Building Safety Alert: UK Tribunals Tackle Landmark "Regulation 3" Appeals
Permission has been given to appeal to the United Kingdom's Upper Tribunal concerning two "Regulation 3" notices issued under the leaseholder-protections regime of the Building Safety Act 2022 (the "Act"). This follows a landmark First-Tier Tribunal decision that tackled key questions on jurisdictional scope, the "but-for" test for cost recovery, and the retrospective application of the regulations.
The Building Safety Act 2022 and associated regulations have introduced a number of new remedies and obligations relating to building safety in the United Kingdom. One set of regulations are the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022 ("LPI Regulations"). Amongst other things, the LPI Regulations introduced a mechanism, by way of Regulation 3 notices, for a landlord carrying out remediation works to recover the costs of the same from a "responsible landlord", including superior landlords associated with the original "developer", as defined by the Act. A landlord can claim such costs pursuant to Regulation 3 only if those costs would have been payable as a service charge by a tenant under the lease "but for" the restrictions set out in the Act. The First-Tier Tribunal (Property Chamber), or "FTT", has jurisdiction to hear appeals of such notices on defined statutory grounds.
The application of the LPI Regulations in practice is not straightforward. In November 2025, Jones Day assisted the freehold owners of East Village, Stratford (a site of the 2012 Summer Olympics), in appealing three Regulation 3 notices. The appeals were heard that month by the FTT, before Judge McGrath (President of that Chamber) and Judge Sheftel. By their decision of 16 January 2026, the tribunal held that: (i) the FTT has jurisdiction to determine whether Regulation 3 applies, without requiring a court claim; (ii) the "but-for" test looks only to payability under the lease terms, not to statutory reasonableness or to extraneous funding arrangements such as Building Safety Fund grant conditions; (iii) landlords must be "liable to pay" unconditionally (in that costs cannot be contingent); and (iv) Regulation 3 operates retrospectively to costs which the landlord was liable for or had paid prior to the LPI Regulations coming into force.
On 13 March 2026, the FTT granted permission to appeal on points (ii) and (iv), and the two grounds decided against the appellants. The grounds for appeal also raise human rights issues. Although the LPI Regulations feature in Triathlon LLP v SVDP [2025] EWCA 846, no Upper Tribunal decision has engaged with their detailed workings. This appeal will be the first to do so – a landmark in the developing jurisprudence on the building-safety leaseholder-protections regime.
Stratford Village Property Holdings 1 Limited & Anr v East Village Management Limited (LON/00BB/BSD/2024/0601; BSA/2025/0002 and 0003). Jones Day represented the appellants.
