Almacantar Centre Point Nominee No 1 Limited & Anor v Various Leaseholders of Centre Point House

Where an appellant seeks to introduce a materially important point not set out in the permitted grounds of appeal, the tribunal should ordinarily require an application to amend and determine whether permission should be granted. The opposing parties must be given a fair opportunity to understand and answer the amended case. Where the point is sufficiently important, preventing reliance on it without allowing an amendment application may be inappropriate. An adjournment and payment of costs thrown away may provide the necessary procedural protection. Policy or guidance documents are not admissible as evidence if irrelevant, and post-enactment policy material cannot assist statutory construction.

The appellants appealed a decision of the First-tier Tribunal, Property Chamber, concerning the application of Schedule 8 to the Building Safety Act 2022 to proposed remediation works at Centre Point House. Permission to appeal had been granted on four grounds concerning the construction and application of paragraph 8, including whether the works involved an unsafe cladding system.

In their skeleton argument, the appellants advanced a further argument that paragraph 8 was confined to remediation of relevant defects. The respondents objected that this was a new ground and also challenged the inclusion of government and professional guidance documents. The central issues were whether the new point could be raised and whether the documents could be relied upon.

1. Application to amend. The “relevant defect” argument was not directly raised in the detailed grounds of appeal. It included a distinct contention that the statutory protection applied only to works undertaken within the relevant 30-year period. The Tribunal therefore treated it as a new ground requiring an application for permission to amend.
2. The point was important because, if correct, Schedule 8 might not apply to the building at all. In those circumstances, simply excluding the argument would be inappropriate. Following the approach in Singh v Dass [2019] EWCA Vic 360, the appellants were invited to apply to amend. If permission were granted, the respondents were to have an opportunity to lodge revised statements of case and make oral submissions.
3. The appeal was adjourned and ordered to be re-listed as soon as possible. The appellants agreed to pay the costs thrown away by the adjournment, on the indemnity basis.
4. Documents. The government and professional guidance documents were not relevant to the issues before the Tribunal. If evidential, they were inadmissible. If expressions of policy, particularly documents produced after the Act came into force, they could not assist in construing the statute. Reliance on them was therefore prohibited.

• First-tier Tribunal, Property Chamber: decision under reference LON/00AG/LSC/2023/0012 concerning Schedule 8 to the Building Safety Act 2022.
• Upper Tribunal (Lands Chamber): substantive appeal adjourned; appellants permitted to apply to amend the grounds, subject to the respondents’ opportunity to respond and payment of costs thrown away. Reliance on the disputed guidance documents was prohibited.