Building Safety Act 2022: the key building safety cases
May 2025This article summarises the most significant cases within the context of the Building Safety Act 2022 (“BSA”) with emphasis on emerging trends concerning building safety. The Grenfell Tower Inquiry’s Phase 2 Report was published in September of last year and the Government issued its response to the Inquiry Report on 26 February 2025.Fire and building safety remain a focal point in construction law in 2025, and significant developments continue to unfold in respect of the interpretation and application of the BSA. In this article we explore recent cases looking at Remediation Orders, Remediation Contribution Orders and funding of remedial works, Building Liability Orders and other key cases which consider the new legislation.
Remediation Orders
Waite & Ors v Kedai Ltd
Date: 9 August 2023
Forum: First Tier Tribunal
Issue: First reported grant of a Remediation Order / powers of the Tribunal
Leigham Court comprised two buildings developed in 2016.
The first building was an existing brick structure, which was converted from commercial offices into residential flats. Two additional storeys and a roof terrace were added to the original building during the development.
The second building was a new seven storey block of flats with a roof terrace. The 2016 works were deemed compliant under the BSA. However, leaseholders raised concerns with the external cladding and fire safety issues. They sought a Remediation Order against the freeholder, Kedai Ltd (“Kedai”), for defects including aluminium cladding, Kingspan K15 insulation, and a lack of firestopping and/or cavity barriers.
The FTT quickly found that both buildings were relevant buildings as they were over 18 metres in height, Kedai was a relevant landlord, the leaseholders were interested persons, and the issues complained of were relevant defects.
In respect of the burden of proof, the leaseholders were required to put forward their position by identifying defects and relevant building safety risks, which they did by reference to expert reports. The FTT found that, once it had determined that relevant defects existed then it “is to make an order to remedy those defects”. It can and will exercise its discretion to make an order as it considered just and equitable based on the individual facts of each case and that it was not bound by PAS 9980:2022 assessments or the Fire Safety Order 2005 when applying the provisions of the BSA.
The FTT also found the responsibility for ascertaining the scope of the necessary remediation works did not rest with the leaseholders but Kedai, and that the purpose of the Remediation Order was to ensure works were completed.
Remediation Contribution Orders/Funding of Remediation Works
Batish & Ors v Inspired Sutton Ltd & Ors
Date: 13 January 2023
Forum: First Tier Tribunal
Issue: Granting of a Remediation Contribution Order / claims directly against directors
9 Sutton Court Road in Sutton was a high-rise block of flats converted from offices in around 2017. Aluminium composite material (“ACM”) and high-pressure laminate (“HPL”) panels were used on the development. Works to remediate the cladding were funded but works to replace balconies which also constituted a fire risk were not. Inspired Sutton Ltd (“ISL”), which was both the original developer and also the freeholder, issued invoices to the leaseholders for the balcony works. These invoices were paid.
The leaseholders sought a Remediation Contribution Order (“RCO”) against ISL, its parent company (Inspired Asset Management Ltd, which was in liquidation) and two company directors of ISL.
The application against the two directors of ISL was dismissed, on the basis that they were not considered a “specified body corporate or partnership”. The company in liquidation was removed from proceedings – it is not possible to commence action/proceedings against a company in liquidation without the court’s permission (which was not obtained here).
ISL failed to produce a statement of case as directed and was barred from taking part in the proceedings. The First Tier Tribunal (“FTT”) ultimately granted an RCO against ISL totalling £194,680.62. The building was a relevant building, ISL was a specified body corporate, and the costs claimed related to “relevant defects” as the defects in question were a “building safety risk” under s 120(5) of the BSA. As for the just and equitable test, the FTT considered that it was met because the lessees paid for the costs of the works which ought to have been met by ISL. The fact that costs were incurred before the BSA came into force was not a barrier preventing an RCO being made.
St John Street Property Services Ltd v Riverside Group Ltd
Date: 25 July 2023
Forum: First Tier Tribunal
Issue: Recovery of cladding remediation costs
Building safety defects were identified. The landlord, St John, had a potential claim for an RCO. However, remediation works were urgent, and St John paid for these to be carried out (and waking watch implemented before works were complete).
St John sought the costs of the works and waking watch via the service charge. Riverside, a housing association with a lease of a number of flats objected, saying St John had not taken sufficient steps to establish third party liability or apply for an RCO. In essence, Riverside said the charges were unreasonable.
