Landlord and tenant – First-tier Tribunal – Procedure – FTT making remediation order under the Building Safety Act 2022 on application of respondent leaseholders – Appellant landlord appealing against breadth of order – Whether order made in relation to “specified defects” not properly before FTT Whether order made contrary to evidence before FTT and in absence of evidence supporting its view – Appeal allowed
Smoke House and Curing House, 18 Remus Road, London E3 were two blocks or wings of a single mixed use residential and commercial purpose-built building. The building was a quadrangle enclosing a courtyard. The appellant held the freehold of the building. The leaseholders each held a long lease of one of the flats.
By regulation 2(2) of the Building Safety (Leaseholder Protections) (Information etc) (England) Regulations 2022, the First-tier Tribunal might make a “remediation order” under section 123 of the Building Safety Act 2022 requiring a relevant landlord to remedy specified relevant defects in a specified relevant building; and/or take specified relevant steps in relation to a specified relevant defect in a specified relevant building.
A “relevant defect” in relation to a building, meant a defect as regards the building that arose as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and caused a building safety risk: (section 120(2)).
It is not in dispute that the building was a relevant building and that the appellant was a relevant landlord as defined by the 2022 Act.
The FTT made a remediation order in respect of the building. The appellant was content that an order was made but challenged its breadth, arguing that most of the defects specified in it were not properly before the FTT and that the decision was at variance with the evidence before the FTT.
Held: The appeal was allowed.
(1) The FTT was entitled, as an expert tribunal, to raise matters of its own volition. Legal proceedings in England and Wales were mainly adversarial, not inquisitorial; it was for the parties to present their cases and for the tribunal to decide between them, not to suggest or argue a case for either party. To do so was to step out of its proper role and into the arena of dispute; it was unfair, because it involved taking sides: Regent Management Ltd v Jones [2010] UKUT 369 (LC) and Birmingham City Council v Keddie [2012] UKUT 323 (LC); [2012] PLSCS 210 considered.
There were three occasions when it would be appropriate for a tribunal to raise a new point: (i) on the basis that it might not have jurisdiction to decide the issue before it or there was a fundamental problem with a party’s case; (ii) where a statute required the tribunal to address a matter that the parties had not raised; and (iii) in order to clarify a party’s case: Keddie, Admiralty Park Management Co Ltd v Olufemi Ojo [2016] UKUT 421 (LC); [2016] PLSCS 258 and Sovereign Network Homes v Hakobyan and others [2025] UKUT 115 (LC) considered.
(2) Whether or not to raise a new point was a matter of discretion, and the decision to do so would not be interfered with on appeal unless the decision to raise the new point was one which no reasonable tribunal could have taken. If the tribunal did raise a new point it had to follow a fair procedure. The role of the FTT was limited to raising the new point, assuming that it was appropriate to raise it at all. Thereafter, it was for the relevant party, to whose advantage the new point might be, to decide whether to pursue the new point: Sovereign considered.
For the point to be pursued it had to be pleaded, and the first question would be whether the relevant party could amend its statement of case to add the new point; the tribunal had to hear from both parties whether that should be allowed. If it was allowed, it was for the party now taking the point to argue it and for the other party to respond to it; if evidence was required to prove it, both parties had to be able to adduce evidence on the new point. An adjournment might be needed and case management directions would then be given.
(3) The FTT had jurisdiction to make a remediation order only if an application had been made. However, it could order the remediation of a relevant defect even if was not specified in the application. “Specified” in section 123 meant “specified in the order”; no problem of jurisdiction arose where the FTT was asked by an applicant to make an order that went rather wider than envisaged in the application.
The extent of the application might change once the parties had formally pleaded their cases, or they might seek to amend their pleading later and might be permitted to do so. The fact that a defect was not specified in an application did not mean that the FTT could not make a remediation order in respect of it, provided the correct procedure was followed.
(4) The 2022 Act did not require or enable the FTT to conduct a building safety audit, which was what it did in this case. The FTT’s decision disclosed no good reason for its having raised the additional items (such as balconies, including the walls and floor decking and construction).
The respondents had relied on an expert report which not only set out what was wanted by way of remediation but also considered the additional items and concluded that they were not relevant defects and did not require remediation. The FTT’s decision disclosed no good reason for its having raised the additional items and it exceeded its discretion in doing so.
(5) Moreover, having raised the additional items, the procedure adopted by the FTT was unfair. The new point was raised and argued by the FTT without the respondents’ involvement. It gave directions for the appellant to produce evidence but sought neither argument nor evidence from the respondents.
In the circumstances in which the FTT raised the additional items, and the procedure it adopted having done so, its decision to require the remediation of the additional items was vitiated by a serious procedural irregularity and was a breach of natural justice, and it would be set aside.
Equally fatal to the FTT’s decision was that it was taken contrary to the evidence before it and gave no reason for its disagreement.
The tribunal would re-make the remediation order to exclude the additional items.
Jonathan Selby KC (instructed by Donald Pugh Solicitor) appeared for the appellant; The respondents appeared by their representative.
Eileen O’Grady, barrister
Click here to read a transcript of Monier Road Ltd v Blomfield and others
