Section 123 of the Building Safety Act 2022 (BSA) gives the First-tier Tribunal (FTT) the ability to make Remediation Orders requiring a landlord to carry out building safety remediation works within a specified period.
The first Remediation Order was made in August 2023, in the case of Waite v Kedai Limited, which concerned a residential apartment block in Streatham. The principles it established continue to underpin how Remediation Order applications are determined.
How the dispute arose
The development was a mixed-use residential development completed in 2016 comprising 2 blocks: one new-build and one which had been converted from offices with 2 additional storeys being added. Both blocks had external wall systems. It had been signed off as Building Regulations compliant by the Approved Inspector.
Kedai Limited was the freehold owner and “relevant landlord” for the purposes of s.123(3) of the BSA.
Residents had raised concerns regarding the safety of the buildings.
In March 2020, Kedai commissioned a report and obtained an EWS1 form (the external wall assessment that mortgage lenders require before they will lend against a flat in a multi-storey residential building). Both documents turned out to be fraudulent. They had not been produced by a suitably qualified professional acting on a genuine assessment of the building. The leaseholders had therefore been given a false picture of their building’s fire safety status, and the practical protections that a genuine EWS1 assessment should have provided were not in place.
Further reports were commissioned and, following invasive investigations in 2021, it was concluded that the building’s external walls had a number of building safety defects: the insulation, although compliant at the time of completion, was no longer compliant, and the fire-stopping, cavity barriers and compartmentalisation throughout the building were inadequate.
A Fire Risk Appraisal (FRAEW) and EWS1 form issued in August 2022 concluded that the overall risk rating for the buildings was “high” requiring remedial action to be taken, including the removal and replacement of the combustible insulation.
Height verification surveys were also carried out, with an assessment in August 2022 revising the building’s height to 17.97m, which was within the 30cm tolerance of a “tall building” and qualifying it for an application to the Building Safety Fund for funding for the necessary remedial works. It was subsequently confirmed that the building exceeded 18 metres, the previous methods of calculation being incorrect. It was therefore subject to the more stringent “Higher Risk Building” regime.
In September 2022, an application for a Remediation Order was made in relation to Block B. An application in relation to Block A was made in December 2022. The final hearing was listed for July 2023.
Kedai began remediation works before the hearing. By the time the Tribunal inspected the buildings in July 2023, workmen were actively replacing fire-stopping foam. Despite that activity, significant deficiencies remained.
The Hearing
For the purposes of the Applications, it was agreed that the ACM cladding, the fibre cement rainscreen system, and the lack of fire-stopping, cavity barriers and compartmentalisation were “relevant defects” causing a “building safety risk” and therefore required remediation works.
However, Kedai resisted the application arguing that at the time of the hearing, on the evidence available, it was not possible for the FTT to make a Remediation Order as the Applicants had not satisfied the burden of proof to establish all the “relevant defects” and had not proposed an appropriate remediation scheme. It also argued that the draft Order submitted by the Applicants was oppressive and that if further investigations were required, then that was not a “relevant step” the FTT was permitted to order.
Without prejudice to its primary position, Kedai did provide its own alternative draft Remediation Order.
The Key Requirements
To make a Remediation Order, the FTT must be satisfied that there is one or more “relevant defect” which causes a “building safety risk” arising in connection with “relevant works”:
- “relevant works” are works relating to the construction or conversion of the building
- A “building safety risk” is a risk to the safety of people in or around the building arising from the spread of fire or collapse.
A favourable survey does not defeat a Remediation Order application
One of the most practically important findings in Waite v Kedai concerns how the FTT identifies relevant defects, the scope of the necessary remediation works and the standard to which they are to be carried out.
Landlords may assume that a broadly favourable PAS 9980 assessment will, on its own, make it difficult for leaseholders to establish the existence of “relevant defects”.
However, PAS 9980 and the BSA address different issues: PAS 9980 is the industry-standard methodology used by fire engineers to assess the fire risk presented by an external wall system. It classifies that risk on a spectrum, recommending remediation only where the risk exceeds a certain threshold; The BSA is concerned with the existent of “relevant defects” i.e. those creating a risk to the safety of people in or about the building from fire or collapse. They do not apply the same test.
The FTT specifically noted that there is no guidance in the BSA about how the FTT should assess the risk to the safety of people in or about the building, or the scope of the works that may be required to remedy the relevant defects, or the standard to which any remedial works must be carried out. It stated that “the wording of this Part of the BSA is in deliberately broad terms, to enable the Tribunal to find the best and most practical, outcomes-focussed solutions to myriad circumstances that will inevitably present themselves in applications such as this”.
