The Building Safety Act: 2025 in review

As we hit the ground running in 2026, Daniel Searle comments on selected cases concerning the BSA throughout 2025, with a particular focus on Remediation Orders and Remediation Contribution Orders.

Remediation Orders (“ROs”)

Monier Road Limited v Nicholas Alexander Blomfield and Other Leaseholders [2025] UKUT 157 (LC)

Monier Road Limited is the freehold owner of two blocks of residential and commercial buildings. A risk assessment commissioned by Monier Road Limited recommended four remedial actions, which included removal and replacement of non-compliant cladding. The long leaseholders applied to the FTT for an RO, requesting replacement of the cladding to the courtyard. However, the FTT identified and subsequently made an RO in respect of further issues of concern not raised in the leaseholders’ application. Predictably, Monier Road Limited appealed on the basis that the FTT had made an RO in respect of matters which had not been applied for by the leaseholders.

In upholding the appeal by Monier Road Limited, the UT determined that the FTT is permitted to consider matters not raised by leaseholders, however its power to do so is limited to three circumstances, being:

• Where the tribunal needs to raise a new point on the basis that it may not have jurisdiction to decide the issue before it, or on the basis that there is a fundamental problem with a party’s case.
• Where a statute requires the tribunal to address a matter that the parties have not raised.
• In order to clarify a party’s case.

The UT went on to determine that none of the above circumstances applied, such that the FTT did not have the power to consider the additional issues it raised (further finding that the FTT had effectively conducted a building safety audit) and accordingly allowed the appeal.

Barclays Nominees (George Yard) Limited v LDC (Oxford Road Bournemouth Limited) HAV/OOHM/BSA/2024/0001 and 0001

Purbeck House in Bournemouth consists of two blocks of student accommodation. Somewhat unusually, in this case the freehold owner applied against the leaseholder for an RO. At the time of the FTT hearing, there was around 6 years left on the lease. The leaseholder argued before the FTT that the reason for the freeholder seeking an RO was to obtain a commercial benefit, as opposed to providing leaseholder protection, such that the Tribunal should not exercise its discretion in granting an RO.

However the FTT, whilst acknowledging that the freeholder had intended to protect its commercial interest, determined that the intention of the BSA is to ensure building safety (in this case ensuring that hundreds of students were kept safe) and that it was appropriate to make the order in this instance.

Remediation Contribution Orders (“RCOs”)

Grey GR Limited Partnership v Edgewater (Stevenage) Limited and others [2025] (FTT)

Pursuant to section 124 of the BSA, the FTT may make an RCO “requiring a specified body cooperate or partnership to make payments to a specified person, for the purpose of meeting costs incurred or to be incurred in remedying, or otherwise in connection with, relevant defect”. A “relevant defect” is a defect if it causes a building safety risk, pursuant to s120(2).

Following the FTT making a remediation order against Grey GR (the landlord) in Secretary of State for Levelling Up, Housing and Communities v Grey GR Limited Partnership [2024] 4 WLUK 558, Grey GR subsequently sought RCOs to recover its costs against the original developer (and companies associated with it) due to design and constructions defects which had caused building safety risks. The Respondents denied that there were “relevant defects” for the purposes of section 120 and further denied that it would be “just and equitable” to make the orders sought.

In granting the application, the FTT found:

• That the meaning of “defect” in section 120(2) was not limited to non-compliance with the Building Regulations; all that was required was that the acts or omissions caused a building safety risk (as defined by section 120(5)) and that said risk was above “low”.
• That the “just and equitable” test was deliberately wide “so that the money can be found” and that the granting of an RCO would not necessarily be based on fault. The FTT considered the hierarchy of liability and determined that, whilst the developer was the “key target” and there was “no doubt” that an RCO should be made against it, it was just and equitable to also make RCOs against 75 of the associated companies (pursuant to section 121) due to “linking factors” over-and-above common directorship with the developer. Such factors included, in this case: the familial operation of the companies; the presentation of the companies as part of a group; and the financial linkage between the companies.

Triathlon Homes LLP v Stratford Village Development Partnership & Ors [2025] EWCA Civ 846

In 2024, the FTT in this case handed down the first judgment ordering an RCO under s124 of the BSA. The application concerned five residential buildings in Stratford, originally constructed as part of the Olympic Village. Triathlon is the long leaseholder of all the social and affordable housing in the blocks. The blocks were developed by the First Respondent, SVDP, which is owned by Get Living (though SVDP was not so owned at the time of the construction). Get Living also owns the long leases to all the private rented housing in the blocks. Serious defects were discovered in November 2020 and remediation works had commenced by the time of the application.

