Smoke House & Curing House - Upper Tribunal clarifies extent of powers in respect of Remediation Orders

England and Wales

The Upper Tribunal (Lands Chamber) has provided important guidance on the scope of the First-tier Tribunal’s (“FTT”) powers when making remediation orders under the Building Safety Act 2022 (the “Act”), as well as criticising the FTT’s commentary regarding the government guidance in respect of the measurement of higher-risk buildings.

In Monier Road Limited v Blomfield UKUT 157 (LC) (the Smoke House and Curing House Decision), the Upper Tribunal re-made a wide-ranging remediation order, finding that the FTT had acted unfairly and beyond its role by including items not properly before it and by failing to follow fair procedures.

Additionally, the Upper Tribunal criticised the FTT’s commentary on the measurement of higher-risk buildings, being on a matter not within its jurisdiction and which caused concern across the construction industry. The FTT provided in its decision that Government guidance on determining whether a building is a higher-risk building during the occupation phase should be ignored. The Tribunal undertook its own interpretation of the statute and determined that an enclosed roof top arrangement should be counted as a storey for higher-risk-building purposes.

Key points

  • The FTT cannot expand the scope of a remediation order to include defects not specified in the application or the parties’ pleaded cases, unless proper procedure is followed.
  • If the FTT raises new issues of its own motion (which it may do in certain circumstances), it must give the parties an opportunity to address them, including amending pleadings and adducing evidence as appropriate.
  • The FTT must not substitute its own expertise for the evidence before it without giving clear reasons and allowing parties to respond.
  • The FTT must be extremely cautious about straying into matters where it has no jurisdiction, which in this case put the parties to cost and caused industry alarm.

Background

The case concerned a mixed-use building in East London, where leaseholders had applied for a remediation order requiring the freeholder, Monier Road Limited (“MRL”), to replace combustible cladding and insulation in the courtyard, as recommended by a fire risk assessment.  The application was clear and limited in scope.

During the FTT proceedings, the Tribunal raised concerns about additional elements, including balconies, walkways, bin stores, planters, and the roof terrace, none of which were identified as defects in the application or the expert evidence.  The FTT ultimately made a remediation order requiring MRL to remedy all these “Additional Items”, despite unchallenged expert evidence that no further works were necessary.

As part of its decision, the FTT commented that it considered Smoke House & Curing House was a higher-risk building in circumstances where neither party had considered it to be. As above, this was on the basis that the roof terrace at the building comprised a “storey” and government guidance suggesting otherwise was contradictory. The FTT ordered that the Building Safety Regulator be provided with evidence of completion of remediation works as well as noting that the building ought to be registered as a higher-risk building. Following the decision, in October 2024, the Government updated its guidance on the criteria for the height of HRBs inline with the FTT decision that roof terraces etc were to be included. However, that statement has now been revised. The current position is that the department for Levelling Up, Housing and Communities is consulting with the Building Safety Regulator and others to ensure roof gardens are not to be considered a storey under the legislation.

We commented on the FTT decision in more detail in our Building Safety Act Annual Review 2025.

The Upper Tribunal’s decision

The Upper Tribunal found that the FTT had exceeded its discretion and acted unfairly in several respects:

  • Raising new issues: While the FTT can raise points not identified by the parties, it must do so only in rare cases and must follow a fair procedure.  Here, the FTT raised its own concerns, but did not invite the leaseholders to amend their case or allow MRL to respond properly.
  • Procedural fairness: The FTT failed to give MRL or its experts a fair opportunity to address the new issues.  The Tribunal’s approach meant that the dispute became one between the FTT and MRL, rather than between the parties.
  • Decision contrary to evidence: The FTT disregarded the unchallenged expert evidence without giving reasons, and relied on its own expertise without explaining why or giving the parties a chance to respond.
  • Jurisdictional overreach: The FTT also purported to express an opinion on whether the building was a “higher-risk building” under the Act, despite having no jurisdiction to do so, commenting that its decision to do so was “dangerous”.

The Upper Tribunal set aside the remediation order insofar as it related to the Additional Items, and remade the order to require only the works identified in the original application and expert evidence.  The requirement to submit information to the Building Safety Regulator (which arose from the FTT’s view on the height of the building) was also deleted.

Practical implications

This decision is a significant reminder that the FTT’s role is to resolve the issues put before it by the parties, not to conduct its own building safety audit. If the FTT identifies a potential risk not raised by the parties, it may draw attention to it, but must then allow the parties to address the issue properly. The FTT cannot impose remediation requirements for defects that have not been properly pleaded and evidenced.

The decision provides reassurance that remediation orders should be confined to properly identified and evidenced defects and may commence a move towards a more limited form of Remediation Order, in circumstances where the FTT’s orders have become more wide-ranging.

In terms of determining the number of storeys in a building, the position is no clearer and each building should continue to be assessed on a case-by-case basis with reference to the statutory provisions.