Improvement or remediation, or both?

Robert Bowker considers how the First-tier Tribunal (FTT) has dealt with fire safety cases where an improvement notice under the Housing Act 2004 has been served and an application for a remediation order under s. 123 of the Building Safety Act 2022 has been made.

That is the situation which arose in Princes Park Apartments LON/00AG/HIN/2024/0001 in a decision dated 9 October 2024. The decision can be found here.

It is possible for a building with serious fire safety deficiencies to be the subject of parallel proceedings in the FTT when, for example, tenants apply for a remediation order against their landlord which the landlord defends, and a local authority serves an improvement notice on the landlord which the landlord appeals.

That is the situation which occurred in the Princes Park Apartments cases.

The cases, heard by Deputy Regional Judge Nikki Carr, Regional Surveyor Helen Bowers MRICS and Mr Andrew Gee RIBA (a specialist fire safety member), were case managed at an early stage by separating the appeal by the landlord against the improvement notice and the application by the tenants for a remediation order notwithstanding the fact that the hazards specified in the improvement notice and the relevant defects specified in the application for a remediation order were to a very great extent the same.

That case management decision was based largely on the FTT’s reasoning that different statutory tests apply. The landlord’s appeal went first. The tenants’ application will be heard later this year.

Under each statutory regime, the FTT considers the subject works and the date by which they must be completed. In most cases, the scope of the works and the date for completion will be similar, if not identical.

Here, the landlord’s appeal against the improvement notice challenged both the scope of the works required and the time allowed in the improvement notice for those works to be completed.

The building comprises 2 connected blocks, one comprising private flats, the other comprising social housing. The external wall systems include zinc cladding, PIR insulation and ply board, and timber cladding. The balconies are largely timber. The concierge area which serves the private flats contains substantial amounts of timber.

By the date of the hearing, the basis on which the landlord challenged the improvement notice had narrowed considerably. There were, however, two critical issues remaining for the FTT to determine, and on each of those issues the landlord relied heavily on expert evidence.

Issue 1 was the inclusion in the improvement notice of a requirement to test if the landlord wanted to retain the existing zinc cladding system. That was not an esoteric point. It had potentially significant practical consequences.

Issue 2 was whether the work was required to be completed in the time specified in the improvement notice. That issue was affected by various extraneous factors including a s.106 agreement, obtaining approvals from Network Rail because of the building’s proximity to the Overground line, and the need to scaffold close to Talacre Gardens, a public park.

The FTT did not accept the expert evidence on which the landlord relied – see paragraphs 42 to 49 of the decision on the issue of the testing requirement and paragraphs 63 to 103 on the issue of timing.

In respect of testing for the retention of any part of the external wall system, the FTT said this at §48:

“We find the Applicant’s real complaint is not that the requirement is so difficult to achieve, but rather that it will cost them money”.  

In respect of timing, the FTT said this at §103:

“We are satisfied that the timeframes given in the Respondent’s [improvement notice] are neither irrational not wrong.”  

Takeaway points? First, although local authorities are an interested person capable of applying for a remediation order under s.123, it appears that they remain far keener to tread the more familiar path of serving an improvement notice (see also the Leigham Court Road and Chocolate Box remediation order decisions where the local authority had served an improvement notice). Secondly, where parallel proceedings exist, even where the work and timing issues are similar, the FTT can be expected to determine them separately with the appeal being heard first. Thirdly, on both the scope of work, hazards under the Housing Act 2004 or relevant defects under the Building Safety Act 2002, and the timing, the expert evidence is likely to be critical.

Robert Bowker is a barrister at Tanfield Chambers.