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Introduction
Introduction
This is an appeal against the decision of the First-tier Tribunal (the FTT) dated 25 March 2024 where it determined on an application under section 27A(3) of the Landlord and Tenant Act 1985 that no service charges would be payable by a number of respondent lessees in respect of proposed works to the façade of the subject property known as Centre Point House (CPH). The issue for the Tribunal concerns the provisions of the Building Safety Act 2022.
The Building Safety Act (BSA) has recently been considered by both the Supreme Court and the Court of Appeal, and further reference will be made to those cases during the course of this judgement. In each of the cases the context of the BSA was considered. In BDW Trading Ltd v URS Corporation Ltd [2025] UKSC 21 Lord Hamblen described the origin of the BSA as follows:
“1. On 14 June 2017 a fire broke out at Grenfell Tower in London leading to the tragic death of 72 residents of the 24-storey tower block. It later transpired that the main reason why the fire engulfed Grenfell Tower so quickly was the use of unsafe cladding around the outside of the building, which did not comply with relevant building regulations.
2. Investigations carried out following the fire led to the discovery that a number of high-rise residential buildings across the country were subject to serious safety defects. Aside from unsafe cladding, other issues were identified, including other fire safety concerns, such as lack of compartmentation and flammable balconies, and serious structural defects that gave rise to risks of buildings (or parts of buildings) collapsing.
3. The Government encouraged developers to investigate medium or high-rise developments for which they were responsible and to carry out any necessary remedial work for safety defects discovered. In 2022 this encouragement was reinforced by legal responsibilities imposed on developers and contractors under the Building Safety Act (the “BSA”).”
The points in issue in this appeal have not been specifically considered previously. The case is therefore of importance.
The appeal was heard over three days, having been adjourned from December 2024 on an application to amend the grounds of appeal. On the first day of the hearing, the Tribunal inspected CPH. The appellants are Almacantar Centre Point Nominees (Almacantar) who are the freeholders of CPH. At the hearing of the appeal Almacantar was represented by Martin Hutchings KC and Harriet Holmes of counsel. Although there is a total of 36 flats at CPH only those who own the leases of 18 of the flats are respondents to the appeal. A number of flats are owned by Almacantar, and others are not owned by “qualifying” leaseholders. The respondent lessees are specified at the end of this decision. At the hearing R13 was represented by Simon Allison KC, Rs 11 & 12 were represented by Samir Amin of counsel and the remaining respondents were represented by Justin Bates KC and Mattie Green of counsel.
On 8 May 2024 the FTT gave Almacantar permission to appeal on Grounds 1-4 of their application but refused permission on Ground 5. We deal with Ground 5 at the end of this decision. On 27 January 2025, this Tribunal gave the appellants permission to appeal a new Ground 1A. The following are the Grounds on which permission has been granted:
Ground 1 - the FTT erred in concluding that paragraph 8 of schedule 8 to the BSA applies to the Proposed Scheme of remediation.
Ground 1A - for the avoidance of doubt, the FTT erred in concluding that paragraph 8 of schedule 8 to the BSA applies to the Proposed Scheme of remediation not only by misconstruing the requirements of paragraph 8 itself, but also by concluding that, the fact that the Proposed Scheme did not involve remediating a “relevant defect” did not matter and that, despite this, paragraph 8 of Schedule 8 was still in principle engaged.
Ground 2 – the FTT was wrong to conclude that each and every part of the Proposed Scheme was caught by paragraph 8 of schedule 8 to the BSA.
Ground 3 – The FTT erred in concluding (in light of the approach it took in relation to grounds 1 and 2) that the façade at CPH comprised a “cladding system” that “forms the outer wall of an external wall system” and which “is unsafe” within the meaning of and for the purposes of paragraph 8 of schedule 8 to the BSA.
Ground 4 – In the result, the FTT erred in concluding that the façade at CPH “comprises an unsafe cladding system to which paragraph 8 of schedule 8 [to the BSA] applies” and accordingly, that no service charge or reserve fund is recoverable in respect of the Proposed Scheme or under the QLTA from any lessee who holds a “qualifying lease”.