Discover the most influential (and our favourite) Building Safety Act (BSA) cases of 2024. These cases and their decisions have had a substantial impact on the application of BSA legislation this year.
The Cripps dedicated Building Safety Act (BSA) team are here help guide you and ensure you understand the full implications of the law and what you need to do.
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Case 1.
Lehner - The checklist case
written by Erin Stephenson
Case overview
The case of Lehner was brought to the Upper Tribunal as a result of the First-Tier Tribunal (Property Chamber)'s narrow interpretation of the definition of "cladding system" and whether there was scope for remediation by way of the service charge for works relating to insulation and cavity barriers. A more detailed break-down of the case is detailed in our article: Lehner and the real-world application of the Building Safety Act 2022.
Why this case is important
While this case gives an indication as to the direction of the courts and tribunal when it comes to how willing they are to apply a wide scope of interpretation to certain terms contained within the Building Safety Act (BSA); the key element of the judgement which will cement this as being a go-to for judges and lawyers alike, is the handy checklist included in the appendix of the judgement. The Upper Tribunal provides a step-by-step checklists containing simply yes or no questions to help practitioners determine whether the costs in question are recoverable pursuant to Schedule 8 of the Building Safety Act.
Read and download the decision of the Upper Tribunal in the case of Lehner.
Case 2.
Almacantar – no need for 'relevant defects' case
written by Clare Greig and Jade Cheng
Case overview
The property, a six-storey residential block situated above a two-storey restaurant and retail units, needed remedial works: its cladding was defective and had been since the date of installation. During an application to the First-Tier Tribunal Property Chamber (Residential Property) ("tribunal") pursuant to s.27A(3) of the Landlord and Tenant Act 1985 ("LTA") to determine whether service charges relating to the proposed cladding replacement works were payable by the leaseholders, the Tribunal considered the wording of the Building Safety Act 2022 ("BSA") and whether Paragraph 8 of Schedule 8 ("Sch 8, para 8") of the BSA, which states "no service charge is payable under a qualifying lease in respect of cladding remediation", applied.
It also considered the definition of "Relevant defects" (defined in section 120), the "Relevant period" (defined as "the period of 30 years ending with the time this section comes into force") and section 122 that provides service charges relating to "Relevant defects" would not be payable. The wording of Sch 8, para 8 makes no reference to a "relevant defect".
The tribunal concluded that Sch 8, para 8 did not rely on there being a "Relevant defect", section 120 was not engaged and the "Relevant period" was not required. It further concluded that the protection under Sch 8, para 8 did apply and the service charges for the proposed cladding replacement works could not be recoverable from some of the leaseholders.
Why this case is important
This decision confirms that no service charges are payable for cladding remediation works (Sch 8, para 8) and the protection afforded is distinct from the other service charge protections: there is no need for a "Relevant defect".
Read the decision of the tribunal on GOV.UK.
Case 3.
Hippersley Point – the service charge protections case
written by Nitej Davda
Case overview
The case of Hippersley Point arose out of an application by the lessor to dispense with consultation requirements under the Landlord and Tenant Act 1985 so far as they related to work needed in connection with the remediation of relevant defects. We produced a review of the case following the determination by the Upper Tribunal that the leaseholder protections had retrospective effect and so applied to costs incurred before the coming into force of the Building Safety Act (BSA). Read our article: Service charges and the Building Safety Act 2022
Why this case is important
The decision of the Upper Tribunal is not the end of the story as the case is currently the subject of a further appeal to the Court of Appeal. At a recent hearing it was confirmed that Adriatic Land was able to rely in this appeal upon the incompatibility of the 'retrospective effect' decision with the Human Rights Act 1998. This was so, notwithstanding the fact that it did not raise such an argument before the Upper Tribunal or in its application for permission to appeal. The Court of Appeal has also directed that, due to a degree of overlap between issues in this case and Triathlon Homes LLP v Stratford Village Development Partnership (another Building Safety Act decision currently being appealed to the Court of Appeal) the Hippersley Point case will be heard sequentially with the Triathlon appeal and before the same set of judges, with the hearings likely to take place in May 2025.
Read the decision of the Upper Tribunal in Hippersley Point.
Case 4.
