The decision of Constable J in Crest Nicholson v Ardmore [2026] EWHC 789 (TCC) was handed down on 1 April 2026. It demonstrated the power of the Building Liability Order to pierce the corporate veil and extend liability for construction defects between "associate" corporate entities. On 11 June 2026, reports circulated that Ardmore Group Limited and five of its subsidiaries had entered administration. Ardmore Group Limited was subject to the High Court's BLO in the Crest Nicholson decision.
The power of the BLO, which has now been made plain, is rooted in the transformative agenda of the Building Safety Act 2022 (the BSA). However, the BSA alone cannot explain the sweeping changes now unfolding in construction litigation, which reach beyond the Crest Nicholson decision. In this article Oliver Williams and Adam Turner explore how recent developments in both statute and case law point to the ever-increasing prominence of a far older piece of legislation: the Defective Premises Act 1972.
A brief history of the Defective Premises Act 1972 (DPA)
Section 1 of the DPA imposes a statutory duty on those "taking on work for or in connection with the provision of a dwelling". The duty requires that such work is done so that "the dwelling will be fit for habitation when completed". In 1974, a commentator in the Cambridge Law Journal lamented that the DPA was "drafted in terms which are longwinded, ugly and obscure; and which ultimately changes little" (J R Spencer, 'The Defective Premises Act 1972 effective law and defective law reform' (1974), 33(2), The Cambridge Law Journal, 307). Fifty-four years later, it is safe to say that at least the final part of this statement is demonstrably untrue.
Early views of the legislation are perhaps reflective of what was, due to prevailing judicial opinion, its rather limited role. During the 1970s and 1980s, a series of decisions (a high-water mark being the decision of Anns v Merton [1978] AC 728) held that those who design or construct buildings (as well as Local Authority building inspectors) owed duties of care in negligence in respect of a broad range of potential damage, including what is described as 'pure economic loss' (For example, Junior Books v Veitchi [1983] 1 AC 520). This meant that the statutory duty under the DPA was, generally speaking, superfluous to requirements.
This changed with Murphy v Brentwood DC [1991] 1 AC 398 in which the House of Lords noted that this line of case law had ventured "far beyond that which Parliament thought fit to impose upon house builders alone by the Defective Premises Act 1972 …", noting, moreover, "the precise extent and limits of the liabilities which in the public interest should be imposed upon builders and local authorities are best left to the legislature" (Murphy v Brentwood DC [1991] 1 AC 398, 472).
These words proved prescient. The BSA represents a generational legislative pronouncement on the extent to which builders can be held liable for defective work. To this end, the BSA has put the DPA into the most revolutionary phase of its post-Murphy rehabilitative journey. But this story cannot be told by the BSA alone. Below we set out five key reasons why the DPA is increasingly central to the landscape of construction litigation:
1. Introducing the BLO (Section 130, Building Safety Act)
The BLO is an order that may be made by the High Court under section 130 of the BSA. It extends liability for defective building work (to a specified building) held by one entity to its "associates". The test for an "associate" looks to ultimate corporate control and/or ownership. It is thereby a remedy that pierces the corporate veil. The making of a BLO is subject to the overarching (and undefined) proviso that it be "just and equitable" to do so. This wording is seen elsewhere in the BSA, in respect of Remediation Orders and Remediation Contribution Orders under sections 123 and 124.
Section 130(3)(a) of the BSA provides that liability under section 1 of the DPA is a "relevant liability". This is significant. It is, at present, the only reliable basis upon which prospective applicants of a BLO can rely.
There are two other sources of a "relevant liability". The first is section 38 of the Building Act 1984, which is not yet in force. The second is liability "as a result of a building safety risk". This is defined only as "a risk to the safety of people in or about the building arising from the spread of fire or structural failure". Whilst this poses interesting questions as to how far a relevant liability may stretch, and what this grounding may cover in addition to that which is covered by the DPA, it is otherwise unsubstantiated in statute or case law. The DPA therefore remains the safest footing for a BLO application.
2. The power of the BLO (Crest Nicholson v Ardmore [2026] EWHC 789 (TCC))
The Crest Nicholson decision provided the first in-depth judicial engagement with the requirements of section 130. Commentary on the decision from our colleagues Helen Stuart and Holly Tunnah can be found here. The decision indicates that the courts are willing to use the BLO to give effect to the legislative intent of the BSA: to hold those responsible for defective building work to account.
It should be noted that Constable J made not one, but two BLOs. The first entailed a BLO to enforce an adjudicator's decision against "associate" parties. This was described as the Adjudication BLO. The second was described as the Anticipatory BLO. It provided that if the first defendant party were found to have a relevant liability a number of "associate" parties would automatically share this liability. Both BLOs were considered just and equitable under the circumstances and in view of the overarching aims of the BSA.