The FTT found the interim and final service charge costs works were recoverable under the lease and were reasonable. St John had taken steps to try to advance matters: it had sent a Letter of Claim to the contractor, however that had been met with resistance, and St John did not have the means to continue with litigation. It could not reasonably be required to litigate as a precondition to recovery of service charges and it was not appropriate to discount any of the service charges against the mere possibility that a successful action might produce some payment from the third party at some date in the future.
R (Redrow PLC & Ors) v The Secretary of State for Levelling Up, Housing and Communities
Date: 14 June 2024
Forum: Court of Appeal
Issue: Operation of the Building Safety Fund
The Court of Appeal considered the proper operation of the Building Safety Fund (“BSF”).
The BSF is a funding mechanism where the government provides financial support for the removal and replacement of unsafe cladding on high-rise residential buildings in England. Grants are conditional upon recipients taking reasonable steps to recover sums from parties responsible for such defects. That includes developers who subsequently signed a voluntary pledge to remediate and reimburse government funding. Redrow, the developer of two-high rise developments with fire safety defects, had signed that pledge and the later Self-Remediation Terms contract.
Leaseholders had the benefit of a latent defects insurance policy, for which the insurer accepted liability in principle for remediation costs. Before works were commenced the leaseholders also sought, and obtained, BSF funding.
Redrow unsuccessfully challenged the BSF funding allocation via judicial review, arguing insurers should pay for the remediation and/or that a funding decision should not have been taken while the claim against insurers was unresolved. This argument was dismissed, with the Court of Appeal finding the BSF guidance stated the funding decision would not affect the leaseholders’ rights to pursue claims against third parties, and that they could still recover costs from insurers after the decision.
The policy backdrop was that the BSF was intended to ensure remediation works were carried out as soon as possible. The funding decision was pragmatic and sensible, and which allowed the works to proceed without unnecessary delay.
Adriatic Land 5 Ltd v Leaseholders of Hippersley Point
Date: 12 October 2023
Forum: Upper Tribunal
Issue: BSA service charge protections
Hippersley Point was a higher risk building where cladding works were identified as being necessary, along with interim fire safety measures until those substantive works were complete. These constitute a relevant defect.
The Upper Tribunal found the landlord could not recover costs (including legal and professional costs) incurred as a result of a relevant defect from qualifying leaseholders via the service by paragraph 9 of Schedule 8 of the BSA.
Note: an appeal was heard by the Court of Appeal in March 2025. Judgment is awaited.
Triathlon Homes LLP v Stratford Village Development Partnership & Ors
Date: 19 January 2024
Forum: First Tier Tribunal
Issue: First contested Remediation Contribution Order
The FTT made the first substantive RCO following a contested hearing. In doing so, it considered the meaning of the “just and equitable” test and provided guidance as to when an RCO can be made.
Triathlon Homes, the long leaseholder of Plot N26 of East Village (the former London 2012
Athletes Village), applied for a RCO against the developer, (Stratford Village Development Partnership (“SVDP”)), the leaseholder and original owner of SDVP (Get Living plc) in respect of the cost associated with remedial works.
The remedial works were funded by the Building Safety Fund and had started at the time the application was made. Get Living argued that a RCO was therefore unnecessary, and that Triathlon could and/or should pursue the culpable parties from the original project.
In finding it was “just and equitable” for the RCO to be made, the FTT considered that the purpose of the BSA was to create a hierarchy of liability, with the developer and/or its associated companies sitting at the top, irrespective of fault. It also found that the motivation behind the RCO application and the fact remedial works were underway (and being funded) was irrelevant. Finally, where the requirements for a RCO were met, the availability of other remedies was also irrelevant.
Note: an appeal was heard by the Court of Appeal in March 2025. Judgment is awaited.
Secretary of State for Levelling Up, Housing and Communities v Grey GR Limited Partnership
Date: 29 April 2024
Forum: First Tier Tribunal (Upper Chamber)
Issue: Remediation Order
Grey GR Limited Partnership v Edgewater (Stevenage) Ltd & Ors
Date: 24 January 2025
Forum: First Tier Tribunal (Upper Chamber)
Issue: Remediation Contribution Order
Vista Tower is a 49-metre tall (16 storey) block of flats constructed in the late 1950s/early 1960s. Originally constructed as commercial offices, it was converted into residential units in 2015-2016 by the freeholder, Edgewater (Stevenage) Ltd (“Edgewater”). Those conversion works involved the use of combustible materials in the external walls, such that they amounted to building safety defects. In 2018, Grey GR Limited Partnership (“Grey GR”) purchased the freehold.
