Regional Judge WhitneyMr Bowker, counsel, instructed by CMS Cameron McKenna Nabarro Olswang LLP for the ApplicantMr Nissen KC, counsel, instructed by Walker Morris LLP for the RespondentDate 16 May 2025Hearing 2025-03-03Property: Blocks A and B Purbeck House, 3 Oxford Road, Bournemouth BH8 8ESType of application: Application for a Remediation Order pursuant to the Building Safety Act 2022
DECISION
[196]The Tribunal wishes to thank both counsel for their submissions. We also pass on our thanks to those who prepared the electronic bundles. Whilst voluminous these worked well and greatly assisted all in the conduct of the proceedings.[197]We record that we are only determining those issues which remained live by the end of the hearing and submissions. The parties had helpfully agreed certain matters so that the decisions we had to make were limited. We had before us some 22 reports, 4 fire risk assessments and 11 miscellaneous reports which had been obtained over the past 5 or 6 years. We were provided with a bundle of authorities which contained the majority of Remediation Order decisions made by the First Tier Tribunal.[198]In making our decision we record that we have had regard to:•••••• The hearing bundle of 6355 pages; The supplemental bundle of 1175 pages; The supplemental report of Mr Brown dated 21st January 2025; The bundle of authorities Counsel’s respective skeleton arguments; Fire Experts note on Cladding Types 22nd January 2025;[199]At [139-160] was the updated joint statement prepared by the experts dated 2nd December 2024. We do not address those parts of the statutory test required for making a remediation order which we have recorded above were agreed.[200]We consider firstly the witnesses of fact.[201]We found Mr Buckley-Sharp to have been honest and straight forward in giving evidence. We find that whilst of course maintaining the value of the assets he manages for the Applicant is a key responsibility we accept that his client will have agreed other core principles with his company. Further we find that requiring remediation of defects is a legitimate aim for Mr Buckley-Sharp to pursue on behalf of his client.[202]Turning to the Respondent’s witnesses of fact. We record as to those witnesses from the Respondent themselves all were relatively junior and had little say over the making of decisions of substance. All referenced Mr Sorrenti who did not attend or give evidence and yet he appeared to be the key decision maker outside of the Board for determining what works were to be undertaken and the programming of the same. 22[203]Mr Pyrah was only recently appointed to his current role. He could give little meaningful evidence and often simply replied that matters took place prior to his appointment. We do note what he told us in respect of the fire evacuation drills. What was plain was that this seemed less than satisfactory with no one being sure as to the percentage of occupants who remained in situ during these drills save he was satisfied it was not “in the 100’s”. This is concerning given that measures have been adopted to mitigate the current risks to the Property as a whole and by implication it is recorded not all students do vacate.[204]Mr Parmar we considered did his best to fully answer the questions put to him as far as he was able. Equally he had not been in post for all the time period being questioned and his role was relatively junior. We found it telling that in answer to questions he explained the programming was changed to enable less high-risk buildings to be remediated due to the requirements of lenders. Whilst the Respondent’s case was that it had a programme to remediate the buildings within its portfolio on a risk basis it was clear this is not always followed. Pressure from those providing funding to Unite Group seems to attract greater weight than risk and this was not properly explained.[205]Mr Walker’s evidence added little save for confirming the details as to the door replacement by cCheckmate.[206]Mr Joel gave some background to the proposed programme of works. He accepted from a construction point of view the preliminaries need not take that long, certainly not longer than 6 months. Where we were less clear is why the work would take 2 years if works were required to EWT2 & 5.[207]The Tribunal considers the expert evidence.[208]We must say we did not find either of the experts entirely satisfactory.[209]We were asked to consider three items which may be a relevant defect: EWT2 & 5 and issues surrounding the internal doors. Other items were agreed or conceded. For clarity we note that it is accepted that EWT3, 4 and 6 are relevant defects.[210]Mr Brown was of the view he could not offer an opinion as to whether something amounted to a relevant defect under the terms of the Act. He stated that was a matter for the Tribunal. Ms Sheehan was prepared to offer her opinion on whether something amounted to a relevant defect.