As noted above, liability under the DPA is the most reliable basis for obtaining a BLO. Liability under the DPA therefore remains central to this case. The adjudicator's decision, which was enforced by way of the Adjudication BLO, was based on a finding of liability (in the sum of almost £15m) on the part of the first defendant under section 1 of the DPA. The Anticipatory BLO related to a prospective finding of liability on exactly the same basis.
3. Limitation period for claims under the DPA (Section 135, Building Safety Act)
This is perhaps the most significant force behind the DPA's recent ascendancy. Prior to the BSA, a standard limitation period of 6 years applied to actions under the DPA, which accrue when the relevant dwelling is completed (section 1(5) Defective Premises Act 1972). Since building defects are often latent, they can take years to surface. A six-year window was often simply too short.
The extended period transforms the DPA into a far more potent tool. For causes of action accruing on or after 28 June 2022 the limitation period is more than doubled, extending to 15 years. For those accruing before that date limitation is extended to an incredible 30 years. This means that, at the time of writing, no limitation defence is available against claims under the DPA dating back as far as June 1996.
4. Who can claim under the DPA (URS v BDW [2025] UKSC 21)
The DPA's increasing prominence is not solely attributable to the BSA. The courts have also given it sharper teeth. A significant example of this is the Supreme Court's decision last year in URS v BDW. In this case, the Supreme Court rejected the argument that a party that owes a duty under section 1 of the DPA cannot itself be owed a duty under the same provision.
Residential property developers regularly procure the development of "dwellings" whilst also "providing them" to residential first purchasers. The argument considered in URS (which had never been addressed directly before) was whether this prevented residential property developers from being owed a duty under section 1 of the DPA. The Supreme Court rejected the argument on a straightforward, literal reading of the statute.
5. Adjudication of claims under the DPA (BDW Trading Limited v Ardmore Construction Limited [2024] EWHC 3235 (TCC))
The Courts have also held that DPA claims may be decided in the course of an adjudication. Under section 108 of the Housing Grants, Construction and Regeneration Act 1996, a dispute "arising under" a construction contract may be referred to adjudication. Adjudication is therefore a dispute resolution mechanism imposed on construction contracts by statute.
There is an argument that a dispute under section 1 of the DPA cannot be one that "arises under" a construction contract. Disputes around the statutory duty under the DPA exist on a completely different footing to those concerning the rights and obligations of parties to a construction contract. On this view, it appears that adjudication is limited to the latter; and that it is impermissible for an adjudication to decide a claim under the DPA.
This issue was addressed by Joanna Smith J in BDW v Ardmore. Reference was made to the obiter comments by Lord Briggs in Bresco v Lonsdale [2020] UKSC 25: the "statutory compulsion" behind the right to adjudication does not negate the fact that adjudication clauses exist by reason of contractual conferral (Lord Briggs in Bresco v Lonsdale [2020] UKSC 25, [41]). Joanna Smith J concluded that contractual adjudication clauses are amenable to the same rules of construction as arbitration clauses, namely under the "Fiona Trust principles" articulated by Lord Hoffmann in Fiona Trust & Holding Corp v Privalov [2007] UKHL 40. Broadly speaking, this stands for the proposition that such construction should start from the assumption that the parties "are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal" (Fiona Trust & Holding Corp v Privalov [2007] UKHL 40, [13]), and deprecates overly linguistic analyses of such clauses.
On an application of the Fiona Trust principles to the adjudication clause in question, Joanna Smith J held that the adjudicator had jurisdiction to decide a claim under the DPA. A similar argument was raised by Ardmore in the Crest case. Constable J considered that the adjudicator had jurisdiction to decide a DPA claim under the relevant adjudication clause: this related to the award of almost £15m that underpinned the Adjudication BLO.
The availability of adjudication as a means of resolving DPA claims is of considerable practical significance. It provides claimants with a rapid and cost-effective route to establishing the "relevant liability" that underpins a BLO application, thereby reinforcing the DPA's central role in the evolving framework of building safety litigation.
Conclusion
Drawing these threads together shows just how powerful the DPA has become. A developer could hypothetically bring a DPA adjudication in relation to a contract from decades ago, against an entity in the midst of an insolvency process, and use the BLO mechanism to extend liability to associate companies.
Besides other practical difficulties, such an extreme case would likely give the courts considerable food for thought about the limits of the 'just and equitable' test for a BLO. What exactly will fall foul of that test remains relatively unexplored in the recent decisions. However, the Supreme Court judgment in the Triathlon Homes appeal will almost certainly provide further clarity on how the test operates.
Questions remain for the DPA specifically. On 11 February 2025 Coulson LJ granted permission to appeal the DPA adjudication point in the BDW v Ardmore judgment. For reasons that may now be obvious, that appeal was not pursued by Ardmore. But the grant of permission appears to indicate that there is a need to address this question at a higher appellate level.
On a more fundamental level there is the outstanding question of the nature of the duty imposed by section 1 of the DPA. Alexander v Mercouris [1979] 1 WLR 1270 has long been the authority that the DPA imposes a single duty in which "fitness for habitation" is the ultimate standard. This has been criticised in commentary and in the courts. