[2025] UKUT 157 (LC)

On 18 June 2024 the FTT visited the building and then conducted the adjourned hearing. MRL by then had filed a report about the height of the building and whether it was a higher-risk building, and a report by BEFS dated 17 May 2024; the authors of the BEFS report attended the hearing. The FTT issued its decision and a remediation order on 3 July 2024.

The decision first recorded what had happened at the hearing on 27 March 2024, and set out the issues that had been discussed at that hearing under two headings. Under “Leaseholders’ issues” it noted that the leaseholders were concerned about the aesthetics of the remediation work, about the cost (as to which MRL confirmed that it would fund the works itself) and about the choice of contractor. Under “The tribunal’s issues” the FTT recorded that at the March hearing it had been concerned about the timber elements of the walkways and balconies and about the timber planters; it recorded MRL’s position that those items would not present a risk once the cladding was replaced. It also recorded its concern about doors and about the bin stores. The FTT acknowledged that the BEFS report concluded that if the timber cladding was replaced, that would sufficiently reduce the risk presented by other combustible materials, and that no further remediation works were required.

The FTT then went through the concerns raised by the leaseholders. It concluded that it had no power to impose requirements about aesthetics and materials, nor about the choice of contractor.

Paragraphs 59 to 91 of the decision, extending over 6 pages, comprised a discussion of whether the building was a higher-risk building as defined in section 65 of the 2022 Act, the meaning of the word “storey” and the status, authorship and accuracy of government guidance. It said:

“88.

The [leaseholders] requested that the building is declared a Higher-risk building under Part 4 of the Building Safety Act 2022. The Respondent refutes this, and the tribunal has no jurisdiction to make this declaration.”

The FTT went on to criticise the evidence adduced by MRL about the height of the building and concluded that the building is a higher-risk building, that it should be registered with the Building Safety Regulator and that it should have an accountable person appointed. It added:

“This is not for the Tribunal to specify under the terms of a Remediation Order…”

The FTT then moved on to the remediation work and the contents of the BEFS report, which did not agree that the items it was instructed to investigate (paragraph 22 above) were relevant defects. The FTT said that there had been no risk assessment under PAS9980 (which, as we have seen, was incorrect; that is precisely what the MAF report was), and criticised BEFS’s use of Building Regulations and of Approved Document B (being one of the documents issued by the Secretary of State explaining how Building Regulations can be complied with; Approved Document B deals specifically with fire safety requirements).

The FTT said that it accepted the professional judgment of the authors of the report that the flat entrance doors were not a fire risk.

The FTT devoted a lengthy discussion to the fire escape strategy in the building, which it said was raised as a concern by the leaseholders at the June hearing. It expressed concern about space for fire-fighting, and again asserted that although this was one of the criteria in PAS9980 it had not been addressed in the BEFS report.

Finally in six paragraphs the FTT went through the issues it had raised at the first hearing and listed in the order of 27 March 2024. It stated that the walkways should be constructed of non-combustible materials. It stated that the wall cladding in the balconies should be replaced with non-combustible materials, referring to comments in PAS9980 about balconies that are used as escape routes (despite the fact that these balconies, on the external walls, are not). It stated that there is a risk of fire spread from one balcony to another or from the bin stores. It stated that it had been given no evidence about the implications of a fire in the bin stores and therefore considered that there was a considerable risk of fire spread. It stated that the decking on the roof (which it said it had measured at the site visit) and the planters were an unacceptable risk of fire spread.

The remediation order made on 3 July 2024 included standard text in the body of the order and scheduled the following requirement:

“The Respondent shall remedy the

A.

balconies, including the walls and floor decking and construction,

B.

external walls, including the courtyard and street elevations,

C.

bin stores

D.

courtyard walkways

E.

courtyard floor area – including planters, flooring and other

combustible materials

F.

roof terrace, including flooring and planters

We refer to the requirements of the order other than the courtyard cladding and combustible insulation (which we take to be comprised in item B under “external walls including the courtyard”) as the “Additional Items”. The appellant appeals their inclusion in the order.