An RO is an order of the FTT under section 123 of the BSA, requiring a landlord to remedy defects causing a safety risk in a residential building, where certain qualifying conditions are met.
The first RO under the BSA was granted on 9 August 2023, in the case of 2-4 Leighham Court Road¹. At the time of writing, less than two years later, the FTT has awarded another 14 ROs. That is an impressive caseload for a new remedy. For context, in the period from October 2023 to September 2024, there were only 11 contested trials in the London TCC².
FTT decisions do not act as a precedent and do not bind later tribunals. The only UT decision on ROs which does act as precedent came recently in Monier Road Ltd v Blomfield & Ors [2025] UKUT 157 (LC) (which resulted in an RO being reduced in scope and is discussed elsewhere in this issue). Nevertheless, the FTT decisions show an emerging body of practice, which is instructive to anyone involved in RO proceedings. Some tentative lessons from the cases are set out in this article.
Leaseholders win; landlords lose
The FTT has only once refused to grant an RO and that was on jurisdictional grounds (the respondent was not a relevant landlord³). Leaving that decision aside, every application for an RO has been successful.
The interesting question is not why applicants have been successful in these cases. One of the main purposes of the BSA is to compel landlords to carry out remedial works, and so it would be surprising if the FTT were refusing relief to tenants. Instead, the interesting question is why, given the near inevitability of the FTT granting an RO, these disputes do not settle.
The answer may be that settling these disputes is challenging. An RO requires a landlord to actually carry out remedial works. A landlord facing an application cannot just put its hand in its pocket to make the dispute disappear.
The FTT is willing to make an order even where a landlord has said it is willing to carry out the required works, essentially in order to hold the landlord’s feet to the fire (see Space Apartments and 8 Artillery Row4 ). The FTT has been willing to make a suspended order, where another party (the developer) was already in the process of undertaking remedial works (see Empire Square5 ). A landlord wishing to avoid contested proceedings may be compelled to agree an RO by consent (as in Prince Park Apartments6).
Unfettered discretion
The limits of the FTT’s discretion to make an RO remain unclear. In Chocolate Box, it was suggested that the FTT would consider whether making an order was “just and equitable”, i.e. the test for making an RCO, despite the phrase not appearing in s123 of the BSA.7 However, in Empire Square, it was suggested that the discretion is in fact “unfettered” and the FTT should ask itself “what the best answer is in this application, to achieve remediation of the relevant defects in the building for the safety of leaseholders.”8
It is submitted that the tribunal in Empire Square is correct in a strict sense: the BSA does not fetter the FTT’s discretion. Nevertheless, the absence of an express fetter does not prevent the FTT from developing its own practice as to when orders will be granted, and tribunals should not disguise their decision making process by appealing to the unfettered nature of their discretion. It is notable that, despite stating that its discretion was unfettered, the tribunal in Empire Square nevertheless attempted to formulate its own test for when an order would be appropriate. It may be that the contours of the discretion will only become clear when a tribunal refuses to grant an RO on discretionary grounds.
Flexible and pragmatic orders
When making remediation orders, the FTT faces the following difficulty: how to ensure that remedial works are carried out properly when the applicants (usually leaseholders) may be unable to verify that themselves? Tribunals have devised a number of solutions.
The FTT has decided that it can retain jurisdiction until the completion of works, so that it can adjust the scope or timing of its order (see 8 Artillery Row9 ). After the works, the landlord may be required to produce a Fire Risk Appraisal of External Walls pursuant to PAS 9980: 2022 showing that risk has been reduced to an acceptable level (see, e.g., Purbeck House10).
More controversially, tribunals have also required landlords to obtain a Form EWS1: External Wall Fire Review for the property after completion of the works (8 Artillery Row11). An EWS1 form is a document required by lenders when considering offering mortgages for high-rise residential buildings. Requiring landlords to obtain such a form does not sit easily within the scheme of the BSA, which is intended to protect against safety risks, not economic ones.
There are limits to how far orders can go. A tribunal has decided that it could not require a landlord to use certain materials so as to accord with the aesthetic preferences of leaseholders (see Smoke House & Curing House12).
The works specified in ROs range from the minimally defined as in Spur House (“Install new external wall system … to be compliant with Building Regulations in force at the time of installation”13) to the comprehensive as in Vista Tower (where a full schedule of remedial works was appended to the order14).
It’s a success
While the jurisdiction to make remediation orders is still developing, it has already shown itself to be a success. It is suggested that, in this context, success is a numbers game. The object of the ROs is to force landlords to remedy building safety risks and to do so quickly. That is what the FTT has been diligently doing.
John McMillan has acted in fire-safety disputes in the High Court and FTT.
1 LON/00AY/HYI/2022/0005 & 0016
2 https://www.judiciary.uk/wp-content/ uploads/2025/02/TCC-annual-report-23-24-Final-006. pdf
3 Thanet Lodge LON/00AE/BSA/2024/0007, 0500 & 0502
4 LON/00AP/HYI/2022/0017 and LON/00BK/BSA/2024/0004
5 LON/00BE/HYI/2023/0013 and LON/00BE/BSB/2024/0602
6 LON/00AG/BSA/2024/0009
7 CHI/00HN/HYI/2023/0008 (1)
8 LON/00BE/HYI/2023/0013 and LON/00BE/BSB/2024/0602
9 LON/00BK/BSA/2024/0004
10 HAV/00HN/BSA/2024/0001 and 0002
11 LON/00BK/BSA/2024/0004
12 LON/00BG/HYI/2023/0024 (appealed on other grounds)
13 LON/00BA/HYI/2023/0017
14 CAM/26UH/HYI/2022/0004
