Building safety: roundup of case law in 2025 and what to look out for in 2026

In this case, the First Tier Tribunal (Property Chamber) (the FTT) awarded remediation contribution orders (RCOs) against 76 of the respondents in accordance with its powers under section 124 of the Building Safety Act 2022 (BSA), where it is entitled to make RCOs where it is just and equitable to do so. The case explored the fact that the just and equitable test in the statute is to be considered deliberately wide so that "money can be found" in order for remediation works to be carried out and/or public money from grant funding recovered promptly. This is an example of the courts looking at the purpose of the BSA when construing its provisions and also shows how the power of the FTT to make RCOs against associated companies of a developer is a departure from normal company law principles. On this matter in particular, the FTT considered numerous criteria to determine which of the respondents should be liable under the RCOs including funding and flow of profits between the respondents, representations that certain of the respondents were part of the same group in brochures about the property, and shared directors and shareholders of the respondents. 

The Technology and Construction Court (the TCC) held that information orders (IOs) can only be made by the High Court pursuant to section 132 of the BSA against a body corporate who actually has a relevant liability, and not just a potential relevant liability or a relevant liability that has been discharged through payment already. This therefore means the use of IOs may be limited in circumstances where there is a dispute as to the original body corporate's liability and it also means that IOs can only be made against associated companies of an original body corporate where a building liability order has been granted, since this will be the only situation where an associated company would have a relevant liability. This decision, as acknowledged by the judge, is contrary to the example given in the explanatory notes for section 132 of the BSA, but as we are reminded in the judgment, although explanatory notes are a guide to statute interpretation, what matters is the interpretation of the statute itself.

The Upper Tribunal (Lands Chamber) commented that it is "dangerous" for the FTT to express a view on a matter that is not within its jurisdiction, in light of the FTT incorrectly determining that roof gardens could be considered a storey for the purposes of the definition of a higher risk building under the BSA, which led to parties incurring additional costs as a result. Subsequent to this decision, the Ministry of Housing, Communities and Local Government issued an updated note in its guidance as follows: 

"the department’s view remains that roof gardens are not storeys for these purposes. This is the basis for current government guidance, which the sector and regulatory bodies should continue to refer to".

There is no indication as to when the legislation will be amended, but the Ministry of Housing, Communities and Local Government has recognised the need to provide further clarity in the legislation on this point so that it is clear that roof gardens are not to be considered a storey when determining whether a building is a higher-risk building for the purposes of the BSA. 

The Supreme Court held in this case, among other things, that the relevant extended limitation period in section 135 of the BSA can apply to claims that are dependent on the limitation period in section 1 of the Defective Premises Act 1972 but are not claims brought directly under the same. A theme throughout a lot of the BSA caselaw shows the courts giving weight to the overall objectives behind the BSA, and this case is no different, as a key reason behind this decision was the intention behind the BSA to make those responsible for building safety defects liable for remedial costs. For similar reasoning, the Supreme Court also held that a party would be able to claim for a contribution under the Civil Liability (Contribution) Act 1978 where such party has incurred costs to carry out remediation works to address defects for which it and another party are both liable, even where no claim or proceedings by third parties have been brought.

This case was unusual as the freeholder applied for a remediation order (RO) against the respondent leaseholder (relevant landlord) of two blocks of student accommodation. The FTT took a pragmatic approach in making the RO, taking into account the intention behind the BSA to improve the safety of all residential buildings. The FTT recognised that the freeholder had its own interests in applying for the RO so as to achieve remediation of the defects in the property by the time the property was returned to it, but also that the leaseholder had known about the defects for 5 years. The FTT also noted that whilst costs for commercial entities will always be a consideration in choosing whether to carry out works or not, the fact that significant works were needed to remedy a building safety risk in an already occupied property meant that the FTT felt it appropriate to exercise its discretion and make the RO.

The FTT had an unusual set of circumstances to consider in this case as the leaseholders were seeking an RO against the landlord in respect of defective cladding, and the landlord was in turn seeking an RCO against the developer. The developer had also signed the developer's pledge and self-remediation terms so that it had agreed to take responsibility for the defects. 

The ultimate decision of the case resulted in novel suspended ROs and RCOs being granted, save for certain crystallised sums for waking watch and reports, so that the developer had a final opportunity to review its position and undertake the works in compliance with certain conditions and deadlines. Failure to do so would result in the RO and the RCO kicking back in so that ultimately the developer would still have to pay for the remediation works. 

