[2025] UKUT 298 (LC)

Mr Hutchings argued that the term “unsafe” in paragraph 8 should be narrowly construed to mean inherently unsafe cladding posing a fire risk, not general degradation or structural decay over time. He said that it was quite obvious that "unsafe” in this context means “posing a fire risk” or something which is inherently unsafe due to “historic problems which came to light following the Grenfell Tower fire”.

In the appellants’ submission the use of the word “unsafe” is intended to impute a more narrow interpretation than the wider “building safety risk”. Furthermore it was said that “unsafe cladding” within the context of the BSA is concerned with safety for those in occupation and is primarily if not exclusively cladding which is inherently defective upon installation because it creates a fire risk. In context, it was argued, “unsafe” is not directed towards a generic concept of “unsafeness”, or even a “building safety risk” and in particular it should not be taken to include something which may become unsafe by reason of slow degradation.

The appellants submit that the consequences of a wider reading would be extraordinary and that it cannot have been Parliament’s intention to encompass any “cladding” on older buildings that would be caught by the paragraph.

In response, Mr Bates pointed to section 1(1) of the BSA which states that the provisions of the BSA are “intended to secure the safety of people in or about buildings and to improve the standard of buildings”. He pointed out that nowhere in schedule 8 are the words “fire safety issue” used and that there is no rational basis for reading such a limitation. He pointed out that the FTT found that the façade at CPH poses a risk of fatality to passers-by and was evidently correct to find that the cladding system was unsafe.

The FTT decided that ‘unsafe’ means something more than simply out of repair and that “It is sufficiently wide a term to encompass a range of threats to the safety of the building or to its residents or nearby members of the public. That is a plain and straightforward interpretation of the language used and no external sources are needed for it. It is consistent with the wide drafting of the 2022 Act and its stated purposes.” In respect of CPH it found that:

“300.

On the basis of the very clear evidence from Dr Harris as to the serious degradation of the condition of the façade including the serious risk to the health and safety of the residents and the public if more of the windows detached because of the detachment of the clamp strip and failure of screws (or indeed one of the annealed (i.e. not safety) glass spandrel panels was to be sucked out by wind force) due to degradation in the timbers or failure of external seals due to the water being let and kept in, we are satisfied that the cladding system at CPH is unsafe.”