Rupert Cohen appears in “Empire Square” – new law on remediation orders and remediation contribution orders

The FTT has just handed down its decision concerning Empire Square, a development in South London. The lessees of Empire Square sought a remediation order against the landlord in respect of defective cladding. The landlord, in turn, sought a remediation contribution order against the developer, Berkeley Homes.

A particular aspect of the proceedings which was unusual is that Berkeley had signed the developer pledge and the self-remediation terms in which it agreed with central government to take responsibility for the defects in the building. This was the first time the FTT had to decide whether to make a remediation order where a developer was positively asserting that it was going to remediate the building in question.

The decision of the FTT departs from earlier decisions and creates a raft of new law. It provides that: (i) “Chocolate Box” is wrong; the test for making a remediation order under s.123 is not “fair and just”, rather, the decision is “unfettered” so long as it “achieves remediation” and is within the “range of reasonable decisions” (§83 – 87); (ii) legal costs incurred by a party in remediation order and remediation contribution order proceedings can form part of a RCO (§192); and (iii) the FTT has jurisdiction to order that both RO and RCO be suspended on terms (§233 – 243).

The order made by the FTT suspended the remediation order to give Berkeley a final opportunity to complete stages of the remedial works by various deadlines failing which the landlord would have to remediate the building. In that event the remediation contribution order provides that Berkeley would have to pay the landlord over £9.5 million to enable it to remediate the building. Entirely separately the RCO also provides that Berkeley is to pay the costs incurred by the landlord in both the RO and RCO applications.

A copy of the judgment is available [here], the remediation order [here], and the remediation contribution order [here].

Rupert Cohen acted for the respondent, Fairhold Athena Limited, instructed by Womble Bond Dickinson.