In this Decision, the FTT determined a preliminary issue was to whether the external walls of a development constituted a Relevant Defect within the meaning of section 117 of the BSA. The FTT decided that a building safety risk included any risk, howsoever small, to the safety of people in or about the building arising from the spread of fire, or the collapse of the building or any part of it.
Issue for the FTT
On the preliminary issue hearing, the FTT was only assessing the existence of a relevant defect, i.e. whether there was a building safety risk. The FTT was not assessing the severity of the risk, which would be relevant for a decision on what remedial works were required.
Approach to relevant defects from previous decisions
The FTT confirmed at §30 the approach from its previous decisions that:
(a) Whether something is a relevant defect is to be assessed at the date of the hearing before the FTT: Waite v Kedai.
(b) Whether or not the works or construction complied with the Building Regulations in force at the time of the works was not the relevant question. Instead, the correct question was whether there is a defect that causes a building safety risk in the light of today’s knowledge: Waite and Vista Tower (FTT).
(c) The burden is on the Applicant to show a prima facie case that there are relevant defects.
Issue before the FTT
The issue before the FTT was whether any risk arising from the spread of fire or building collapse could be a Relevant Defect. Or whether there was a threshold below which a risk could be considered tolerable so was not a Building Safety Risk.
The Respondent argued that all buildings carried some degree of risk of fire spread and so there must be some defects where the risk is so low that they cannot amount to a Relevant Defect. For example, the Respondent said that an external wall assessed to be “low risk” in a PAS 9980 assessment could not be a Relevant Defect.
The Applicant case was that a building safety risk, included any “risk”, however small.
FTT’s decision
The FTT decided at §37 that:
(a) A building safety risk included any risk, howsoever small, to the safety of people in or about the building arising from the spread of fire, or the collapse of the building or any part of it.
(b) There was no threshold below which a risk could be tolerable and so not constitute a Relevant Defect.
The FTT explained at §38 that in assessing whether there are Relevant Defects, it was no part of its role to assess the degree of the risk, or whether it exceeded that ordinarily present in a building of this nature.
The FTT referred at §39 to 41 to its earlier decision in Vista Tower (which the UT has now upheld on appeal, reported elsewhere in this BSA update). In Vista Tower, the FTT had said that a medium or tolerable risk in a PAS 9980 assessment could still be a Relevant Defect. The FTT in this case said:
(a) The approach in Vista Tower did not mean that a low risk could not be a Relevant Defect.
(b) If in Vista Tower the FTT had found that a low risk could not be Relevant Defect, it was incorrect.
On the facts of this case, the experts had agreed that three of the seven external wall types contained building safety risks. The FTT held that three other external wall types contained building safety risks. Interestingly, despite their views on the law focusing on the question of whether there was any risk, the FTT’s analysis largely focused on the Building Regulations.
For the final external wall type, the FTT held that there was insufficient evidence to conclude whether there was a building safety risk because both experts agreed that further investigations were necessary.
Commentary
As a matter of interpretation, the FTT was correct to state that the definition of Relevant Defect in s 120 of the BSA did not refer to a tolerable, low, medium, unreasonable, or unavoidable risk.
However, the threshold it has set of any risk is a very low one, as the FTT recognised. Any building may have some risk from the spread of fire or structural collapse, without it being regarded in traditional terms as defective or contrary to the Building Regulations.
Lowering the threshold requirement of a Relevant Defect to such an extent, greatly increases the jurisdiction of the FTT to make ROs and RCOs.
The FTT suggested at §42 and §43 that the answer to this concern was that the finding of a building safety risk only established the jurisdiction to make an RO or RCO. The Tribunal then still had a discretion to make an RO and may decide that it is inappropriate to order remediation if the level of risk is too small.
For an RCO, the “just and equitable” test may provide such a safeguard.
However, there is no such wording in s 123 for an RO and the FTT has in Empire Square held that it has an unfettered discretion as to whether to make an RO.
Taken together the combination of an unfettered discretion to make an RO with a jurisdiction to do so where there is any risk, opens up the possibility of remediation being ordered to a building which already complies with the Building Regulations in respect of fire safety and is generally accepted to be satisfactory for occupation. It seems unlikely that this was Parliament’s intent.
