Background

Section 123 of the BSA sets out the qualifying test for a remediation order is that (a) an interested person may apply to the First Tier Tribunal for an order requiring (b) a relevant landlord of (c) a relevant building to remedy (d) specified relevant defects by a specified time.

There’s a similar qualifying test for a remediation contribution order under section 124 of the BSA and, again, a remediation contribution order can only be sought in respect of costs incurred or to be incurred in remedying, or otherwise in connection with, “relevant defects”.

As to the definition of a “relevant defect”, section 120(2) of the BSA sets out:

“Relevant defect”, in relation to a building, means a defect as regards the building that:

(a) arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and

(b) causes a building safety risk.

Canary Riverside

Walker Morris has been instructed in relation to two applications brought by the Secretary of State for Housing and Communities and Local Government for (a) a Remediation Order and/or; (b) a Remediation Contribution Order concerning the development known as Canary Riverside, Westferry Circus, London E14.

As a preliminary issue, the Tribunal was asked to determine what constitutes to a building safety risk amounting to a relevant defect?

Decision

The Tribunal determined that from the decisions to date, the starting point is:

1. Whether there is a relevant defect is to be assessed at the date of the Tribunal hearing.
2. Whether works or construction complied with the Building Regulations in force at the time is not the relevant question. Instead, the correct question is whether there is a defect that causes a building safety risk in the light of today’s knowledge.
3. It’s for the Applicant to establish a prima facie case that there are relevant defects which cause a building safety risk.

Much of the dispute centred on whether there was a threshold below which a “building safety risk” should be considered tolerable – put another way, does “building safety risk” mean any risk arising from the spread of fire or building collapse?

The Tribunal decided that:

‘the reference to “building safety risk” is to any risk, however small, to any risk, however small, to the safety of people in or about the building arising from the spread of fire, or the collapse of the building or any part of it…  There is no threshold test in s.120, and words such as “tolerable,” “low,” “medium,” high” or “ordinarily unavoidable” are noticeably absent. In our view, the adoption of such language as a threshold test is unwarranted’

The Tribunal went on to say:

‘Construing s.120 in the context of Part 5 as a whole, we consider our task to be a straightforward one. It is simply to identify whether, as at the date of the hearing, and in the light of current knowledge, there are defects present at the building that constitute a risk to the safety of people in or about the building arising from the spread of fire, or collapse of the building, or any part of it. When doing so, we do not consider it appropriate to attempt to assess the degree of that risk, nor whether the risk identified is one that exceeds that ordinarily present in a building of this nature’.

Our thoughts

We welcome the Tribunal’s decision, which provides further clarity on the criteria for making a remediation order and a remediation contribution order.

The decision means that the threshold for establishing the presence of a relevant defect is generally  expected to be low. However, what we have seen, and what this decision highlights, is that the real dispute is likely to be over what is necessary to address those defects.  As the Tribunal concluded:

‘a tribunal may decide that it is inappropriate to order remediation if it considers that the level of risk posed by a relevant defect does not warrant it. Similarly, on an application for a Remediation Contribution Order, a tribunal may decide that it is not just and equitable to make such an order in respect of costs incurred in remedying a relevant defect where it considers those costs were unnecessarily incurred’

How we can support you

Our experience acting on BSA claims is unrivalled. Our specialist Building Safety team, comprising experts in construction, real estate litigation, and restructuring, has been at the forefront of many of the most significant cases that have been decided under the BSA provisions.

If you have any questions, please contact Lewis Couth or Martin McKeague.