The wait is over, Waite v Kedai Limited marks the first remediation order granted in favour of leaseholders
writtten by Alexandra Cullen
Case overview
The case of Waite v Kedai Limited arose out of two consolidated applications for a remediation order under section 123 of the Building Safety Act 2022 ("BSA") in relation to a building development in London. The development itself comprises of 35 residential flats and one commercial unit. The construction works were completed on 29 January 2016 and upon completion, the works were deemed to be compliant with the Building Regulations 2010.
However, shortly after completion, there were growing concerns about the quality of the construction work and the adequacy of the safeguards to prevent the spread of fire. Various reports were produced in response to determine whether the cladding met the required safety standards, which identified fire safety defects.
Upon reviewing the applications, the First-Tier Tribunal ("FTT") confirmed that several aspects of the construction works were to be considered a "relevant defect" which caused a "building safety risk", substantially evidenced by the various inspection reports that had been collated and subsequently granted the remediation order against the relevant landlord, Kedai Limited, requiring them to remedy the fire-safety issues within 26.5 months of the hearing date.
Why this case is important
This case is important as it marks the first remediation order granted in favour of leaseholders and perhaps provides an insight into how such applications will be dealt with by the FTT in the future. It was particularly interesting to see in this case that the FTT considered the burden of proof to rest with the applicant to establish a prima facie case to be considered by the FTT and that such applicants are required to make a 'coherent, initial case that there were relevant defects at the development that caused a building safety risk and that would entitle a tribunal to make a remediation order'.
It was also interesting that the FTT in this case chose to go against the applicants' requested timeframe for completion of the works of 18 months, and instead allowed a timeframe of 26.5 months, demonstrating an observance and understanding of the need for a practical timeframe in line with the nature of the required works.
Read the full decision of the First-Tier Tribunal.
Case 5.
Mistry v Wallace Estates - Extent of detail in remediation order case
written by Richard Housley and Nilly Safari
Case overview
This case concerned a 12-storey residential block in Croydon containing 189 flats. 14 leaseholders applied for a Remediation Order ("RO") under the Building Safety Act 2022 ("BSA") in relation to various internal defects.
By the time of the hearing, there was no dispute as to the defects that should be subject to a RO. The remaining issues for the tribunal were:
1. The terms of the RO
The leaseholders wanted the terms to be highly specific, due to concerns the landlord may not take the correct steps. The landlord argued for more general terms; it is not for the tribunal to fetter how the works are carried out.
The Tribunal agreed with the landlord, noting that it would also not be in the leaseholders' interest for the RO to be in granular detail, so as to mitigate the risk of the landlord concluding any additional matters requiring remediation were outside the scope of the RO.
2. Time limit for remedial works
The landlord suggested a time frame of 2 years for completion of the works, whilst the leaseholders proposed 1 year. The tribunal had to strike a balance between setting an unrealistic deadline and not delaying matters further. Ultimately, the landlord was given 18 months to complete the works.
Why this case is important
An RO should be sufficiently precise so that a landlord knows what it must do to remedy the relevant defects. However, the BSA is not prescriptive as to what works are necessary to remedy the relevant defect(s). The extent of precision will vary from case to case.
Case 6.
Vista Tower (CAM/26UH/HYI/2022/004) - The power and discretion Case
written by Gail Morris
Case overview
The property, a 16-storey residential block in Stevenage, was found to have significant fire safety defects back in 2019.
Following an unacceptable delay by the freeholder (Grey GR Limited Partnership, owned by Railpen) in addressing these defects, the Levelling-Up-Secretary applied to the First Tier Tribunal ("FTT") for a remediation order under Section 123 of the Building Safety Act 2022 ("BSA 2022") to compel the freeholder to fix the issues within a mandated timeframe.
Whilst the freeholder had entered into a building contract for the remedial works by the time of the hearing, the Government still wanted its order as it believed that the works lacked "pace". The freeholder acknowledged the delays but blamed the scale and complexity of the work, the Covid-pandemic, and time spent seeking grant funding.
A key issue was whether the FTT had discretion as to whether to make a remedial order and, if so, what considerations were relevant to the exercise of that discretion.
