Court of Appeal on legislative response to the building safety crisis

The Court of Appeal has handed down judgment in Adriatic Land 5 Limited v Long Leaseholders at Hippersley Point.

The appeal concerned one part of the ‘leaseholder protections’ in the Building Safety Act 2022 (‘BSA’). The BSA is the legislative response to the building safety crisis that followed the 2017 Grenfell Tower fire. The leaseholder protections were designed to address unaffordable remediation bills (often stretching into the tens of thousands of pounds), a frozen lending market, and a situation where residents were stuck in homes that were not being made safe quickly enough or at all.

By a majority (Newey LJ dissenting), the Court of Appeal has concluded that the provisions in issue apply retrospectively.

The court has gone on unanimously to conclude that this retrospective application is compatible with landlords’ rights under Article 1 of the First Protocol of the European Convention on Human Rights (‘A1P1’).

The judgment considers, amongst other matters:

• With regards to statutory construction: the presumptions against retrospectivity and interference with property rights, the relevance of explanatory notes that post-date Royal Assent, and whether departmental witnesses statements can be used to shed light on the context and purpose of legislation.
• With regards to A1P1: the characterisation of an interference as a ‘deprivation’ or ‘control of use’, and the margin of judgment afforded to Parliament on issues of social and economic policy.

Will Perry successfully acted for the Intervener, the Secretary of State for Housing, Communities and Local Government (led by Sir James Eadie KC, Jason Pobjoy KC and Michael Walsh KC).