Monier Road Limited v Nicholas Alexander Blomfield and Other Leaseholders [2025] UKUT 157 (LC)

By Ben Smith [1] with contributions from Oliver Weisemann [2] and Millie Nash

Overview

This is a decision from the Upper Tribunal (“UT”) in an appeal against a remediation order made by the First-tier Tribunal (“FTT”) under the Building Safety Act 2022. The decision is interesting and relevant to construction and property practitioners as it makes clear:

• that an application for a remediation order does not require the FTT to undertake its own analysis of the building;
• when the FTT can raise new points not advanced by the parties and/or use its own expertise; and,
• that proceedings before the FTT are an adversarial (not inquisitorial) process.

The Facts

The building and the parties

The building comprises two blocks of a single mixed-use residential and commercial development set out around a quadrangle which encloses a courtyard with a shared garden and large wooden planters. The street-facing walls of the building are brick, with some flats having balconies. The courtyard walls are constructed with timber cladding and combustible insulation. There are bin stores on the street sides of the building, with louvred metal doors.

MRL is the freeholder and there are 29 leaseholders, each with a long lease of one of the flats.

The MAF Report

In October 2022, on the instructions of MRL, Michael A Fox Associates (“MAF”) produced a comprehensive report assessing the building’s fire risk, including a PAS9980 assessment. The report recommended four actions be carried out to the building:

1. Remove and replace the non-compliant timber cladding and combustible material on the external walls within the courtyard;
2. Remove the bins from against the external wall and move to the secure non-combustible bin store;
3. Repair the doors to the bin stores; and
4. Install smoke detectors in rooms with walls within the timber cladding system.

Significantly, the MAF report noted that although there was timber cladding found on some of the balconies, the risk of fire spread between balconies was low. It considered the presence of timber decking on the walkways to be a risk of fire spread, but did not recommend that the walkways be remediated. The report also concluded that it considered the fire escape strategy to be satisfactory.

The FTT Proceedings

On 22 November 2023, in reliance on the MAF report, the leaseholders applied to the FTT for a remediation order to replace the cladding and combustible insulation in the courtyard.

In advance of the hearing, the leaseholders set out the further work they wanted done, including the replacement of the front fire doors of each property and the internal fire doors of the communal areas (if required).

The hearing

At the hearing the FTT put to the parties its own concerns that the building might be a higher-risk building, and that the recommended works did not include dealing with substantial amounts of timber on the walkways, balconies and roof terrace; that the courtyard contained wooden planters and planting; and that it wanted to know what account had been taken of the risks generated by the bin store, flat entrance doors, louvres and panels to windows and balconies. The FTT adjourned the hearing so MRL would have the opportunity to consider and respond to its concerns. The FTT directed MRL to provide an expert report addressing the following items:

• Balconies
• Communal walkways
• Flat entrance doors
• Louvres and panels
• Roof terrace
• Bin store
• Whether the flat entrance doors are identified as relevant defects.
• Confirmation of and proof of remediation of communal doors.

MRL procured a report from Building Envelope Fire Solutions (“BEFS”). The BEFS report concluded that if the timber cladding was replaced, that would sufficiently reduce the risk presented by other combustible materials, and that no further remediation works were required, i.e., it was largely consistent with the MAF Report.

The FTT’s decision and the remediation order

The FTT subsequently carried out a site visit and held a hearing. The decision records what happened at the hearing under two headings:

“Leaseholders’ issues”: the FTT noted that the leaseholders were concerned about the aesthetics of the remediation work, about the cost (as to which MRL confirmed that it would fund the works itself) and about the choice of contractor.

“The tribunal’s issues”: the FTT recorded that it was concerned about the timber elements of the walkways and balconies and about the timber planters. It also recorded its concern about doors and the bin stores.

The FTT acknowledged that the BEFS report concluded that if the timber cladding was replaced, the risk presented by other combustible materials would be sufficiently reduced and that no further remediation works would be required. However, it was highly critical of both the MAF and BEFS Reports. The FTT (incorrectly) stated that there had been no risk assessment under PAS9980. It also stated, contrary to the evidence before it, that:

• The walkways should be constructed of non-combustible materials.
• The wall cladding in the balconies should be replaced with non-combustible materials.
• There is a risk of fire spread from one balcony to another or from the bin stores.
• It had been given no evidence about the implications of a fire in the bin stores and therefore considered that there was a considerable risk of fire spread.
• The decking on the roof (which it said it had measured at the site visit) and the planters were an unacceptable risk of fire spread.The FTT said that it accepted the professional judgment of the authors of the report that the flat entrance doors were not a fire risk.

