[2025] UKUT 157 (LC)

The FTT refused permission to appeal its decision (and we return later to some of its comments in the text of its refusal). The appeal is brought with permission from this Tribunal, on the ground that (a) the Additional Items were not properly before the FTT and (b) even if they were, they were not on the evidence before the FTT relevant defects. For both those reasons Mr Selby KC argued that the inclusion of the Additional Items in the remediation order was a serious procedural irregularity and a breach of natural justice.

There is no appeal in relation to the FTT’s statement that the building is a higher risk building because the FTT in refusing permission to appeal stated that that statement was an expression of opinion, not a decision:

“… the tribunal had no jurisdiction to make a declaration that the subject building is a higher-risk building. … Accordingly, the tribunal’s comments; (a) form no part of its operative decision, and; (b) are accordingly no more than a statement of the tribunal’s opinion on the matter which is not binding on any party.”

Mr Selby KC developed his argument under five headings. He argued that the FTT should not have raised the Additional Items at the hearing in March and did not follow a fair procedure having done so; that there was no evidence before the FTT that the Additional Items were relevant defects, let alone that they required remediation; that the FTT inappropriately used its own expert knowledge to make findings contrary to the evidence before it; that the FTT never put it to MRL or to its experts that the Additional Items were, contrary to their unchallenged evidence, relevant defects, nor that they required remediation; and that two of the Additional Items (the street-facing walls and the courtyard floor) were not identified at the March hearing as matters to be addressed by the BEFS report. We look at those points in turn