Why is the first finding of a ‘relevant liability’ under s130(3) of the Building Safety Act 2022 critical?
As outlined in our insight blog “What is a Building Liability Order & What Does it Do?”, in order to obtain a Building Liability Order ("BLO") under section 130 of the Building Safety Act 2022 ("BSA 2022"), an applicant must establish the existence of a "relevant liability".
Under the BSA 2022, a relevant liability means a liability that is incurred:
Under the Defective Premises Act 1972; or s38 of the Building Act 1984 (which is not yet in force); or
As a result of a “building safety risk”.
Without the finding of a relevant liability by the court, a judge has no jurisdiction to make a BLO.
Until recently, there had been no judicial guidance as to what constitutes a building safety risk for the purposes of establishing a relevant liability under section 130(3) BSA 2022.
However, the ratio decidendi of Mrs Justice Jefford DBE in 381 Southwark Park Road RTM Company Ltd & others v Click St Andrews Ltd & another [2024] EWHC 3179 (TCC) provides the first example of how the courts will approach this requirement in practice.
Under the Defective Premises Act 1972 (“DPA 1972”)
The DPA 1972 imposes a statutory duty on those involved in the construction, conversion, development or structural maintenance of residential dwellings to ensure that the works are carried out in a professional and workmanlike manner, using proper materials, and that the dwelling is fit for people to live in at all times.
Liability arises where a breach of this duty results in the dwelling being unfit to live in and it causes loss or damage to the persons living within the dwelling. The DPA 1972 also imposes a duty on landlords to maintain and repair premises where they are contractually obliged to do so, and where their failure to do so gives rise to injury or damage.
A Building Safety Risk
The alternative to give rise to a relevant liability is through a building safety risk.
Section 130(6) of the BSA 2022 provides that a building safety risk is defined as “a risk to the safety of people in or about the building arising from the spread of fire or structural failure”.
The High Court’s First and Only Findings of a Building Safety Risk
In 381 Southwark Park Road RTM Company Ltd & others v Click St Andrews Ltd & another [2024] EWHC 3179 (TCC), expert evidence determined the property developer’s failures which amounted to a building safety risk stemmed from inadequate fire protection and the insufficient load bearing capacity of structural beams.
1. Inadequate Fire Protection
Expert evidence revealed that the property developer had:
Failed to install adequate fire-resisting materials in ceiling voids;
Reduced existing firebreak walls in the roof void without properly reinstating them;
Failed to provide adequate fire compartmentation in the roof void;
Failed to install fire and smoke detection systems above the flats.
The result was a serious risk of uncontrolled fire spread within the building, directly within the statutory definition of a building safety risk under s130(6) BSA 2022.
2. Insufficient Load Bearing Capacity of Beams
Structural engineering expert evidence demonstrated that:
Certain support beams were subject to loading far in excess of their safe wall bearing capacity, which is the maximum load a wall can safely support without experiencing structural failure.
In some cases, beams were overloaded by up to 738%.
This created a real and immediate risk of structural failure within the building, also falling squarely within the meaning of a building safety risk for the purposes of section 130(6) BSA 2022.
Conclusion: What Are the First Practical Examples of a ‘Relevant Liability’?
This case serves as the first clear and practical examples of what the courts will treat as a "relevant liability" when considering a BLO application:
Defects that create a risk of the spread of fire: such as failures in fire compartmentalisation, and inadequate fire-stopping.
Defects that create a risk of structural failure: such as insufficient load-bearing capacity of key structural elements like beams or walls.
Going forward, any party seeking a BLO will need to demonstrate that the defects in their building fall within these categories or otherwise give rise to a liability under the DPA 1972 or section 38 of the Building Act 1984.
This decision is a vital development in construction law and providing guidance on safe construction practices. This decision also provides clarity as to the threshold required to establish a building safety risk, which is a key element of an application for a BLO.
Written by Harrison Carr
Approved by Adam Creasey