On 14 October 2026, a further building safety bill was introduced to Parliament seeking to address some of the issues which have become apparent with the Building Safety Act 2022 (“BSA”). As things stand, the manufacturers of unsafe cladding products have, for the most part, got off scot-free, while developers and contractors are often left footing the bill. Although that was never intended to be the case, the statutory route to recourse against manufacturers provided by section 149 of the BSA, the government acknowledges, has been largely unused since the BSA came into force.
Currently, and perhaps most critically, a claim under section 149 can only be brought by those with a legal interest in the building. As things stand, building owners/occupiers are primarily concerned with pursuing contractors and/or developers as it is those entities who have the capability to actually correct the defects, and against whom the owners/occupiers are more likely to have contractual recourse. On top of that, the current drafting of section 149 makes it difficult for claimants to establish liability, and which enables manufacturers to deploy technical compliance arguments to defeat claims.
However, contractors and developers will now be pleased to hear that the bill proposes to allow those who have funded remediation to bring claims under section 149. The intention is that such claims will be dealt with after the affected buildings have been remediated – that is to say, a claim under section 149 of the BSA cannot be used as an excuse by contractors/developers to delay remediation.
What’s more, the route to proving such claims will also be more straightforward:
- Instead of having to establish that the “defective” cladding was the cause, or one of the causes, of the building being unfit for habitation, a claimant must show that the “unsafe” cladding “caused, or contributed more than trivially to” the building being unfit for habitation.
- The manufacturer need only have “engaged in misleading conduct”, as opposed to have “made a misleading statement”, thus reducing the evidential burden on the claimant.
The Bill goes one step further and proposes to extend the application of Building Liability Orders to section 149 claims, ensuring that action can be taken against associated companies of impecunious manufacturers where it would be just and equitable to do so. In view of the potential influx of claims against manufacturers, we can probably expect the number of applications for Building Liability Orders to be on the rise as well.
Ifandwhen the Bill reaches Royal Assent, the changes will come into force just 2 months later and will apply to new and existing cases falling within the extended 30-year limitation period introduced by the BSA.
Although the Bill is only at first reading and there may therefore be further changes before it is enacted, we are cautiously optimistic that the government is seeking to take some much-needed steps to reapportion blame whilst increasing the proverbial pot available for remediation. We have no doubt that the proposals will be keenly welcomed by those currently bearing the brunt of the BSA.
How we can help
The proposed reforms could have significant implications for developers, contractors, building owners and others involved in remediation projects. If you would like advice on your potential rights, liabilities or recovery options, our experienced construction team is here to help.
Contact our construction lawyers for expert advice on building safety, remediation and construction disputes.
Posted:
