What is the latest on the BSA?

Since our update in May of this year on all things building safety, there have been a number of judicial and regulatory shifts, indicating that there are still a number of interpretative milestones to occur before the legal landscape surrounding the Building Safety Act 2022 (“BSA”) settles into a more manageable shape.

1.BSR Injunction

On 12 August 2025, the Building Safety Regulator (“BSR”) obtained its first prohibitory and mandatory injunction.  The case involved a block of student accommodation which was a Higher-Risk Building (“HRB”). Despite not having achieved Gateway Three completion approval (or registration as an HRB), the development was marketed (on Rightmove) as ready for occupation in time for the start of the new academic year.  It also transpired that the works had continued despite a cancellation notice and stop notice having been issued.  Emergency interim injunction in the Technology and Construction Court was sought by the BSR and was obtained on the basis that the Court could order an injunction in a new area of law (Broad Idea International Limited v Convoy Collateral Limited [2021] UKPC24).   The proprietors of the student accommodation are therefore required to obtain the certificate for completion and occupation prior to marketing.  It marks one of the first indicators of the BSR acting in a preventative way rather than a punitive way after the event, sending a clear message for developers to take note that simply bypassing the rules will invoke positive action from the BSR.

2.Gateway delays

There has been much discussion over the delays caused by the approvals regime for the Gateways for HRBs, since February of 2025 when the BSR reported 22 weeks of delays for Gateway Two approvals (against the statutory target of 12 weeks), provoking criticism throughout the industry.  Delays are reported at the time of writing as up to 40 weeks. The BSR initially responded in June on the basis that the applications that they were receiving were simply not of the standard required in order to warrant approval, meaning that the early rejections were creating a backlog and creating unnecessary additional work for applicants.  The BSR has also come under scrutiny via an Inquiry by the Industry and Regulators Committee in the House of Lords and a question-and-answer session in the House of Commons, increasing the pressure to take action.

Since then, a number of changes have taken place within the BSR (such as the appointment of Andy Roe, who is charged with remedying the process for delays), prompting discussion over use of multidisciplinary teams being assimilated for each individual application, outsourcing (and insourcing) of skilled approvals personnel to assist the BSR, a fast track regime, and potentially the use of AI in making approvals.

3.Changes at the Building Safety Regulator

At the end of June 2025 the Government announced plans to create an Executive Agency within the Ministry of Housing, Communities and Local Government to carry out executive BSR functions currently undertaken by the Health and Safety Executive.  While we do not expect that this is going to solve the problem of understaffing and lack of resource, we believe that this is a reaction to scrutiny placed on the BSR by the Government.  Hopefully, this will lead to greater accountability and more transparency in terms of the BSR’s administration of its duties.

4.Assent Building Compliance in administration

On 4 November 2025, Assent Building Compliance ceased trading and is in the process of entering insolvency.  The established Yorkshire-based building inspection company has been under the spotlight given its recent activities in passing building notices back to local authorities to take on certain work, which has led to critical consequences for projects for whom they were acting as registered building control approvers.

Assent are one of the largest companies authorised by the BSR to carry out building control approval functions, the insolvency of which now partly means that the onus is now on local authorities to meet the demand caused by the gap.  There is a question mark over where this leaves developers following the insolvency, and the immediate answer is that the building notice will revert to the local authority, potentially to be cancelled or revised.  Such a move could create severe delays and disruption in marketing of new units for developers, particularly Higher-Risk Buildings.

5.Almacantar leave to appeal

The case of Almacantar Centrepoint Nominee No.1 Limited & Anor v Penelope De Valk and Others [2025] UKUT 298 (LC) made headlines earlier on this year when on 16 September the Upper Tribunal decided several points of interest to those watching BSA interpretative developments.

The developer, Almacantar, had asked the residents to contribute £240,000 each to the planned remediation of a 60 year old façade connected to the Henry Hyams Centrepoint tower.  Façade works were classed as cladding remediation, despite the previously-adopted interpretation of “relevant works” being those carried out within 30 (not 60) years prior to the BSA, and since many leaseholders had qualifying leases the cost could not be passed on.  Under paragraph 8 schedule 8 of the BSA qualifying leases do not track costs for cladding remediation.  The decision also explored the definition of “cladding” (concluding that surfaces which are part of the external wall system which do more than simply cladding a building can constitute cladding), and the meaning of “unsafe” (which was also ascribed broad interpretation).

Almacantar has been given leave to appeal, which will likely develop the answers to whether cladding remediation only applies for relevant defects or whether Paragraph 8 of Schedule 8 the BSA will continue to be interpreted more broadly.

6.URS v BDW

On 21 May 2025 the Supreme Court handed down its judgement in URS Corporation Ltd v BDW Trading Limited (2025) UK SC21.  URS had appealed the Court of Appeal decision on four grounds, and the judgment established the following:

• That there was no element of voluntariness to be considered as grounds for compensating a developer undertaking remediation works due to defective design; it did not invalidate claims for recoverable costs due the fact that the developer had volunteered to carry out the work.
• Section 135 of the BSA (the extension of the limitation periods) applies not only to claims under section 1 of the Defective Premises Act 1972 (“DPA”) but also to claims in negligence and contribution claims which are relative to claims for the same.
• Under section 1(1)(a) DPA a developer cannot simultaneously owe a duty and benefit from the same owed duty, so a developer cannot receive compensation for a loss.
• That a contribution claim under the Civil Liability (Contribution) Act 1978 Act arises once compensation for damages is paid, and if the compensation is not paid, as part of formal proceedings.

These four points take a further interpretative step into understanding the courts’ approach to the BSA, particularly in relation to limitation, and could open up the possibility for further litigation to be prompted as a result.

7.Judicial clarity on legal and professional costs

On 1 September 2025 the Supreme Court decided in the case of Adriatic Land 5 Limited v Long Leaseholders at Hippersley Point & Anor (UKSC/2025/0157) that Paragraph 9 of Schedule 8 to the BSA protected leaseholders, under the “qualifying lease” provisions, from paying the cost of legal and professional fees by way of a service charge regardless of the fact that the costs were in relation to proceedings taking place prior to 28 June 2022 (the date of the BSA coming into force).

In summary, following some significant judicial decisions outlined in our last update, it is clear that the Government is taking note of the problems that passing significant legislation and its testing in the relevant tribunal has caused.  It remains to be seen whether the powers that be will improve the capacity to cope with the detrimental effect on the construction industry, or whether the rules may be qualified or caveated in order to ensure that the building agenda continues.

Please get in touch if you would like to know more.