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The Building Safety Act 2022: remediation orders

In this video, Melanie Tomlin from our Construction Group is joined by David Sawtell FCIArb of 39 Essex Chambers to discuss remediation orders and remediation contribution orders. These are part of a raft of new laws collectively referred to as the ‘leaseholder protections’ which came into force on the 28 June 2022 under Part 5 of the Building Safety Act 2022 (the Act), with the overarching purpose of seeking to lift the burden of carrying out remediation works on leaseholders.

The introduction of remediation orders now gives the First-Tier Tribunal jurisdiction to compel a “relevant landlord” (as defined in the Act) (which may include a management company, if it has repairing obligations) to remediate buildings for historical building safety defects, namely when there is a fire safety or structural risk. This concerns defects which have been created somewhere between 28 June 1992 and 27 June 2022 and applies to “relevant buildings”, defined under the Act as being at least 11 metres high or having at least five storeys, as well as at least two dwellings.

In addition, the First-Tier Tribunal now also has jurisdiction to make a remediation contribution order against a number of parties who might well have deeper pockets than such landlord or management company. Indeed, any “interested party” (as defined in the Act) can now seek a remediation contribution order either from the landlord or from a party which used to be a landlord or from a developer, or perhaps most importantly, from someone who was “associated” with any of these parties. This is, however, subject to the overriding test of it being “just and equitable” and as at today’s date, we do not have any clear test or guidance as to how a First-Tier Tribunal is going to interpret whether it is just and equitable to make a remediation contribution order. However, in general terms, we can expect the First-Tier Tribunal to seek to look beyond the strict legal ordering of a corporate structure and instead to interpret whether it would be just and fair that such a party contribute towards the cost of a remediation.

As we move forward, no doubt we are going to see various parties looking to apply for remediation orders and remediation contribution orders in order to seek to spread liability around. Certainly, given the statutory tests, there is going to be a fair bit of case law coming out of the First-Tier Tribunal.

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