Certain principles of ROs and RCOs were discussed in the judgment including that the FTT has discretion in granting an RO to achieve remediation (and the fact that a developer has expressed willingness to remediate is no fetter on such discretion) and it was also held that legal costs can be included as recoverable costs within an RCO. 

This is a highly talked about case on building safety matters from 2025 and so we have recapped the facts here briefly.

It came to light that residential blocks that had been originally constructed in the athletes' village in Stratford had serious fire safety defects in the external walls and cladding. The company who manages the estate incurred the cost of the remediation works and so applied to the government's building safety fund and funding was approved. Triathlon Homes LLP as a long leaseholder in the social and affordable housing units in the blocks applied for RCOs under section 124 of the BSA against the original developer and the company that had since acquired the developer. The RCOs were requested so that the original developer and its new owner would pay for what would have been Triathlon Homes LLP's share of the remediation costs and also would reimburse Triathlon Homes LLP for certain costs it had already paid for, as when the BSA came into effect, schedule 8 paragraph 2 meant that Triathlon Homes LLP were no longer liable for its share of the remediation costs through service charges.

It is important to note that an appeal to the Supreme Court has been made, but whilst we await the outcome of this appeal, some key principles behind the building safety regime can be extracted from the Court of Appeal's decision including the following:

• There is a hierarchy of building safety liability where the main policy of the BSA is that the primary responsibility for remediation costs should fall on the developer.

• The role of the building safety fund is separate from the hierarchy of liability and so its role is temporary, pending recovery from those legally liable. The building safety fund is a matter of last resort and the public should not fund remediation works when the developer and its associate are able to do so, except in very exceptional circumstances such as where imposing costs on loosely associated companies might be unfair. This analysis will presumably apply to the cladding safety scheme, which we mention below.
• Relying on the judgment of the Supreme Court in URS Corporation v BDW Trading Limited, it was deemed necessary to interpret section 124 of the BSA to give effect to the purposes of the BSA which means that section 124 must have retrospective effect so that RCOs can be made in respect of costs incurred before the commencement of section 124. 

This is a Court of Appeal judgment which looked at, among other things, what precisely the retrospective effect of paragraph 9, schedule 8 BSA should be. A 2:1 majority held that the correct construction of retrospectivity is that from 28 June 2022 (the date from which paragraph 9, schedule 8 took effect), no further service charges are payable so that even if some costs had been demanded or fell due before this point but hadn't yet been paid, these would cease to be payable. Again, the intention behind the BSA was looked at to reach this decision and importantly, considering the similar language used to draft other paragraphs in schedule 8 of the BSA, the interpretation of the retrospective effect should be able to be carried across to other such relevant paragraphs.

The Health and Safety Executive (as the then Building Safety Regulator) applied to the TCC for an interim injunction to prevent occupation of a higher risk building. The application was said to be urgent as the property in question had a history of alleged breaches of building safety regulations, a contravention notice, a cancellation notice, a stop notice, and no completion certificate, but despite this, evidence suggested that the property was being marketed for student occupation. The Health and Safety Executive was deemed to have sufficient standing to apply for the injunction to prevent a breach of criminal law under the BSA and the interim injunction was granted on the basis that occupation of the property carried with it significant dangers, including fire risks, so that damages would not be an adequate remedy. 

The Upper Tribunal (Lands Chamber) found that, among other things, there was no requirement for "unsafe cladding" falling within the scope of paragraph 8 of schedule 8 of the BSA to also be a "relevant defect" for the purpose of part 5 of the BSA.  Whilst this decision is being appealed to the Court of Appeal, this finding could leave a liability gap for management companies and right to manage companies should the Court of Appeal agree with the first instance decision.

Where paragraph 8 of schedule 8 of the BSA applies, no service charge is payable under a qualifying lease in respect of cladding remediation.  Where the defect falling within the scope of paragraph 8 of schedule 8 of the BSA is also a "relevant defect" for the purpose of part 5 of the BSA, it would be possible to seek to plug the funding gap arising from not being able to recover the remedial costs through the service charge by applying for an RCO against a landlord, developer or associate in accordance with section 124 of the BSA.  However, where this remedy is not available and where no other funding sources apply (e.g. the public building safety funds such as the cladding safety scheme, the developer remediation contract, or traditional contractual claims) management companies and/or right to manage companies who are reliant on the service charge received from leaseholders to fund the services performed may find themselves with a repairing obligation but no source of funding to fund the remedial works.