Under section 123 of the Building Safety Act 2022, the First-tier Tribunal (FTT) can order a landlord to fix specified building safety defects if someone with an interest in the property applies. What the FTT can’t do is go beyond the evidence and effectively audit a building’s safety requirements itself — as the recent case of Monier Road Ltd v Nicholas Alexander Blomfield and others [2025] makes clear.

What happened?

The dispute centred on fire safety defects at a block of flats in East London. Leaseholders, led by Mr Blomfield, had applied for a Remediation Order to address timber cladding and combustible insulation in the courtyard. However, at the hearing, the FTT expanded the scope of the Order to cover additional works—including balconies, bin stores and the courtyard floor—that were neither requested by the leaseholders nor supported by evidence.

The FTT also suggested that a roof garden should count as a storey when assessing whether the building met the “higher-risk building” threshold under the Act, thus triggering greater safety requirements.

What did the Upper Tribunal decide?

On appeal, the Upper Tribunal (UT) found that the FTT had overstepped its powers. The Tribunal had essentially audited the building’s fire safety requirements itself, and had neither given the parties a fair chance to respond to the new items, nor provided valid reasons for departing from expert evidence.

What can we learn from this?

While a Tribunal can address new defects if they become clear during the case, it must follow a fair process and give both parties the chance to present evidence. If a party chooses not to pursue a particular point, the Tribunal cannot impose it on its own.

The FTT’s view that rooftop gardens count as a storey sparked much debate last year, but the UT has clarified that the FTT had no authority to decide this point—leaving the status of rooftop gardens, and the storey count for such buildings, unresolved for now.

Need more clarity on building safety matters as the legislative landscape develops? Don’t hesitate to get in touch. Our team is on hand to offer clear and commercial legal support.

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This article contains information of general interest about current legal issues, but does not provide legal advice. It is prepared for the general information of our clients and other interested parties. This article should not be relied upon in any specific situation without appropriate legal advice. If you require legal advice on any of the issues raised in this article, please contact one of our specialist construction lawyers.

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