Legal Dispute concerning the Remedial Works at the Highrise Building

Introduction and Matter of Concern in This Dispute

This case study examines a recent matter brought before the First-tier Tribunal (Property Chamber), in which the Tribunal was asked to determine the appropriate course of remedial works required for a highrise residential building located in South East London. The dispute arose following the discovery of defects within the building’s external wall system and its internal atrium shortly after construction was completed in 2022 and the building was occupied by tenants.

The building comprises several blocks exceeding eight storeys and includes shared office spaces, a gym, a swimming pool, and a range of leasehold apartments. The identified defects relate primarily to issues concerning cavity barriers and Xtratherm insulation. The Landlord, as the Respondent, is responsible for remedying these defects for the benefit of the Leaseholders, who acted as the Applicants in the proceedings.

Two potential remedial approaches were presented to the Tribunal: Scheme A, which focuses exclusively on cavity barrier remediations, and Scheme B, which addresses both cavity barrier issues and Xtratherm insulation defects. To assist the Tribunal—and in accordance with its directions, as later amended by agreement between the parties—the Applicants’ solicitors appointed a delay and programming expert from 53 Quantum to produce an independent report on project programming and management.

Both experts’ reports addressed their views on the reasonable timelines for commencing and completing the proposed remedial works across six defined stages. Approximately one week before the scheduled hearings, the parties reached an agreement and the matter was resolved out of court.

Experts’ Reports

Following the publication of a Joint Statement by 53 Quantum’s Expert and the opposing Expert, each provided the Tribunal with their respective reports. These reports set out six stages which collectively determine an appropriate and reasonable timeline for commencing and completing the remedial works under either Scheme A or Scheme B.

The six stages were defined as follows:

• Stage 1: Validation The on-going investigation and validation works were required to be completed before the Tribunal issued any Remediation Order.
• Stage 2: Remediation Order, Design and Procurement (including planning application updates and Tribunal directions) This stage encompasses the mobilisation of the Landlord’s design team and the development of the necessary designs and Employer’s Requirements (including fire strategy documentation). Activities under this stage may only commence once the Tribunal issues a Remediation Order.
• Stage 3: Building Safety Regulator (BSR) Application Period This stage consists of the BSR’s statutory review processes, allowing for checks, detailed assessments, feedback cycles, and formal approval of the submitted designs and Employer’s Requirements.
• Stage 4: PreConstruction Period (contract finalisation, permit and licence applications, site setup, and tenant relocation) This stage covers the procurement of the contractor, finalisation of contractual documentation, logistical preparation, and relocation of residents where required.
• Stage 5: Construction Period The period during which the remedial works are physically undertaken by the contractor on behalf of the Landlord.
• Stage 6: Completion Certificate Period The stage during which the BSR reviews all final documentation submitted by the Landlord prior to issuing a Completion Certificate.

The experts’ principal disagreements concerned the durations required for Stage 2 and Stage 3, which were the focus of the Tribunal-directed expert review.

Experts’ Analysis of Stage 2 and Stage 3

Although the matter was settled prior to the Tribunal issuing an award, both experts submitted comprehensive programming analyses. 53 Quantum’s Expert and the opposing Expert each presented the Tribunal with their respective reports, addressing the key points of disagreement under Stages 2 and 3.

Stage 2: Design and Procurement

Stage 2 commences immediately upon the Tribunal’s issuance of a Remediation Order. Under Scheme A, Stage 2 is projected to last 8 weeks. In contrast, Scheme B extends this period to 18 weeks due to the additional requirement for planning approval under Section 96A—specifically, the introduction of BSR Gateway processes and strengthened decision-making standards by Local Authorities as mandated by the Building Safety Act 2022.

Under Scheme B, the sequence of activities is as follows (Scheme A follows the same process but excludes the planning steps in item 8):

1. Procurement of the Design Team (2 weeks):
   Engagement of the design team.

2. Design Team Mobilisation (1 week):
   Preparation to commence design work.

3. Design KickOff Meeting:
   A oneday meeting to review the Remediation Order, existing survey data, and baseline design information.

4. Design Development and Employer’s Requirements (5 weeks):
   Preparation of detailed designs, including the fire strategy.

5. Building Registration with the BSR:
   Registration 28 days prior to submission, commencing one week after design development is completed.

6. Preparation of BSR Submission Information (5 days):
   Collation of required documentation.

7. Submission to BSR and Local Council:
   Simultaneous issue of designs and Employer’s Requirements.

8. Planning Application Review (Scheme B only – 4 weeks):
   Nonmaterial amendment application under Section 96A.

9. Planning Approval:
   Decision issued by the Local Council.

10. Final Submission to the BSR:
    Submission of the remaining design information following planning approval.

This structured approach ensures compliance with regulatory and planning obligations, particularly for Scheme B, which introduces added complexity.

Stage 3: BSR Application Period

Stage 3—also referred to as Gateway 2—commences simultaneously with the submission of designs to the BSR and Local Council, as described in Stage 2. Both Schemes require an estimated 18week review period.

The BSR’s process includes:

• Initial validation checks
• Detailed design reviews
• Feedback/clarification periods
• Final assessment and approval

The approval issued at the conclusion of Stage 3 enables Stage 4 (the pre-construction phase) to proceed.

Counterpart Expert’s Analysis of Stages 2 and 3

The opposing expert proposed durations that were several weeks longer for Stage 2 and approximately six weeks longer for Stage 3. His rationale was based on confidential internal information provided directly by the Landlord from its internal records.

By contrast, 53 Quantum’s expert based his analysis solely on publicly available data, including published guidance and processing timelines from the BSR and the relevant Local Authority.

Conclusions

The experts’ reports were prepared to support the Tribunal in assessing the reasonableness of the proposed timelines for the remedial works under both schemes, notwithstanding that the dispute was ultimately resolved out of court.

Historically, the BSR’s expected approval periods for higherrisk buildings have been approximately 8 weeks for existing buildings and 12 weeks for new-build schemes. More recent data indicates that actual approval periods now average around 18.4 weeks, reflecting extended review cycles and the increasing level of detail required within submissions.

Typical delays relate to the extensive volume of documentation required—often involving thousands of technical drawings, specifications, fire strategy documentation, Employer’s Requirements, and detailed compliance justifications for relevant regulations and legislation. While these extended periods serve to ensure robust safety oversight, they have raised concerns within the industry regarding their impact on the programming of highrise remediation projects.