[211]We find that an expert can and should offer opinion on whether or not something amounts to a relevant defect under the terms of the Act. Whilst we agree with Mr Brown the ultimate decision is one for the Tribunal to make, we would expect an expert witness to offer opinion on this point. We are however only able to determine those matters which 23 the parties have contended are relevant defects. We have concerns that certain items have been conceded by the Applicant which may be relevant defects or require a different approach to remediation which would go beyond the submissions and evidence before us.[212]We were concerned both experts appeared to simply accept without critical analysis the information provided by Kingspan. In particular given there appeared to be no testing that related to the use of the panels being considered in this case on residential buildings. We found this approach surprising in the context of the Building Safety Act and the circumstances leading to the same.[213]Mr Brown admitted he was aware of the BRE report which the Tribunal drew to the parties’ attention. He did not consider it relevant to draw to the Tribunal’s attention being as he described it as “of its time”. We were surprised given this document expressly related to residential premises and post dated the events of Grenfell Tower. Mr Brown was critical of a compliance based approach to fire safety with much of his approach being one of considering risk relative to cost and making what he referred to as a proportionate determination to such matters. This is not the approach which statute has adopted.[214]It was clear Mr Brown had worked alongside the Respondent and its parent Unite. He referred at times in his evidence to obtaining information from them and the discussions he held. Certainly at points we did have concerns that certain opinions made by Mr Brown were him advocating his clients position. A good example related to the evacuation policy which Mr Brown tried to suggest was effective and yet we heard from Mr Pyrah how on one recent test a large number of students which he advised did not “number 100’s” had not evacuated. This did not appear to be an effective methodology to this Tribunal.[215]Further we were concerned that Ms Sheenhan equally accepted the information from Kingspan without any critical analysis. This seemed to flow into her change of position that the EWT2 & EWT5 panels could be remediated in a way less than total replacement.[216]We had regard also to our inspection of the Property and what we have recorded above.[217]We turn to the items in dispute and deal firstly with the internal alleged relevant defects. We do not find these are proved.[218]It was plain to us from our inspection that a relatively large number of the doors required works to be undertaken. This is supported by the Checkmate report and the fact that Checkmate have been contracted to replace about 1200 doors. We are told that during the course of the hearing the Building Safety Regulators consent was obtained this work would be taking place. Certainly many seemed to have significant gaps or other defects and are likely to cause a building safety risk including the spread of fire and smoke. However under the 24 definition in section 120 of the Act to be a relevant defect Section 120(3) must be satisfied. It was contended by the Respondent that any defect was as a result of wear and tear or changes to flooring or similar at the Property. It was suggested there was nothing to show that when originally constructed the doors would have been defective.[219]We comment that we are satisfied that the doors are defective and as we say amount to a building safety risk. However on balance taking account of all the evidence including the inspection we cannot be satisfied on the balance of probabilities that the doors and their furniture as constructed were defective.[220]We consider the two wall types EWT2 & 5. The two types are: EWT 2 – Terracotta tiles[2119] EWT 5 – Insulated Steel Kingspan Panels [2125][221]EWT2 can be found on the front and side elevations of block A Purbeck House. It is as the name suggests terracotta tiles with behind Kingspan steel encased panels with aluminium support rails. EWT5 is essentially simply the Kingspan panels and is found on the side and rear elevations. We consider both together as neither party considered that these should be treated differently. We did however stand back and consider whether we should do so but determined this was not required.[222]Mr Brown contended that if there was any risk such risk was “tolerable” and do not present a building safety risk. He suggests that the insulation will form a char which would inhibit the spread of fire. Ms Sheehan suggests if properly installed would not require remedial works but, in her opinion, due to the lack of firestopping this could lead to spread of fire and amounts to a Building Safety Risk and a Relevant Defect. Ms Sheehan referred to the potential for fire leapfrogging up the building and see paragraph 92 above.