to advise clients with greater certainty. In the absence of an appeal decision on remediation orders, consonance in first instance decisions will be welcome.

Previous decisions

There have been at least 5 previous remediation order decisions by the FTT: Leigham Court Road; Orchard House; Centrillion Point; Space Apartments; and Spur House. In each case, a remediation order was made. The Tribunal in Vista Tower comprised Judge Wayte and Judge David Wyatt. Significant guidance was, of course, given by the FTT in the Olympic Park decision on remediation contribution orders.

FTT’s approach to case management

There is a discernible pattern to case management; the FTT actively manages. Its approach is hands-on, including where both parties are represented. The same judges tend to manage cases from the outset and will not shy away from multiple case management hearings.

In Vista Tower, the application for a remediation order was made on 2 November 2022 (see §41). The FTT held its first case management hearing on 14 December 2022 (see §§42 and 44): “The tribunal gave directions for notification of immediate potentially interested persons, mutual disclosure, provision by the Respondent of their FRAEW/PAS9980 report…statements of case and without prejudice meeting(s) between the parties to agree any further issues, to prepare for a further CMH”.

A further case management hearing was held on 25 April 2023 (see §48): “The parties suggested that the second CMH…be vacated. Instead, it was converted to a short CMH at which we gave directions requiring (amongst other things) the Applicant to confirm the scope of the relevant defects within the proceedings, a timetable to dispose of applications relating to third parties, and the Respondent to produce their specification of the remedial works (when this was expected from the new remedial works contractor) and proposed programme.”

The FTT was willing to make disclosure orders against third parties (see §51): “On 4 September 2023, pursuant to an order made by Judge Wayte at the request of the Respondent, Edgewater and the successor to a firm involved with the conversion of the building (Gould Baxter) disclosed documents sought from them, including as-built drawings from the conversion.”

There was a third case management hearing (see §53): At the final CMH, on 21 September 2023, the Tribunal indicated (following requests from the Applicant for something to this effect, or stronger) that the focus of the parties in preparing their evidence and for the final hearing pursuant to these directions should be on the current position and properly-informed expert evidence (§53): “We said that, since the background had much less weight in this case, both parties needed to ensure that any evidence they wished to produce about the background was suitably limited. Directions were given to prepare for the substantive hearing.”

Documentation for trial was controlled (see §59): “Prior to the hearing a bundle of some 11,500 pages in several lever arch files was delivered to the Tribunal. In the circumstances the Tribunal requested a core bundle limited to one lever arch file and made it clear that reference would only be made to the other documents if directed to do so either in the skeleton arguments or during the hearing.”

The FTT’s approach to previous cases

The Applicant drew on previous cases in support of both its primary and secondary arguments (see §§65 and 69).

As to its primary position: “[Leading Counsel for the Applicant] pointed out that, unlike contribution orders under section 124 or building liability orders under section 130 of the BSA, section 123 says nothing about the Tribunal needing to be satisfied that an order is just and equitable. This, he submitted, was a strong indicator that Parliament intended that if the Tribunal was satisfied there were relevant defects, then it must make an order. Given the age of the BSA, authorities were limited to the FTT but [Leading Counsel] suggested that support for his argument could be found in Waite & Others v Kedai Limited LON/00AY/HYI/005 and 0016 [81]: “Once the Tribunal has determined that relevant defects exist, it is for the Tribunal to make an order to remedy those defects within a specified time. That is all that the Act requires.”

And as to its alternative position: “If the Applicant was wrong and the Tribunal did have residual discretion, [Leading Counsel] reiterated the Applicant’s view that the Respondent should have “forward funded” the works, rather than wait for BSF funding as public funding should be a claim of last resort – see Triathlon Homes LLP v Stratford Village Development Partnership [2024] UKFTT 26 (PC) at [278/854]: “We agree with a point made by [Leading Counsel for the Applicant] in opening, which is that public funding is a matter of last resort and should not be seen as a primary source of funding where other parties, within the scope of section 124, are available as sources of funding”.

In deciding that the FTT has power and discretion to make a remediation order, the FTT drew on both the Leigham Court Road (Kedai) and Olympic Park (Triathlon) decisions (see §§119 and 121, with emphasis added in bold): “The BSA and the Regulations contain no similar wording. On the contrary, as noted in Kedai and Triathlon, the BSA is drafted in what appear to be “deliberately broad” terms to enable the Tribunal to respond appropriately to the “myriad circumstances that will inevitably present themselves” in applications of this type. As noted above, the definition in s.120 of the BSA of “relevant defect” is wide. It is not difficult to imagine circumstances in which experts and leaseholders agree that some relevant defects remaining in a building represent a tolerable risk relative to the difficulty of remedying them (or the impossibility of doing so without demolishing and reconstructing a building), so a RO should not be made even if a local authority or other interested person applies for one. That seemed rather to be the aim of the new approach, and new PAS9980 standard, since early 2022. … [I]f the pre-qualification criteria set out in section 123 apply and there are relevant defects we consider that it is likely that the tribunal will make an order, subject to the facts of each case.  Kedai is an example of a case where the tribunal had no hesitation: the respondent in that case was associated with the original developer and had taken no steps to remedy the defects at all.

Conclusions

These are the principal take-away points.

Consistently with its previous decisions including Leigham Court Road and Olympic Park, the FTT:

  • will take a hands-on approach to case management using the same judge or judges throughout, holding a series of case management hearings and making interim orders including third party disclosure to ensure the case is prepared properly for trial and
  • has the power and the discretion to make a remediation order and, subject to the particular facts of the case, will probably make an order if the pre-qualification criteria in s.123 apply and there are relevant defects.

You can find out more on Building Safety Act related issues on our Building Safety Hub.

Team: Robert Bowker
Expertise: Landlord & Tenant

Disclaimer

This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/ or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.

 

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