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The Court of Appeal has dismissed an appeal concerning a decision by the Secretary of State for Levelling Up, Housing and Communities to award funding of approximately £30 million to pay for the remediation of life-threatening building fire safety defects at two high rise developments in Birmingham.
The Building Safety Fund (“BSF”) was set up in the wake of the Grenfell Tower disaster with the objective of driving the pace of the remediation of life safety fire risks associated with cladding on high-rise residential buildings. Following the grant of funding under the BSF by the Secretary of State, remediation works at both developments commenced.
Redrow PLC sought to challenge the Secretary of State’s decision to award this funding, and advanced a claim for judicial review alleging that (1) the Secretary of State’s decision was unlawful because it was not compliant with the BSF guidance and/or the Secretary of State had failed to take into account the prior acceptance of cover by insurers; (2) the Secretary of State’s decision was procedurally unfair and/or the Secretary of State failed to give reasons for the decision; and (3) the Secretary of State’s decision was irrational.
Permission for judicial review was refused on the papers by Eyre J, and following an oral renewal hearing by Garnham J. Redrow PLC then appealed to the Court of Appeal on the grounds that (1) Garnham J was wrong in law to hold that it was not properly arguable, at least, that the Secretary of State had acted unlawfully in making his decision; and, (2) Garnham J was wrong in law to hold it was not properly arguable, at least, that the Secretary of State had failed to identify the reasons for the decision and/or acted in a manner which was procedurally unfair.
Whilst the Court of Appeal concluded that Redrow did have standing to bring a judicial review claim, and had acted promptly in doing so, it went on to dismiss Redrow’s appeal in its entirety.
On Ground 1, the Court of Appeal found that the BSF guidance only required the responsible entities to demonstrate that they had taken “all reasonable steps” to recover the costs of the works from those responsible, and it did not require them to pursue all other claims to final resolution and/or financial recovery. To the contrary, the BSF guidance expressly anticipated that such claims may be ongoing at the time of the application, the allocation of funds, and during the works themselves, and that whilst this would not affect the allocation of funds from the BSF, the responsible entities were required to pay any sums recovered from the third parties back to the BSF.
On Ground 2, the Court of Appeal found that the respondent was right to involve Redrow in the decision-making process and that the Secretary of State “could not reasonably have done more to accommodate them”. In addition, the suggestion that the decision was unlawful because of the absence of proper reasons was rejected. Even though the decision itself did not set out the reasons for the decision, the Court found that “decision was the culmination of a transparent process in which the appellants had been involved throughout” and the decision to award the funding was simply a confirmation of the Secretary of State’s earlier statements that he would be continuing with the BSF awards for the reasons that had been set out in earlier correspondence.
The judgment may be accessed here.
Harriet Wakeman, led by Tom Richards KC (Blackstone Chambers), represented the Secretary of State for Levelling Up, Housing and Communities.
