Secretary of State for Levelling Up, Homes and Communities v Grey GR Limited Partnership (FTT, 29 April 2024)
Adam Rosenthal KC appeared for the successful applicant in this claim for a remediation order under the Building Safety Act 2022.
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This was the first application made by the Secretary of State for a remediation order under s.123 of the Building Safety Act 2022, under powers conferred by reg.2(1) of the Building Safety (Leaseholder Protection) (Information etc.) Regulations 2022. The Respondent, a subsidiary of Railpen, is the freehold owner of Vista Tower in Stevenage which has been the subject of extensive press coverage and has been highlighted as a particularly serious example of the need to carry out cladding remediation.
The Secretary of State made this application to the FTT in October 2022, after engaging in pre-action correspondence with Grey GR, the Respondent. The application was the subject of extensive case management directions, with a number of case management hearings being conducted by the FTT and as a result the final hearing of the application did not take place until nearly 18 months after the proceedings commenced. By that time, Grey GR had entered into a contract for remedial works to be undertaken and the contractors had started work on site to implement a programme of works which had been agreed between the parties for the purpose of remedying the agreed building safety defects.
The Tribunal nevertheless made a remediation order, in face of resistance by Grey GR to being subjected to an order breach of which is potentially punishable as a contempt of court under s.123(7). The Tribunal’s principal concern in making an order was to afford some degree of protection to the leaseholders in Vista Tower who are not parties to the build contract or the grant funding agreement entered into by Grey GR in order to receive public funding from the Building Safety Fund. In reaching its decision, the Tribunal distanced itself from the analogy with an order for specific performance (made in obiter comments by the Tribunal in Triathlon Homes LLP v Stratford Village Development Partnership [2024] UKFTT 26 (PC) and earlier FTT cases under s.123). Rather the power to make a remediation order under s.123 is a wholly new statutory power conferred on the Tribunal to ensure compliance with obligations to undertake works to remedy serious building safety defects.
The form of order that the Tribunal made sought to afford primacy to the JCT contract entered into by Grey GR with its building contractor and the grant funding agreement (which also contained obligations to complete the remediation of the building within a particular timescale). However, in deciding to make a remediation order even where works were underway to remedy the relevant defects, the Tribunal laid down a marker that it will exercise this jurisdiction with a view to assisting the leasehold owners of flats in buildings which suffer from safety defects of this sort to ensure that the buildings are remediated as quickly and efficiently as possible.
Adam Rosenthal KC acted for the Secretary of State, leading Ruth Keating (of 39 Essex Chambers), instructed by Walker Morris LLP.
A link to the Tribunal decision is here.
This was covered in the press by the BBC and the Daily Mail.
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