Introduction
The Building Safety Act 2022 (BSA) continues its transformation of the liability landscape for fire safety defects, expanding remedial powers, widening the pool of potential respondents, and embedding a model of responsibility that is as ambitious as it is administratively taxing. This update examines three interconnected developments:
- The unresolved question of limitation for Building Liability Orders (BLOs);
- The Court of Appeal’s reinforcement of a liability hierarchy through the Remediation Contribution Order (RCO) regime; and
- Forthcoming regulatory and legislative changes in 2026.
Together, these developments mark a decisive shift towards enhanced accountability and a financial “follow the money” principle that shows no sign of narrowing.
1. Building Liability Orders: Limitation in Uncharted Territory
Statutory Framework
Section 130 BSA permits the High Court to make a BLO attributing a “relevant liability” of one body corporate to an associated body corporate. Notably, the BSA:
- does not prescribe a limitation period for BLO applications;
- does not define when a BLO “cause of action” accrues; and
- is silent on procedural time bars.
Unlike sections 148 and 149 BSA, which expressly tie construction product liabilities to the Limitation Act 1980 (LA 1980), BLOs receive no equivalent treatment.
Cause of Action vs. Remedy
Under the LA 1980, limitation generally bars the remedy, not the right. Liability continues to exist even after the expiration of a limitation period. The BSA’s reference to “relevant liability” (s.130(3)) does not qualify this as “relevant liability not subject to a limitation defence”.
This gives rise to two interpretations:
Possibility A: BLOs Are Time-Barred with the Underlying Liability
If the underlying claim (e.g. DPA or negligence) is statute-barred, a BLO cannot be pursued.
Possibility B: BLOs Are Not Subject to Limitation
The underlying liability exists theoretically; the limitation defence is simply a factor within the Court’s “just and equitable” discretion.
Likely Construction
The second interpretation appears more consistent with the structure and purpose of the BSA:
- Parliament amended the LA 1980 for other BSA rights but chose not to do so for BLOs;
- The BLO regime is explicitly a remedial mechanism contingent on existing liability;
- Limitation defences can be waived, making them unsuitable as an implied jurisdictional bar.
The Just and Equitable Test
Where the limitation has expired, the respondent will rely heavily on prejudice arising from delay. However:
- expiry of limitation is relevant but not determinative;
- the Court may expect specific evidence of prejudice;
- long periods (e.g. 20–30 years) were always contemplated under the DPA extensions.
The result is a regime where respondents face uncertainty but where the Court retains broad discretion to prevent unfairness.
2. Remediation Contribution Orders: Deep Pockets and Deeper Duties
The Court of Appeal in Triathlon Homes LLP v SVDP & Others [2025] EWCA Civ 846
The Court of Appeal affirmed the First-tier Tribunal (Property Chamber)’s (FTT) approach to RCOs, endorsing a clear hierarchy of responsibility for remediation of historical defects. Key findings included:
- Developers and landlords with means should ordinarily fund remediation before public money is used.
- The Building Safety Fund is a “last resort”, not a first port of call.
- The availability of funding does not displace the statutory objective of assigning costs to those connected with the original development.
- While avoiding the term “presumption”, the Court accepted that the FTT had acted correctly in treating well-resourced developers/associates as first in line to pay.
Scope of “Associated Persons”
The statutory definition in s.121 BSA is intentionally wide. Associations may arise through:
- common directors;
- control relationships;
- historic ownership changes;
- partnership structures; or
- trust arrangements.
Cases such as Helpfavour Limited & Others v (1) Rosco Ingo Limited & (2) Rosco & Perlini Limited (Lon/00BH/BSB/2024/0500) illustrate the breadth of this reach. Even companies with no operational connection to the development may fall within scope if governance or ownership overlaps existed during the statutory period.
Practical Implications
The combined effect of Triathlon and subsequent FTT decisions is that:
- financial capacity is a substantive factor in the “just and equitable” analysis;
- SPVs offer limited insulation, as associated entities remain exposed;
- corporate transactions involving developers now require enhanced due diligence on legacy liabilities;
- contemporaneous document retention becomes mission-critical, even for projects completed decades earlier.
3. Building Safety Developments for 2026
The Building Safety Levy (England)
Effective (anticipated) 1 October 2026, applying to:
- major residential developments of 10+ dwellings, or
- purpose-built student accommodation of 30+ bedspaces.
A surge in building control applications is anticipated prior to implementation. A separate Scottish levy is proposed from 1 April 2027.
Reform of the Building Safety Regulator (BSR)
From 27 January 2026, the BSR’s Higher-Risk Building (HRB) functions will transfer to a new Executive Agency under the Ministry of Housing, Communities and Local Government (MHCLG). This follows concerns that Gateway 2 approvals were taking 43–48 weeks, far exceeding statutory periods.
Improvements are emerging via the BSR’s Innovation Unit, but sustained reform is expected.
Grenfell Tower Inquiry Recommendations
By 2029, the Government aims to implement:
- a permanent Chief Construction Adviser;
- updates to Approved Document B;
- a construction products white paper (Spring 2026);
- proposals for reform of the fire engineering profession;
- strengthened the duty holder declaration requirements for HRB works.
Cladding Remediation and Criminal Liability
Proposed statutory deadlines:
- 18+ metre buildings: remediation by the end of 2029;
- 11–18 metre buildings: remediation by the end of 2031.
Failure without a “reasonable excuse” may lead to unlimited fines or imprisonment.
Second Staircases and Evacuation Regulations
Forthcoming Case Law
Key Takeaway
- BLO limitation remains unresolved, but the statutory structure strongly suggests BLOs are not subject to traditional limitation periods.
- The hierarchy of liability is now firmly entrenched, with developers and their associates sitting at the top.
- The pool of “associates” remains broad, capturing corporate structures that may never have anticipated building safety exposure.
- 2026 will intensify regulatory pressure, with levies, criminal consequences, duty holder reforms, and multiple appellate decisions.
- Document retention is no longer optional — entities involved in development, however tangentially, must retain project records indefinitely.
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Nigel Davies BSc(Hons) (Q.Surv), PGCert.Psych, GDipLaw, PGDipLP, DipArb, MSc (Built Environment), LLM (Construction Law & Practice), MSc (Mechanical & Electrical), MSc (Psychology), FRICS, FCIOB, FCInstCES, FCIArb, CArb, GMBPsS, Panel Registered Adjudicator, Mediator, Mediation Advocate, Chartered Builder & Chartered Construction Manager, Chartered Surveyor & Civil Engineering Surveyor, Chartered Arbitrator, Author, and Solicitor-Advocate
Adjudicator Assessor and Re-Assessor for the ICE and the CIArb
Arbitrator Assessor for the CIArb
ICE DRC Member
ICE DRC CPD Committee Chairman
Adjudicator Exam Question Setter for the ICE
CIArb Adjudication Panel Member since 2006
CIArb Arbitration Panel Member since 2006
CIC Adjudication Panel Member since 2010
FIDIC Adjudication Panel Member since 2021
ICE Adjudication Panel Member since 2021
Law Society Panel Arbitrator
RIBA Adjudication Panel Member since 2018
RICS Adjudication Panel Member since 2006
RICS Dispute Board Registered since 2013
TECSA Adjudication Panel Member since 2012
The information & opinions expressed in this article are not necessarily comprehensive, nor do they represent the trenchant view of the author; in any event, this article does not purport to offer professional advice. This article has been prepared as a summary and is intended for general guidance only. In the case of a specific problem, it is recommended that professional advice be sought.