Spotlight on Building Safety: What can we take away from recent cases on the Building Safety Act 2022?

The Building Safety Act 2022 (the "Act") has now been on the statute books for two years.  There has been a great deal for those in the residential development market to get to grips with in terms of understanding and implementing the legal obligations that now fall on those who own, occupy or develop residential property.  With the majority of the provisions of the Act now in force, we are starting to see a more steady stream of cases being brought pursuant to various provisions of the Act, with leaseholders and other interested parties using the remedies available to them to try and achieve the remediation of unsafe buildings. 

One recent example is that of Secretary of State for Levelling Up, Housing and Communities (DLUHC) v Grey GR Limited Partnership [2024] 4 WLUK 558.  This was a case brought by DLUHC as an interested person under powers granted to it by the Act to apply for a remediation order to be made against Grey GR, the landlord of a residential tower block located in Stevenage, which suffers from a number of building safety defects.   The landlord holds the property as part of a portfolio of investments for the benefit of the Railpen pension fund, and this property is one of several in respect of which DLUHC has issued proceedings for remediation.

The judgment contains a great deal of historical detail on how it has taken years for the remediation works to begin, for a number of different reasons, but in 2022, DLUHC took the view that works were not proceeding quickly enough and so exercised their powers to apply to the First Tier Tribunal (FTT) for a remediation order.  By the time the case was heard, works had actually commenced and are due to complete by September 2025.  In light of this, Grey GR argued that the remediation order was unnecessary.  However, the FTT disagreed and reiterated that the focus of this part of the Act is not on providing redress for non-compliance with a legal obligation (as with damages or specific performance), but on remediation of life-threatening building safety defects in tall residential buildings.  As such, having found that the building was subject to building safety defects and that Grey GR had a responsibility to remedy such defects, the FTT was able to exercise the discretion offered to it by the Act and to make a remediation order against the landlord.  Although recognising that remediation works had already commenced, the FTT was willing to make an order as a backstop to give reassurance to the occupiers of the building that the works would be satisfactorily completed.

This case is another example of the court utilising all the powers available to it under the Act to ensure that leaseholders are not left with the responsibility of funding the remediation of unsafe buildings, and to hold accountable those parties responsible for the original development of the property.  Looking at these cases from the perspective of those who own or develop residential property, whilst the broad stance being taken by the courts in this regard may not be particularly welcome, any insight into the likely treatment of an application for an order requiring the remediation of a property should assist in clarifying the extent of the liabilities for which owners and developers may find themselves responsible for funding.

If you are a client of the firm and would like to receive a copy of our full briefing note examining some of the key cases relating to the Act that have been decided to date, please contact us at realestatepsls@hsf.com.