The FTT therefore did not consider that it its powers were constrained or restricted by reference to other statutory or regulatory provisions such as lease repairing covenants, tests applied by the Building Regulations, the health and safety rating system under the Housing Act 1984, or PAS 9980.
Remediation Orders do not need to be prescriptive
A significant practical question in any Remediation Order application is how specific the order itself should be.
The FTT accepted that: “it is important for any remediation order to be sufficiently precise so that the Respondent can know what it must do to remedy the relevant defects”.
However, it also stated that: “the Act is not prescriptive as to the works that will be necessary to remedy the relevant defect or defects. The extent of precision will vary from case to case. On some occasions, a full specification will be provided. In others, a broad schedule will be sufficient with a power for either party to apply for further directions, variations, or a more detailed specification”.
The FTT specifically noted that it retained jurisdiction: “for so long as the relevant defects remain at the Development and there is a possibility of a variation of the remediation order, either as to scope or as to timing”.
In this case, the FTT elected to make an Order in “general terms to achieve a clearly specified result, namely, to remedy the relevant defects…”
It did not specify in detail exactly what works were required to be carried out other than to specifically identify the “relevant defects” which needed to be addressed.
Further, whilst the FTT noted that s.123 of the BSA does not impose any particular standard the remediation works were required to comply with, it did accept that such works would need to comply with current Building Regulations and PAS 9980 in order to avoid any subsequent FRAEW identifying any “unacceptable risk”. It therefore required the remediation works:
- to comply with the Building Regulations
- should not prevent a “satisfactory” EWS 1 form being issued following any post-works FRAEW pursuant to PAS 9980
As to timing, although the FTT noted that Kedai had known about potential defects since 2019, it was satisfied that the 115-week programme proposed by Kedai for the design, approval and carrying out of the remedial works was not “overly excessive”.
Practical Implications
The key practical takeaways are:
- Where “relevant defects” exist, landlords should avoid raising unnecessary technical or jurisdictional arguments to defeat an application. In particular, it is not necessary for a detailed remedial scheme to have been finalised before an Order can be made
- It will usually be incumbent on landlords to fund and commission technical reports as leaseholders will generally lack the resources and expertise to do so
- Remediation Orders remain flexible – parties can apply for variations (if justified). The key driver was to ensure the removal of the “relevant defects”
- There is no prescribed standard of works, though the practical reality is that any remediations works will need to comply with current Building Regulations and, for certain buildings, will need to result in a satisfactory EWS1 rating
- Landlords should expect Remediation Orders to specify a deadline for completion of the remediation works. Timescales should be realistic and may be varied where necessary
- Landlords who engage constructively with the process are less likely to find themselves back before the FTT or the County Court for enforcement action
Costs protection leaseholders
One of the most commercially useful aspects of the decision concerns costs.
The BSA provides protection to qualifying leaseholders under Schedule 8. Section 20C of the Landlord and Tenant Act 1985 also prevents landlords from recovering the costs of tribunal proceedings through the service charge. This is subject to a “just and equitable” test.
The question in this case was whether the section 20C protection extended to leaseholders who did not hold qualifying leases under Schedule 8.
The Tribunal confirmed that it did. It held that section 20C operated independently of the Schedule 8 regime. A leaseholder who falls outside the qualifying lease definition can still benefit from a section 20C order so the landlord cannot recover its tribunal costs through the service charge from any leaseholder, qualifying or not. The two protections run in parallel rather than as alternatives.
This is of practical importance for buildings with a mixed leasehold population. Landlords should not assume that leaseholders outside the Schedule 8 regime are exposed to service charge recovery of tribunal costs.
In this case, given Kedai’s conduct, the FTT considered it reasonable to make an order that 80% of Kedai’s costs should not be passed on to non-qualifying leaseholders through the service charge.
Why Waite v Kedai still matters
Since Waite v Kedai, the FTT has considered numerous Remediation Order applications, and later decisions have developed aspects of the regime.
But the decision remains important because it established the foundational principles:
- how relevant defects are identified
- that Remediation Orders can be made even where remediation works have commenced and
- the FTT has wide discretion in relation to the scope and timing of the proposed remediation works
- the way in which Remediation Orders can be structured and “flexed” to achieve practical objectives
- how costs protections apply across all types of leaseholder
These principles continue to influence Building Safety Act litigation.
For developers involved in acquiring, refurbishing or repurposing existing buildings, Waite v Kedai is a reminder that historical construction defects can have long-term consequences.
Technical due diligence and early identification of remediation liabilities are essential, particularly where responsibility for historic works may affect the commercial viability of a transaction and where the Building Safety Act regime may give leaseholders a direct route to require those liabilities to be addressed.