There was no dispute that the pre-qualification criteria were met (i.e., there were “relevant defects” in a “relevant building”, and Triathlon is an “interested person”, both SVDP and Get Living constituted a “specified body corporate or partnership”). The principal issue between the parties was whether it was “just and equitable” to make an RCO. The Tribunal found that it was just and equitable to make the order; SVDP and Get Living then appealed, effectively leapfrogging to the Court of Appeal. The two grounds of appeal were:

• That the FTT erred in finding that it was just and equitable to make the RCOs; and
• That the FTT erred in ordering an RCO in respect of costs incurred before the relevant part of the BSA came into force.

The first ground was divided into ten sub-grounds, and in particular relied on the fact that the works were already being funded by the Building Safety Fund. The Court rejected all of the ten sub-grounds, noting that “the policy of the Act was to place primary responsibility on the developer” (following the Supreme Court’s lead in URS v BDW) and that recourse to the Building Safety Fund was “a matter of last resort and should not be seen as a primary source of funding where other parties, within the scope of section 124, are available as sources of funding”.

The Court also dismissed the second ground, determining that s124 had retrospective effect. The Court again relied on URS v BDW, which found that it was the intention of Parliament when enacting the BSA to provide recourse to leaseholders in permitting claims to be brought against those responsible for defects “whether before or after the Act came into force”.

SVDP and Get Living have applied for permission to appeal on both grounds to the Supreme Court.

Adriatic Land 5 Limited v Long Leaseholders at Hippersley Point & Anor [2025] EWCA Civ 856

Adriatic is the registered freehold proprietor of a 10-storey mixed-use block known as Hippersley Point, which contains 32 residential flats held on long leases. In 2020, investigations revealed that there were fire safety concerns in the building. As a result, Adriatic applied to the FTT for dispensation from the requirement to undertake consultation with leaseholders, due to the urgency of the works. In 2021 (and so before implementation of the BSA), the FTT granted the application for dispensation, however (following a review) ordered that the grant of dispensation was conditional upon the costs of the application being irrecoverable from the leaseholders.

On appeal of the costs condition, the UT determined that, whilst the FTT’s condition as to costs was unreasonable, paragraph 9 of Schedule 8 of the BSA protected the leaseholders in that “No service charge is payable under a qualifying lease in respect of legal or other professional services relating to the liability (or potential liability) of any person incurred as a result of a relevant defect”, even though those costs had been incurred prior to the commencement of the BSA.

The Court of Appeal upheld (by a 2:1 majority) the UT’s decision, determining:

• Unanimously, that the costs of the dispensation application fell within the scope of paragraph 9 of Schedule 8.
• That, from 28 June 2022, no service charge is payable in respect of the relevant costs whether such services have been provided and invoiced for, or any service charge demanded or fallen due, before or after that date.
• That the retrospective application of paragraph 9 did not violate Article 1 Protocol 1, given that paragraph 9 relates to a “control of use” rather than deprivation of property.

Permission has been granted to appeal to the Supreme Court on the retrospectivity ground only.

Empire Square LON/00BE/HYI/2023/0013 & LON/00BE/BSB/2024/0602

The leaseholders in this matter sought an RO against the landlord, Fairhold Athena Limited who, in turn, sought an RCO against Berkley Group Holdings plc, the developer. Berkley had signed the developer’s pledge and the self-remediation terms (agreeing with central government to take responsibility for the defects).

In granting an RO against Fairhold Athena Limited, the FTT suspended the order so as (in a similar vein as in Secretary of State for Levelling Up, Housing and Communities v Grey GR Limited Partnership [2024] 4 WLUK 558) to provide Berley time in which to complete the remedial works within specific and staged periods (failing which, Berkley would liable to pay Fairhold a sum of £9.5m, pursuant to the RCO).

Crucially, the FTT disagreed with the test applied for the granting of an RO in The Chocolate Box; being unsatisfied that the test was whether it was “fair and just” to make an RO or that section 123 refers to a “balance of prejudice”, the FTT found that section 123 was deliberately drafted by Parliament in a broad terms so as to enable something of an unfettered discretion to (as per Leigham Court Road) “enable the Tribunal to find the best and most practical, outcomes-focussed solutions to myriad circumstances that will inevitably present themselves”. The FTT further found that decisions must only be “within a range of reasonable decisions” in achieving remediation of relevant defects for the safety of the leaseholders.

Importantly, the FTT also determined that pursuant to the RCO Berkley would not only be liable for the cost of remedial works, but also the costs of the RCO application. This is despite the general rule in FTT proceedings that each party bears their own costs and marks a significant re-balance between applicants and respondents in the FTT.

URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21

On 21 May 2025, the Supreme Court handed down judgment in the long-awaited case of URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21; the first time the Supreme Court has considered claims arising under the BSA.

In unanimously dismissing URS’s appeal on all four grounds, the Supreme Court determined:

• Ground 1 (Voluntariness and Negligence): After considering a number of authorities stretching back over a century, the court rejected URS’s proposition that there was a principle of voluntariness which operates as a bright line rule of law rendering voluntarily incurred losses too remote, or outside the scope of the duty of care in negligence. As such, there was no authority for the proposition that the voluntariness of a payment would generally render it outside the scope of a duty of care, or render it too remote.
• Ground 2 (Retrospective Effect of s135): The Court determined that s135(3) (which provides for the retrospective extension of time limits) applied not only to claims under the DPA, but also to related negligence and contribution claims. The Court referred to the policy considerations of the BSA, highlighting that retrospectivity was central in achieving the aims and objectives of the BSA.
• Ground 3 (Duty under the DPA): URS argued that BDW could not benefit from the duty provided by section 1(1) of the DPA, given that the purpose of the legislation was to protect consumers and BDW is, by contrast, a powerful developer. In rejecting this ground, the Court held that the ordinary meaning of the words used in s1(1) should be observed (“[every person] who acquires an interest … in the dwelling”) and that there was no reason why a developer cannot owe and be owed a duty simultaneously.
• Ground 4 (Contribution): The issue under this head was whether BDW was entitled to bring a claim against URS under the Contribution Act in circumstances where there has been no judgment against BDW or settlement between BDW and any third party and no third party has asserted any claim against BDW (BDW having voluntarily undertaken remedial works). In rejecting this ground, the Court determined that the right to contribution arose where: (i) damage has been suffered by a claimant for which two or more defendants are liable, as per section 1(1) of the Contribution Act; and (ii) the initial defendant had paid (or had been ordered or had agreed to pay) compensation in respect of the damage (it being implicit in section 1(2) that the initial defendant may only recover contribution when it has made or has been ordered or has agreed to make payment, which includes payment in kind, as in the present case.

A detailed note on URS v BDW by Deka’s Construction Team may be found here.

Health and Safety Executive v Integritas Property Group (IPG) Ltd [2025] EWHC 2613 (TCC)

Deka’s own Saleem Khalid acted on behalf of the successful HSE, the current Building Safety Regulator, in obtaining its first injunction under the exercise of its regulatory function under the BSA.

Deakins Yard is a development in Staffordshire that was intended to provide student accommodation.  Its developers, however, did not follow the necessary route to achieve completion and sign off from the new Building Safety Regulator in relation to this Higher Risk Building.  Nevertheless, the developer marketed the units as ready for occupation in time for the start of the new academic year.

Accordingly, the Building Safety Regulator, who believed the building would be illegally occupied, sought to engage its new powers and jurisdiction in order to secure an emergency interim injunction in the High Court (TCC).

The basis for the injunction granted was found to be contained in the Building Safety Act 2022 itself, as supported by the (amended) Health & Safety at Work Act 1974 and the Building Act 1984.

The Court noted its general discretion to order an injunction in a new area of law as set out in Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24.  Further, the Court had regard to other cases in the context of an authority seeking to enforce its statutory duties and responsibilities, including Surrey Heath Borough Council v The Owner of the Land on the East Side of Mytstrou (“D1”) & Ors [2025] EWHC 321 and Broadmoor Special Hospital Authority v Robinson [2000] QB 775.

Ultimately, the need for swift action was decisive and an injunction was obtained prohibiting the developer, or anyone associated with it, from seeking to sell or let Deakins Yard for occupation prior to obtaining a building completion certificate as required.   

This case illustrates the new Building Safety regime in practice.  Parliament enacted the Building Safety Act 2022 following the Grenfell tragedy in order to overhaul the safety of higher risk buildings in particular.  It had been unclear how such a case would be dealt with, but the injunction granted demonstrates the powers of the new Building Safety Regulator and should ensure that no occupation occurs until a building is safe.

About the author

Having worked on the Grenfell Tower Inquiry for over three years (specifically focusing on cladding and building control inspections), Daniel Searle has an in-depth knowledge of construction matters and a deep understanding of the policy considerations currently affecting the development of the law in this area. He has a thorough understanding of the Building Safety Act 2022 and can provide seminars to solicitors and end-clients on matters relating to building safety litigation and construction matters generally.