Construct.law - Winter 2025
Building Safety Lookahead: 2026 will see the reform of the BSR, introduction of the Building Safety Levy and more
By Mike O’Connor, Richard Flenley, Kate Knox and Laura Bushaway
LODGE: A Living Sector Update Winter 2025
Renters’ Rights And Student Accommodation: What Is The Latest As The Act Obtains Royal Assent?
By Laura Bushaway and Lauren Fraser
Building Safety has continued to dominate the construction and property landscapes during 2025. There have been a number of important appeal decisions and an increasing number of decisions regarding remediation orders (ROs), remediation contribution orders (RCOs) and principal accountable persons (PAPs) from the First Tier Tribunal (FTT). However, less decisions than expected have been seen in relation to Building Liability Orders (BLOs) with some cases being settled ahead of trial.
2025 has turned out to be a challenging year for those grappling with the HRB gateway regime. By the admission of Andy Roe, the non-executive chair of the Shadow Building Safety Regulator Board, the HRB gateway regime has had “very real challenges and issues at gateway 2” and involved a process which “was designed in good faith that does not work" [1], though changes are now underway and approval times are coming down. The Ministry of Housing, Communities and Local Government (MHCLG) announced that oversight of the Building Safety Regulator (BSR) will be moving from the Health and Safety Executive to the MHCLG. Building Safety developments continue during 2026 with new legislation coming into force, the Building Safety Levy taking effect and Building Safety Case law reaching the Supreme Court.
BSR’s Latest Guidance
In England, the Building Safety Levy is expected to come into effect on 1 October 2026, having been postponed for a year. With certain exemptions and a 50% discount for those developments which comply with the previously developed land condition, it will be charged on developments comprising or forming part of a major residential development of at least:
- 10 new dwellings, or
- 30 new bedspaces for purpose-built student accommodation.
Charged through the building control approval process, a surge of building control applications and initial notices being submitted ahead of 1 October 2026 are anticipated. Whilst this is applicable in England only, the Scottish Government is also looking to introduce its own, separate, Scottish Building Safety Levy from 1 April 2027.
Reform of the BSR Reform of the BSRReform of the BSR
The BSR and its functions in relation to HRBs in England have been under scrutiny. The Industry and Regulators Committee is expected to report back on views collated from the industry at the end of 2025. Data previously published by the Government indicated that median timescales for gateway two building control applications for HRB works far exceeded the prescribed twelve or eight week periods (for new builds or existing buildings, respectively), coming out at 43 weeks and, for London projects, 48 weeks. Based on draft Regulations put before Parliament for approval, an arm’s length body (an Executive Agency) to the MHCLG is intended to assume the functions of the BSR on 27 January 2026. In the meantime, the Government is heralding the measures which it has already started to implement as a success. The BSR’s new Innovation Unit (a team created to speed up the processing of new-build gateway two applications) appears to be making headway, with the unit reportedly often now managing to meet the stipulated twelve-week target to process gateway two applications. In Wales, if the proposals in the consultation document are adopted, it is anticipated that the Senedd will impose a new building control regime for HRBs and wider changes to the building regulations (such as a dutyholders and competence regime) for HRB works later in 2026. More detail can be found in our Insight: Building Safety in Wales.
Industry Reform – Grenfell Tower Inquiry Recommendations
The Grenfell Tower Inquiry’s recommendations to the Government are slated for implementation by 2029. In the next twelve months, the Government intends to:
- Appoint a permanent chief construction adviser. Thouria Istephan is discharging the role in the interim.
- Make recommendations to update Approved Document B (fire safety) along with a fundamental review of Building Regulations guidance.
- Publish a construction products white paper on regulation of the sector in the Spring 2026. This follows the green paper published in February 2025, consulting on proposals for institutional and regulatory reform of the construction products regime.
- Consult on the reform of the fire engineering profession and establish a funding mechanism for accreditation courses to regulate the fire engineer profession (subject to Spending Review).
- Consult on and, if required, develop secondary legislation requiring gateway two declarations from the principal designer and the principal contractor as to whether the building works will be safe on completion.
- In respect to the proposed licensing of principal contractors undertaking the construction or refurbishment of HRBs, publish findings of the dutyholder regime review.
