Remediation orders (RO) were introduced under the Building Safety Act 2022 (BSA) to ensure that essential remediation work required to fix relevant defects is carried out as soon as reasonably possible. Leaseholders can apply to the First-tier Tribunal (FTT) for an RO to ensure a relevant freeholder remedies a relevant defect within a specified time.
Within this article we will look at the case of Mistry v Wallace Estates, which is significant as it considered the scenarios when the FTT will make a RO, the evidence required to do so and the terms that may be included within the RO.
Mistry v Wallace Estates case background
The case concerned a 12 storey building of 189 flats in Croydon, which had been converted from an office to residential use in 2008. The main defect that instigated the RO application was missing fire compartmentation, but also focused on flat entrance doors, internal doors, protected entrance hall, smoke shaft and structural fire protection.
Importantly, the leaseholders submitting the application for an RO relied on the expert evidence of a fire engineer, whilst the freeholder’s response relied upon the expert evidence of a surveyor, Dr Woods, and compliance reports. However, approximately 3 weeks before the hearing the freeholder chose to no longer contest the RO, following their surveyor, Dr Woods, identifying issues in acting in this matter due to his professional indemnity insurance. This meant the tribunal hearing focused on the precise terms and timings of the RO.
The FTT decision
When looking at the terms to be included within the order, the trial needed to resolve the critical point of difference regarding the level of specificity required, as the freeholder argued for general terms, whilst the leaseholders argued for a high degree of detail to be contained within the order. Ultimately the Tribunal found that a high degree of specificity was not appropriate, whilst they stated that the RO should be precise enough for the respondent to know what they need to do to remedy the relevant defect and for enforcement purposes, it does not need to be prescriptive on what works are necessary. Within the summary the FTT also referenced the cases of Blue Manchester Ltd v North West Ground Rents Ltd and Waite v Kedai Ltd within which the freeholder had protection against non-compliance applications in the form of the ability to apply for a variation of the order.
The second aspect the Tribunal needed to review related to the timescales included within the RO, with the leaseholders arguing for remediation works to be completed within 12 months of the hearing and the freeholder arguing for 24 months. Ultimately the Tribunal concluded that works were to be completed within 18 months of the hearing date and stated that their decision had been made based upon evidence before it. This evidence will more than likely have been provided by the freeholder, as they’re the party carrying out the work and are therefore likely to have access to professional advice regarding timings, which the FTT relied upon for its decision.
Summary
The most important takeaway of this case relates to the decision making process of the FTT, which when reviewed alongside the cases of Blue Manchester Ltd v North West Ground rents Ltd and Waite v Kedai Ltd shows that the FTT not only relies on the advice of professionals when reaching a verdict in relation to timescales, but they’re unlikely to be specific on the works required following the award of an RO, as their main interest is the safety of the building in question, not the works required to make it safe.
