Remediation order and remediation contribution order applications – a potential headache

Robert Bowker considers important recent changes in relation to remediation order and remediation contribution order applications.

On 31 October 2024, changes to the Building Safety Act 2022 brought about by the Leasehold and Freehold Reform Act 2022, came into force by The Leasehold and Freehold Reform Act 2024 (Commencement No. 1) Regulations 2024 (SI 2024 No. 1018). By regulation 2, these included changes to remediation orders and remediation contribution orders.

Section 114 of LFRA amends section 120 of the BSA by introducing the concepts of “relevant steps” and “relevant measure”.

These new concepts, by sections 115 and 116 of LFRA respectively, affect ROs and RCOs. An application for a RO and a RCO can now include claims in respect of relevant steps and relevant measures. And, in that context, the FFT is given explicit powers in respect of orders for the production of expert reports.

This short article will not focus on the definitions. The underlying meaning and purpose are reasonably clear from the operative verbs used in the new provisions – see the words “preventing” and “reducing”.

Instead the focus here is on sections 115(5) and 116(7) of LFRA which create a potential, immediate headache for practitioners.

Section 115(5) reads as follows (emphasis underlined):

“The amendments made by this section apply in relation to proceedings for a remediation order as mentioned in section 123 of the BSA 2022 which are pending on the day on which those amendments come into force (as well as proceedings for such an order which are commenced on or after that day).”

Section 116(7) is in similar terms and reads as follows:

“The amendments made by this section apply—

(a) in relation to proceedings for a remediation contribution order under section 124 of the BSA 2022 which are pending on the day on which those amendments come into force (as well as proceedings for such an order which are commenced on or after that day);

(b) in relation to costs incurred before as well as after those amendments come into force.”

Where an application for a RO or a RCO has been made but not yet determined, consideration will need to be given about whether it is now necessary to apply to the FTT for permission to amend the applicant’s statement of case to specify claims in respect of relevant steps and relevant measures.

Applicants will not want to find at a final hearing, which might be weeks, months or years away, that the door is closed on aspects of a claim in respect of relevant defects – claims for works under ROs or for money under RCOs – that might have been better articulated in terms of relevant steps or relevant measures.

Similarly, the express powers in respect of expert reports might be appropriately exercised now in the context of ongoing proceedings.

In reality, the new provisions might make little difference to the issues already set out in the parties’ statement of case. But practitioners involved in ongoing cases ignore the changes at their peril. Statements of case will need to be reviewed in the light of these changes and, where necessary, applications made to amend.

Robert Bowker is a barrister at Tanfield Chambers.