The Building Safety Act 2022 (the “BSA”) introduced a complex regulatory framework which aims to prioritise the safety of residential building occupants throughout a building’s lifecycle. While its primary objective is to improve accountability for building safety, the BSA has also introduced significant risks for key stakeholders within the construction and property sectors.
Two of the most consequential changes introduced under the BSA, and considered in recent case law are:
- Remediation Contribution Orders (“RCO”).
- Extended limitation periods under the Defective Premises Act 1972 (the “DPA”).
This article examines the recent case law shaping the application of these key changes and highlights the new risks and responsibilities now faced by property owners, landlords, contractors, developers and consultants.
Remediation Contribution Orders (RCOs)
Section 124 of the BSA introduced RCOs as a means to ensure that the cost of remediating building safety defects principally falls on those that develop, manage or own such buildings as opposed to leaseholders or by public funding.
An RCO is a legal order that obligates a “Body Corporate or Partnership”, such as developers, landlords, former landlords, or their associated entities to financially contribute to the costs of remedying Relevant Defects in a Relevant Building.
Under the Building Safety Act 2022, a Relevant Defect is a defect that creates a building safety risk and arises from any act or omission, or from anything used or not used, in connection with Relevant Works. Relevant Works are works carried out in the Relevant Period (the 30 years prior to the BSA’s enactment) and include: works relating to the construction or conversion of a building; works undertaken by, commissioned by, or on behalf of a landlord or management company; and works undertaken after the end of the Relevant Period to remedy a Relevant Defect.
A Relevant Building is defined as a self-contained building or self-contained part of a building which contains at least two dwellings and is either: (a) 11 metres high; or (b) 5 storeys high. An RCO can be awarded by the First Tier Tribunal (the “FTT”) where is considers it “just and equitable”.
Key Recent Case Law: Triathlon Homes LLP v Stratford Village Development Partnership and others [2025] EWCA Civ 846
The case of Triathlon Homes LLP v Stratford Village Development Partnership provides guidance on the Courts powers to issues RCOs and the application of the ‘just and equitable’ test.
Background
Fire safety defects were discovered at residential blocks developed by Stratford Village Development Partnership (“SVDP”) who are owned by Get Living PLC. Triathlon Homes LLP (“Triathlon”) is a social housing provider that held long-term leasehold interests in the properties, which were managed by East Village Management Ltd (“EVML”). Prior to the enactment of the BSA, remediation works were undertaken by EVML, who later applied to the Building Safety Fund for financial assistance. Subsequently, Triathlon applied for an RCO against SVDP and Get Living PLC, for its share of the remediation costs incurred by EVML.
Ruling
Following various appeals, the Court of Appeal upheld the FTT’s decision to issue an RCO against SVDP and Get Living PLC, confirming the following in respect of the BSA and RCOs:
The main purpose of the BSA is to place responsibility for defects on the developer as opposed to relying on public funding as the ‘developer sits at the top of the hierarchy [of responsibility]’ (paragraph 61).
When deciding whether it is ‘just and equitable’ to award an RCO, the Courts will not consider the following:
- whether the remediation works have already been carried out and funded by public funding. Those applying to the Building Safety Fund are still required to use all reasonable endeavours to pursue contributions from other ‘Body Corporates and Partnerships’; and
- a subsequent change in the beneficial owners of a company for which an RCO is sought. New investors or purchasers of a company have taken on the ‘risk of unforeseen liabilities attaching to that company’ (paragraph 118).
The BSA has retrospective application and an RCO can be issued in relation to costs incurred prior to the BSA coming into force.
Extended Limitation Periods Under the DPA
Section 1 of the DPA places a duty on those carrying out the construction of a dwelling to ensure it is carried out in a professional or workmanlike manner and fit for habitation upon completion. Accordingly, Section 1 also provides homeowners and residents with the right to pursue a claim against those in breach of this duty.
Section 135 of the BSA has significantly widened the scope of the DPA by:
- extending limitation periods for claims under Section 1 of the DPA to 30 years (for dwellings completed before 28 June 2022) and 15 years (for dwellings completed after 28 June 2022); and
- broadening the pool of individuals who are owed a duty under Section 1 and the possible defendants in relation to claims involving new dwellings deemed unfit for habitation.
Key Recent Case Law: URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21
The Supreme Court’s ruling in URS Corporation Ltd v BDW Trading Ltd clarifies the wider scope of liability and extended limitation periods established by the BSA, particularly in relation Section 1 of the DPA.
Background
URS Corporation Ltd (“URS”) were engaged as the structural engineer for the construction of residential properties developed by BDW Trading Ltd (“BDW”). Structural design defects were later discovered in two of the properties. Despite no longer owning the properties, BDW undertook the remedial works to resolve the defects and sought to recover the costs from URS. BDW claimed, amongst other things, that URS had breached its statutory duty under Section 1 of the DPA and was negligent under common law. At the time, BDW’s claims would have been time-barred under the contractual limitation period and the DPA’s 6-year limitation period. However, BDW sought to rely on the newly extended limitation periods under the BSA and pursued a contribution for the costs from URS.
Ruling
Following various appeals, the Supreme Court confirmed the following in respect of the BSA and its application to claims under the DPA:
- Although BDW’s costs were ‘voluntarily’ incurred prior to the BSA’s enactment they were recoverable. The Court also highlighted that even though BDW’s costs were ‘voluntarily incurred’, they were recoverable as the works were reasonable in response to potential safety risks.
- Developers such as BDW fall within the category of people to whom statutory duties are owed under Section 1 of the DPA. This now allows developers to lodge claims against consultants in additions to contractors for defective works.
- The extended limitation periods for claims under the DPA applies retrospectively and also to BDW’s related claims including negligence and contribution claims amongst other causes of action. This has prolonged the liability of contractors and consultants as it enables developers to lodge claims even where the original limitation period expired prior to the BSA coming into force.
- Claims for contribution under the DPA can be sought even if there are no current or previous third-party claims. The only requirement is that the claimant has paid compensation for the damage or defects, which includes the carrying out of remedial works.
Key Takeaways
Professional Consultants can now be subject to a claim under Section 1 of the DPA: URS Corporation Ltd v BDW Trading Ltd confirms that developers now have the benefit of the duty under Section 1 of the DPA from not only contractors but also designers, engineers and other professional consultants. This significantly broadens the liability of professional consultants and the pool of potential defendants.
Extended limitation periods increase exposure for contractors, consultants and developers: Parties may no longer be afforded the protection that contractual limitation periods used to provide. Contractors, developers and consultants should:
- review their residential projects to highlight at risk developments;
- ensure future contracts appropriately apportion liability for defects; and
- secure sufficient guarantees, warranties, and insurance cover.
The BSA applies retrospectively: both of the cases discussed confirm that key changes under the BSA, including the award of RCOs and extended limitation periods, apply retrospectively to costs incurred and developments completed prior to the enactment of the BSA.
