Navigating building and fire safety claims: Building liability orders

The introduction of building liability orders under section 130 of the Building Safety Act 2022 provided a groundbreaking option for seeking redress for certain building defects beyond the immediate responsible party.

Through a BLO, a court can order that a relevant liability of a corporate body under the Defective Premises Act 1972 or for a ‘building safety risk’ can be attached to an associated corporate body where it is just and equitable to do so (a relevant liability under section 38 of the Building Act 1984 also applies, but as this section is yet to be enacted, this provision is not explored further here). Therefore, a BLO can potentially be a powerful tool in situations where the original body responsible for the defects is insolvent or has insufficient assets. Conversely, BLOs significantly increase the risk exposure of corporate bodies that may have had no involvement with the relevant works as long as they were associated with the original body at any point from when the works began.

What buildings and defects are covered?

The type of buildings covered depends on the relevant liability of the original body. If the underlying liability is under the 1972 Act (as amended by the 2022 Act),, it covers dwellings including any building that contains at least one dwelling. If the underlying liability is for a ‘building safety risk’, the type of building covered is oddly undefined in the 2022 Act and therefore may cover both residential and purely non-residential buildings.

As to type of defects, a 1972 Act claim has a high threshold in only covering any defect that causes a dwelling to not be fit for habitation and therefore may cover issues including (but not limited to) fire safety, structural defects and significant water ingress. A ‘building safety risk’ appears to be slightly less extensive in scope and only covers risks arising from fire safety and structural collapse.

Who can apply for a BLO and who can be subject to a BLO?

Entitlement to a BLO is again linked to the underlying relevant liability. For 1972 Act claims, the claimant must be someone to whose order the dwelling is provided or any person who acquires a legal or equitable interest in the dwelling. For a ‘building safety risk’ claim, the claimant could be anyone with a valid cause of action in relation to the ‘building safety risk’, and this could be a claim in contract, in tort or for breach of statute.

In terms of who can be subject to a BLO, the controversy with them is their extensive potential application to body corporates associated with the original body at any time since the works were undertaken. The diagram below provides a simple example of establishing association, which is concerned with whether one body controls another (with the arrows showing the direction of control). Using the diagram, a corporate body is associated with another one if either situation 1 or 2 below exists:

One of them controls the other – Assuming A is the original body, C is associated with A. D is also associated with A. Likewise, assuming B is the original body, C and D are also associated with B. Assuming D is the original body, both A and B (and, possibly, C) are associated with D.

Third body corporate controls both of them – Assuming A is the original body, B is associated with A on the basis C controls both of them.

This is a simple but not exhaustive example and, in theory, other sister companies, subsidiaries and parent companies in the chain may also be caught within the definition of an associated company. As to the control test, specific detailed guidance is provided under section 131 of the 2022 Act on how this is established, but it includes within the definition of control situations where a corporate body has the power, directly or indirectly, to secure that the affairs of another body are conducted in accordance with its wishes.

As to establishing the relevant period when the bodies must have been associated, this is very wide, as it is from the period beginning from when the works were carried out to when the order for the BLO is made. This has to be considered in the context that, for a 1972 Act claim, there is now a 30-year retrospective limitation period for works completed before 28 June 2022, which therefore captures projects going back to 1992. This means the period of association in such claims could start as far back as 1992 and run up until the BLO is ordered. It would appear not to be a defence to the association test for a company to claim its association with the original body was only established by way of a corporate restructuring many years after the works were completed, as this could still fall within the relevant period.

What is the threshold of liability?

Following the establishment of association, the key tests on liability turn on establishing, first, a relevant primary liability for the original body under the 1972 Act/for a ‘building safety risk’ and, second, that it is just and equitable to order a BLO against the associated body.

In terms of what is just and equitable, at the time of writing, 381 Southwark Park Road RTM Company Ltd & Ors v Click St Andrews Ltd & Anor [2024] EWHC 3569 (TCC) is the first and only reported judgment granting a BLO. This judgment accepted that the just and equitable test was similar to that for remediation contribution orders (a separate new power introduced by the 2022 Act, to be covered later in this series) and thus, in various respects, relied on the guidance in the earlier key judgment on RCOs in Triathlon Homes LLP v Stratford Village Development Partnership and others [2024] UKFTT 26 (PC); [2024] PLSCS 16. Although post-dating 381 Southwark v Click slightly, the judgment in Grey GR Ltd Partnership v Edgewater (Stevenage) Ltd and others CAM/26UH/HYI/2023/0003 is also an important judgment on the just and equitable test for RCOs and so may also provide guidance relevant to BLOs (although both judgments are currently undergoing appeals). Important principles from these judgments are set out in the table below.

The place of BLOs in the new building safety landscape

Due to the introduction of BLOs, a 1972 Act claim or claim for a ‘building safety risk’ now has much longer tentacles in extending liability to associated body corporates that can cover numerous parties in a corporate group over a potentially very significant period of time.

While BLOs remain in their infancy in terms of firm judicial guidance on the just and equitable test, the one judgment so far (coupled with related decisions on RCOs) suggests the judiciary sees the discretion given to them to grant BLOs through the 2022 Act as an enabling power, which they will not be shy to use to further the perceived justice of any particular case and the wider policy objectives of the Act.

We should expect to see more BLOs in the future.

This article was originally published in the Estates Gazette in June 2025.