In April 2024, in the Secretary of State applied to the FTT for a Remediation Order against
Grey GR (as the freeholder) in respect of the defects, some of which were not eligible for
BSF funding. The FTT granted the Remediation Order to help assure leaseholders that Grey GR would be legally required to fix the defects. In making the Order, the FTT commented that the focus was not on providing redress for non-compliance with a legal obligation, but on remediation of life-threatening building safety defects in tall residential buildings.
Grey GR in turn sought, and obtained, an RCO against the original developer, Edgewater, and 75 associated bodies. The impact being they were jointly and severally liable for the c.£13m in remediation works required.
In making the RCO, the FTT provided guidance on certain key issues:
- A “relevant defect” is not just building work that did not comply with relevant Building Regulations. Such non-compliance is just one way in which something can be a defect, suggesting the term will be given a wider and more liberal interpretation.
- In determining whether a defect causes a “building safety risk”, the FTT considered it was any risk above “low risk”.
- The costs to be included in an RCO are at the FTT’s discretion – even if they/the remedial works go beyond what is proportionate to make a building safe.
Note: the Upper Tribunal has given permission to appeal the 24 January 2025 RCO judgment. That appeal will consider whether (1) an RCO can be made against multiple entities on a joint and several basis; (2) the costs of remediating defects which cause a tolerable level of risk can be included in an RCO; and (3) the costs of replacing a wall type that the experts considered was unnecessary and disproportionate should have been included in the RCO.
Building Liability Orders
Willmott Dixon Construction Ltd v Prater & others
Date: 21 March 2024
Forum: Technology and Construction Court
Issue: Building Liability Order guidance and extra-territorial effect
The TCC provided guidance on building liability orders (“BLO”), introduced by sections 130-132 of the BSA that allow courts to extend the liability of a body corporate to its associated companies that might otherwise escape liability by making them jointly and severally liable, provided it is “just and equitable” to do so in a case that Beales was directly involved in.
Willmott Dixon pursued a c.£47 million recovery claim from its supply chain for its losses related to the use of unsafe or defective materials in the external wall of a mixed-use commercial and residential development.
AECOM (one of the defendants/ the building services engineer) issued Part 20 proceedings for a BLO against one English and three German Lindner Group Companies due to concerns over their financial position and an alleged disposal of assets following corporate restructuring. The Lindner Group Companies applied to stay the Part 20 claim pending resolution of the of the underlying substantive claim.
The TCC refused to grant the stay and concluded that it was “sensible and efficient” to hear the BLO claim together with the main claim.
BDW Trading Ltd v Ardmore Construction Ltd and Ors
Date: 27 February 2025
Forum: Technology and Construction Court
Issue: Building Liability Orders and Information Orders
BDW notified claims against Ardmore Construction Ltd (“ACL”) in respect of fire safety and/ or structural defects at five developments. One of these was Crown Heights, in respect of which it had already successfully sought to enforce an adjudicator’s award of £14.5m (see summary of that case above).
In light of that background, BDW considered ACL’s alleged total liabilities were in the order of £85m, and that it did not have the financial resources to satisfy these. BDW therefore signalled an intention to apply for BLOs against ACL’s associated companies.
So that it could make, or consider making, those BLO applications, BDW first sought
Information Orders under s 132 of the BSA against ACL and its associated companies
(Ardmore Construction Group Ltd (“R2”), Ardmore Group Ltd (“R3”), and Ardmore Group Holdings Ltd (“R4”)). ACL was a wholly owned subsidiary of R2. R2 was a wholly owned subsidiary of R3. R3 was a wholly owned subsidiary of R4. In effect, BDW sought information as to whether R4 was an associate of ACL, whether there were any other entities associated with ACL, and current information of the financial position of all of ACL, R2, R3, and R4.
The TCC declined BDW’s application, finding that:
- Information Orders are not a freestanding right or remedy but exist to “provide a means by which a prospective application for a [BLO] can obtain information or documents to enable it to make, or consider whether to make, such an application”.
- An Information Order can only be made against the body corporate with the relevant liability – here, ACL. It cannot be made against those said to be associated – i.e. there was no basis for finding R2, R3, or R4 had a relevant liability.
- To make an Information Order, the court must be satisfied that (1) the original body corporate is subject to a relevant liability, and (2) it is appropriate for the information sought to be disclosed for the purpose of enabling the applicant to make, or consider whether to make, an application for a BLO.
