FTT provides first guidance on the meaning of “Relevant Building” under the Building Safety Act 2022
Summary
In what is a notable decision for developers and landlords, the First-tier Tribunal (“FTT”) has for the first time considered the meaning of “relevant building” under section 117 of the Building Safety Act 2022 (“BSA”), finding that a 4 storey part of a building was nevertheless part of the “relevant building” and therefore could be subject to a Remediation Contribution Order (“RCO”) under s124 of the BSA.
The Pieris House decision clarifies how existing caselaw under the Commonhold and Leasehold Reform Act 2002 (“2002 Act”) and enfranchisement regimes applies in the context of Part 5 remediation claims and confirms that, for interpretation purposes, Parts 4 (relating to higher-risk buildings) and 5 of the BSA operate as independent frameworks.
This decision is an important indication of the role that the physical configuration of a development, particularly the degree of structural connection and integration of services between blocks, could play in determining the scope of liability for remediation costs under the BSA.
Background
Pieris House is a mixed-use development in Feltham comprising a higher rise part of Flats 1-28 (7 storeys, c.21m high) and a lower rise part of Flats 29-40 (3 storeys above ground-floor commercial units). The building was redeveloped by BDW Trading Limited (the Respondent) (“BDW”) between 2000-2005.
The two parts are connected by an enclosed steel-framed stair core (“Stair B”) which serves as a fire escape for both parts and is affixed to the reinforced concrete frame of the higher rise part. The sole entrance to 1-40 Pieris House is within the higher rise part, giving access to the primary stair core (“Stair A”) and a lift. To enter the lower rise part, the same entrance is used before accessing Stair B and the external steel-framed walkways found at each storey. Most of the building services originate in the higher rise part and are shared across both parts.
The higher rise part was an uncontested “relevant building” as it is at least 11m high and 5 storeys, as required by the BSA; however, the lower rise part would not independently qualify under the definition.
The FTT held a preliminary issue hearing to determine whether 1-40 Pieris House was a single relevant building.
Decision
A2Dominion South Limited (the Applicant) (“A2Dominion”) claimed the lower rise part formed part of the wider “relevant building” of 1-40 Pieris House, in order to seek a RCO for alleged relevant defects. BDW argued the lower rise part did not satisfy the definition for Part 5 purposes, contending that it was either a structurally detached building or a self-contained part of the wider building.
The FTT found that the lower-rise part did form part of the wider “relevant building” based on the following analysis.
Part 4 and Part 5 – Separate Frameworks
An issue was raised as to whether the definition of “higher-risk building” in Part 4 of the BSA, supplemented by the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023, could inform the meaning of “relevant building” in Part 5. The FTT held that both Parts contained separate definitional frameworks with a different purpose served by each – Part 4 concerns regulatory management of building safety in higher-risk buildings, whereas Part 5 is focused on remediating building safety defects. Whilst the FTT acknowledged a potential tension – that the same premises could be treated as a low-risk building for remediation purposes but a higher-risk building for management purposes – it found that the ordinary wording of the statute required the tests to be applied separately.
Existing Caselaw
There is substantial caselaw on the meaning of a “building or self-contained part of a building” arising from the 2002 Act and enfranchisement claims under the Leasehold Reform, Housing and Urban Development Act 1993. Both BDW and A2 Dominion relied on cases in this respect.
The FTT acknowledged that the definition of “relevant building” in the BSA was “save for some editorial choices, identical to the test set out in [the 2002 Act]”, however it made clear that construction of the meaning of “relevant building” should be carried out within the legislation of which it is part recognising that “safety is central to the construction of the provisions”.
Accordingly, whilst existing caselaw is of assistance in determining the scope of a relevant building, it should not be treated as determinative.
The Substantive Application
In determining whether the lower rise part is self-contained, the FTT applied the statutory test under section 117 of the BSA.
- Is the lower rise part structurally detached?
No – both structural engineering experts agreed that whilst there was no direct structural connection between the parts, there was indirect structural attachment via Stair B and by steel transfer beams.
The FTT considered CQN v Broad Quay to confirm that the test is whether the attachment is “structural” as opposed to non-structural, which in all cases will be a question of fact and degree. Whilst not fundamental to the test, structural interdependence in this instance was found to exist, which provided a “clear indicator” of structural attachment.
- Does the lower rise part constitute a vertical division of the building?
No – the FTT held that Stair B overhangs the commercial storey of the lower rise part, creating an “impermissible overhang (or in this case, under-hang)”.
- Could the lower rise part be independently redeveloped?
No – the FTT held that a structural reconfiguration of Stair B would be required which would amount to redevelopment of the higher rise part. The FTT further observed that leaving the higher rise part without one of two essential fire escapes, which could trigger a new fire strategy, was “itself an indicator that independent redevelopment was not possible”.
- Could relevant services be separated without significant interruption?
No – both experts agreed that safety services were a relevant service, but neither had the requisite expertise to provide their opinion and neither party sought permission to rely on safety expert evidence. As the BSA is to be construed in the context of building safety, the FTT treated this as a “fundamental evidential gap”. The FTT found that the evidential burden fell on BDW, since BDW was arguing that the lower-rise part was not part of the ‘relevant building’ and crucially, it failed to discharge that burden.
The FTT also considered the remaining services. It considered the impact on all services and held that the proposed disruption, for instance to the water (96 hours) and electrical service (24 hours) would, on the “balance of probabilities, likely result in a significant interruption”.
Conclusion
This decision confirms that the physical configuration of a building’s construction will determine the scope of Part 5 protections. Any individuals interested in interconnected or mixed-height buildings should take careful note: where blocks share structural elements and integrated services, they may be treated as a single “relevant building”, even where they may not be under other legislation, or indeed under the higher-risk building test, therefore extending the reach of RCOs to capture parts that do not independently meet BSA height or storey thresholds.
With thanks to Millie Cox, Trainee Solicitor, who assisted with the preparation of this article
