30 Burstock Road: Building Safety Regulator found to have acted ultra vires
5th Feb 2026
One of the most important innovations in the Building Safety Act 2022 (“the 2022 Act”) was the creation of the Building Safety Regulator (“the BSR”). This was a direct response to the recommendations of Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety, following the Grenfell Tower disaster in June 2017.
Perhaps surprisingly, the BSR started life as a division of the Health and Safety Executive – a government body with a quite different mandate and expertise. But last week, on 27th January 2026, the BSR became a standalone organisation under the Ministry of Housing, Communities and Local Government. The government’s press release contends that “the move to standalone status is underpinned by a significant ‘operational reset’ in BSR’s role as the building control authority for higher-risk buildings.”
Read the press release here.
The Building Safety Regulator
Part 2 of the 2022 Act creates the new BSR. Sub-section 3(1) of the 2022 Act states that the BSR must exercise its building functions with a view to securing people’s safety and improving the standard of buildings. Sub-section 3(2) adds that, while doing so, the BSR must have regard to the principles of transparency, accountability, proportionality and consistency (i.e. standard public law principles).
To date, these provisions have received very limited scrutiny from the courts.
In Health and Safety Executive v Integritas Property Group (IPG) Ltd [2025] EWHC 2613 (TCC), Mr Justice Freedman granted the first-ever interim injunction to the BSR. The purpose of the injunction was urgently to prevent occupation of a 244-room student accommodation block which had significant fire safety defects. Despite no building regulation certificate having been issued, the ironically-named respondent advertised units as being available to rent (which was probably a criminal offence). The court ruled that the HSE/BSR had standing to seek the injunction, and the American Cyanamid factors were met.
30 Burstock Road in the First Tier Tribunal
In December 2025, the First Tier Tribunal Property Chamber (Residential Property) handed down an important decision in the matter of 30 Burstock Road, London SW15 2PW, case reference LON/00AG/BUM/2025/0001. This is thought to be the first decision or judgment dealing with the scope of the BSR’s powers when considering building safety appeals, the interaction between the two sub-sections of section 3 of the 2022 Act referred to above, and the scope of the Tribunal’s own powers when determining an appeal from a decision made by the BSR.
The Building Regulations 2010 were enacted under the Building Act 1984. Their effect is relatively well-known to construction professionals and lawyers. But in 2023, they were extensively amended by new regulations associated with the 2022 Act. One of the new regulations is 18A, which states that where a person’s local authority has refused to grant them a building safety certificate, that person may appeal the refusal to the BSR.
This was the situation in which Mr Thursfield, the Applicant, found himself. He carried out a loft conversion and side extension to the existing house at 30 Burstock Road, but in 2022 his appointed Approved Inspector entered insolvency. In July 2022, he approached the London Borough of Wandsworth (“Wandsworth”) to request a regularisation certificate under section 18(2) of the Building Regulations 2010.
After considering the matter for two years, Wandsworth refused to certify the building works. It said that some of the works were “considered unsatisfactory”, but declined to give more specific reasons for its decision, despite having been formally asked to do so.
The Applicant appealed promptly to the BSR. Some 15 months later, the BSR sent him its Decision Letter.
The Decision Letter sent by the BSR
According to Deputy Regional Judge N Carr at paragraph 38 onwards, the problems with the Decision Letter were “manifold”.
The Decision Letter omitted the following information, all of which should have been included: a list of the permissible grounds of appeal under the Building Regulations 2010; the relevant powers of the BSR; the grounds of appeal specified in the appellant’s notice; a list of the evidence that had been considered by the decision maker; and an explanation of how the decision maker had weighed that evidence and reached their decision.
On the other hand, the Decision Letter included the following: “an inherent contradiction”; “a finding without any reasoning”; “a misstatement of the law”; “a misstatement of the breadth of the Applicant’s appeal”; and “a wholly incorrect statement”.
Furthermore, the BSR reached its decision by reference to a section of the Building Regulations that had not been mentioned in Wandsworth’s decision, and of whose supposed relevance the Applicant had not been made aware.
The judge found that the BSR had improperly fettered the exercise it should have undertaken. Its decision was tainted by procedural unfairness, and was made in breach of the rules of natural justice.
At paragraph 61, the judge stated:
“The overall impression that the [Decision Letter] leaves one with is that it is written with a lack of understanding of the task on the appeal, the application that has been made, the powers available to [the BSR] and principles of basic fairness, openness or natural justice, and the law.”