The government argued that Section 123 says nothing about the FTT needing to be satisfied that an order is just and equitable and that, as such, the intention of Parliament would have been that the FTT must make an order where it is satisfied that there are relevant defects. The freeholder argued that the FTT was only empowered with a discretion and that the wording in the provision was "may", not "shall".
The FTT held that it had both the power and a discretion on whether to make an order. Here, it decided to make the order even though works were in progress. The tribunal concluded that where the pre-qualification criteria in Section 123 are met, and there are relevant defects, it is likely an order will be made.
Why this case is important
The Vista Tower case was the first legal action brought by the government under powers introduced through the BSA 2022.
In making the remediation order, the FTT gave a clear indication that its focus was on the remediation of life-threatening building safety defects in a timely fashion. Thus, even where works have been commenced, the FTT may make a remediation order as a "backstop" to ensure accountability and to reassure leaseholders.
Read the decision in full of Vista Tower (CAM/26UH/HYI/2022/004).
Case 7.
The Chocolate Box case – touching the heart of the BSA 2022
written by Alix Lee
Case overview
A remediation order was granted in a landmark challenge against freeholder, Grey GR Limited Partnership.
The First-Tier Tribunal disagreed with the applicant that where all legislative requirements set out at s123 Building Safety Act 2022 (BSA) had been met, the tribunal must make a remediation order. Instead, the tribunal confirmed that there was both a power and a discretion available to them when deciding to grant an order – even, as in this case, where the freeholder had already commenced necessary works by the date of hearing. The nature of the tribunal's discretion and the factors to be considered when exercising that discretion were not limited by the Act.
The tribunal noted its concern in this case that the respondent freeholder may not proceed and make every effort to quickly progress the works, were an order not made. The tribunal took the view that the respondent may have previously prioritised avoiding costs above the safety of the residents of the building.
Why this case is important
In reaching their decision, the tribunal had careful regard to the legislative purpose and heart of the BSA 2022– to ensure the remediation of defects with residential buildings and to protect the safety of occupiers. The remediation order granted by the tribunal was not "fault-based" but rather a mechanism to give the leaseholders of the building comfort that the works would be progressed with due speed– leaseholders who themselves had asked for the order to be made.
Now that this case has clarified the tribunal's power and discretion, rather than obligation, to make a remediation order under s123, it remains to be seen whether this will make it harder in the future for applicants to succeed in securing such orders.
Why is this the "Chocolate Box" case? Unfortunately, no more Christmassy than the site concerned a large 1970s mixed use building in central Bournemouth. With its copper and brown fascia, the building is known as the Chocolate Box.
Read the full decision which was published in May 2024.
Case 8.
Princes Park apartments – Remediation orders and improvement notices
written by Erin Stephenson
Case overview
A case in which both an improvement notice and an application for a remediation order had been made at the same time. It was held that both the tenants were able to apply for a remediation order due to fire safety at that same time as the local authority was able to serve an improvement notice on the same basis. In this case, the landlord's appeal against the improvement notice challenged both the scope of the works required and the time allowed in the improvement notice for those works to be completed.
Why this case is important
The significance of this case is that it establishes the status of local authorities as "interested persons" capable of applying for a remediation order under s.123 of the Act at the same time as setting a precedent for the procedural approach of the First-Tier Tribunal (Property Chamber) when dealing with these kinds of parallel proceedings.
Read the Upper Tribunal judgment in full.
Case 9.
Batish and others v Inspired Sutton Ltd - the trailblazer for Remediation Contribution Orders
written by Christobel Smales and Grace Willoughby
Case summary
This First-tier Tribunal (FTT) case concerned an application under s.124 of the Building Safety Act 2022 (BSA) for a Remediation Contribution Order (RCO) in connection with the remediation of building safety defects in a high-rise block of flats at 9 Sutton Court Road, London. The leaseholders applied for an RCO on the basis that they had made service charge payments for the remediation of relevant defects and sought to have those payments returned, the service charge costs fell within Schedule 8 of the BSA and that it was just and equitable to make the RCO in their favour. The FTT agreed with the leaseholders and ordered Inspired Sutton Ltd to pay the leaseholders £194,680 within 14 days of the order.