[223]Both experts referred to the FRAEW and the need for further FRA and FRAEW’s to be undertaken under the PAS9980 framework.[224]Mr Brown placed significant weight on the LPS1181 test and various other reports and testing. We note that none reference residential property use and all were said to relate to some form of commercial or industrial usage. As Mr Brown explained this was where his background in fire safety had been developed, initially working for a commercial insurer. 25[225]Ms Sheehan also placed some weight on the LPS1181 test but also considered other matters such as the potential spreads of fire up the building within her report. This evidence was disputed.[226]We note that no results of BS8414 tests on the panels either before the construction date or in the 22 years since have been provided. As a Tribunal we are surprised that no tests were undertaken and would have expected a manufacturer to have had such tests conducted. We note the documents supplied by Kingspan are not contemporaneous with the date of construction. We are mindful of the Grenfell Inquiry conclusions and note both experts seem to have simply accepted the information provided by Kingspan without the healthy scepticism we would expect in these circumstances.[227]Both experts at points referred to a cost risk analysis being necessary. We are not satisfied that in determining whether or not there is a relevant defect this is relevant. The test makes no reference to cost. In our judgment in defining if there is a relevant defect one considers whether or not there is a building safety risk which in this instant would be the spread of fire.[228]Overall we believe there is a risk of a spread of fire from EWT2 & 5. Both have exposed PIR core which is combustible. We have considered carefully the testing and reports. However the tests, notably the LPS1181, relate to and are designed for commercial premises. The various examples of fires shown within the bundle are very different premises to the instant Property. We prefer the evidence of Ms Sheehan and that within the bundle that fire could spread from these panels due to the exposed cores. We also find that there is a lack of cavity barriers which is of itself a further relevant defect. Both experts accepted there was a lack of cavity barriers. We find that there is a risk of the spread of fire from one panel to the next including by way of leapfrogging notwithstanding any charring that may occur.[229]We do not consider the documents from Kingspan to be helpful. It is not clear whether or not cavity barriers and encapsulation should be required. However looking at the tests and what we now all know, in our judgement a failure to have such in place could lead to a spread of the fire. Mr Browns analysis within his supplemental report of the BS8414 appears to show that flames could rise significantly and in our judgment this shows a spread of fire. We are not satisfied that the charring which both experts accept would occur would prevent the spread of fire. The charring may limit spread but not prevent the same. As a result we are satisfied that the EWT2 & 5 panels constitute a Building Safety Risk of spread of fire and a relevant defect.[230]We must consider now whether or not we should make a Remediation Order.[231]Both parties agree we have a discretion. We agree. 26[232]We note that it is accepted that the Respondent has been aware that the Property has defects for about 5 years. To date work has not been undertaken. We do accept that an organisation such as the Respondent and its parent company Unite need to balance their overall obligations across their portfolio as a whole. We were told at the outset that they undertook a risk based approach. However it became apparent as the evidence developed that this was only part of what was taken into account. Costs and financial matters generally appear to have weighed heavily as was acknowledged by Mr Parmar when he referred to the requirements of lenders.[233]We accept for commercial entities that costs will always be a consideration. It would be unrealistic to not accept this and it was perhaps unfortunate that the Respondent did not adopt a more straight forward approach in presenting its evidence on this point.[234]Equally we have no doubt that Mr Buckley-Sharp and his client have the value of their interest in mind. However we were satisfied that the need for remediation of a defective building was also important to the Applicant. This is what one would expect from a large corporate entity following on from the dreadful events of the Grenfell Tower tragedy.[235]We note that the making of a Remediation Order is not a punitive step. It is an aim of the Act to improve the safety of all residential buildings.