Welcome to the third edition of RED Alert of 2025.
Also featuring in this update:
The building safety landscape has become a legal minefield for developers, landlords, asset managers and leaseholders since the Building Safety Act 2022 (the BSA 2022) was enacted and the First-tier Tribunal (Property Chamber) (the FTT) has been kept particularly busy in recent months with claims for remediation contribution orders (RCOs) and remediation orders (ROs). Whereas a successful RCO results in an award of money, a successful RO is essentially a mandatory injunction which requires the respondent to carry out a specified scope of remedial works. The form of ROs has largely followed the first ever RO decision in Waite v Kedai(LON/00AY/HYI/2022/0005 & 0016), in which Taylor Wessing acted for the landlord.
In our latest article about the BSA 2022, we consider four recent decisions which emphasise this clear shift from the previous era of limited accountability and how ROs and RCOs have become powerful enforcement tools for leaseholders and freeholders alike. However, they also serve as a reminder that this legislation is still in its infancy and uncertainty regarding its interpretation and implementation is rife and continues to cause a headache for all concerned.
Vista Tower: landmark RCO facing appeal
The FTT's decision in this case in January 2025 delivered a knockout blow to 76 of the 96 respondents requiring them to contribute more than £13.2 million towards the costs of cladding remediation works on the 16-storey Stevenage tower block known as Vista Tower.
First instance decision
As part of its decision, the FTT provided further guidance on the tracing of associated persons under section 121 of the BSA 2022. This section provides that any company which shared a director with the developer in the period between 14 February 2017 and 14 February 2022 will be associated and can therefore be subjected to a RCO provided that the Court considers it just and equitable to do so.
In the case of Vista Tower, the FTT found that it was just and equitable to hold 75 of the 96 respondents responsible for the defects in addition to the developer on the basis that many had family ownership links and had been presented to potential investors as being part of the developer, "Edgewater Group". The FTT was also influenced by the fact that the corporate bodies were involved in the property sector and were likely to be linked financially.
Appeal
The FTT granted permission to appeal to the Upper Tribunal (Lands Chamber) (the UT) on whether an RCO can be made on a joint and several basis and issues relating to which defects can be included, the UT has now also given permission to appeal an additional ground related to whether the above approach adopted by the FTT to the "just and equitable test" was correct. With the appeal expected to be listed later this year, large group developers and connected companies will undoubtedly welcome further guidance from the UT on this point.
Monier Road: UT clarifies procedural boundaries
The UT also recently handed down its decision in Monier Road Ltd v Bloomfield [2025] UKUT 157 (LC) providing some much-needed clarity regarding the FTT's procedural approach in cases relating to ROs and RCOs which may have wider impact.
First instance decision
In its first instance decision, the FTT had made an RO in respect of a building which only met the criteria for a "high risk building" under the BSA 2022 if a rooftop garden counted as a storey. This decision departed from the government guidance which confirmed that open rooftops should not be taken into account when considering the seven-storey threshold for higher risk buildings. The FTT also elected to raise issues at the hearing which had not been advanced by either party and on which no evidence had been called, which prompted an appeal by the landlord to the UT.
Appeal
On appeal, the UT found that the FTT's conduct was "unfair" and "substantially wrong" and that its error lay in exceeding its discretion to raise a new point which ultimately amounted to a building safety audit; something which the BSA 2022 neither requires nor enables the FTT to do. The FTT was criticised for raising a new issue without giving the parties an opportunity to adduce expert evidence to address the issue. The proceedings in England and Wales are by nature adversarial rather than inquisitorial and the FTT's actions in raising these additional points was not in accordance with established procedure nor appropriate. The UT also strongly criticised the FTT for essentially becoming "a party to the dispute" and for inappropriately using its expertise to contradict unchallenged expert evidence without adequate reasoning for doing so.
Empire Square: the introduction of suspended orders
On 5 June 2025, the FTT handed down its decision in relation to Empire Square, a development in London initially developed by Berkeley Homes. The case concerned two applications: one for an RO against the current landlord of Empire Square and the second for an RCO against Berkeley Homes in its capacity as developer. This case was unusual as Berkeley had committed through the Developer Pledge to voluntarily address the building's defects. This presented the FTT with an unprecedented situation of determining whether to issue an RO in circumstances where the developer had already stated it would carry out the necessary repairs.
When faced with this conundrum, the FTT's approach was to balance the need to make the building safe as soon as possible with the need for remedial works to be undertaken by the appropriate body (i.e. Berkeley). As a result, whilst Berkeley was ordered to pay over £1.3 million for waking watch costs and expert reports, plus ongoing monthly waking watch payments of £13,890.24, the £9.687 million for the remediation of the relevant defects was suspended subject to strict compliance with the following conditions:
- Regular quarterly updates to leaseholders.
- The Works Remediation Contract must be executed by 19 June 2025.
- The Gateway 2 application must be submitted by 5 March 2026.
- Works commencement by 5 December 2026.
- Completion by 5 March 2029.
This novel approach from the Tribunal creates powerful incentives for compliance whilst allowing developers who have demonstrated commitment to remediation to avoid upfront payment provided that they follow through with their assurances to undertake remedial works.
Purbeck House: an RCO on its head?
The recent FTT decision in Barclays Nominees (George Yard) Limited v LDC (Oxford Road Bournemouth Limited) HAV/OOHM/BSA/2024/0001 and 0001 presents a different dynamic where the applicant, Barclays Nominees, was the freeholder and the respondent, a company which is part of the Unite Group, was the leaseholder of the two blocks of student accommodation.
Unite Group argued that the freeholder's motivation for the remediation order was solely for commercial benefit. However, the FTT found that it was still appropriate to make an order to remedy relevant defects.
FTT's approach to discretion
The FTT emphasised that making remediation orders involves discretion, not automatic entitlement. In this case, it felt that it could exercise this discretion in favour of making an order given that the respondent landlord had been aware of the defects for five years without action, with financial considerations appearing to outweigh safety concerns. The FTT also focused on actual occupants (students) rather than commercial relationships between parties.
Conclusions
These recent tribunal decisions demonstrate the increasingly robust approach to building safety remediation following the introduction of the BSA 2022 and a further flurry of decisions will no doubt follow in due course.
For developers and landlords, the message is clear: proactive identification and remediation of building safety defects is essential, with works being carried out promptly. Those prioritising financial considerations over safety concerns face substantial liability through RCOs. The key is early identification of defects, proper expert advice, clear remediation planning, and transparent stakeholder communication.
With Vista Tower's appeal pending and the Court of Appeal's decision on Triathlon Homes expected later this summer, further developments are anticipated. However, the fundamental principles are established: building safety is paramount, and those responsible for creating or maintaining defects, as well as their associate companies, will be held financially accountable. The era of 'build and bolt' is most definitively over.
If you need assistance with advice relating to remediation orders, remediation contribution orders or the application of the Building Safety Act 2022 more generally, don't hesitate to get in touch with a member of the team.
