Fire safety and the construction industry

Answer

The Grenfell Tower fire in June 2017 was a national tragedy and called into question the efficacy of the legal framework in the construction sector, which should serve to safeguard life safety. Specifically, it exposed failures in building design, construction and management of construction projects.

The government response was to introduce the Building Safety Act 2022 (BSA) as a means of legislation designed to improve accountability, enforce safety standards and protect residents in high-risk buildings.

Fire safety presents technical, legal and commercial issues for our clients across the construction and property sector. As the first cases are being heard in the Technology and Construction Court and First Tier Tribunal, legal professionals are playing a central role in helping clients navigate the new legal landscape while balancing their commercial objectives.

Key BSA changes

The BSA introduces a new legal framework for managing safety risks in buildings, particularly those over 18 metres or seven storeys tall (referred to as higher-risk buildings).

The framework includes a number of key legal features:

• New Dutyholder roles: the BSA defines who’s responsible for building safety at each stage –from planning and design to occupation.
• The Building Safety Regulator: a new regulator that sits within the health and safety executive that’s been given wide enforcement powers.
• The Golden Thread: Dutyholders must maintain up-to-date digital records of a building’s safety-critical information throughout its life cycle.
• Resident engagement duties: occupants must be kept informed and able to participate in safety decisions.
• Retrospective liability: an extension of the limitation period under the Defective Premises Act 1972 means that liability for undertaking works to dwellings reaches back up to 30 years prior to the BSA coming into effect. This received royal assent on 28 April 2022.

The changes made by the BSA place substantial new duties on businesses involved in construction and property management.

What impact has the BSA had on the construction industry so far?

Developers and contractors

For those designing and constructing buildings, the BSA imposes heightened scrutiny and stricter compliance obligations. Legal teams are being asked to review procurement strategies, update contract clauses (eg, joint contract tribunal contracts or new engineering contracts), and ensure Dutyholder roles are clearly assigned. Design liability has become a key point of negotiation in new construction projects, particularly in ensuring non-combustible materials are used and adequate fire protection is provided. Insurers have responded by increasing premiums or withdrawing cover altogether for certain building types. Any additional costs incurred by contractors and or developers are typically passed on to the ultimate client, which has significantly increased the costs of construction projects across the industry.

Landlords and building owners

The BSA’s retrospective provisions create significant financial risks for landlords, who may now be liable for cladding and safety upgrades on older buildings. The First Tier Tribunal can issue remediation orders and remediation contribution orders to compel landlords or developers to fund repairs, even if they were not at fault for the defects.

Insurers and financial institutions

Insurers have become far more cautious. Professional indemnity insurance for fire engineers and contractors is harder to obtain, and lenders are carrying out much deeper due diligence before approving property loans or acquisitions. Often, there’s a tension between the standards to which contractors and or developers were required to construct a property to, compared with what’s been deemed to be ‘unacceptable’ for modern-day construction standards. By example, industry guidance of 15 years ago gave no indication on whether timber balconies could be used in construction. Now, timber balconies are required to be designated as low combustibility and satisfy a plethora of fire safety conditions.

Social housing providers and public bodies

These entities face the dual challenge of regulatory compliance and public accountability. Legal advisers are helping them plan large-scale remediation projects, comply with resident consultation duties and manage relationships with regulators.

Why legal advice matters

Given the complexity of the new rules, law firms have responded by establishing expert teams that combine to provide expert advice across:

• construction law – advising on design liability, delay and contract risk and interpreting duties under the BSA and related legislation;
• real estate law – supporting due diligence in property transactions and leasing; and
• litigation – managing disputes over liability, remediation costs and defective design.

Clients want more than a recital of their legal position. Clients require clear risk analysis, strategic guidance to align with their commercial objectives and workable compliance plans. This service requires legal professionals to work with fire engineers, surveyors and architects to deliver joined-up, practical and actionable solutions for clients.

Why this matters for future lawyers

Fire safety in construction law highlights how legal systems respond to public disasters, requiring cross-disciplinary expertise and client-focused thinking. It offers aspiring lawyers a chance to make a real societal impact while navigating complex commercial and regulatory challenges.

Law at the core of safe buildings

The need to ensure fire safety standards are implemented across the industry to drive standards of construction is driving a fundamental shift in the construction industry, far beyond just construction materials. Legislative developments such as the BSA are redefining how buildings are planned and operated while ensuring those responsible for their construction or their management following construction are made accountable, altering the roles of all key stakeholders.

Legal professionals are central to this transformation. From contract drafting to liability advice and providing strategic advice to enable remediation efforts, they help ensure buildings meet both legal standards and real-world safety needs.

Fire safety remains a powerful case study in how legal expertise can shape business decisions and deliver a lasting impact on the construction industry.

James Mapley is an associate at Devonshires Solicitors.