Hippersley Point—an important decision on the Building Safety Act

The Upper Tribunal’s decision in Adriatic Land 5 Limited v The Long Leaseholders at Hippersley Point [2023] UKUT 271 (LC) is an important decision in several respects. This short article will, however, focus on one salient point. 

The first-tier tribunal (FTT)’s decision in Waite and others v Kedai Limited LON/OOAY/HYI/2022/005 & 016 [a.k.a. 2-4 Leigham Court Road] led to a flurry of interest and articles because it was the first decision about remediation orders under s123 of the Building Safety Act 2022 (BSA).

Waite v Kedai, the FTT founded its decision, at least in part, on the arguments advanced on behalf of the applicant leaseholders that the BSA, in particular part 5 and schedule 8, is a self-contained code. This interpretation of the BSA gave the FTT the flexibility to find in the applicants’ favour because it meant that the FTT was not constrained by other legislation. 

The critical paragraph in Waite v Kedai is 67. The FTT said this (emphasis added): 

“Sections 116 to 125 of Part 5 of the BSA 2022 relate to the “remediation of certain defects”. They constitute a self-contained code, containing its own specific definitions in sections 117 to 121 and its own statutory test for the making of a remediation order in section 123. As paragraph 957 of the Explanatory Notes to the BSA explains, the leaseholder protections in sections 116 to 125 “are a one-off intervention designed to deal with the current safety defects in medium- and high-rise buildings.” The statutory definitions are intended to be clear, simple and straightforward.”

The Upper Tribunal cited this passage and observed that what the FTT had said in paragraphs 66 to 71 in Waite v Kedai were “useful general observations”. 

The Upper Tribunal repeated its observation in paragraph 155. It said this (emphasis added): 

“As the FTT explained in their decision in Kedai, at paragraph 67, Sections 116-125 of the 2022 Act constitute a self-contained code, containing its own specific definitions in Sections 117-121 and its own statutory test for making a remediation order under Section 123 or, it can be added, a remediation contribution order under Section 124.”

The Upper Tribunal’s reasoning was based firmly on what the FTT had said in Waite v Kedai about the BSA’s underlying rationale. At paragraph 166, the Upper Tribunal also noted: 

“This construction of Paragraph 9 seems to me to be consistent with what I have identified above as the overall purpose of Sections 116-125 and Schedule 8, as noted by the FTT in Kedai, and with my reasoning on this point, as set out above.”

This is not an esoteric point. On the contrary, it is highly practical because it enables those practising in this area of law to advise their clients more confidently. On this important point, the Upper Tribunal has approved the FTT’s reasoning in Waite v Kedai. The case law is starting to develop.  

Pauline Lam is a senior associate in the property litigation team. She advises businesses, charities and individuals on property disputes and avoidance. She increasingly advises on cases involving cladding remediation, building defects and issues arising from the Building Safety Act 2022 for groups of leaseholders, resident management and right-to-manage companies, commercial tenants as well as landlords and developers.