[236]We have considered the various authorities and in particular that relating to the The Chocolate Box, being another large building in Bournemouth. In that case it was the Secretary of State who sought an order. By the time the matter came to hearing works were underway. Notwithstanding this the Tribunal did make a remediation order.[237]In this case there is no certainty as to when works will begin. We are told they are to be included within this year’s scheduled works but it was unclear following the Respondents witnesses evidence and in particular that of Mr Pyrah and Mr Parmar as to whether or not further board approvals would be required. We heard the opportunities for obtaining Board approvals are limited to Board meetings in the summer of each year.[238]Mr Nissen KC suggested that no statutory authority had taken action. He explained when an improvement notice had been served upon provision of information this had had withdrawn. We note however there was no evidence as to the satisfaction or otherwise from the local authority or the fire service. We place little emphasis on the fact no authority had taken any action, cogent as we are as to the limited resources available to such bodies.[239]Overall we are satisfied that we should exercise our discretion and make a Remediation Order. We take account of the actual day to day 27 occupants of the Property and our findings as to defects which require works to be undertaken. These works are significant. We consider that the Respondent has been aware of the need for works for at least 5 years. The works are to remedy a building safety risk being the spread of fire and we consider it is consistent with the previous decisions in circumstances such as this to exercise our discretion and make such an Order. In our judgment the making of such an Order is in furtherance of the objectives of the Act.[240]We therefore make an order in the terms attached. We have considered the period of time and have taken account of the evidence of Mr Joel. We are satisfied that such a lengthy contingency period as suggested by Mr Nissen KC is not required.[241]We have also considered carefully the need for the Respondents to obtain consent from the Applicant. Whilst issues were raised as to the form of licence and whose solicitor should provide the form to be used these are in our judgment usual commercial matters that parties should be able to agree. Plainly the Applicant wants works undertaken. We believe such negotiations can take place in tandem with any application to the Building Safety Regulator. In our judgement if agreement cannot be reached this may be grounds to seek a variation of the order.[242]As to the extent of the works we have considered matters carefully. We are concerned that due to the lack of evidence encapsulation alone of EWT2 & EWT5 may not be sufficient to ameliorate the risk found. However this is Ms Sheehan’s position (Mr Brown contends no works are required and the risk is tolerable). We did struggle to understand how she reached this view given her concerns expressed in her reports as to the panels. It seems to us such panels as are in place are a Building Safety Risk and ought to be removed notwithstanding the very high cost. However that was not what either party contended for and we make our Order on the basis of the submissions made to us. 28[3]RIGHTS OF APPEAL A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application by email to rpsouthern@justice.gov.uk The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision. If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed. 29 FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference(s) Property Applicant Representative Respondent Representative Type of Application Tribunal Member(s) Date of Hearing Date of Order : : : : : : : : : : HAV/00HN/BSA/2024/0001 and 002 Blocks A and B Purbeck House, 3 Oxford Road, Bournemouth BH8 8ES Barclays Nominees (George Yard) Limited Robert Bowker instructed by CMS Cameron McKenna Nabarro Olswang LLP LDC (Oxford Road Bournemouth) Limited Alexander Nissen KC instructed by Walker Morris LLP Application for a Remediation Order Section 123 Building Safety Act 2022. Regional Judge Whitney Andrew Thomas FRICS MIFireE RBI Amanda Clist MRICS 21, 22, 23 and 24 January 2025 and 3 March 20258th May 2025 Corrected pursuant to Rule 50 on 16th May 2025 REMEDIATION ORDER UPON considering the applications, evidence and submissions in this matter and the provisions of the Building Safety Act 2022 AND for the reasons set out in its Decision dated 8th May 2025 THE TRIBUNAL ORDERS THAT:[2]The Respondent, LDC (Oxford Road Bournemouth) Limited (the relevant landlord) shall remedy the relevant defects as determined by the Tribunal in accordance with the attached schedule (the "Works") in Block A and Block B, Purbeck House, 3 Oxford Road, Bournemouth (the "Building"). The Respondent shall do so within 24 months from the date of this order The parties have permission to apply, including but not limited to in relation to paragraphs 1 and 2 and the schedule of Works overleaf. In particular, the Respondent has permission to apply:•• To be permitted to undertake different Works to those specified in attached Schedule by this Order, if it is revealed by investigation and analysis by a suitably qualified consultant that reasonable alternative works will remedy the relevant defects and to extend the time for compliance with this Order.