The legal aspects of remediation work

Ross Wilson, Real Estate Litigation Partner at Spencer West, discusses the legal aspects of remediation work and cost considerations.
For clarity, the following applies to England (though elements of the Building Safety Act have been implemented in Wales and, less extensively, in Scotland and Northern Ireland).
For all involved, though, the process of remediating buildings from fire safety defects remains a time-consuming, laborious and frustrating process. This involves developers trying to comply with stricter building standards; freeholders trying to secure all necessary funding; right to manage and resident management companies looking for someone to voluntarily accept liability; and residents having to pay for litigation, which the previous government said it should not have to do. These continuing problems have resulted in a swathe of new and amended legislation concerning fire safety defects.
The newest changes to try and address these problems came into force on 31 October 2024 in the form of The Leasehold and Freehold Reform Act 2024 (Commencement No 1) Regulations 2024. These changes further amend the Building Safety Act 2022 and (1) brought in the defined term of “relevant steps”, (2) extended the powers of the First Tier Tribunal to include the newly defined Relevant Steps within the terms of a Remediation Order, (3) expanded the costs that can be included within a Remediation Contribution Order (RCO) to those relating to the newly defined Relevant Steps and (4) clarified that expert report and decanting costs can also form part of an RCO.
It is therefore important to know what these newly defined “relevant steps” are. These are defined as things which are done to:
- prevent or reduce the likelihood of a fire or collapse of the building (or any part of it) occurring as a result of the relevant defect
- reduce the severity of any such incident; or
- prevent or reduce harm to people in or about the building that could result from such an incident.
Covering costs
This clearly includes preventative steps such as the installation of sprinkler systems, simultaneous fire alarm systems and waking watches. While this provides welcomed guidance to the First Tier Tribunal as to the extent of its powers, it seems rather obvious that steps such as these should be ones that are undertaken until such time that a building is fully remediated. The fact that further secondary legislation was needed to provide this clarity further emphasises the point that the Building Safety Act 2022 was a rushed and poorly drafted document.
Finally, I also find it interesting that the current government announced on 2 September 2024 that new applications under the Waking Watch Replacement Fund 2023 were to be accepted, only to then announce the aforementioned legislation one month later to emphasise how the costs of fire alarm systems can be ordered and recovered from third parties.
It could be argued that the government is looking to find ways to draw attention away from using its own funds and instead leave the private sector to fight among itself. I believe that the government should be looking to step in to remediate all fire safety defects and worry about who will be picking up the tab afterwards. Anything less will continue to put lives at risk.
For more, see spencer-west.com
Image credit | Alamy