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The Building Safety Act 2022 (BSA) has significantly reshaped the landscape of construction liability in the wake of the Grenfell Tower tragedy. One of its most impactful consequences has been the revival and expansion of claims under the Defective Premises Act 1972 (DPA). With extended limitation periods, a broader scope of application, and recent Supreme Court confirmation that developers can pursue recovery under the Act, the DPA has become a powerful tool in building safety and remediation disputes. This article explores the evolving scope of the DPA, key recent court decisions, and the practical implications for those involved in residential construction.
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One of the many consequences of the Building Safety Act 2022 (BSA) has been a spike of interest in claims under the Defective Premises Act 1972 (DPA). This is primarily due to the extended limitation periods which the BSA introduced and the widening of the definition of work and services covered. With recent confirmation from the Supreme Court that a developer can also bring a claim under section 1 of the DPA, for recovery purposes, its potential application is greater still.
Vast sums are being expended carrying out remediation work required following the Grenfell Tower tragedy and all potential avenues of recovery are being explored. A previously little- used remedy is now becoming far more prominent in claims, as a result.
The DPA imposes a statutory duty on those involved in the construction of a dwelling (or the carrying out of works to a dwelling), to ensure that the work is designed and then carried out properly, using appropriate materials, making it suitable for people to live in when completed. The duty can be owed by property developers, contractors, and construction professionals. If the dwelling is not "fit for habitation", then a claim can be brought for compensation by the person who originally commissioned the dwelling, or any person who subsequently acquires a "legal or equitable interest" in it.
To bring a claim under the DPA, the following criteria must be met:
The limitation period for claims under the DPA was originally six years from completion of the work. Section 135 of the BSA has radically extended time limits as part of the legislative response to deal with the building safety crisis uncovered following Grenfell. The new time limits for DPA claims are:
As a consequence, claims can now be brought for work carried out as long ago as 1992.
In addition to extending limitation periods, the BSA more generally broadened the scope of the DPA. Originally the duty imposed only related to work in connection with the construction of a new dwelling, or the conversion or enlargement of a building to a dwelling. Since the introduction of the BSA in June 2022, this has been expanded to any work carried out to an existing dwelling where the work is carried out in the course of a business.
The BSA also introduced a new remedy, a Building Liability Order, which can, in certain circumstances, allow recovery against an associated company. As a result, coupled with the expansion of the DPA, there is now a substantially broader landscape for bringing claims under the BSA.
There have been two significant recent decisions which impact on DPA claims.
In URS v BDW (2025), the commercial developer, BDW, which had carried out remediation work after it had sold a block of high-rise properties, was seeking to recover substantial remediation costs from the consultant engineer, URS. URS argued that it did not owe a duty to the developer as the purpose of the DPA was not to protect commercial developers who would not inhabit a dwelling. The Supreme Court rejected this argument and held that the relevant work was carried out "to the order" of the developer, the first owner, and therefore clearly fell within the wording of section 1. Further, there was no good reason why someone who owed a duty could not also be a person to whom a duty was owed. The claim by the developer for the costs of investigations, temporary works, evacuation of the relevant block and permanent remedial works were the type of losses contemplated by the DPA.
A developer with responsibility for carrying out remediation work will therefore have the opportunity to pass on that liability by itself making a claim under the DPA. This may include claims against sub-contractors or sub-consultants against whom the developer would otherwise have no contractual claim.
The second significant decision, BDW Trading Ltd v Ardmore Construction Ltd (2024), confirmed that a claim under the DPA may be referred to adjudication. The Court rejected the contractor's linguistic argument that the adjudication clause in the building contract (which provided for the referral to adjudication of a dispute arising "under this contract") would not include a claim under the DPA. Accordingly, the adjudicator had jurisdiction to make the award of nearly £14.5 million against the contractor.
The contractor was also unsuccessful in its argument that the adjudication was inherently unfair as the passage of time meant that it had almost no relevant contemporaneous documentation and had to rely upon information provided by BDW, leading, it said, to an inequality of arms in terms of documentation.
The decision opens the way for disputes under the DPA to be referred to adjudication, providing a claimant with a swift decision and leaving those on the receiving end having to deal with historic claims under very tight time restraints. As this case illustrates, those claims can be for very considerable sums and perceived unfairness arising from the passage of time is unlikely to offer a valid defence.
There is also some uncertainty as to the meaning of certain non-defined terms – "dwelling" and "fit for habitation", for example – meaning the precise ambit of the DPA is not yet fully known. Further guidance from the Courts will be needed.
Materially, a claim under the DPA will circumvent the network of contractual provisions that have been agreed by the parties. It is not possible to contract out of the DPA, so those liabilities cannot be excluded or restricted. Any restrictions on the duties owed, caps on liability or net contribution clauses, etc., will have no effect in claims brought under the DPA.
Generally, however, the same issues will arise with DPA claims as would be the case for breach of contract. Arguments over causation and quantum will not be radically different, and, if successful, the ultimate redress is likely to be materially the same. The result is that what was previously a little-used remedy is now front and centre in many claims over residential developments. The courts widening the scope of DPA claims in favour of developers, including by allowing these to be referred to adjudication for a quick resolution, is a clear indicator as to the direction of travel for building safety claims. The signs are that this will remain the direction for the foreseeable future.