It was clear that the decision could not stand: see paragraph 64.
This meant that the Tribunal had to consider the scope of its own powers, on hearing an appeal from a decision made by the BSR. Specifically, the judge needed to determine the consequences that would flow from allowing the Applicant’s appeal.
The parties’ positions
The BSR’s position at the hearing was that the word “appeal” has no special meaning, and is not defined in the legislation. Building on that submission, it argued that rather than refusing the appeal from Wandsworth’s decision, the BSR had in fact permitted it, and then varied the original decision in accordance with its statutory powers.
The BSR invited the Tribunal to adopt a sweeping, purposive interpretation of Building Regulation 18A together with Part 2 of the 2022 Act, such that the BSR’s statutory duty to secure people’s safety and improve the standard of buildings becomes the overriding factor. It would follow that the BSR has an unfettered discretion to vary the decision of a local authority. The BSR submitted that even if the Tribunal was minded to quash its decision, the Tribunal could not order Wandsworth to issue a certificate – it should remit the decision to the BSR, to be “remade”.
The Applicant’s position was that “appeal” is an ordinary, unmysterious word. The Decision Letter stated in bold text that the appeal had been refused. It was not open to the BSR to argue now that it actually meant the opposite. The BSR was confined by public law principles of fairness; and such an approach would be incompatible with the rule of law.
The Applicant argued that the BSR’s interpretation of its own powers went too far. Sub-section 3(1) of the 2022 Act explained the purpose behind those powers, while sub-section 3(2) emphasised the need for transparency and fairness. The 2022 Act could not be read in such a way as to defeat the purpose of other statutes, regulations and legal principles.
The Applicant submitted that the Tribunal had the power to quash or vary the BSR’s decision; and that the requirement for Wandsworth to issue a regularisation certificate would flow inevitably from the Tribunal’s decision.
The judge’s decision
The judge carefully considered the relevant law, the Explanatory Notes to the 2022 Act, the BSR Enforcement Policy Statement, and the parties’ submissions.
The judge decided that the BSR’s appeal jurisdiction in Building Regulation 18A is binary. It can either refuse the appeal, or allow the appeal.
If the local authority makes a “good” decision, then the BSR should refuse the appeal, and give clear and cogent reasons as to why the underlying decision is correct. But the BSR cannot introduce new grounds of refusal that were not relied upon in the underlying decision.
If the local authority makes a “bad” decision, as in this case, then the BSR should allow the appeal. Having done so, it can quash or vary the underlying decision; but it cannot do both at once. It must choose the most appropriate course, and give reasons for its decision.
The BSR’s power to quash or vary the underlying decision only arises if the appeal is successful. It has no power to both refuse the appeal and vary the decision.
The judge found that the BSR’s decision in this case was plainly a refusal on the basis of its own grounds, and was therefore ultra vires.
Accordingly, the judge decided to vary the BSR’s decision such that (a) the Applicant’s appeal from Wandsworth’s decision was upheld; and (b) the regularisation certificate that the Applicant had been seeking for three and a half years was granted.
The judge’s wider comments on the BSR and its responsibilities
At the end of her decision, the judge commented that the BSR has been given numerous significant and difficult responsibilities; yet it is not as well-resourced as those responsibilities would appear to require. The delays being experienced by parties seeking Gateway 2 approval in the Tribunal’s Remediation Order jurisdiction illustrate the effect of this in practice. The judge continued:
“I should and do make it clear that I do not consider that the Respondent’s actions in the appeal to it were malicious or motivated by anything other than confusion and a lack of clear guidance, together with an overzealous approach to its building functions in this case.”
The judge observed that a public body making decisions affecting a person’s civil rights must be very aware of its public law obligations. The BSR’s decision in this case was ultra vires in the Anisminic sense. The judge expressed a hope that the BSR would take the lessons of the case as an opportunity to consider its processes.
It is unknown to what the extent, if any, the ‘operational reset’ referred to in the government press release quoted above is a direct response to the judge’s comments.
Many property owners and construction professionals will be hoping that the judge’s robust criticisms of the BSR will be taken on board, as part of the restructuring of the BSR outside the ambit of the Health and Safety Executive.
The decision is accordingly of wider interest for those in the construction industry who might be growing frustrated in their dealings with the BSR, and/or considering their legal options for obtaining the building safety certificates and approvals that they need in order to progress their construction projects.
William Lacey appeared for the successful Applicant, instructed by Louise Elmes of Keystone Law.
The decision can be found here.
