Almacantar Centre Point Nominee No.1 Ltd & Anor v Penelope de Valk & Ors

Paragraph 8 of Schedule 8 to the Building Safety Act 2022 protects qualifying leaseholders from service charges for unsafe cladding remediation, whether or not the cladding is also a relevant defect within the statutory 30-year regime. The words “unsafe” and “cladding remediation” bear their ordinary meaning. “Unsafe” is not confined to fire risk or defects existing at installation. Whether a building element is cladding, and whether it forms the outer wall of an external wall system, are principally questions of fact. A cladding system need not be part of two separate systems. A paragraph 13 presumption concerning a qualifying lease does not make a final determination of status, but a new challenge to the effect of that presumption will not ordinarily be admitted on appeal where it was not argued below.

The freeholders of Centre Point House appealed against a First-tier Tribunal determination under section 27A(3) of the Landlord and Tenant Act 1985. The FTT held that proposed façade works fell within the leaseholder protections in Schedule 8 to the Building Safety Act 2022, so qualifying leaseholders were not liable for the relevant service charges. The freeholders challenged the construction of paragraph 8, the classification of the façade as an unsafe cladding system, and the effect of the paragraph 13 presumption concerning qualifying leases.

Appeal dismissed.

1. Paragraph 8 of Schedule 8 is a distinct protection. Its words contain no requirement that the cladding remediation relate to a “relevant defect”. Sections 116 and 122, and the structure of Schedule 8, do not justify importing that qualification. The protection is deliberately limited by the requirements that the lease be qualifying and that the cladding be unsafe.

2. The Tribunal applied the principles of statutory construction stated in R (The Good Law Project) v Electoral Commission [2018] EWHC 414 (Admin) and rejected the proposed correction of the statutory language under Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586. Parliament had not made an inadvertent drafting error requiring words to be added or substituted.

3. Whether a building element is “cladding” is a question of fact. The FTT was entitled, on the evidence and site inspection, to find that the façade was attached to an underlying structural framework and formed cladding. The façade also formed the outer wall of an external wall system. Paragraph 8 did not require two separate systems, although a single composite wall would not satisfy that requirement. The Tribunal adopted the analysis in Lehner v Lant Street Management Co Ltd [2024] UKUT 0135 on the meaning of “outer wall”, while declining to treat its non-argued guidance on “relevant defects” as binding.

4. “Unsafe” has its ordinary and natural meaning. It is not confined to an inherent fire risk or to defects arising at installation. Serious deterioration creating a risk to residents or members of the public was sufficient.

5. Ground 5 was a new point concerning the effect of the paragraph 13 presumption and was not admitted. The Tribunal did not decide whether the FTT’s finding was binding or rebuttable. The FTT had applied the statutory presumption because the landlord had not taken the required reasonable steps. The status of a qualifying lease is assessed at 14 February 2022; later changes would be immaterial.

• First-tier Tribunal (Property Chamber): on 25 March 2024, determined under section 27A(3) of the Landlord and Tenant Act 1985 that no service charges were payable by qualifying leaseholders for the relevant cladding remediation works.
• Upper Tribunal (Lands Chamber): dismissed Grounds 1–4 and Ground 5 of the appeal.