Secretary of State for Levelling Up, Housing and Communities v Grey GR Limited Partnership
CAM/26UH/HYI/2022/0004 — First-tier Tribunal (Property Chamber), decision 29 April 2024, order dated 10 May 2024 (Judge Wayte and Judge David Wyatt)
Judgment: Decision (gov.uk PDF) · gov.uk case page
Back to Index.
Issue
The first fully-contested application for a Remediation Order under s.123 Building Safety Act 2022. Vista Tower is a 16-storey, 45m+, 73-flat former office block in Stevenage, converted to residential use 2015/16. Combustible PIR insulation, EPS-cored opaque infill panels, and absent/ineffective cavity barriers and fire stops were identified in the external wall system from 2019 onwards. The Secretary of State applied for an RO in November 2022 after the freeholder (Grey GR Limited Partnership, an investment vehicle for the Railpen pension fund) took several years to move from Building Safety Fund applications (first under the withdrawn Consolidated Advice Note, then under PAS 9980:2022) through to a signed works contract and grant funding agreement. By the time of the hearing the relevant defects and remedial scope were agreed and a JCT design-and-build contract plus grant funding agreement were in place, with practical completion targeted for September 2025 — so the live dispute was (a) whether the tribunal has a discretion not to make an RO once defects are established, and (b) if so, whether it should exercise that discretion given works were already contracted and underway.
Outcome
- The tribunal held that s.123 BSA 2022 and the 2022 Regulations confer a discretion, not a duty, to make a Remediation Order — rejecting the Secretary of State’s argument (based on Willingale v Globalgrange Ltd [2000] 18 EG 152) that “may” meant the tribunal had no real choice once the statutory criteria were met.
- On the facts, the tribunal rejected the Secretary of State’s central complaint that the freeholder should have “forward-funded” the works instead of pursuing Building Safety Fund money — holding that was reasonable given the ~£150m remediation cost across the respondent’s wider portfolio and its fiduciary duties to the pension fund, and that the Explanatory Notes’ forward-funding expectation was addressed to Remediation Contribution Orders (s.124), not s.123.
- Despite the works already being contracted, the tribunal did make a Remediation Order — but as a “backstop” for the 57 qualifying leaseholders (who were not party to the works contract or funding agreement), expressly subject to the existing JCT contract and grant funding agreement, with a built-in grace period for contractual extensions and no return to the tribunal permitted before the September 2025 completion date.
Notes
- Establishes that a Remediation Order under s.123 is discretionary, not automatic, once relevant defects are proved — contrast with Remediation Contribution Orders (s.124) and Building Liability Orders (s.130), which expressly require the order to be “just and equitable”.
- Confirms ROs are not treated as fault-based/coercive orders where remediation is already properly underway; the tribunal used it here as leaseholder reassurance rather than as pressure on a defaulting landlord.
- Draws heavily on Triathlon Homes v Stratford Village Development Partnership (FTT) for BSA background and on Waite & Others v Kedai Limited LON/00AY/HYI/005 and 0016 (an FTT case not otherwise in this folder) on the mechanics of s.123.
- A related Remediation Contribution Order application concerning the same building was decided 24 January 2025 (CAM/26UH/HYI/2023/0003) — not yet reviewed in detail here; see the FTT Property Chamber — Building Safety Act tracker.