- On the first requirement, the original body corporate must be in fact currently liable to the applicant in relation to a building safety claim relating to the specified building in respect of which it is considering making an application for a BLO. However, the relevant liability need not already be established at the time of the application. Here, ACL no longer had a liability because it had paid the earlier adjudication award at Crown Heights. On the other four developments, liability was disputed and yet to be determined.
- As for the second requirement, what is appropriate (and the scope of any Information Order) should be assessed on its facts. Here, BDW had sought a wide range of information. Even if the relevant liability condition had been satisfied, the court would have refused many of the requests as inappropriate – among other things, the material sought was not necessary to identify associates of ACL or assess whether it was worth applying for a BLO against one or more of them; was unlikely to be within the control of ACL; and was related to ACL and not to its associates.
The TCC also noted in passing that BLOs can be obtained on an “indemnifying” basis – i.e. before and without establishing the relevant liability of the original body corporate.
381 Southwark Park Road RTM Company Ltd & Ors v Click St Andrews Ltd & Anor
Date: 19 December 2024
Forum: Technology and Construction Court
Issue: First substantive Building Liability Order
In an earlier substantive judgment, the TCC found the original developer, Click St Andrews Ltd (“CSA”), liable for inadequate fire protection and issues with structural adequacy of load bearing beams. These defects were a “relevant liability” for the purposes of s 130 of the BSA.
The leaseholder claimants then made an application for a BLO against associated bodies corporate of CSA, which was in liquidation.
The TCC quickly found that Click Group Holdings Ltd (“CGH”) was an associated body corporate of CSA: CSA was a wholly owned subsidiary of Click Above Ltd, in which CGH held all the shares.
On the question of whether it was “just and equitable” to make the BLO, the TCC focused on the financial position of the company with the relevant liability (i.e. CSA). It considered it was just and equitable to make the order because CSA was a special purpose vehicle set up for the sole purpose of purchasing, developing, and then divesting itself of the property, and which was dependent upon inter-group and inter-company loans for survival.
The wording of the BLO granted stuck closely to the wording of the BSA, meaning the liability of CGH was limited to the relevant liability of CSA only. It did not go wider, and was not to be seen as a gateway for making CGH liable for all of CSA’s (potential) liabilities to the leaseholders.
Other Associated Issues
Blomfield & Ors v Monier Road Ltd
Date: 3 July 2024
Forum: First Tier Tribunal
Issue: Higher risk building criteria and guidance
At issue was a building in East London with commercial premises on the ground floor, five storeys of residential flats above, and a roof terrace containing a roof garden together with stored plant/machinery. Leaseholders were unable to sell or mortgage their properties due to cladding related fire safety issues and applied for a Remediation Order under section 123 of the BSA against the freeholder landlord, Monier Road Ltd (“Monier”). Monier did not contest the making of a Remediation Order but disagreed with leaseholders about aspects of the proposed remedial works ultimately granted by the FTT.
On its own motion, the FTT queried whether the building should be considered “higherrisk building” category given its height. This was relevant to the scope of works required. The Higher-Risk Building (Descriptions and Supplementary Provisions) Regulations 2023 did not provide an actual definition of “storey”. However, they said a rooftop with plant or machinery should be ignored when measuring the height of a building or the number of storeys. The FTT said that, by implication, this meant the rooftop here was a storey, meaning the building was over 18 metres in height, and therefore a higher risk building. This conclusion was contrary to a government guidance document from June 2023 which explicitly stated a storey must be fully enclosed to be counted.
URS Corporation Ltd v BDW Trading Ltd
Date: 22 October 2021 / 5 July 2023
Forum: Technology and Construction Court / Court of Appeal
Issue: Scope of Defective Premises Act 1972 / Retrospectivity of BSA & Limitation
The Court of Appeal considered duties owed to developers under the Defective Premises Act 1972 (“DPA”), and increased retrospective limitation periods for DPA claims brought in by the BSA.
BDW, the developer, appointed URS, an engineering firm, to provide structural design services in relation to two residential developments. Practical completion occurred between March 2007 and February 2008, and BDW then sold the individual apartments.
In 2019 BDW discovered structural defects in the developments. By this time, BDW no longer owned or had a proprietary interest in them. Nevertheless, it considered it had liability to the occupiers under the DPA pursuant to the individual contracts of sale. BDW therefore incurred the costs of investigating the structural defects and carrying out remedial works, which it sought to recover from URS.
