Building safety risks: The low threshold for relevant defects

In brief

This article looks at the key takeaways from the recent judgment of Canary Riverside Estate Management Limited & Ors v Leaseholders
The correct approach to identifying a Relevant Defect under the Building Safety Act 2022 is to focus on whether a building safety risk exists, rather than first defining a "defect" in the abstract
The threshold for establishing a building safety risk is deliberately low: any risk arising from the spread of fire or structural collapse is sufficient, with no requirement for the risk to be "unreasonable" or "tolerable"
The low threshold is counterbalanced by the discretionary nature of Remediation Orders and the "just and equitable" test for Remediation Contribution Orders, ensuring remediation remains proportionate to the actual risk

A recent First-tier Tribunal decision has clarified the approach to identifying relevant defects under the Building Safety Act 2022, setting a deliberately low threshold with important implications for building owners and developers.

In Secretary of State for Housing and Communities and Local Government v Canary Riverside Estate Management Limited & Ors [2026], the First-tier Tribunal (Property Chamber) was required to determine a preliminary issue in applications brought under the Building Safety Act 2022 ("BSA 2022") for a Remediation Order ("RO") and/or Remediation Contribution Order ("RCO"). The applications concerned the Canary Riverside Estate, Westferry Circus, London E14 ("the Development"), comprising four residential towers: Berkley Tower, Eaton House, Belgrave Court and Hanover House, each constituting a "Relevant Building" within the meaning of section 117 BSA 2022.

The preliminary issue before the Tribunal was which, if any, of seven identified external wall types present at the Development constituted a "Relevant Defect" within the meaning of section 120 BSA 2022. Following joint inspections by the parties' fire engineering experts, three wall types remained in dispute.¹

Assessing relevant defects

The Tribunal provided important clarification on the correct approach to identifying relevant defects under section 120 BSA 2022. The focus is on whether the matters complained about cause building safety risks, rather than first determining whether a "defect" exists and then assessing whether it constitutes a building safety risk (i.e. it might be a theoretical defect, but does it actually pose a building safety risk).

This approach avoids the unnecessary distraction of determining what constitutes a "defect" in the abstract, particularly given that compliance with Building Regulations at the time of construction cannot be definitive due to regulatory changes over time. The relevant question is whether, as at the date of the hearing and in light of current knowledge, there are defects present that constitute a risk to the safety of people in or about the building arising from the spread of fire or collapse of the building.

The Tribunal confirmed that compliance with Building Regulations B3 and B4, and the guidance in Approved Document B, carries significant weight in this assessment, though compliance with such guidance is not conclusive. PAS 9980 assessments are relevant but not determinative of whether a building safety risk exists.

Building safety risk threshold

A notable aspect of this decision is the Tribunal's analysis of the threshold for establishing a "building safety risk" under section 120(5) BSA 2022.

The Tribunal rejected the submission that there exists a threshold below which a risk should be considered "tolerable" or an "ordinary, unavoidable risk". The statutory wording of section 120 contains "no such gloss", and words such as "tolerable", "low", "medium", "high" or "ordinarily unavoidable" are noticeably absent from the legislation.

Accordingly, a defect does not need to pose an "unreasonable" risk to constitute a building safety risk. It just needs to pose a risk. The Tribunal's task is simply to identify whether a risk to safety exists, not to assess the degree of that risk or whether it exceeds that ordinarily present in a building of similar nature.

Relevant defects and the just and equitable test

Importantly, the Tribunal emphasised that the identification of a Relevant Defect does not automatically result in the making of a Remediation Order or Remediation Contribution Order.

It is at the remediation stage, once risks have been identified, that an assessment of those risks (such as through a PAS 9980 assessment) becomes relevant. A tribunal may decline to grant a Remediation Order if it considers that the level of risk posed by a relevant defect does not warrant it. Similarly, costs incurred in remedying a relevant defect may be disallowed in an RCO application if the tribunal considers such costs were unnecessarily incurred.

This distinction between the identification of relevant defects and the determination of appropriate remediation preserves a degree of proportionality in the BSA 2022 regime, notwithstanding the low threshold for establishing the existence of a relevant defect.

Concluding thoughts

This decision provides important l clarity on the test for identifying what constitutes a Relevant Defect under the BSA 2022. Three key points emerge for practitioners in this area:

The methodology for assessing a Relevant Defect should focus on whether a building safety risk exists, rather than attempting to define a "defect" in isolation before considering its safety implications.
The threshold for establishing a building safety risk is very low. Any risk to the safety of people in or about the building arising from the spread of fire (including smoke) or building collapse, however small, may constitute a Relevant Defect. PAS 9980 assessments categorising risk as "low" do not preclude a finding that a Relevant Defect exists.
The low threshold for identifying relevant defects is balanced by the discretionary nature of Remediation Orders. The "just and equitable" test applicable to RCOs, and the general discretion applicable to ROs, provide mechanisms for ensuring that remediation is proportionate to the actual risk posed. Costs that are unnecessarily incurred may be disallowed even where a relevant defect has been established.

Practitioners should note that this decision concerned a preliminary issue only. The substantive questions of what remediation is required and whether it is just and equitable to make orders in respect of the identified defects remain to be determined at trial. Nevertheless, the Tribunal's guidance on the correct approach to identifying relevant defects will be of significant assistance in future BSA 2022 applications.

¹ (EWT 02 - Zinc Cladding, EWT 03 - EPS Render on Concrete Block, and EWT 04 - EPS Render on Plywood) constituted relevant defects. The remaining four wall types (EWT 01 - Masonry Cavity Wall, EWT 05 - Curtain Wall and Spandrel Panels, EWT 06 - EPS Render on Blockwork on Balconies, and EWT 07 - Reconstituted Stone Cladding)