Building Safety: What’s in store for 2025?

Building Safety will undoubtedly continue to dominate the construction property real estate landscape during 2025 as the Government seeks to accelerate the pace of remediation of buildings with unsafe cladding, following the Grenfell Tower fire in 2017.

• There are number of important appeal cases will be heard in the Spring of 2025 and are expected to lead to clarification of some provisions of the Building Safety Act 2022 (“BSA 2022”). 
• The Building Safety Levy expected to be introduced in Autumn 2025.
• Greater Government focus on the delivery of remedial schemes for buildings requiring remediation with the Government’s Remediation Acceleration Plan
• Planned legislation to regulate buildings between 11 metres and 18 metres and legislation on the safety of vulnerable persons within higher-risk buildings.
• Possible implementation of the Phase 2 Grenfell Report Recommendations  

It will also be interesting to see how the industry manages the Gateway 2 processes and reported delays which are occurring at this stage and developers/contractors building 6 months into their programmes for the approval process.  

Slightly further into the future, from 30 September 2026 there will be a new requirement for a second staircase in blocks of flats of 18 metres, subject to transitional provisions. Expect to see this being factored into new buildings in the planning and development phase in readiness for those provisions taking effect.

Read on for a more detailed consideration of these points.

Building Safety case law: important appeals

There are lots of interesting building safety cases afoot which are throwing up issues around the interpretation of the BSA 2022 and ancillary statutory instruments.

• The Secretary of State for Housing, Communities and Local Government has brought a number of claims for remediation orders against building owners to compel them to remediate unsafe cladding and other building safety defects.
• We are also seeing disputes about whether a building exceeds 18 metres and is therefore subject to the higher-risk regime under the BSA 2022.
• Whilst some claims against cladding manufacturers are being settled before getting to trial, 2025 is likely to see an increase in claims against manufacturers of cladding and other materials.

URS Corporation Ltd v BDW Trading Ltd [2023] EWCA Civ 772

This case has gained considerable attention, with parts of the BSA 2022 being tested in Court, including how the retrospective effect of the 30-year limitation period for claims under the Defective Premises Act 1972 (“DPA”) should be applied. The Supreme Court heard the appeal in early December 2024, with the decision most likely published in early 2025.  

Adriatic Land 5 Limited v. Long Leaseholders at Hippersley Point [2023] UKUT 271

This appeal is due to be heard by the Court of Appeal in March 2025. It is a decision about the retrospective effect of Schedule 8 of the BSA 2022. Schedule 8 contains what are known as the leaseholder protections. Hippersley relates to the recovery of costs of an application to dispense with the consultation requirements in relation to cladding works.  Paragraph 9 of Schedule 8 to the BSA 2022 provides that no service charge is payable under a qualifying lease in respect of legal and professional costs relating to liability of any person incurred as a result of a relevant defect.  Since the works and application took place before the date when paragraph 9 came into force on 28 June 2022, the question was whether paragraph 9 could apply to sums payable before that date.

The Upper Tribunal decided that paragraph 9 and, by extension, Schedule 8 took effect from 28 June 2022, even where sums had been incurred prior to and had been demanded before 28 June 2022. This meant that where leaseholders had not paid their service charges covering the cost of dispensation by 28 June 2022, those costs were no longer payable. Where they had paid them, those leaseholders were not entitled to a refund. This decision has obviously produced an anomaly and guidance from the Court of Appeal is awaited. 

Triathlon Homes LLP v Stratford Village Development Partnership (1) Get Living Plc (2) and East Village Management Limited (3) [2024] UKFTT 26

This was the first major case on when it would be just and equitable for Remediation Contribution Orders (“RCOs”) to be awarded and resulted in the First-Tier Tribunal (Property Chamber) awarding RCOs against both the original developer, Stratford Village Development Partnership (originally publicly owned through the Olympic Delivery Authority), and also its parent company, Get Living Plc, notwithstanding that the parent company was not in existence at the time of the Olympic village being built.  

The decision is being appealed and is listed in front of the Court of Appeal in March 2025. Expected to clarify the interpretation of the “just and equitable” test, this appeal is likely to have wide reaching application.

BDW Trading Limited v Midgard Limited (1) JRL Group Limited (2) and JRL Group Holdings Limited (3) (Case ref HT-2023-000337)

This is another cladding case going before the Courts and expected to provide judicial interpretation on when a Building Liability Order (“BLO”) should be granted. BDW was the original owner and developer of a property in Slough, appointing Midgard to complete the design and construction of the building. BDW has alleged that Midgard breached building regulations, the standards required by NHBC and its duties owed under the DPA in respect to cladding and is seeking substantial damages from Midgard together with a BLO from two group companies.  

Remediation Acceleration Plan

In December 2024, the Government unveiled its “Remediation Acceleration Plan” for all works for the removal of unsafe cladding to be completed by 2029. It will require remediation works in private sector higher-risk residential buildings to be started by the end of 2025, with the most at risk buildings to be started by 31 March 2025.

