Building Safety Act – where are we now?

As we turn towards the later end of 2025, and with the Building Safety Act 2022 (“BSA”) turning three years old, we’re outlining some headline developments from the last 18 months.

Case Law

The decisions of the First Tier Tribunal (“FTT”) have no authority as precedents, but the treatment of their award of Remediation Orders (ROs) demands attention from parties looking to apply and / or litigate. In particular, the FTT’s pro-leaseholder stance has borne out in its consideration of a number of disparate issues.

Waite v Kedai (LON/00AY/HYI/2022/0005 & 0016) – July 2023

In Waite v Kedai, the FTT considered the assessment of fire safety risks and the rules under PAS 9980  (which incorporates the enhanced Regulatory Reform (Fire Safety) Order 2005), highlighting the fact that the BSA does not set out how to assess what is a building safety risk and introduced a standard risk assessment that departed from PAS 9980 and gave a more discretionary basis for the award of ROs. The FTT considered that section 123 of the BSA (concerning remediation orders) is “drafted very broadly indeed and give[s] wide power to the Tribunal”. It illustrated that the FTT’s aim in protecting leaseholders takes priority over mitigating the impact on the freeholder.

Almancantar v Ogilvie (Centre Point House) LON/00AG/LSC/2023/0012 – March 2024

This was a case in which the FTT, dealing with the rights of a landlord to recover the cost of rectification of old unsafe cladding, considered that a relevant defect does not need to be found in order for paragraph 8 of schedule 8 of the BSA to apply (no service charge for remediation costs under qualifying Leases). This means that no landlord of any description, including right-to-manage (“RTM”) companies, can recover the costs of remediating unsafe cladding in service charges whenever installed (but note that paragraph 9 of that schedule has been extended to cover legal and professional costs for RTMs under the Leasehold and Freehold Reform Act 2024 since October 2024, as detailed below).

This fetters the landlord’s position  as relevant defects are indeed relevant and required in claims by landlords for a Remediation Order or Remediation Contribution Order, giving landlords an uphill struggle in recovering the cost of defective/unsafe works.

Nicholas Blomfield & Others v Monier Road Limited (Smoke House and Curing House, Remus Road) LON/00BG/HYI/2023/0024 – July 2024

In Blomfield v Monier, the FTT considered the scope of the remedial works following the award of a Remediation Order.  In this case, the FTT applied PAS 9980 but considered that as an FRAEW had not been carried out, and based on expert witness evidence that further fire risk assessments ought to be required, the risk had not been fully assessed.

The FTT analysed what would be considered a “storey“ for the purposes of the BSA. It indicated that “…the guidance appears to not only add to the statutory provisions, but also to contradict them“. Notwithstanding the Government’s guidance, the Tribunal determined that a useable rooftop terrace (i.e. one that did not just contain plant and machinery) did count as a “storey”.  Our article provides more insight: view here.

At the present moment this is under review by the Building Safety Regulator and the Ministry of Housing, Communities and Local Government, and at the time of writing is being heard on appeal in the Upper Chamber.  We are likely to know the outcome of the tribunal hearing before any secondary legislation giving effect to the decision, along with further changes brought about by the Grenfell Phase 2 Report (details below).

BDW Trading v Ardmore Construction [2024] EWHC 3235 (TCC) – February 2025

The TCC in BDW v Ardmore rejected the reasoning in Fiona Trust & Holding Corp v Privalov [2007] UKHL 40 and established that claims in adjudication could be sought in reliance on the extended limitation periods under the Defective Premises Act 1972.  In this case, the claim was brought around twenty years post-practical completion, and resulted in Ardmore having to pay BDW £14.5million.

The case also demonstrated the Court’s narrow approach to the grant of a building liability information order against related companies which may make parties less likely to pursue them in the future.

381 Southwark Park Road RTM Company Ltd and others v Click St Andrews Ltd (In Liquidation) and another [2024] EWHC 3569 (TCC) – March 2025

In the Technology and Construction Court (“TCC”), Jefford J awarded the first Building Liability Order (“BLO”) under section 132 BSA on 31 March 2025.  The Court made a BLO against the holding company for the insolvent development SPV. The holding company owned all the shares in the subsidiary which in turn wholly owned the SPV.  Taking into account the judgment in Triathlon Homes LLP and Stratford Village Development Partnership [2024] UKFTT 26 (PC), the Court considered that the original Defendant’s solvency was relevant to ascertaining whether it was “just and equitable” under BSA 2022 Section 130(1).  Please see our comments in our article on BLOs and BLIOs: view here.

Legislation

Leasehold and Freehold Reform Act 2024 – changes in force 31 October 2024

The Leasehold and Freehold Reform Act (“LFRA”) strengthened the rights of residential long leaseholders but allowed residents’ management companies and RTM companies to use service charges to recover their legal costs if they bring claims for remediation contribution orders. The LFRA also clarified the extent of remediation orders and remediation contribution orders to make include ‘relevant steps’ – steps taken to reduce the likelihood of fire or structural collapse, or reduce the severity or harm of incidents. The LFRA also abolished certain powers in connection with insolvent landlords (which largely overlapped with remediation contribution orders).

Grenfell Inquiry Phase 2 Report – September 2024

The Grenfell Phase 2 report was published on 4 September 2024, with the government’s response published at the end of February 2025, broadly accepting the 58 recommendations.

The main points to note are: 1. the proposed revision to the definition of “higher-risk building” and further review of the higher-risk building and dutyholders regimes; 2. the proposed new construction regulator to undertake almost all of the construction-related governmental functions to provide single-point governance of the industry as a whole, and the appointment of a Chief Construction Advisor; 3. fire safety strategy to be required at Gateways 2 and 3 of the Higher-Risk Buildings regime; and 4. a review of the industry standards of competence for fire engineers.

Our update tackles the recommendations in more detail: view here.

Comment

While the big-league litigation still seems to be in the distant future, the initial indications from the courts are that the intention is to give effect to the rights of leaseholders and residents as a priority, but the need to manage this in order that the industry can withstand the changes is paramount.

The legislation passed most recently also suggests that further pressure is to be applied; how construction measures up to this will be closely monitored.  Please do get in touch with us with any queries or concerns.