The Remediation Order

On 2 July 2024, the FTT granted a remediation order including items additional to the cladding and insulation to the courtyard walls (item B) (the “Additional Items”):

“The Respondent shall remedy the

1. balconies, including the walls and floor decking and construction,
2. external walls, including the courtyard and street elevations,
3. bin stores
4. courtyard walkways
5. courtyard floor area – including planters, flooring and other combustible materials
6. roof terrace, including flooring and planters”

The Grounds of Appeal

Perhaps unsurprisingly, MRL applied to the FTT for permission to appeal on the basis that the inclusion of items not within the scope of the leaseholders’ application was a serious procedural irregularity and a breach of natural justice. However, the FTT refused permission to appeal. MRL then applied to the UT, which gave permission to appeal.

MRL’s appeal was based on five grounds:

1. The FTT should not have raised the Additional Items at the hearing and did not follow a fair procedure having done so.
2. There was no evidence before the FTT that the Additional Items were relevant defects, let alone that they required remediation.
3. The FTT inappropriately used its own expert knowledge to make findings contrary to the evidence before it.
4. The FTT never put it to MRL or to its experts that the Additional Items were, contrary to MRL’s unchallenged evidence, relevant defects, nor that they required remediation.
5. Two of the Additional Items (the street-facing walls and the courtyard floor) were not identified at the hearing as matters to be addressed by the BEFS report.

The Appeal Decision

The UT ultimately set aside the FTT’s decision and re-made the remediation order excluding the Additional Items for the following reasons:

The FTT’s raising of the Additional Items on its own initiative

The UT summarised the legal position as follows:

1. The FTT is entitled to raise points not raised by the parties. In fact, this necessarily part of its function, given it deals with applications brought by tenants, who, not being experts, may only have a vague and unfocused understanding of the injustice they have suffered.
2. There will be three distinct occasions where it will be appropriate for a tribunal to raise a new point:
   1. Where the tribunal needs to raise a new point on the basis that it may not have jurisdiction to decide the issue before it, or on the basis that there is a fundamental problem with a party’s case.
   2. Where a statute requires the tribunal to address a matter that the parties have not raised.
   3. Where it is necessary to clarify a party’s case.
3. Where a tribunal raises a new point, it must follow a fair procedure. The role of the FTT is limited to raising a new point is limited to raising the point. It is then up to the parties to pursue the new point.
4. Raising a new point is a matter of discretion, and the decision to exercise this discretion will not be interfered with on appeal unless the decision is one that the appeal tribunal finds is one that no reasonable tribunal could have taken.
5. Proceedings in England and Wales are adversarial, and not inquisitorial. It is for the parties to present their cases and the tribunal to decide between them. It is inappropriate for the tribunal to suggest or argue a case for either party.

Accordingly, the UT decided that the FTT can order the remediation of defects which are not specified in the application form on the basis that the extent of the application may well change once the parties have formally pleaded their cases, or they may seek to amend their pleading later.

The UT also decided that in raising the Additional Items, the FTT had exceeded its discretion and its decision to do so was one that no reasonable tribunal could have made. The UT made it clear that the FTT had taken it upon itself to conduct a building safety audit when it did not have the authority to do so.

Moreover, having raised the Additional Items the procedure adopted by the FTT was unfair. The FTT did not invite the leaseholders to amend their pleadings or in any way make their case regarding these, and instead effectively made itself a party to the dispute. Accordingly, the UT also considered the inclusion of the Additional Items as a breach of natural justice.

Decision contrary to the evidence

The UT also decided that the decision taken by the FTT was contrary to the evidence and as it had not given any explanation for this the decision had to be set aside.

Inappropriate use of the FTT’s expertise

A further point which the UT took issue with arose as a result of the FTT’s refusal of permission to appeal, which stated that the FTT had set out why it had, as an expert tribunal, disagreed with the expert evidence before it.

However, as noted above, the FTT’s decision in fact did not give its reasons for disagreeing with the body of evidence before it. The UT also considered the FTT’s reference to its own expertise unhelpful, commenting that expertise is not evidence, and the possession of expertise did not entitle the FTT to ignore the evidence before it. Accordingly, the UT found that insofar as the FTT’s decision was reached in reliance on its own expertise it was unfair and for must be set aside.

The matters were not put to MRL or its expert witnesses

The FTT did not put its views on the Additional Items to MRL’s expert. The UT stressed that it is crucial that a party and its witnesses have the opportunity to answer the case against it. This was an additional reason why the decision was unfair and could not stand.

Additional Items not identified in the 27 March 2024 order

The UT agreed that the inclusion of additional items in the Remediation Order, which were not identified at the March hearing was another reason why the FTT’s decision was unfair.

Conclusion

In summary, the FTT can exercise its discretion in limited circumstances, and with good reason, to raise new points as long as it follows a fair procedure. It must also adhere to the adversarial procedure it is a part of, i.e., it is for the parties, not the tribunal, to advocate these points and for the tribunal to decide between the parties.

This decision is a very welcome statement on the limits to the FTT’s authority, which should give parties greater certainty when litigating claims in the FTT.