Early application for a remediation order under section 123 of the Building Safety Act 2022

39 Essex Chambers is involved in one of the first applications for a remediation order under section 123(2) of the Building Safety Act 2022.

The new power to make such order under section 123 and regulation 2 of the Building Safety (Leaseholder Protections) (Information etc) (England) Regulations 2022 only came into force on 21 July 2022. It gives the First-Tier Tribunal the power to make an order to require a ‘relevant landlord’ to remedy specified ‘relevant defects’ in a specified relevant building by a specified time. By section 120, ‘relevant defects’ is defined in respect of a defect arising in works to a building that causes a ‘building safety risk’, which in turn is defined as a risk to the safety of people in or about the building arising from the spread of fire or the collapse of the building. The statutory regime is intricate, containing a number of defined terms in Part 5 of the Building Safety Act 2022, as well as engaging aspects of Schedule 8.

It is, potentially, a powerful tool, giving to the FTT a power to make mandatory orders against landlords to remediate defective buildings. It is likely that a number of the cases that the FTT will handle involving combustible cladding or other defective parts of the building envelope will see similar issues to those involved in Naylor v Roamquest Ltd [2021] EWHC 3507 (TCC), Martlet Homes Limited v Mulalley and Co Limited [2022] EWHC 1813 (TCC) and other TCC litigation.

David Sawtell was instructed for the freeholder in respect of an application involving a development of two blocks in south London. It was confirmed that this was one of the very first cases involving the new jurisdiction of the FTT. The issues raised, as well as the directions given by the FTT leading to a multi-day hearing, reflected the construction and property law aspects of this kind of dispute.

David Sawtell was instructed by Taylor Wessing LLP. He is a member of the 39 Essex Chambers Fire Group, which brings together a range of expertise arising out of regulatory, construction, property, civil liability and other practice areas, reflecting the multi-faceted nature of the disputes and issues that arise.