A recent Upper Tribunal decision has clarified something important for anyone involved in owning, managing or living in residential buildings caught by the Building Safety Act 2022. While the First-tier Tribunal has wide powers to order fire safety remediation, those powers are not unlimited. Monier Road Ltd v Blomfield [2025] UKUT 157 (LC) is one of the first Upper Tribunal decisions to draw boundaries around how remediation order applications should be decided, rather than simply whether defects exist. For freeholders, managing agents and leaseholders, the principles it establishes matter to anyone involved in owning, managing or living in buildings where remediation order proceedings are a possibility.
Why Monier Road matters
The case arose from a remediation order application concerning a purpose-built block of 29 flats at 1 Monier Road in east London. A leaseholder applied to the First-tier Tribunal (“FTT”) for an order requiring the freeholder, Monier Road Limited, to carry out fire safety works to the building’s external walls. Both sides appointed qualified fire engineers, who inspected the building jointly. Their agreed position was that the building presented a low risk, that no immediate action was required, and that the works needed were limited in scope. The First-tier Tribunal accepted that relevant defects existed, but then went substantially further than the evidence supported. It ordered significantly more extensive works than either party’s expert had recommended. It also determined that the building was a higher-risk building under the Building Safety Act, a classification with serious practical consequences that neither party had raised and that the Tribunal had no jurisdiction to make. Monier Road appealed, arguing that the defects specified in the remediation order were not raised before the FTT and so the order did not reflect the evidence considered by the FTT.
The Upper Tribunal set aside the remediation order in full stating that the inclusion of the additional items included in the order was “procedurally irregular and unfair”.
Most Building Safety Act decisions to date have focused on whether relevant defects exist and whether it is appropriate to make an order. Monier Road addresses something different: what the Tribunal can actually do once it has decided to act, and what constraints apply to the scope and content of any order it makes.
That is a more commercially important question than it might first appear. A remediation order that goes beyond what the evidence supports does not just create legal problems. It can affect valuations, lending decisions and insurance arrangements by creating uncertainty about a building’s status. It can create uncertainty for residents and disrupt the sale or re-mortgage of flats, even where the actual condition of the building does not warrant that disruption. In this case, the freeholder had already completed the works the expert evidence identified as necessary, and the building had received an EWS1 B1 rating. Despite that, leaseholders were living with the practical consequences of a Tribunal determination that their building was unsafe and higher-risk, neither of which was grounded in the evidence before the Tribunal or within its powers to decide.
The limits the Upper Tribunal confirmed
The Upper Tribunal’s analysis identified two distinct errors, both of which carry practical implications beyond this particular case.
The first was procedural fairness. A tribunal can ask questions, probe the evidence and reach its own conclusions. It can disagree with both parties. What it cannot do is order works that no expert has recommended, on the basis of its own analysis, without first putting that thinking to the parties and giving them a proper opportunity to respond. Here, the freeholder was ordered to carry out substantially more extensive and costly works than anyone had sought or evidenced, without the chance to challenge the Tribunal’s reasoning. The Upper Tribunal held that was wrong and a breach of natural justice.
The second was jurisdiction. The Building Safety Act grants certain decision-making powers. Whilst the First-tier Tribunal (Property Chamber) has power to make remediation orders or decide who is an “accountable person”, it does not have power to determine whether a building qualifies as “higher-risk” under the Act. That classification belongs to the Building Safety Regulator.
In making the remediation order, the FTT acknowledged that it did not have the power to make such a declaration and stated that its finding that the building was “higher risk” was an expression of opinion..
The significance of agreed expert evidence
Perhaps the most practically significant aspect of the judgment is what it says about the weight that agreed expert evidence should carry in building safety proceedings.
Building Safety Act cases increasingly depend on specialist fire engineering expertise. Where both sides appoint qualified engineers who inspect the building jointly and reach broadly consistent conclusions, that agreed evidence carries real authority. It represents the considered professional judgment of people who have actually examined the building and applied the relevant technical standards to what they found.
This does not mean that a tribunal cannot raise new points; but a tribunal considering departing from the evidence before it needs clear reasons for doing so, and it must give the parties an opportunity to address these new points.
In Monier Road, the FTT raised new points contrary to agreed expert evidence without having visited the building. Its concerns were therefore unfounded.
The Upper Tribunal therefore remade the remediation order excluding the additional items not supported by the expert evidence. It also declined to refer the matter to the Building Safety Regulator for a determination on the “higher risk” status of the building given that the FTT (by its own admission) had no jurisdiction to consider it in its original order.
What this means in practice
For freeholders facing a remediation order application, Monier Road underlines the importance of expert evidence in determining the scope and extent of required remedial works. Ideally, this should be agreed with the applicant’s expert.. If during a hearing the Tribunal appears to be moving beyond the scope of what has been argued or evidenced, the parties should be given the opportunity to address any new issues before any order is made.
Managing agents will often find themselves coordinating between fire engineers, leaseholders, freeholders and legal advisers in the course of building safety proceedings. Understanding that the Tribunal cannot simply expand the scope of required works without proper evidential and procedural foundation provides a useful reference point for managing expectations on all sides. The process is intended to be evidence-led, and where it remains so, the outcome is more likely to reflect the actual condition of the building.
Leaseholders should not read Monier Road as making remediation orders harder to obtain. The Tribunal’s powers, where “relevant defects” are established, remain broad. What the case confirms is that successful applications require evidence of building safety risks and the “relevant steps“ required to remedy them.
The broader picture
As Building Safety Act litigation continues to develop, the Upper Tribunal is gradually defining the boundaries of the new regime. Most decisions to date have addressed the threshold questions: what counts as a relevant defect, what steps are required to remedy them, who can be required to contribute to remediation costs, and what the just and equitable test requires. Monier Road addresses a different and equally important question: once the Tribunal decides to act, how far does its authority extend?
The answer the Upper Tribunal gives is clear. Remediation orders are powerful tools. They are not unlimited ones. They must be made within the scope of the Tribunal’s statutory powers and must not extend into matters it has not been requested to resolve.
