Why are local authorities not applying for remediation orders?

Robert Bowker looks at the First-tier Tribunal’s remediation order in Oyster Bay and considers its significance for local authorities exercising their powers under the Building Safety Act 2022.

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The last three years

Three years ago, I wrote this about the FTT’s decision in Priory Heights, where the Respondent council had served improvement notices on leaseholders and the leaseholders successfully applied to quash those notices:

“Local authorities are an interested person within the meaning of section 123 and 124 of the Building Safety Act 2002 and, consequently, have standing to apply for a remediation order or remediation contribution order.

In view of those remedies, let alone the obvious impediments to compelling individual leaseholders, many of whom have limited means, to carry out substantial remediation work at huge expense, the Council’s decision to serve improvement notices in this case seems extraordinary.

It remains to be seen whether local authorities, along with fire and rescue authorities, will start to take an interest in being an “interested person” under sections 123(5) and 124(5) of the Building Safety Act 2022.”

See the article here.

On 16 October 2023, the Government published its ‘Guidance on the use of remediation orders’ which it specified to be ‘Guidance for local authorities and fire and rescue services on the use [of] remediation orders, a Building Safety Act 2022 enforcement power’. The guidance was last updated on 31 March 2026 and remains current.

See the Guidance here.

Since then, notwithstanding their standing and the Government’s Guidance, local authorities have shown little interest in ROs and continue to tread the more familiar path of serving improvement notices.

Cases have arisen in which the FTT has been pulled in three directions in respect of the same building and often in respect of the same underlying fire safety issues: the “hazards” regime under the Housing Act 2004; the “relevant defects” regime under the Building Safety Act 2022; and the “life-critical fire safety defects” regime under the developers’ Self-Remediation Terms. The Princess Park and Empire Square FTT cases demonstrate this tension. Three distinct regimes with subtle but significant differences are attempting to co-exist. This is not an effective and efficient approach to fire safety.

However, in a departure from the norm, Bournemouth, Poole and Christchurch Council (BCP) applied for and obtained a remediation order (RO) in proceedings brought in the FTT’s Southern Region.

The proceedings

The application for a RO was defended.

The FTT held an initial case management hearing (CMH) on 19 June 2025 and, following the closure of pleadings, a second CMH on 5 September 2025. At the second CMH, the FTT timetabled the proceedings through to trial.

See the FTT’s case management directions here.

The directions included provision for expert evidence from fire engineers as to the relevant defects and the works required to remedy them, and from programmers as to the duration of the works. The trial was set down for five days commencing on 13 April 2026 with a pre-trial review (PTR) on 27 March 2026.

Significantly, the directions made at the second CMH provide for the fire engineers’ evidence to be served sequentially, requiring the Respondent to serve its report first. On receiving the Respondent’s evidence as to the relevant defects and the works required to remedy them, the Applicant elected to rely on that evidence and, consequently, did not serve its own fire engineering report. The directions permitted such evidence but did not mandate it. Both parties did, however, serve their own expert programming reports dealing with the duration of the works.

Agreement and order

Following the PTR on 27 March 2026, on 10 April 2026, the Friday immediately before the trial commenced on 13 April 2026, the case settled. The agreed RO, approved and made by the FTT, contained the following key provisions. –

• In recitals, it recorded the application, the Respondent’s consent, the admissions as to the relevant defects, that the RO was an order of the FTT and the expert evidence.
• In paragraphs 1 to 3, the RO specified the works to be performed with reference to a schedule which identified the relevant defect in the first column and agreed works in the second, and the completion date. The schedule included, in respect of inadequate fire compartmentation, the requirement to commission a competent person to carry out an intrusive survey of the Property and then remedy all relevant defects identified in the survey.
• In paragraph 4, it benchmarked the remediation scheme against Building Regulations and PAS:9980.
• In paragraphs 5 to 7, it gave permission to the parties to apply to vary the RO and specified the form of any such application including reliance on expert evidence (consistently with the form of order used in Leigham Court Road).
• In paragraph 8, it required the Respondent to notify completion to the FTT and the Applicant.

See the RO here.

Key takeaway points

The key takeaway points are –

• The BSA regime, specifically a RO, operates as an effective way for local authorities to ensure fire safety defects are remedied.
• Even in circumstances where an application is defended and taken to the brink of trial, a RO made by the FTT with the parties’ consent is achievable.
• The jurisdiction under section 123 of the BSA is for the FTT to make the RO, not the parties. A RO made by consent is, therefore, an order of the FTT, albeit made by agreement.
• A RO made by the FTT with the parties’ consent does not require elaborate drafting. It will operate effectively if it adopts the essential format developed over the last three years, in the cases since Leigham Court Road.
• The schedule to the RO does not need to be complex. A basic table which specifies, in simple terms, the relevant defect and the work required to remedy the defect will suffice.
• In circumstances where a relevant defect is extensive but capable of being identified in generic terms – for example, “inadequate fire compartmentation” – it is appropriate to identify the remedial work only by reference to further, comprehensive investigative measures and the work consequent on those measures – for example, “carry out an intrusive survey…remedy all relevant defects identified”.

Robert Bowker was instructed in Oyster Bay by BCP. His instructing officers were David Joicey (Senior Solicitor) and Donna Bryant (Senior Higher Risk Residential Buildings Enforcement Officer).

Robert’s previous instructions in fire safety instructions available on the FTT’s decisions web-site include Citiscape, Leigham Court Road, Priory Heights, St John St, Space Apartments, Artillery Row, Purbeck House, Princess Park, Empire Square, Pieris House and Hallings Wharf.

He is also instructed in Urban Splash, led by Catherine Gibaud KC, a RCO case in which the Government is claiming approximately £50m in respect of seven building in Manchester, the trial of which concluded on 1 July 2026. The case involves significant questions about association within the meaning of section 121 of the BSA and the application of the just and equitable test to independent investors. The FTT’s decision is pending and is expected to be published in early Autumn this year.

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