Partner London
"The judgment provides crucial clarification on the scope and limitations of the First-tier Tribunal's powers."
In a unanimous decision delivered by the Upper Tribunal, it allowed the appeal and substantially narrowed the remediation order. The judgment establishes important principles concerning procedural fairness in building safety disputes, highlighting that while the FTT may raise issues not identified by the parties, it must:
- follow proper procedures when doing so;
- give clear reasons for disagreeing with expert evidence; and
- ensure parties have an opportunity to address any tribunal concerns.
The ruling has significant implications for the construction industry, establishing clearer boundaries around remediation orders under the BSA and emphasising the importance of robust expert evidence in building safety disputes. It also serves as a cautionary tale regarding the extent to which tribunals may deviate from the issues as pleaded by the parties, particularly in the post-Grenfell regulatory landscape where building safety concerns have understandably heightened sensitivity.
Factual background
The case concerned two residential blocks known as Smoke House and Curing House, which together formed a mixed-use building enclosing a courtyard. The building was purpose-built between 2016-2018, with 20 flats in Smoke House and 25 in Curing House. The appellant, Monier Road Limited (“MRL”), was the freeholder, while the respondents were 29 long leaseholders of individual flats.
The building’s external structure was distinctive: street-facing walls were constructed of brick, with many flats featuring balconies, while the courtyard-facing walls were built with timber cladding and combustible insulation. The courtyard included communal walkways, external staircases, a shared garden with wooden planters and access to a roof terrace. Bin stores with louvred metal doors were located on the street sides.
In October 2022, MRL commissioned a Fire Risk Assessment for External Walls (“FRAEW”) report. The report, produced by Michael A Fox Associates, and known as the “MAF report”, assessed the building against PAS9980:2022 standards and assigned an EWS1 rating of B2, which indicated that the cladding contained combustible materials with a fire risk high enough to require remedial work. The report recommended four primary actions:
- removal and replacement of timber cladding and combustible material on the courtyard external walls;
- relocation of commercial bins away from external walls to secure non-combustible bin stores;
- repair of bin store doors; and
- installation of smoke detectors in rooms with walls within the timber cladding system.
Crucially, these were the only actions recommended following what the report described as a comprehensive examination of the entire building exterior. The report considered but did not recommend remediation for the street-facing brick walls, balconies, roof terrace, planters or walkways.
On 22nd November 2023, the leaseholders applied to the FTT for a remediation order, specifically requesting replacement of “high-risk cladding” used on the property. Their application focussed entirely on the courtyard cladding and combustible insulation, relying primarily on the MAF report. The leaseholders noted that MRL had a ringfenced fund of over £1.5m specifically for rectifying cladding issues but had taken no action beyond installing fire alarms in common areas.
Legal points pleaded by the claimant and responses of the respondent
The leaseholders’ application to the FTT was straightforward and limited in scope. They sought a remediation order requiring MRL to replace the high-risk cladding and combustible insulation in the courtyard, as identified in the MAF report. They emphasised that without an improved EWS1 rating, they could not sell or mortgage their flats. In a later statement of case, the leaseholders added one additional element: the potential replacement of fire doors in flats and communal areas.
At a case management hearing on 12 January 2024, the FTT recorded that there was “broad agreement” between the parties regarding the necessary works, which concerned “the removal and replacement of the timber cladding and combustible insulation within the courtyard area.” The FTT noted that the likely dispute between the parties was about the timing of the works rather than their substance.
By the time of the scheduled hearing on 27 March 2024, MRL had started to tender for the works, indicating acceptance of the need for remediation of the courtyard cladding and insulation.
However, at the hearing, the FTT unexpectedly raised concerns about additional elements of the building not mentioned in the leaseholders’ application. The FTT suggested that the building might be a “higher-risk building” under the BSA and expressed concerns about timber elements on walkways, balconies, the roof terrace, wooden planters, bin stores, flat entrance doors and window panels.
MRL explained that they had already accepted the need to remediate the courtyard cladding and insulation. However, they disputed that the additional items identified by the FTT constituted “relevant defects” under the BSA.
Legal points considered by the court and the decision
The Upper Tribunal considered several key legal issues in this appeal:
- the extent to which the FTT may raise issues not pleaded by either party;
- the procedural requirements when a tribunal raises new issues;
- the FTT’s treatment of expert evidence;
- the scope of remediation orders under the BSA; and
- the proper role of a tribunal’s expertise in decision-making
The Upper Tribunal structured its analysis around five main points raised by MRL.
1. The FTT’s raising of additional items on its own initiative
The Upper Tribunal acknowledged that tribunals can raise points not raised by parties, especially in contexts where there is a protective statutory purpose. However, drawing on established case law including Sovereign Network Homes v Hakobyan [2025] UKUT 115 (LC), the Tribunal emphasised that this power is limited.
"The FTT was effectively conducting a building safety audit beyond what was requested in the application."
It stands as reminder that legal proceedings in England and Wales are primarily adversarial, not inquisitorial. The FTT may appropriately raise new points in three specific circumstances:
- where there may be a jurisdictional issue;
- where a statute requires consideration of a specific matter; or
- to clarify a party’s existing case.
