[2025] UKUT 157 (LC)

In October 2022, on the instructions of MRL, Michael A Fox Associates produced a report (“the MAF report”) assessing the fire risk of the external walls of the building; such a report is known in the building safety context as a Fire Risk Assessment for External Walls, or FRAEW. It was signed by four inspectors all with experience and qualifications specific to fire safety. The MAF report assessed the façade of the building against PAS9980:2022, which is a risk assessment tool produced by the British Standard Institute. The report gave the building an EWS1 rating of B2; an EWS1 Form provides evidence to valuers and lenders of the fire risk rating of a property’s external wall system. A rating of B2 indicates that the cladding contains combustible materials and that the fire risk is high enough to require remedial work. The MAF report recommended four actions, of which the principal one was that the timber cladding and combustible material on the external walls within the courtyard must be removed and replaced with a non-combustible alternative. The other three action points were the removal of commercial bins from against the external wall to a secure non-combustible bin store, the repair of the doors to the bin stores, and the installation of smoke detectors in rooms with walls within the timber cladding system. The report stated that that would “reduce the fire risk to as low as reasonably practicable”

Those were the only actions recommended following a comprehensive examination of the whole of the exterior of the building. The MAF report discussed the street-facing brick walls, the balconies on those walls, the roof terrace, and the planters and recommended no action. It noted that there was timber cladding inside some of the balconies (all of which are on the street side of the building and surrounded by brick walls) and said that the risk of fire spread between balconies was low. It noted that there was timber decking on the walkways, and that there was a risk of fire spread on the gallery walkways as a result of the cladding; it recommended replacement of the cladding as noted above, but did not recommend any action as regards the walkways themselves. It considered the fire escape strategy, which it regarded as satisfactory; and it noted that the nearest fire station was 1.4 miles away and that the fire service had good access to the building.

On 22 November 2023 the leaseholders applied to the FTT for a remediation order. The application was made against “The Aitch Group”, which is a company connected to the appellant and was later replaced by MRL as respondent to the FTT application.

On the FTT’s application form in box 5 headed “Defects to the building for which a remediation order is sought” the leaseholders said:

“This application to the Court is for a Remediation Order to instruct Aitch Group to, without delay, undertake works to replace the high-risk cladding used on the property.

Aitch Group has a ringfenced fire cladding rectification fund which we request should be used to, without delay, complete the replacement of the high-risk non-compliant materials they used in constructing Smoke House and Curing House.

Aitch Group have accepted full responsibility and liability in a letter to leaseholders, however, they have declined to provide any further information on when they will instruct a building firm to undertake rectification works …”

On the next page in the box headed “Reasons for Application” the leaseholders explained that the freeholder had commissioned a survey but had done nothing except install fire alarms in the common areas. They pointed out that the Aitch Group had

“a fund of over £1,500,000 specifically ring-fenced to rectify cladding issues with Smoke House and Curing House”.

The leaseholders complained that without an EWS1 rating of B1 they could not sell or mortgage their flats. They concluded

“We request that the Court direct the Aitch Group to without delay, instruct, at their cost, a reputable and independent builder to undertake the necessary cladding replacement works to ensure the building is safe and compliant with applicable fire safety regulations. …

The FTT conducted a case management hearing on 12 January 2024 and recorded in its directions that there was broad agreement regarding the works to be carried out to deal with fire safety issues and that:

“These are works identified by Monier Road Limited and concern the removal and replacement of the timber cladding and combustible insulation within the courtyard area.

… The likely dispute between the parties is the timing of the works.”

Directions were given for disclosure and for statements of case, and for the provision of a bundle for the hearing including “all relevant reports.” A hearing was listed for 27 March 2024. In their statement of case the leaseholders set out the work they wanted done, including an extra element: “the front fire doors of each of the properties and the internal fire doors of the communal areas (if required to be replaced)”.

We pause there to say that the defects specified in the application to the FTT were the cladding and combustible insulation in the courtyard, and nothing else. The leaseholders relied upon the MAF report and the purpose of the application was to make the freeholder get on with the work recommended in that report. The replacement of doors was added in the leaseholders’ Statement of Case in the FTT. Mr Blomfield in his statement of case in the appeal (see paragraph 2 above) argued that the application was for an order requiring the removal of all combustible material in the building; it will be clear from the extracts quoted above that that was not so. Only the cladding and insulation were specified, as the FTT recognised in its directions and later in its decision.