The rise and rise of public policy driving building safety law

There are few who would disagree that fire / life safety defects should not exist in buildings, and few who would disagree that those responsible for those defects should ultimately be responsible for remedying them. In theory this sounds simple, but the trouble of course is that assessing responsibility is never simple: how do you factor in changing understandings of how buildings operate; how legislation was and is understood; how developing understandings of the role of different professions impact this? 

Nonetheless, public policy has and continues to drive this ever developing area:

• we saw the government react very quickly following the fire in setting up the public inquiry, and the Dame Judith Hackitt review – the initial responses of which were then codified in the Building Safety Act 2022 (“BSA 2022”) and in due course the inauguration of the Building Safety Regulator (“BSR”). This all done way in advance of the public inquiry reporting in its phase 2 report
• what we have then seen is various issues arise where the BSA 2022, and in particular its transitionary provisions, simply do not work when it meets reality. This has been highly publicised in terms of the delays in projects moving through the BSR led gateway processes
• notably a House of Lords Commission has been set up to reassess this, but again before that process was completed it was announced that the BSR would move from control by the HSE to direct Ministry control with Andy Roe (the assistant commissioner who eventually changed the stay-put advice on the night of the fire at Grenfell) being appointed as the new leader. This is a good response to public policy but feels again somewhat ‘cart before the horse’
• public policy is also not just driving the legislature response, but also – perhaps unusually given the approach of late – the judiciary too. It was striking, for example, in the Supreme Court’s much anticipated judgment in BDW -v- URS, that the Court appeared to be very deferential to the intervening submissions of the Secretary of State for Housing, Communities and Local Government in respect of which the Court noted (see for example paras 78-84):

“These were particularly helpful in relation to the background to the BSA, the structure of the BSA and the policy and purpose underlying the BSA in general and section 135 in particular.” 

• we interestingly saw a similar approach then adopted by the Court of Appeal in the recent Triathlon Homes decision where again the Court – albeit on different aspects of the BSA 2022 to BDW -v- URS seems to use public policy as a yardstick to interpret legislation to a particular conclusion in a way which feels distinct from the more technocratic approach of years gone past which we have perhaps come to expect from the specialist and senior court
• finally, for now, the updated acceleration plan set out on 17 July 2025 interestingly added a deadline for remediation of buildings not just above 18m (2029) but also the much wider bracket in the 11m – 18m range (2031). This was a change which many of us in this space expected – and one which certainly mirrors the sounds being made by politicians of late, but how it intersects with the previous and current legislation (and associated guidance documents) is much less clear.

As has been the case for now over 8 years, the area of building safety continues to develop at a rapid rate and anyone involved and/or impacted in this area is well advised to keep abreast of current changes, which are coming thick and fast. 

Whilst a clearer picture of the ultimate landing stage remains to be seen, the picture is becoming clearer, and a definite aspect of that is the prominent role of public policy. For any insurer who has concluded that the days of building safety claims have or are coming to an end, we are afraid we take a far more pessimistic approach.