Why this case is important
As the first RCO granted under the BSA it was hoped that the FTT would give an insight into its interpretation of the statutory provisions in the BSA thereby giving an indication of the approach that may be applied in subsequent similar applications. However, since the application was uncontested by the freeholder and decided without a hearing, several interpretative issues were not addressed, and questions remained unanswered. The finer detail of the legislative provisions including further consideration of the just and equitable test have subsequently been considered in the fully contested and high-profile case of Triathalon Homes.
Case 10.
Triathlon Homes - An olympic decision
written by Jessica Dick
Case overview
Triathlon Homes LLP, the leaseholder of five tower blocks in the former Olympic Village in Stratford, sought remediation contribution orders (RCOs) from the First Tier Tribunal (FTT) to recover costs for fire safety defects and other associated costs. These costs included £16.03 million for remedial works, £1.058 million for interim fire safety measures (including a waking watch), and £767,437 in service charge costs. The application aimed to recover these expenses from SVDP (beneficial owner of the freehold) and Get Living (its parent company).
The case arose after the Grenfell tragedy, which prompted inspections revealing multiple safety defects. While remedial works were carried out, interim safety measures were necessary.
Why this case is important
SVDP and Get Living contended that RCOs could not cover costs incurred before the Building Safety Act 2022 (BSA) came into force and were limited to remedying defects, not preventing risks. The FTT disagreed, ruling that RCOs could include costs incurred prior to the BSA's enactment and could also cover expenses aimed at preventing ongoing risks.
The FTT granted the RCOs, determining that it was just and equitable to do so. SVDP and Get Living appealed, and the case will be heard in the Court of Appeal in early 2025. Meanwhile, the Leasehold and Freehold Reform Act (LAFRA) 2024 has amended the BSA, broadening the scope of costs eligible for RCOs. LAFRA now allows costs related to preventing or reducing fire risks or harm to people in the building, arguably reinforcing the FTT's original decision.
The upcoming Court of Appeal hearing will further clarify the impact of these changes on the case.
Read the full copy of the Triathlon Homes judgment.
Case 11.
Nuernberg
written by Erin Stephenson
Case overview
This is a recent case the First-Tier Tribunal expanded the circumstances where a landlord must give a "Landlord Deed of Certificate" to a tenant in compliance with the Leaseholder Protections Regulations. In this case, the applicant claimed that a "Landlord Deed of Certificate" provided by their landlord contained a false claim. It was alleged that the landlord had failed to comply with its obligations under the Leaseholder Protections Regulations. The issue in this case was whether the tenant held a "qualifying lease" under s.119 of the BSA and the supporting Leaseholder Protection Regulations.
Why this case is important
Previous case law had been established on the basis that in order to meet the "qualifying lease" criteria the property in question must have been the tenant's only or principal home on 14 February 2022 and the tenant must not have owned more than two other dwellings, as separate from their ownership of this lease. In this matter the FTT took a different view on the statutory interpretation, holding that the requirements in s.119(2) BSA are alternatives and the leaseholder in question could satisfy either of these requirements in an either/or approach.
This case has not yet been published.
Case 12.
The Smoke House – a new story on storeys
written by Christobel Smales
Case overview
In this First-Tier Tribunal (FTT) case, the leaseholders applied for a remediation order under section 123 of the BSA to remedy fire safety defects in the Smoke House and Curing House (the Smoke House). One of the issues considered by the FTT was whether the roof garden counted as a seventh storey making the Smoke House a higher-risk building (HRB). The government guidance provides that a storey must be fully enclosed to be a storey and that "open rooftops such as rooftop gardens are not considered storeys and should not be counted as such when determining the number of storeys or measuring the height". However, the FTT was of the view that this contradicted the regulations concluding that the roof garden at the Smoke House was a storey and the building should therefore be classified as an HRB.
Why is this case important
This is the first judicial application of the statutory definition of storeys in the context of assessing whether a building is an HRB. It also highlights that government guidance does not constitute a reliable method of interpretation of law. The government guidance has since been updated to state that The Ministry of Housing, Communities and Local Government and the Building Safety Regulator are currently considering the views expressed by the FTT in this case and that until stated otherwise, the sector and regulatory bodies should continue to refer to existing guidance. This should not however detract from the importance of statutory interpretation over non-binding guidance.
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