Legal Dispute concerning the Remedial Works at the Highrise Building
London
Introduction and Matter of concern in this dispute
This case study examine a recent case in which the First-tier Tribunal (Property Chamber), was presented with an application to solicit a decision regarding the remedial works proposed for the Highrise Building, a residential development situated in South East London.
The main point of contention between the parties was the discovery of defects in the building's external wall system and internal atrium, following the construction of the building in 2022, and the subsequent occupation of building by Tenants.
The building with these defects is made up of several blocks, each with more than eight stories, and contains mixed-use areas like shared offices, a gym, a swimming pool, and variously sized apartments on lease hold.
These defects involve issues with cavity barriers and Xtratherm insulation, which the Landlord, as the Respondent, is responsible for addressing to benefit the multiple Leaseholders, who were the Applicants in the legal proceeding.
The proposed solutions before the Tribunal involves two schemes: Scheme A, which focuses solely on cavity barrier remediation, and Scheme B, which addresses both cavity barrier and Xtratherm insulation issues. To assist the Tribunal, and in accordance with its directions, and/or as amended by agreement between the parties, 53 Quantum's Expert was engaged by the Applicant's lawyers to prepare a report addressing project programming and management.
The reports from each side's Expert would focuses on the timing and scheduling of the proposed remedial works at the Building, specifically regarding areas where the experts could not reach an agreement.
The reports from each expert would outlines the proposed timelines for commencing and completing the remedial works, structured into six stages for each scheme.
However, within a week prior to the start of the hearings, the Parties resolved these matters out of court.
Experts Reports
Following the publication of a Joint Statement by 53 Quantum's Expert and His Counterpart, each expert issued to the Tribunal their respective reports.
The reports outlines six key stages that will determine a reasonable and appropriate timeline for the start and completion of the remedial works, irrespective of whether Scheme A or B is ordered by the Tribunal.
The stages were as follows:
The reports provided by 53 Quantum's Expert and His Counterpart deal with their disagreements over the period of time that is required in Stages 2 and 3, as highlighted in bold above.
Experts Analysis of Stage 2 and 3
The matter was successfully resolved between the parties prior to the arbiter's award. Subsequently, we were requested to undertake another project by the main contractor, which was equally intricate as this one, maintaining our standard of delivery.
Stage 2: Design & Procurement
Stage 2 focuses on the procurement and mobilisation of the design team, followed by the development of designs for the remedial works. This stage is set to begin the day after the Tribunal issues a Remediation Order. For Scheme A, the process is estimated to take 8 weeks, while Scheme B requires 18 weeks due to the additional step of obtaining planning approval. under Section 96A.
The sequence for Scheme B involves the following steps, with Scheme A omitting the planning application process outlined in step 8:
Procurement of the Design Team's Services:
The Landlord initiates the process by hiring a design team, which is expected to take 2 weeks.Design Team Mobilisation:
Once the team is procured, they prepare to commence work, a process that takes an additional 1 week.Design Kick-off Meeting:
A one-day session to review the Tribunal's Remediation Order, with regards to existing survey data, and designs, marking the official start of the design process.Design Development and Employer's Requirements:
Over a period of 5 weeks, the design team develops detailed plans, including the fire strategy and employer's requirements.Building Registration with the Building Safety Regulator (BSR):
The Landlord registers the building with the BSR 28 days before the submission of required information. This step begins a week after the designs are completed.Preparation of Information for the BSR:
Key documents are prepared over a span of 5 days, aligning with the timeline for design development.Submission of Designs to BSR and Local Council:
The completed designs and employer's requirements are issued simultaneously to both authorities.Planning Application Review:
For Scheme B, the Landlord submits a non-material amendment application under Section 96A to Local Council for review. This process takes 4 weeks.Approval of Planning Application:
Council provides approval, concluding the planning process.Final Submission to the BSR:
On the same day the planning application is approved, the Landlord submits the balance of designs and pertinent information to the BSR.
This stage represents a critical phase in ensuring the remedial works are thoroughly planned and meet safety and regulatory requirements. The structured approach, particularly in Scheme B, accounts for the additional complexities of planning approval.
Stage 3: BSR Application Period:
Stage 3, also known as Gateway 2, begins with the BSR review period.
This stage involves the submission of detailed information to the BSR for review and approval. The duration for this stage is estimated to be 18 weeks for both Scheme A and Scheme B, and it should start at the same time when the Landlord submit designs to BSR and Local Council, as described in Stage 2 above.
The process includes an initial check, detailed review, feedback period, and final review, before BSR issues Approval for the remedial work at the building.
Counterpart Experts Analysis of Stage 2 and 3
The duration of the other expert, for both Scheme A and B, was a few weeks longer for Stage 2 and a half a dozen weeks longer for Stage 3.
His justification was predicated on confidential information that the Landlord had furnished him, which was obtained from the landlord's data records.
Conversely, 53 Quantum's expert evaluation of the time necessary to construct a programme for Stages 2 and 3 was based on information that was accessible to the public, as provided by the BSR and Local Council.
Conclusions
In this remediation order application, the Experts reports were prepared to help the Tribunal determine the reasonableness and adequacy of the proposed timelines for the remedial works at the Building under two schemes: Scheme A and B, despite the fact that the Parties resolved these matters out of court.
Following on from the matters discussed in this case, the typical duration for the Building Safety Regulator (BSR) approval process can vary depending on the complexity of the project. Previously, for higher-risk buildings, the expected timeline is generally 8 weeks for existing buildings and 12 weeks for new builds.
However, recent data suggests that the actual average time taken by the BSR to determine applications is longer-around 18.4 weeks on average.
This includes detailed reviews, feedback periods, and final approvals, which can extend the process significantly.
In today's environment, delays can be traced to the considerable documentation necessary, which includes thousands of plans and drawings as well as other design details pertaining to (but not limited to) Fire Strategy, Employer's Requirements, and the necessity for explicit explanations of compliance with building codes, regulations and legislation[2].
While the process is intended to assure safety and regulatory compliance, the prolonged timescales have generated concerns about the potential effect on Highrise building construction programmes.