Registering buildings between 11 metres and 18 metres

As part of the above Plan, the Government intends to introduce legislation, during 2025, to regulate buildings between 11 metres and 18 metres:

• requiring their owners to remediate unsafe buildings, and
• to assist in enforcing this, require those buildings to be registered in the same way that buildings of is at least 18 metres in height (or has at least seven storeys) must be registered under the BSA 2022 with the Building Safety Regulator (“BSR”).

Building Safety Levy

The Government intends to introduce the Building Safety Levy in Autumn 2025 to recompense the Building Safety Fund for the costs/future costs of remediating building safety defects in England.

However, there isn’t much detail as to how the levy will be implemented which is awaited from the Government, including what the levy rate will be. The Levy is expected to raise around £3.4 billion over the next 10 years. This is likely to have a significant impact on developers who will be monitoring developments closely.

Implementation of Grenfell Tower Inquiry’s Phase 2 Report recommendations

Following the publication of the Phase 2 report in September 2024, the Government is considering the recommendations made by the report. This includes potentially amending the definition of higher-risk building so that the focus isn’t solely on the height of the building being at least 18 metres or at least seven storeys but providing a definition which can encompass the use and the likely presence of vulnerable people in the building for whom evacuation in the event of a fire would be difficult.  

Separately, the Government is also introducing measures to address evacuation of vulnerable persons from higher-risk buildings (see below).

A “flexible” definition of higher-risk building which could vary dependent on the number of vulnerable persons living there (in addition to any height requirement) could be problematic as it does not provide certainty and could mean that a building’s status as a higher-risk building could be altered dependent on its occupants.

Another significant recommendation within the report is the introduction of a new independent Construction Regulator overseeing all functions of the construction industry, including the regulation, testing and certification of construction products and licensing of contractors working on higher-risk buildings, to name just a few of the proposed functions.

More Building Safety legislation on the way

In December 2024, the Government published its responses to two consultations by the previous Government on Personal Emergency Evacuation Plans and Emergency Evacuation Information Sharing Plus. The Government intends to implement legislation in 2025 to deliver a five-step process. This includes:

1. identifying vulnerable residents who may require assistance to evacuate,
2. offering Person-Centred Fire Risk Assessments for those residents,
3. sharing information about those residents with the local fire and rescue service, with that resident’s consent,
4. requiring local fire and rescue service to carry out evacuation of vulnerable residents, and
5. requiring the Responsible Person for the building to maintain and update the written Residential Personal Evacuation Plans for vulnerable residents.

Residential Personal Evacuation Plans will be required for all high-rise residential buildings and for residential buildings between 11 and 18 metres with simultaneous evacuation strategies in place.

Building Safety Regulator building control delays may improve

In September 2024, in response to a Parliamentary Question, the Ministry of Housing, Communities and Local Government revealed statistics for gateway two building control applications for the period up to 30 June 2024.

• For works to existing high-risk buildings, the BSR received 606 building control applications with twelve determined within the statutory period of eight weeks, 271 extensions agreed with the applicant and 260 refused.
• For new-build higher-risk buildings, it received 62 building control applications with four determined within the statutory twelve weeks’ period, 22 extensions agreed and ten refused. It is unclear what happened to the remainder of the 62 applications.

In addition, the BSR had requested applications for building assessment certificates for 236 higher-risk buildings and had received 240 applications. No building assessment certificates had been issued or refused by 30 June 2024.

With reports of the industry looking to build in six months into their programmes for obtaining building control approval (before they can commence higher-risk building works) and the consequential impact this is having on project delivery and costs, developers, building owners, residents and agents will hope that the process will improve, but at what price? In November 2024, it was reported in the construction press that the BSR will take a “harder” stance on building control applications to deal with the delays. Applicants may want to pay close attention to the BSR’s key points to note for gateway two applications, published by the Construction Leadership Council, highlighting the three steps to follow: identify, clarify and justify, when making their Gateway 2 applications.

Improvements in the operation of the BSR and speedy processing of applications is an important element of the BSA 2022 regime and something which it appears the BSR will seek to address in 2025.

Requirement for two staircases in buildings over 18 metres

In England, amendments to the Building Regulations in Approved Document B requiring a second staircase in blocks of flats of 18 metres or more in height will take effect on 30 September 2026, subject to transitional provisions. During 2025, it is expected that this change will be factored into new buildings in the planning and development phase in readiness for those provisions taking effect.

Conclusion

Nearly three years after the BSA 2022 received Royal Assent, there have been huge changes to the building and fire safety regime in England. However, 2025 will see Building Safety continue to be a prevailing theme across the property and construction sectors. Developers, landlords, owners, occupiers and all stakeholders in the industry will await clarification from the Courts and Tribunals of various aspects of existing Building Safety legislation whilst, at the same time, further legislation is expected, particularly for buildings between 11 and 18 metres in height.  

Please contact your usual Charles Russell Speechlys contact, if you have any queries.