[2025] UKUT 246 (LC)

The background to the appeal is an order under section 24 of the Landlord and Tenant Act 1987 made originally in 2016 and extended in 2021 by which the FTT appointed a manager of the residential buildings at Canary Riverside, and prohibited the appellants from involvement in the provision of services to the leaseholders, including undertaking works of maintenance or repair (the Order). The main proceedings before the FTT are either to extend that order for a further period or to allow it to expire. On top of that background a very substantial additional layer of complexity has been applied by the commencement on 28 April 2022 of the Building Safety Act 2022 (the 2022 Act).

This is far from the first dispute, or the first appeal, involving the FTT appointed manager, Mr Unsdorfer, the three appellant landlords (Octagon, Canary Riverside Estate and Riverside CREM 3), Circus Apartments Ltd, a corporate leaseholder of one of the buildings included in the Order, and the more numerous residential leaseholders represented by the Residents’ Association of Canary Riverside. It is not necessary for me to dwell on the circumstances of the dispute or the relevant statutory provisions, all of which are familiar to the parties. They were also referred to in sufficient detail in a decision of my own published on 15 March 2024, Unsdorfer v Octagon Overseas Ltd [2024] UKUT 59 (LC), and I will assume that any reader of this decision will be familiar with my earlier decision.

The current appeal is another step in the same process of working through the consequences of the commencement of the Building Safety Act for the manager and the parties. Whether the Order should be renewed or continued and, if so, which statutory or contractual building safety responsibilities the manager should retain or assume and which should be surrendered or left to the appellants is to be considered by the FTT at final hearing in October this year.

Some of the applications for determination at that hearing were made as long ago as 2021 and the parties have waited a long time for a final resolution. My decision in March last year was on a separate application but it was, in effect, a preliminary issue in the larger dispute about the future management of the building. That issue was whether a tribunal appointed manager may be an accountable person for the purposes of Part 4 and Schedule 7 of the 2022 Act. I decided, in agreement with the FTT, that they could not. An appeal against my decision to the Court of Appeal, for which I gave the manager permission, was discontinued in August 2024. The appellants in this appeal, who were respondents to the manager’s appeal against my previous decision, had filed a respondent’s notice seeking to uphold my decision on different grounds.

The discontinuance of the appeal makes it necessary to consider whether the manager could, and if he could, whether he should, continue to carry out functions which are made responsibilities of the accountable person under the 2022 Act. The need for that consideration is made acute in this case by the fact that the Canary Riverside Estate suffers from defective cladding which, it is agreed, requires remediation. Since 2019 the manager has been progressing a scheme of remediation for which he has sought support from the Building Safety Fund (the Fund). His application has been delayed by consideration by the Fund of whether it is able or willing to support a scheme proposed to be undertaken by someone who is not, as is now known, an accountable person.

The points which have been ventilated in this hearing by Mr Morshead KC on behalf of the appellants include, I assume, many of the same points which deployed in his respondent's notice challenging the reasoning (though not the outcome) of my previous decision.

The discontinuance of the manager's appeal has cleared the way for the determination of the outstanding applications pending since 2021 for the renewal of the Order. Quite properly, having withdrawn his appeal to the Court of Appeal, the manager sought the directions of the FTT on how he should proceed now that it had been established he was not an accountable person. He was being pressed by the appellants to abandon his proposed remediation scheme which is expected to cost in excess of £20 million and to leave them, as landlords, free and without interference to undertake works of their own which they believe can be completed at a very much lower cost, less than half or perhaps even less than quarter as much.

The question of what work is required is the subject of separate proceedings for a remediation order or alternatively a remediation contribution order which have been brought by the Secretary of State appellants and which are being conducted in parallel with the management proceedings before the FTT.

The manager's application for directions about how he should proceed in light of the discontinuance of his appeal was made in September 2024. The FTT had already listed a series of procedural applications in both the management proceedings and in the remediation proceedings, which were listed to be heard on 25 November.