Monier Road Limited v Nicholas Alexander Blomfield & Ors

A tribunal may raise an issue not advanced by the parties, but only where it concerns jurisdiction or a fundamental problem, is required by statute, or is needed to clarify a party’s case. The tribunal must then follow a fair procedure. The relevant party must decide whether to pursue the issue, pleadings may need amendment, and both sides must have a proper opportunity to adduce evidence and make submissions. A tribunal must not conduct its own building safety audit. Its specialist expertise may assist in understanding evidence, but cannot replace evidence or justify findings contrary to unchallenged expert evidence without reasons and an opportunity for response.

The respondents applied to the First-tier Tribunal for a remediation order under section 123 of the Building Safety Act 2022, principally concerning combustible courtyard cladding and insulation. The FTT initially recorded broad agreement about the necessary works. It later raised additional concerns of its own motion about balconies, walkways, walls, bin stores, the courtyard, and the roof terrace. After obtaining further evidence from the appellant’s expert, it included those additional items in the remediation order.

The appellant appealed, arguing that the additional defects were outside the case, that the procedure was unfair, and that the order contradicted the evidence. The central issues were the FTT’s power and discretion to raise new points, the procedure required when it does so, and the proper use of tribunal expertise.

1. Appeal allowed. The inclusion of the additional items in the remediation order was set aside. The order was remade without those items and without the requirement to submit it to the Building Safety Regulator.
2. The FTT had jurisdiction to make a remediation order only upon an application, but section 123’s reference to defects being “specified” referred to specification in the order, not necessarily in the original application. A defect omitted from the application could therefore become part of the case through proper pleading, amendment, evidence and submissions.
3. The FTT may raise a new point in limited circumstances: where jurisdiction or a fundamental problem is involved; where statute requires the tribunal to address the matter; or to clarify a party’s case. The discretion is reviewable where no reasonable tribunal could have exercised it in that way. The principles in Sovereign Network Homes v Hakobyan and others [2025] UKUT 115 (LC) were applied.
4. The FTT’s concerns did not fall within those categories. The respondents’ case was clear, no statute required a building safety audit, and the existing professional evidence had already addressed the additional items. The FTT therefore exceeded its discretion in raising them.
5. Having raised the issues, the FTT was required to follow a fair procedure. It should have invited the relevant party to amend its case and allowed both parties to address the issues and adduce evidence. Instead, the FTT effectively became a party to the dispute and directed evidence only from the appellant. That was a serious procedural irregularity and breach of natural justice.
6. The decision was independently unsustainable because it contradicted the unchallenged MAF and BEFS reports without reasons. Tribunal expertise may assist in understanding evidence, but it is not evidence. If a tribunal relies on expertise contrary to witnesses’ evidence, it must disclose the basis and give the witnesses an opportunity to respond.

• First-tier Tribunal (Property Chamber): made a remediation order on 3 July 2024 including the additional items.
• Upper Tribunal (Lands Chamber): set aside that part of the FTT’s decision and remade the order. No remittal was required.