URS argued that BDW should have raised a limitation defence or argued that the losses were too remote because BDW no longer owned the developments at the time the defects were identified.
At a preliminary issue hearing the TCC determined that, with some exceptions, the scope of URS’ duty of care extended to the alleged losses suffered by BDW, and that those losses were in principle recoverable. In respect of limitation, it considered BDW’s cause of action accrued no later than the date of practical completion, and not some later date (meaning that its claim against URS was not time-barred).
URS was granted permission to appeal, which was dismissed – the Court of Appeal finding that the losses claimed were within the scope of URS’ duty of care, and there was no requirement for there to be physical damage. As a result of this latter point, BDW’s cause of action accrued at the latest at practical completion.
In addition to the above, there had been a separate TCC hearing where BDW sought, and obtained, the court’s permission to amend its claim. URS appealed this judgment as well. In dismissing this appeal, the Court of Appeal stated that:
- It was clear on the plain words of section 1(1)(a) of the DPA that URS was “a person taking on work for or in connection with the provision of a dwelling”, and the dwelling(s) in this case were “provided to the order of” BDW (in its capacity as the developer). That is, BDW was owed a duty by URS under the DPA.
- Section 135 of the BSA (which introduced a retrospective limitation period of 30 years for DPA claims) was intended to have retrospective effect and applied here. As such, there was no limitation barrier to a claim being advanced under the DPA.
- The making (or intimation) of a claim was not a condition precedent to seeking contribution from a third party – in this case, BDW had not received a claim from the owners before settling by undertaking the remedial works.
Note: URS’ appeal to the Supreme Court was heard in December 2024. Judgment is awaited.
BDW Trading Ltd v Ardmore Construction Ltd
Date: 16 December 2024
Forum: Technology and Construction Court
Issue: Adjudication and the BSA
The TCC enforced an adjudicator’s decision in relation to a historic fire safety claim under the DPA.
Ardmore Construction Ltd (“ACL”) was the contractor for residential development known as Crown Heights. Practical completion was achieved between 2003-2004. Various fire safety defects were discovered post-Grenfell. As a result of the introduction (via the BSA) of a retrospective 30-year limitation period for claims under the DPA, BDW (as employer), referred the dispute to adjudication in 2024, where it was successful, as ACL was found liable for breaches of the contract and the DPA. ACL was ordered to pay £14.5m as a result. BDW applied to the TCC to enforce that decision, which was contested by ACL.
The adjudicator had determined (i) the limitation period for claims under the building contract did not apply due to deliberate concealment of the defects by ACL (such that BDW was able to revise the contractual claim as a result) and (ii) the limitation period for claims under the DPA was retrospectively extended by the BSA.
BDW sought to enforce the Adjudicator’s decision by way of application for a summary judgment. ACL challenged the adjudicator’s jurisdiction to determine a tortious claim for breach of the DPA.
The TCC rejected ACL’s arguments: most significantly, BDW was able to adjudicate a claim under the DPA. This was in part based upon earlier case law indicating adjudication clauses in a building contract were designed to cover any dispute arising out of the parties’ contractual relationship, not just contractual disputes – that is, including disputes under the DPA. The TCC also rejected ACL’s argument that it was inherently unfair to adjudicate a claim for design defects 20 years after practical completion.
Note: ACL has been granted permission to appeal the TCC judgment.
Conclusion
The BSA landscape is continuously evolving, with critical rulings impacting the construction industry. In the past year, we have seen a number of the BSA’s provisions considered for the first time. The above cases highlight the Court’s (and Tribunal’s) focus on addressing safety risks and ensuring timely remediation of defective buildings while balancing fairness in complex disputes. The emerging case law indicates that building safety claims are becoming increasingly difficult to successfully defend as the courts seek to implement, interpret and support new legislation.
Stakeholders will need to comply and adhere to new and existing obligations under the BSA and the DPA and continue to focus on building safety and compliance in order to manage increasing liabilities.
We are expecting further significant developments throughout 2025 as the impact of extended time limits and the widening scope of claims under the DPA will inevitably continue to increase the number of complex multi-party fire and building safety claims being scrutinised by the courts.
Beale & Co have advised and acted on a number of BSA related matters. Should you have any questions about the points raised in this article, or building safety matters generally, please get in touch with the authors or with your usual Beale & Co contact.
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