Despite the Building Safety Act 2022 introducing remediation orders and remediation contribution orders to ensure works to relevant and high-risk buildings are carried out and paid for by the appropriate body (usually the developer or those associated with the developer), local authorities seem to be favouring serving improvement notices on those with immediate repairing obligations to get the works done.
Local authorities are inspecting high-rise residential buildings. Where remediation work is required, they serve an improvement notice for breach of the Housing Act 2004, usually for works to common building parts. Often in these circumstances, the developer or those associated with the developer are ultimately responsible for paying for the remediation works required to alleviate the alleged hazards and often are already undertaking the works. Despite this, if the council serves an improvement notice, they will do so on those with the repairing obligation. This puts the landlord or others with a repairing obligation in a difficult situation as they have to ensure that the works are done within the date set by the improvement notice. Failure to comply with an improvement notice is a criminal offence.
On receipt of an improvement notice, landlords and those with repairing obligations under the terms of a lease, have 21 days to appeal to the First-tier (Property Chamber). This means that work to review the notice and assess whether there are potential grounds for appeal is urgent. As we saw in the case of Manaquel Company Limited v The London Borough of Lambeth, LON/00AY/HIN/2021/0021, the tribunal quashed an improvement notice on appeal on the basis that the hazards did not exist as alleged, the notice was deficient for not being specific enough and that works that planning had been obtained for would eliminate the hazards. There may, therefore, be scope to challenge the notice.
It is always recommended to get urgent legal advice on receipt of an improvement notice to ensure that it is enforceable and to devise a strategy as the time frame for appealing is only 21 days. Ideally, a client should attain a building assessment by a surveyor and get legal advice on their position and rights to enable them to devise a strategy.
In some circumstances, councils have agreed to withdraw improvement notices after our involvement. This means that the client, the developer or those associated with the developer, can carry out the remediation works without working to timescales set by the Council and have increased certainty about the remediation works to be carried out to ensure the building is compliant.
Nockolds are experts at advising on the Building Safety Act 2022, have advised on all aspects of it and have given presentations to other professionals on the interpretation of it. Our litigation team have regulatory experience and can quickly understand the issues, devise a strategy and carry out urgent work.
If a client chooses not to appeal, then it is paramount that the timescales within the improvement notice are met, and we recommend that discussions continue with the council.
Newham Council v Chaplair, a case from November 2023, is a stark warning to landlords and those with repairing obligations. In that case, Chaplair Limited was the freehold owner of a block of flats and an improvement notice was served on them to remove dangerous cladding. Whilst Chaplair did remove the cladding, they did not do so within the timeframe set by the council. As a result, they were ordered to pay a fine of £30,000 and legal costs of £30,000.
More and more councils are serving improvement notices on landlords and freeholders due to alleged health and safety issues and breaches of the Housing Act 2004, despite the developer often being responsible under the Building Safety Act 2022 for those works. This creates a difficult situation for residents where the buildings are either resident-owned or where they have exercised their right to manage. However, where councils can claim their legal costs for breach of an improvement notice, they cannot if they apply for a remediation order or remediation contribution order, the orders provided for under the Building Safety Act 2022 so we will likely continue to see more improvement notices being served.
For more information on the Building Safety Act 2022 or to find out how we can help you, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.