The new Building Safety Act amendments construction should know about

This month, three new amendments were quietly added to the Building Safety Act 2022 (BSA).

The Leasehold and Freehold Reform Act 2024 included several amendments to the BSA, some of which came into force immediately, and others that were left to the new government to bring into force.

On 31 October 2024, the government did just that for sections 114-116, all of which are concerned with extending the scope of remediation orders and remediation contribution orders.

Remediation orders and remediation contribution orders can be made by the First Tier Tribunal (FTT) and are designed to ensure works to unsafe cladding and other fire safety defects take place as rapidly as possible and are paid for primarily by developers, rather than leaseholders or the taxpayer.

Section 114 introduces a new defined term of "relevant steps" to both section 120 of the BSA and to the definition of "relevant measures" in Schedule 8 to increase landlords' and developers' responsibilities respectively.

Relevant steps are steps taken with the purpose of:

The intention is to make it clearer that relevant measures include interim and temporary measures such as a waking watch or temporary fire alarms. While the recent FTT case of Triathlon Homes v Stratford Village Partnership held that these were covered, that case is under appeal and section 114 has now put that aspect of the case beyond doubt.

The amendment may also make it easier to extend remediation contribution orders to cover other related measures such as improving automatic opening ventilation systems which would "reduce the severity of any such incident" or "prevent or reduce harm to people … that could result", even if this is not in itself needed to rectify a relevant defect.

Section 115 provides the FTT with enhanced powers to order a landlord or management company to take relevant steps – as well as to provide or produce an expert report or survey relating either to relevant defects or the need for relevant steps.

Section 116 extends the scope of a remediation contribution order to cover the cost of taking relevant steps – and then adds two new categories of costs.

First, the FTT will be able to include the cost of obtaining an expert report in relation to the building. Second, the cost of temporary accommodation where residents have to be moved out for their own safety, or because of the disruption of the ongoing works.

The amendments are intended to extend the scope of remediation orders and remediation contribution orders and to encourage greater take-up by leaseholders. 

Given the relative complexity of the remedies and the cost-neutral nature of the FTT, meaning that leaseholders usually will not be able to recover their legal costs of pursuing such applications, it remains to be seen whether these latest changes will achieve their intended purpose.

That said, the extended scope of the remedies will help leaseholders and others pursuing remediation orders and remediation contribution orders to claim the costs of experts' reports, or to require a landlord to commission such a report. This will make it more likely that surveyors, structural and fire safety engineers will be involved in claims at an early stage.

Like all elements of the BSA, however, the drafting of the definition of "relevant steps" leaves a few cracks in the edifice and may lead to further disputes in the FTT and beyond about what exactly might be included in "preventing or reducing harm to people in or about the building".