None of these applied here. The FTT was effectively conducting a building safety audit beyond what was requested in the application.
2. Decision contrary to the expert evidence
The Upper Tribunal found that the FTT had made findings directly contradicting the expert evidence without explaining why. Both the MAF report and a subsequent report had concluded that the “Additional Items” were not relevant defects requiring remediation. The FTT offered no reasoned basis for rejecting this unanimous expert opinion.
As the Upper Tribunal noted, “Judges are not expected to suspend judicial belief simply because the evidence is given by an expert“, but “it is necessary for a Judge to give reasons for disagreeing with experts’ conclusions“. No such reasons were provided by the FTT.
3. Inappropriate use of the FTT’s expertise
Whilst acknowledging that FTT panels possess expertise in property and related disciplines, the Upper Tribunal emphasised that “expertise is not evidence“. If tribunal members use their specialist knowledge to reach conclusions contrary to the evidence, they must explain their reasoning and give witnesses an opportunity to address their concerns. The FTT failed to do this, rendering its decision unfair.
4. Failure to put concerns to MRL or its expert witnesses
The Upper Tribunal accepted MRL’s submission that the FTT’s concerns about the Additional Items were not properly put to MRL’s experts, denying them the opportunity to respond. This fundamental procedural unfairness further undermined the FTT’s decision.
5. Inclusion of items not identified in the March order
The Upper Tribunal noted that two of the Additional Items – the street-facing walls and courtyard floor – were not even listed in the FTT’s March order as matters requiring investigation. Their sudden inclusion in the final remediation order was particularly unfair, especially as the street-facing brick walls were not even discussed in the FTT’s substantive decision.
Based on these considerations, the Upper Tribunal concluded that the FTT’s decision to include the Additional Items in the remediation order was “procedurally irregular and unfair” and must be set aside. The Tribunal re-made the remediation order to exclude the Additional Items, limiting it to the courtyard cladding and combustible insulation that formed the basis of the leaseholders’ original application.
The Upper Tribunal also commented on the FTT’s extensive discussion about whether the building was a “higher-risk building” – a matter outside its jurisdiction. This discussion was found to be inappropriate and potentially harmful, causing unnecessary expense and creating confusion about the building’s status.
Implications for the construction industry
This judgment has several significant implications for the UK construction industry, particularly for those involved in residential developments.
Clarification of reediation order scope and process
The judgment provides welcome clarification on the scope and procedural requirements for remediation orders under the BSA. It establishes that while such orders can be broad, they must be based on evidence of “relevant defects” that cause building safety risks and must follow proper procedural safeguards.
For developers and contractors, this provides greater certainty about potential liability exposure. The decision confirms that remediation orders should be limited to defects properly pleaded and evidenced, rather than expanding unpredictably based on tribunal initiative.
Emphasis on expert evidence in building safety disputes
"The judgment reinforces the critical importance of robust expert evidence in building safety disputes."
The judgment reinforces the critical importance of robust expert evidence in building safety disputes. The Upper Tribunal’s criticism of the FTT for disregarding expert assessments without reasoned explanation highlights the weight given to properly conducted professional safety assessments.
Construction industry professionals should note that comprehensive, well-documented safety assessments like the MAF report can provide significant protection against unwarranted remediation claims. The judgment also suggests that multiple concordant expert opinions are particularly persuasive.
The PAS9980:2022 standard and its application
The judgment implicitly endorses the use of the PAS9980:2022 standard as an appropriate risk assessment tool for external wall systems. Construction professionals should ensure familiarity with this standard and its application, as it appears to be gaining judicial recognition as a benchmark for fire safety assessment.
Balancing fire safety concerns with procedural fairness
Perhaps most significantly, the judgment addresses the tension between legitimate fire safety concerns in the post-Grenfell environment and the need for procedural fairness. The Upper Tribunal explicitly considered whether tribunals must “close their minds” to potential safety issues not raised by the parties.
The Tribunal’s conclusion provides a balanced approach: tribunals retain discretion to raise genuine safety concerns, but must then follow proper procedures, allowing parties to address those concerns. This maintains safety protections while preventing unfair expansion of remediation liability.
Higher-risk building designation implications
The judgment highlights the importance of clarity regarding a building’s status under the BSA. The Upper Tribunal’s criticism of the FTT for opining on whether the building was a “higher-risk building” emphasises the need for proper determination of building status through appropriate channels.
Developers and building owners should ensure they understand the regulatory classification of their buildings and follow the appropriate compliance pathways.
In conclusion, the Monier Road decision provides much-needed clarity on the implementation of the BSA’s remediation provisions. It sets important precedent for how tribunals should approach building safety cases, emphasising both the paramount importance of safety and the equally essential requirements of procedural fairness and evidence-based decision-making. For construction industry professionals, the case underscores the importance of comprehensive safety assessments, clear documentation, and active engagement with safety regulations, while providing reassurance that liability exposure should remain reasonably predictable and proportionate when proper procedures are followed.
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