In May 2025, the Upper Tribunal (Lands Chamber) allowed an appeal against a Remediation Order (RO) made by the First-tier Tribunal (FtT) in July 2024 in Smoke House & Curing House, 18 Remus Road, London E3 2NF (Smoke House).
In the appeal (Monier Road Ltd v Blomfield & Ors), the Upper Tribunal held that the FtT had:
- expanded the scope of the RO to include "Additional Items" which were not part of the original application – and that its decision to include these was "vitiated by a serious procedural irregularity and was a breach of natural justice";
- drawn conclusions that were contrary to the evidence before it;
- reached its decision in "reliance, in some undisclosed way, on its own expertise" – which was held to be unfair; and
- expressed a view about a matter that was not within its jurisdiction – in this case, whether the building in question was a higher-risk building (HRB) under the Building Safety Act 2022 (BSA) or not.
We explore the background to the case and its practical implications in more detail below.
Recap on requirements for a Remediation Order
ROs may be made by the FtT under section 123 of the BSA on the application of an "interested person", requiring a "relevant landlord" to remedy specified "relevant defects" in a "relevant building" by a specified time.
They can be contrasted with Remediation Contribution Orders (RCOs), which are concerned with the funding of those remedial works. The FtT may under section 124, on the application of an interested person – and provided it considers it "just and equitable" to do so – make a RCO, requiring a company to make payments in connection with the remediation of relevant defects.
How the Smoke House remediation dispute began
- The dispute concerned Smoke House and Curing House, two blocks in a single mixed use residential and commercial building built between 2016-2018.
- In 2022, the freeholder had commissioned a Fire Risk Assessment for External Walls (FRAEW) Report. This gave the building an EWS1 rating of B2, indicating that the cladding contained combustible materials and recommending remedial works, and leaving the leaseholders unable to sell or mortgage their flats.
- In November 2023 Mr Blomfield together with 28 other leaseholders applied to the FtT for an RO.
- In the first case management hearing, the FtT recorded that there was broad agreement between the parties as to the works that needed to be carried out, which concerned the "removal and replacement of the timber cladding and combustible insulation within the courtyard area". The likely dispute between the parties related to the timing of the works – as, since commissioning the FRAEW Report, the freeholder had taken no steps to commence the remedial works.
- On 27 March 2024 the first hearing took place, at which the FtT "put to the parties its concerns" that the building might be a HRB. The FtT also identified gave directions to the parties to consider and respond to its concerns about whether certain additional items in the building were also "relevant defects" and should be included in the terms of the RO.
The FtT adjourned the hearing and gave directions for it to be relisted, and for the FtT to carry out a site visit on the same date. On 18 June 2024, the FtT conducted its site visit as well as the adjourned hearing.
How the First-tier Tribunal ruled on the Smoke House RO
The FtT issued its decision and the RO on 3 July 2024. In its decision, the FtT:
- Ordered the freeholder to remedy a number of "additional items" as part of the RO (the "Additional Items") (in addition to the cladding and combustible insulation that had been covered by the leaseholder's original application);
- included a lengthy discussion as to whether the building was a HRB, as well as the "meaning of the word "storey" and the status, authorship and accuracy of government guidance". In particular, in relation to rooftop gardens, the FtT expressed the view that government guidance notes on the definition of a "higher-risk building" (HRB) during design and construction and during occupation (the guidance notes) contradict the statutory provisions; and
- noted that it had "no formal jurisdiction to make this declaration", but nonetheless stated that the FtT considered the building was a HRB and therefore "should be registered with the Building Safety Regulator and have a Principal Accountable person appointed".
Why the Smoke House RO was appealed
The freeholder appealed against the inclusion of the Additional Items in the RO on the grounds that (a) the Additional Items were not properly before the FtT; and (b) even if they were, they did not amount to "relevant defects", based on the expert evidence.
Counsel for the freeholder also asked the Upper Tribunal to delete from the RO the FtT's requirement that the freeholder submit the order to the Building Safety Regulator (BSR), since that order arose from the FtT's view that the building was a HRB.
Upper Tribunal decision
When can the FtT raise new points?
The Upper Tribunal allowed the appeal, and re-made the RO to as to exclude the Additional Items. It held that:
- The FtT has the discretion to raise new points which the parties have not raised, however if it does do so, it must follow a fair procedure.
- For any new points to be pursued, they must be pleaded and the Tribunal must first hear from both parties as to whether an amendment to one party's statement of case should be allowed. If it is allowed, then both parties must be permitted to make submissions/adduce evidence if required.
- In this case the FtT exceeded its discretion in raising the Additional Items. The FtT disclosed no good reason for its having raised them, and was not under any statutory direction requiring it to raise them: the BSA "does not require or enable the FtT to conduct a building safety audit, which is what it did here".
- The FtT also failed to follow fair procedure as outlined above: it did not invite the leaseholders to amend their pleadings or make a case about the Additional Items themselves. Instead, the FtT "became a party to the dispute".
- In addition, the FtT did not put its views on the Additional Items to the freeholder or its expert witnesses. The Upper Tribunal held this to be an additional reason why the decision was unfair and could not stand, observing that it is "crucial that a party and its witnesses have the opportunity to answer the case against it before a court or tribunal reaches its conclusion".
- The FtT's decision was also taken contrary to the evidence before it, and it failed to give reasons for its disagreement
- The Upper Tribunal noted the FtT's expertise but held that "expertise is not evidence, and the possession of expert knowledge does not enable the FtT to ignore evidence without giving reasons for doing so".
Clarification of scope and limitations on FtT's powers
The Upper Tribunal also deleted from the RO the FtT's "expression of opinion" that the building was a HRB.
Indeed, this expression of opinion had prompted the Ministry of Housing, Communities and Local Government (MHCLG) to update government guidance notes on the definition of a "higher-risk building" (HRB) during design and construction and during occupation in October 2024.
In this update, MHCLG indicated that it was considering the views expressed by the FtT, but maintained that the sector and regulatory bodies should continue to refer to existing government guidance (which indicated that a roof garden should not be counted as a storey for the purpose of assessing HRBs)
MHCLG further updated this guidance in May 2025 to note that it is consulting with the BSR on a proposal to amend the 2023 Regulations to make it clear that roof gardens should not be considered a storey.
We analyse the position with respect to roof gardens, and provide some practical suggestions for assessing buildings which may be close to the height threshold, in our article: Does a roof garden count when determining whether a building is higher risk.
However, it is worth noting that the Upper Tribunal's comments that the FtT's "public expression of its opinion in its decision, including its comments on government guidance, has doubtless caused concern and confusion for building safety professionals. All of this illustrates how dangerous it is for a tribunal to express a view about a matter that is not within its jurisdiction."
Key takeaways
The Upper Tribunal decision in Monier Road Ltd v Blomfield & Ors highlights the continuing lack of clarity within the construction industry about what constitutes a "higher-risk building" in England. Whilst the disparity between legislation and government guidance with regard to the status of roof gardens is now set to be remedied, as we note above, this case is a reminder that building safety is an evolving area. The decision also provides important clarification of the scope and limitations of the FtT's powers when making ROs under the BSA.
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