August EWJ 24 - Flipbook - Page 21
Deterioration of Defects
by Alex Delin and Victoria Crozier, Lawyers at Irwin Mitchell LLP
In August 2023, the First-tier Tribunal (“FTT”) issued the first remediation order under
section 123 of the Building Safety Act 2022 (“BSA”) in Waite & Others v Kedai Limited. The
freeholder was ordered to remedy specified relevant defects within 25 months.
The FTT excluded the soffits from the scope of the
remediation order, determining they were not yet a
relevant defect:
So much falls on the definition of a “relevant defect”
under s.120 of the BSA:
“a defect as regards the building that:
(a) arises as a result of anything done (or not done), or
anything used (or not used), in connection with relevant works, and
(b) causes a building safety risk.”
with a “building safety risk” defined as “a risk to the
safety of people in or about the building arising from:
(a) the spread of fire, or
(b) the collapse of the building or any part of it”.
“…the Tribunal’s view is that the gypsum-based
balcony soffits currently provide certain protection by
reason of their position on the building. Although
their deterioration is inevitable, there is no known
time span for this”.
Greater importance was placed upon deterioration by
the TCC in respect of a claim brought under section
1 of the Defective Premise Act 1972 (“DPA”), in Vaniker
& Anor v Marbank Construction Ltd & Ors [2024]
EWHC 667 (TCC).
In Waite, leaseholders raised concerns over the
external cladding and other fire safety issues. The
FTT held that the cladding, cavity barriers and internal compartmentation and absence of fire stopping
were relevant defects and requiring remedial works.
The claim arose out of the construction of a new-build
residential property, built by the First Defendant and
designed by the Third.
Leaseholders tried to persuade the Tribunal balcony
soffits constituted a relevant defect too. The soffits
were formed using a gypsum-based plasterboard
which the expert considered provided a suitable degree of protection should a fire on a balcony below attack the underside of the one above. The expert also
believed gypsum-based plasterboard is not suitable for
long-term exposure to the elements (in other
words, it has a shelf-life). Deterioration was identified,
meaning the soffits could not be relied upon to protect
the balcony from fire the longer time goes by.
EXPERT WITNESS JOURNAL
While claims for breach of contract and tort failed due
to limitation issues, the Claimants succeeded arguing
certain defects in the property rendered it unfit for
habitation, in breach of the requirement imposed by
section 1 of the DPA:
“A person taking on work for or in connection with
the provision of a dwelling […] owes a duty:
[…]
(b) […] to see that the work which he takes on is done
in a workmanlike or, as the case may be, professional
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AUGUST 2024