[3]Any application to the Tribunal must: i) ii) iii) iv) be made using the Tribunal’s Form “Order 1”; be supported by detailed evidence explaining the reason for the application and a proposed draft order setting out the variation sought; There is permission to the Respondent to rely on relevant expert evidence in support of the application; and include a realistic time estimate for the application to be heard.[4]The Respondent must notify the Tribunal and the Applicant, that it has complied with this Order, within one month of the certified date of practical completion of the Works. The form of this shall be••• a Section 16 (Building Regulations 2010) declaration of compliance with the Building Regulations. Statement from the respondent that all remediation works to remove relevant defects are completed. Copy of the post works Fire risk assessment with particular reference to External walls, Cavity Barriers FRAEW. and Fire doors. This may contain a[5]Pursuant to section 123(7) of the Building Safety Act 2022, this Order is enforceable with the permission of the County Court in the same way as an order of that court. 2 SCHEDULE OF WORKS By 8 May 2027 LDC (Oxford Road Bournemouth) Limited is required to remedy the relevant defects in Block A and Block B, Purbeck House, 3 Oxford Road, Bournemouth as specified below:[1]In respect of the terracotta rainscreen system (EWT2), carry out all work necessary to remedy the relevant defects such works to include:(a)(b)(c)(d)(e)(f) closing the exposed edges of the PIR core of the Kingspan MR panel behind the window, sill, head and jambs; installing cavity barriers around the reveals that cross the rainscreen cavity; adding steel flashings around the service penetrations; adding steel flashings around the vertical edges of panels where the insulation core is exposed; adding flashings to the openings formed by mast climbers during the original project; adding steel flashings to openings formed by and replacing insulation material removed during intrusive inspections carried out in the course of investigations.[2]In respect of the Kingspan MR panels (EWT5), carry out all work necessary to remedy the relevant defects such work to include:(a)(b) closing the exposed edges of the PIR core of the Kingspan MR panel behind the window, sill, head and jambs; adding steel flashings or an alternative suitable form of protection (i) (ii) (iii) on the vertical edges of the panels where the insulation core is exposed on the horizontal edges of the panels where the insulation is exposed; to the openings formed by mast climbers during the original project; (iv) to openings formed by and replacing insulation material removed during intrusive inspections carried out in the course of investigations[3]In respect of the insulated curtain walling (EWT4): 3(a) carry out all work necessary to remedy the relevant defects such work to include removing and replacing the combustible insulation with a suitable alternative, namely, to replace with materials which are classified in accordance with A2-s1, d0 or A1, classified in accordance with BS EN 13501- 1:2007+A1:2009; and(b) new cavity barriers should be installed to compartment lines and edges of cavities.[7]In respect of the metal window pods (EWT3), carry out all work necessary to remedy the relevant defects such work to include removing and replacing the combustible insulation with a suitable alternative including the replacement of cavity barriers. In respect of the metal louvre cladding (EWT6), carry out all work necessary to remedy the relevant defects such work to include removing and replacing the combustible insulation with a suitable alternative including replacing cavity barriers. In respect of the undercroft parking soffit, carry out all work necessary to remedy the relevant defects such work to include removing and replacing the combustible insulation with a suitable alternative. Carry out the works identified at paragraphs 1 to 6 above (the “Works”) and remedy the specified relevant defects in compliance with the Building Regulations applicable at the time the Works are carried out.[8]Carry out the Works so that the relevant defects no longer exist.[10]Carry out the Works in accordance with PAS 9980 so that a satisfactory FRAEW is issued. Make good any damage caused as a consequence of the Works. 4