Building Safety Levy update: changes to provisions on ‘previously developed land’
The Building Safety Levy is a new levy on residential developers which will be charged on most new residential developments in England requiring a building control application. It is intended to raise funds for the remediation of unsafe residential buildings. See our previous article for a detailed overview.
The Building Safety Levy is due to come into force on 1 October 2026 (following a one-year delay to its implementation). The detailed provisions governing the levy are set out in the Building Safety Levy (England) Regulations 2025.
On 2 July 2026, the government published draft regulations, the Building Safety Levy (Amendment) (England) Regulations 2026, which make a number of amendments to the 2025 regulations, intended to clarify the operation of the levy. Of significance to developers are amendments to provisions governing the availability of a discounted rate for ‘previously developed land’.
What qualifies as ‘previously developed land’ (PDL)?
Under the 2025 regulations, a 50% discounted levy rate is available where at least 75% of the land within the planning permission for the new development is PDL.
To qualify as PDL, a ‘building’ must have previously existed on the land. The 2026 regulations define ‘building’ to include any permanent building or other man-made structure or erection, including any extensions to, or parts of such buildings. The term ‘structure or erection’ expressly includes areas reinforced for load-bearing, or paved or surfaced with man-made materials, and plant and machinery. This is a clearer and broader definition than that contained in the 2025 regulations.
For the purposes of calculating whether at least 75% of the development site is PDL, any underground parts of buildings which extend beyond the above-ground part of the building are to be excluded. Buildings situated wholly underground are also excluded from the definition of PDL.
Importantly, land will not qualify as PDL where any operations carried out on it were unlawful for planning purposes. This is likely to give rise to disputes over whether past works or uses were lawful, increasing the scope for challenges during the levy assessment process.
No exemption for medium-sized development
Under the 2025 regulations, ‘small sites’ for developments comprising fewer than 10 units (or 30 bed spaces in the case of purpose-built student accommodation) are exempt from the levy. Despite earlier consultation proposals, the government appears to have decided not to extend this exemption to medium-sized sites comprising between 10 and 49 units. Such sites will therefore remain within the scope of the levy.
Comment
The 2026 regulations provide clarity as to the operation of the Building Safety Levy. They broaden the scope of the PDL provisions, which should assist developers of brownfield land seeking to secure the 50% levy reduction. However, a decision not to extend the exemption to medium-sized developments is likely to be met with disappointment.
Developers wishing to avoid paying the levy should submit their building control applications before the regulations come into force on 1 October.
This article was co-written by Grace Burney, trainee solicitor in the construction advisory and dispute resolution team.