Focus Apartments: a ‘gentle’ remediation order case?
The First-tier Tribunal has handed down another remediation order (“RO”) case involving Grey GR (the railway pension fund), in an application brought by the Secretary of State. Although the decision itself was handed down in July 2024, it has only just been published.
Grey, as an investor in ground rent portfolios, has found itself lumbered with several Higher Risk Buildings in need of significant fire safety remediation works. It has therefore had the misfortune to appear in several FtT decisions already, including the Chocolate Box, Vista Tower, and Bracken House/Timberbeck. The FtT in this case (Focus Apartments in Ipswich) referred to the previous decisions and noted that, in the majority of them, Grey had shown it was willing and starting to complete the remediation works. Grey’s past ‘good behaviour’ appears to have held some weight in this case with the FtT, who noted that Grey had effectively consented to an RO being made, had made significant progress in applying for funding from the Building Safety Fund, and had submitted an application to Building Safety Regulator to sign off for the works.
The only real issue between the parties was whether Grey should be allowed a grace period in which to complete the works. This would be a provision in the RO specifying that Grey would not need to apply for an extension to the deadline provided it finished within the set grace period. A grace period had been awarded in previous cases, but the government had since got cold feet as to whether the FtT had the required jurisdiction to award them, instead preferring to phrase potential delays as ‘contingency’.
The FtT was sympathetic to the complexities of the remediation project, and the fact that much of the timing was driven by factors outside Grey’s control, such as Regulator sign off and third party consents. It was not persuaded that specifying a deadline for completion of the remediation works which was very close to the estimated completion of the works programme was appropriate.
The FtT pointed out that this was not a case where short deadlines were needed to force a recalcitrant landlord to engage, and that short deadlines would be more likely to increase distraction and dispute between the parties, ultimately delaying completion of the works.
It therefore chose to set a deadline of 6 months after the projected completion date in the works programme, thus avoiding the need to award a grace period or expressly factor in contingencies. However, it did also require Grey to update leaseholders and the government if they did not think they would be able to meet their projected works programme completion date, in the interests of transparency.
The message to landlords is surely this: if the FtT has lost faith in your willingness and ability to progress matters swiftly, you will find yourself on a very short leash. Better, then, to be proactive and demonstrate engagement, in order to earn yourself the relative freedom to progress the works as you see fit.
Subcribe to news and viewsAs with Vista Tower, we are not satisfied that this is a case where an order providing for short deadlines or active intervention is needed to put pressure on a landlord who is failing to engage. Our approach is intended to avoid doing more harm (by risking interference with the contractual mechanisms which should soon be in place, or otherwise causing distraction and delay) than good.
https://assets.publishing.service.gov.uk/media/67e515f67903e752b7fd88c4/Decision_-_Focus_Apartments__Ipswich_-_RO.pdf
