Building Safety Act 2022 – forthcoming changes to provisions relating to remediation orders and remediation contribution orders

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Part 5 of the Building Safety Act 2022 contains two remedies aimed at those responsible for relevant defects: the remediation order that can be made against a relevant landlord in respect of relevant defects and the remediation contribution order which can be made against landlords and others who are responsible for relevant defects, requiring them to cover or contribute to the cost of remedying the relevant defect. You can read our article on remediation contribution orders here.

Following a number of cases reported in the First Tier Tribunal, where the scope and meaning of the original wording within Part 5 were the subject of legal argument, and in recognition of the need to tighten up or clarify the text, changes are being introduced by the Leasehold and Freehold Reform Act 2024. 

The date on which these amendments come into force will be provided for in secondary legislation and is not yet known. 

This article highlights some of the changes relating to remediation orders and remediation contribution orders. 

What are the main changes?

Introduction of relevant steps alongside relevant defects

‘Relevant defect’ is defined in the Building Safety Act 2022 and is broadly a defect which causes a building safety risk and arises from works carried out in the relevant period (28 June 1992 to 27 June 2022) or works after the relevant period to remedy an existing relevant defect. 

In the 2024 First Tier Tribunal (Property Chamber) case of Triathlon Homes LLP v Stratford Village Developments Partnership, the scope of what could be recovered in connection with remedying the relevant defect was one of the issues between the parties in an application for a remediation contribution order. 

Part of the argument in that case was whether the cost of preparatory measures (such as reports), temporary safety measures (such as a waking watch) or other steps in furtherance of, but not actually part of, the remedial scheme to address the relevant defect could be recovered against the developer in the remediation contribution order as part of the ‘relevant defect’ cost. The First Tier Tribunal (made up of Upper Tribunal Lands Chamber tribunal members) held that it could, but that decision is susceptible to appeal. 

Amendments to section 123 – remediation orders

Section 123 has now been amended to include ‘relevant steps’ taken in relation to a relevant defect which have as their purpose:

  1. preventing or reducing the likelihood of a fire or collapse of the building (or any part of it) occurring as a result of the relevant defect,
  2. reducing the severity of any such incident, or
  3. preventing or reducing harm to people in or about the building that could result from such an incident.

Relevant steps may therefore include the cost of temporary safety measures, such as a waking watch. 

Section 123 now refers to expert reports or surveys into relevant defects, or potential relevant defects, in a relevant building and relevant steps taken or that might be taken in relation to a relevant defect in a relevant building. A direction to produce such a report or survey made by the tribunal in remediation order proceedings is enforceable in the County Court, in the same way as the remediation order itself is enforceable.  

Amendments to remediation contribution orders provisions 

The issue above raised in the Triathlon case has also been directly addressed by the introduction of a new section 124(2A). The costs ordered by the tribunal as part of a remediation contribution order can include:

  • costs of taking relevant steps in relation to a relevant defect in the relevant building,
  • costs of obtaining an expert report relating to the relevant building,
  • temporary accommodation costs incurred or to be incurred in connection with a decant from the relevant building (or from part of it) that took place or is to take place-
    1. to avoid an imminent threat to life or of personal injury arising from a relevant defect in the building,
    2. (in the case of a decant from a dwelling) because works relating to the building created or are expected to create circumstances in which those occupying the dwelling cannot reasonably be expected to live,
    3. for other reasons connected with relevant defects in the building, or works relating to  the building, that is prescribed by regulations made by the secretary of state.

The secretary of state can also introduce new categories of costs. 

The scope of the order may now include not only an obligation to pay a specified amount but, as an alternative, an order that an entity is liable for the reasonable cost for specified things done or to be done. 

We will provide further updates as and when the timing of these new provisions coming into force announced. For more information, please contact our construction and infrastructure team.

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