Article contributed by Robert Bowker, Tanfield Chambers

Disinterested Persons? Who Will Apply and Who Will Pay for Remediation and Remediation Contribution Orders Under the Building Safety Act 2022?

Sections 123 and 124 of the Building Safety Act 2022 introduced remediation and remediation contribution orders respectively. Both are orders made by the First-tier Tribunal. By making a remediation order, the FTT will require a relevant landlord to remedy specified relevant defects in a specified relevant building by a specified time. A remediation order is effectively a form of mandatory injunction for works. A remediation contribution order in relation to a relevant building means an order by the FTT requiring a specified body corporate or partnership to make payments to a specified person for the purpose of meeting costs to be incurred in remedying relevant defects or specified relevant defects relating to the relevant building. It is effectively a form of money judgment for a designated purpose.  

Both remedies are granted by the FTT on application by an interested person. In the case of remediation orders, the list of interested persons was supplemented by statutory instrument and the categories for each remedy are now effectively the same. The applicant may be the Minster, regulator, local authority, fire and rescue authority, person with a legal or equitable interest in the building or other person subsequently prescribed by secondary legislation.  

The case law on remediation orders and remediation contribution order has yet to develop1. What is reasonably clear now is that where an application for either remedy is made but contested by the respondent, the FTT will make directions that follow the conventional pattern – statements of case, disclosure, evidence of fact, expert evidence and listing for final hearing. In the case of an application for a remediation contribution order, the statements of case will need to explain why it is alleged that it is just and equitable for the FTT to make the order. That will call for detailed pleading.  

Of the many questions confronting property litigators deciding whether to apply to the FTT for either remedy, two are particularly vexing:  

1. Who will pay for the proceedings?  
2. Will the proceedings be funded by one of the interested persons such as the secretary of state, regulator, local authority or fire and rescue authority?  

The two questions are obviously connected. 

An insight into how remediation and remediation contribution orders were intended to work can be found in the Explanatory Notes to the Building Safety Act 2022 that were published by DLUHC (Department of Levelling Up and Housing Communities) with the legislation. The Notes are a substantial body of work. The PDF version runs to 418 pages. The introduction explains that the Notes have been prepared to assist the reader and to help inform debate on it2 on it. They do not form part of the Act and have not been endorsed by Parliament. The Notes explain what each part of the Act will mean in practice, provide background information on the development of policy and provide additional information on how the Act will affect existing legislation in this area.  

For example, and with the above objectives in mind, the Notes contain 33 paragraphs on remediation and remediation contribution orders alone including discussion on effect, background, and the Minister’s proposed use of power. Each discussion includes a worked example intending to demonstrate how the particular remedy is intended to operate in practice.  

In the worked example for remediation orders, the applicant to the FTT is the fire and rescue authority. In the case of remediation contribution orders, there are two worked examples. In the first example, the applicant to the FTT is the freeholder (applying against the developer). The second, the applicant is, again, the fire and rescue authority. In none of the three examples, is the applicant for remediation order or a remediation contribution order a leaseholder or a group of leaseholders.  

Although the Notes make it clear that leaseholders are, as a person with an interest in the building, intended to be potential applicants to the FTT, the three worked examples perhaps shed light on a fundamental obstacle, leaseholders’ lack of funds, and reflect an understanding that other interested persons, those with the necessary resources available to them, will be far more likely to initiate and pay for litigation in the FTT. 

When it comes to applications for remediation and remediation contribution orders, possibly requiring a significant financial commitment, it is unclear whether the Minister, regulator, local authority and fire and rescue service will be interested.