The last financial year saw a series of significant decisions expansively interpreting the Building Safety Act 2022 (BSA) and its interaction with long‑standing legal principles of liability, limitation and the retrospective application of statutes. On analysis, a pattern of purposive interpretation emerges, reflecting Parliament’s intention that the cost of remediating defects should fall to those it sees as responsible for them.
URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21
BDW became aware of structural defects in two high‑rise developments for which URS had provided the structural design. Although BDW no longer owned the buildings, it voluntarily undertook extensive remedial works and sought to recover the cost from URS.
In arguably the most consequential BSA case to date, the Supreme Court confirmed that:
- “voluntarily” incurred remediation costs can be recoverable in negligence; and
- s135 of the BSA (the retrospective 30‑year limitation period) applies not only to claims under the Defective Premises Act 1972 (DPA) but also to negligence or contribution claims dependent on an underlying DPA claim, broadening a developer’s ability to recover historic remediation costs which may have previously been time barred.
In holding that “voluntarily” incurred costs can be recoverable in negligence, the Supreme Court rejected URS’ argument that BDW acted voluntarily in a manner which broke the chain of causation. Instead, the Court accepted BDW faced potential liability to occupiers, reputational harm and genuine safety concerns, leaving it with no realistic choice but to undertake remediation.
The Court also confirmed that developers can both owe and be owed duties under s1(1)(a) DPA, where they commission dwellings “to their order”. This clarifies, and expands, the parties who may make claims under the DPA.
Finally, the Court confirmed that the undertaking of remedial works by BDW amounted to a “payment in kind” sufficient to create a potential liability recoverable under the Contribution Act 1978 – even where, contrary to the usual position, BDW had no claim, or threat of a claim, made against it.
BDW Trading Ltd v Ardmore Construction Ltd
In a particularly significant decision due to the subsequent insolvency of Ardmore Construction Limited, the High Court provided guidance on the reach of Building Liability Orders (BLOs) and Building Information Orders (BIOs) under ss130-132 of the BSA.
- BLOs: whilst the Court stressed that BLOs must be assessed on a building‑specific basis, it was held that a BLO may be granted even before liability against the primary entity is determined – opening the door to strategic use of BLOs to secure an early indemnity within a corporate group, even prior to commencement of litigation against the primary contractor (i.e. the party with a “relevant liability”).
- BIOs: in contrast to the expansive interpretation above, in applying for a BIO claimants must be precise, proportionate and evidence‑based. The Court also emphasised that a successful BIO application must require evidence that the target entity itself holds a “relevant liability”, not merely that it is an associate.
Triathlon Homes LLP v Stratford Village Development Partnership (SVDP); Adriatic Land 5 Ltd v Long Leaseholders at Hippersley Point
Triathlon
In the first appellate consideration of Remediation Contribution Orders (RCOs) under s124 of the BSA, the Court of Appeal upheld the First‑tier Tribunal’s (FTT) decision on the retrospective nature of RCOs, requiring the Respondents to fund remediation costs for five blocks in East Village. This decision reiterates that RCOs are a powerful mechanism for recovering historic, as well as prospective, remediation spending.
The two key issues considered were:
Was it “just and equitable” for the FTT to award the RCO?
Whether it is “just and equitable” to grant an RCO is dependent upon the individual circumstances before the Tribunal. However, the Court endorsed the robust approach of the FTT, noting (as above) the policy intent of the BSA to ensure that original developers (and where applicable their corporate successors) bear the cost of remediating defects. This remains the case where public monies have been used (e.g. the Building Safety Fund), which should be a matter of last resort.
Can an RCO be made in respect of costs incurred before the BSA commenced?
£1.1m of monies claimed was incurred before s124 of the BSA commenced (28 June 2022). Whilst acknowledging the general assumption against retrospectivity, the Court upheld the FTT’s decision that the statutory language (“costs incurred or to be incurred”) contains no temporal restriction. The retrospective application was justified by Parliament’s clear intention to ensure those responsible for defects ultimately meet the cost.
Adriatic Land
In this case (heard with Triathlon), the Court of Appeal (by majority) held that, provided costs had not already been paid by leaseholders, from its commencement (28 June 2022), the BSA prohibits recovery of costs relating to a relevant defect being recovered from qualifying leaseholder, even if the costs were incurred before that date. This further reflects the intention that leaseholders ought to be protected from the costs associated with fire safety defects.
However, the question of retrospectivity remains unsettled, as both Adriatic Land and SVDP have been granted permission to appeal that issue to the Supreme Court.
Monier Road Ltd v Blomfield & Others
Whilst expansive interpretation may be the norm, this decision reiterates that there are boundaries to the FTT’s jurisdiction.
In considering an application for remediation order under s123 BSA, the FTT granted the order set out in the application, included further “relevant defects” and opined on whether the building was a “higher‑risk building”.
On appeal, the Upper Tribunal held:
- whilst the FTT may raise issues not pleaded, it is for the parties (and not the Tribunal) to pursue such points;
- if the FTT disagrees with expert evidence, it must give reasons and an opportunity to respond; and
- the FTT had no jurisdiction to determine whether the building was a higher‑risk building.
Overview
Across this case law, the theme is clear. Developers face extended limitation periods, expanded duties, increased exposure, and constraints on shifting legal costs to leaseholders. Conversely, leaseholders benefit from strengthened statutory protections and more accessible routes to compel remediation (or contribution to the same). Regardless of your role in the construction ecosystem, the developing BSA case law will impact your risks and remedies. Please contact the authors if you need to discuss how to manage this changing landscape in your upcoming projects, or where you require advice on a live or developing dispute.