Following the fire at the Grenfell Tower on 14 June 2017, and the three-year anniversary of the Building Safety Act 2022 (“BSA”), building safety – and particularly fire safety – has been at the forefront of a significant number of conversations in and around the construction industry. By way of example: 

• building owners have been considering whether they need to remediate their buildings;
• all members of the construction supply chain have been reviewing their historic work to identify projects that might give rise to claims;
• insurers who are facing a significant number of claims are now excluding fire safety defects from professional indemnity policies;
• all members of the construction industry are coming to grips with the new regulatory regime and the Building Safety Regulator (“BSR”); and
• the Government is balancing its commitment to remediate historic defects, updating the regulatory regime, taking account of the Grenfell Inquiry’s recommendations whilst committing to building 1.5 million homes before the next election.

At Fenwick Elliott we have been, and continue to be involved in:

• negotiating amendments to standard form contracts to allocate risk as a result of the BSA and the impact of the new regulatory regime and providing ongoing project advice;
• assisting clients with the challenges of interpreting the new regulatory regime and applying it to “real-life” project scenarios;
• assisting clients with Gateway 2 and Gateway 3 applications to the BSR;
• assisting parties responding to applications for Remediation Orders and Remediation Contribution Orders in the First-tier Tribunal (Property Chamber);
• multi-party litigation arising from alleged fire safety defects;
• claims for Building Liability Orders;
• providing bespoke training to clients on building safety issues; and
• thought leadership and editorial pieces in the industry press on building safety and the legal and operational issues arising.

The building safety environment is constantly evolving, with the introduction of secondary legislation, developing Government policy and a growing body of caselaw and judicial comment. We will shortly provide access to Fenwick Elliott’s Building Safety page where articles covering the history and latest developments will be published.

One of the first Government actions was the commissioning of Dame Judith Hackitt to undertake an independent review of building regulations and fire safety. Her report was published in May 2018. One of her key findings was that the system of building regulations and fire safety was not “fit for purpose and that a culture of change [was] required to support the delivery of buildings that are safe both now and in the future”.

The BSA was enacted in 2022. It was billed as an Act of ground-breaking reforms to give residents and homeowners more rights, powers, and protections – so homes across the country would be safer.

It was to deliver far-reaching protections for qualifying leaseholders from the costs associated with remediating historical building safety defects, and contained a number of measures aimed at ensuring that those considered to be responsible for building safety defects would be held to account (the “polluter pays” principle). These include:

• Remediation Orders1: orders requiring a relevant landlord (i.e., the current landlord) to remedy relevant defects by a specified time;
• Remediation Contribution Orders2: orders requiring that a specified party (i.e., current/past landlord, developer, or associated person) contributes towards the cost of works to remedy building safety defects;
• Building Liability Orders3: orders extending the specific liabilities of one body corporate to an associated company (or companies) making them jointly and severally liable; and
• New causes of action: for claims against suppliers and manufacturers of construction and cladding products4, together with the introduction of s.2A of the Defective Premises Act 1972 (“DPA”) in respect of the refurbishment of existing dwellings.
• Extension of limitation periods: From six to 30 years for claims in relation to new dwellings under s.1 DPA accruing before 28 June 2022 and from six to 15 years for claims in relation to new dwellings under s.1 DPA accruing on or after 28 June 2022.

It was also intended to overhaul existing regulations, create lasting change, and make clear how residential buildings should be constructed, maintained, and made safe.  To that end the Government has introduced, via secondary legislation, significant amendments to the Building Regulations 2010 and put in place processes for parties designing, constructing and maintaining/managing buildings.

Additionally, a new building control process for higher-risk buildings was set out that introduced two new ‘Gateways’, each of which is a hold point, beyond which work cannot proceed without authorisation:

• Gateway 1 (Land use planning matters related to fire safety): The purpose of this gateway is to ensure that fire safety considerations are inherent within the design proposals of relevant buildings before planning permission is granted.
• Gateway 2 (Building control approval for higher-risk buildings): This gateway provides a ‘hold point’ where construction cannot begin until the BSR is satisfied that the design meets the functional requirements of the building regulations.
• Gateway 3 (Completion certificates): Only once Gateway 3 has been passed can the new building be registered, and then occupied.

A cornerstone of the BSA was the introduction of a new building control process and a new building control authority – the BSR. 

The BSR’s stated role is to (i) help professionals in design, construction and building control to improve their competence; (ii) raise safety standards of all buildings; and (iii) regulate higher-risk buildings (i.e., new residential buildings are over 18 metres or 7 storeys, with at least 2 residential units, and hospitals and care homes that meet the same height threshold). The BSR is intended to protect the design and construction of higher-risk buildings and to help give residents confidence in the safety and standards of their buildings.

The Government has also applied pressure directly to the construction industry. On 30 January 2023 the Government wrote to developers asking them to sign a contract committing them to remediate unsafe buildings which they developed, or face restrictions on their ability to commission and carry out new developments. This is known as the Developers Remediation Contract and was introduced under the first Responsible Actors Scheme pursuant to s.126-129 of the BSA.5

In December 2024, the Government published its “Remediation Acceleration Plan”6, detailing its proposed approach to expedite the slow remediation of cladding on residential buildings. It has also confirmed its acceptance of all 58 recommendations set out in the Grenfell Tower Inquiry’s Phase 2 Report and promised to bring in a Building Safety Levy in autumn 2026.

As the legal and regulatory environment for fire safety continues to evolve, stay tuned for forthcoming blogs and thought leadership pieces on the latest developments in Building Safety including:

• The BSR;
• Remediation Orders;
• Remediation Contribution Orders;
• Building Safety and Adjudication;
• Building Liability Orders;
• Building Information Orders;
• The Government’s involvement in caselaw
• Government’s Remediation Acceleration Plan
• Government’s response to Grenfell Inquiry’s recommendations; and
• The Building Safety Levy.

• 1. Section 123 of the BSA.
• 2. Section 124 of the BSA
• 3. Section 130 of the BSA.
• 4. Sections 148 and 149 of the BSA.
• 5. https://www.gov.uk/government/publications/developer-remediation-contract [1]
• 6. Remediation Acceleration Plan - GOV.UK. [2]