Whether a Remediation Order Which Included Non-Specified Additional Defects Should Be Set Aside (Monier Road Ltd v Nicholas Alexander Blomfield and Other Leaseholders – 2025)

Where the First-tier Tribunal makes a remediation order which specifies defects not included in the original application, does it exceed its discretion such that the order should be set aside?

The background

In Monier Road Ltd v Nicholas Alexander Blomfield and other leaseholders [2025], an application was made for a remediation order by a number of leaseholders at the subject property, which comprises 45 residential flats as well as a number of commercial units. External parts of the building featured timber wall coverings, composite board decking and an attractive internal courtyard area. The remediation order sought by the leaseholders was intended to require remediation of parts presenting a fire safety risk.

The building had been constructed in 2018. The respondent now holds the freehold, and the building is managed by an appointed property management company. The leaseholders stated that their flats were difficult to sell or to obtain a mortgage over as a result of the fire safety risks. The respondent did not object to the making of a remediation order, and supplied a draft remediation order to the First-tier Tribunal, based on the findings of a fire risk report, which contained provisions in respect of:

• Replacement of timber cladding
• Installation of cavity fire barriers
• Production of a further Fire Risk Appraisal of the External Wall report following completion of the works
• Works to be completed within 52 weeks of the contract being entered into with the contractor.

The First-tier Tribunal considered wider issues in its judgment, including property balconies, walkways and bin stores which went beyond the matters raised in the leaseholders’ application and which further reports had concluded did not require remediation.

The FTT made the remediation order, including obligations to remedy the additional issues. The freeholder appealed to the Upper Tribunal, arguing that the FTT had gone beyond its discretion by including additional defects despite expert reports to the contrary.

The decision

The Upper Tribunal agreed with the freeholder, finding that the FTT had exceeded its discretion and setting aside the remediation order, substituting this with an order that excluded the additional defects.

The expert evidence had not been challenged, and no party had argued for the inclusion of the additional defects in the FTT’s remediation order. The additional defects were not required to be included by statute and did not require inclusion for clarification purposes.

The UT found that the FTT’s approach had been irregular and unfair, as the freeholder had not been given opportunity to address the additional defects and the FTT did not give reasons in its judgment for making an order contrary to the expert reports.

Advice and action for landlords

This decision is reassuring for landlords and management companies, affirming that orders made by the FTT which go beyond the matters pleaded by the parties should be set aside, particularly where there is no dispute over such additional matters.

The freeholder had supported the making of a remediation order in this case on the grounds of specified defects that aligned with expert evidence. It would be improper for the freeholder to fund and deliver the remediation of matters which were not identified by experts as defects, nor which the leaseholders sought remediation of in any event.