- Commission an independent panel to report on whether all building control functions should be performed by a national authority.
Cladding Remediation
In England, as part of the Government’s remediation acceleration plan (last updated in July 2025), a Remediation Bill is expected to be published during 2026, imposing a hard ‘endpoint’ for remediation. This legislation will place a legal duty on landlords to remediate their buildings within fixed timescales or face criminal prosecution.
- By the end of 2029, it is proposed that any landlord who has failed to remediate a building over 18 metres, without reasonable excuse, could face criminal prosecution, with unlimited fines and/or imprisonment.
- For mid-rise buildings of between 11 and 18 metres, the proposed deadline is two years later.
The Scottish Government is also maintaining its efforts on progressing its cladding remediation programme, with the next phase (Autumn 2025 to March 2026) underway, focussing on expanding single building assessments undertaken, accelerating mitigation measures where risks to life have been identified and establishing clear remediation pathways for in scope residential buildings over 18 metres.
Second Staircases Reform of the BSRReform of the BSR
Whilst second staircases are already a requirement of the Greater London Authority for new tall residential buildings in London, following a 30-month transitional period, in England, new residential buildings over 18 metres will be required to have two staircases from 30 September 2026 unless the works are “sufficiently progressed” by that date.
IndustrThe Fire Safety (Residential Evacuation Plans) (England) Regulations 2025
These will come into force on 6 April 2026 and involve a greater understanding of the evacuation needs of certain residents within residential and mixed-use buildings by requiring person-centred fire risk assessments and Personal Emergency Evacuation Plans (PEEPs). More detail can be found in our Insight: Understanding the Fire Safety (Residential Evacuation Plans) (England) Regulations 2025: The Living Sector.
Building Safety Case Law:
In 2026, the Supreme Court will hear the appeal in Adriatic Land 5 Limited v. Long Leaseholders at Hippersley Point [2025] EWCA Civ 856 and Triathlon Homes LLP v. Stratford Village Partnership v. (1) Get Living Plc and (2) East Village Management Limited ]2025] EWCA Civ 846. The appeals will relate solely to the retrospectivity of the Building Safety Act 2022 (BSA 2022). The Supreme Court refused permission to appeal on the question of when it is just and equitable for a RCO to be made, meaning the Court of Appeal decision will remain the final word on that. More detail can be found in our Insight: Court of Appeal backs FTT on Fire-Safety Defects Remediation. The Court of Appeal will also hear an appeal on the operation of Schedule 8 of the BSA 2022. In Almacantar v. Centre Point Nominee No. 1 Ltd and Another v. De Valk and Others [2025] UKUT 298 (LC), the Upper Tribunal (UT) found that no service charge was payable under a qualifying lease for cladding remediation at Centre Point House, London, W2. The external wall system at the building was found to fall within the scope of a cladding system, which the UT held did not require two systems. This was found to be a separate protection which was not dependent upon there being a “relevant defect”, as defined in the BSA 2022. This is an important distinction as remedying relevant defects are time limited to 30 years where cladding remediation is not. 2026 may also bring greater clarity on the process for applying for BLOs and associated information orders, with the prospect of receiving decisions from the handful of BLO related cases in 2026, which are currently pending in the High Court. A streamlined resolution process may also be introduced, enabling a BLO application to be heard by a High Court judge together with an application for an RO or RCO which are to be heard in the FTT, an option under review by the TCC at the suggestion of the BSA Working Group.
Conclusion
Developers and the construction industry will be hoping that the headwinds from 2025’s issues around the performance of the HRB building control gateway regime will continue to lessen during 2026. No doubt the Government will be keen to see progress made against its targeted 1.5million homes, with the prospect of a spike of building control applications being submitted for major residential developments ahead of the building safety levy’s implementation on 1 October 2026. Some additional building control costs may, however, be on the horizon, with the Government kicking off a consultation on reforming the charges regulations to enable local authority building control services, and in one case, the BSR, to recover costs more fully than they can currently. On the occupational side, landlords and managing agents will be getting to grips with implementing PEEPs and will be keenly keeping an eye on developments in Building Safety case law during 2026.
[1] Extracts from evidence to the Industry and Regulators Committee, House of Lords on 28 October 2025.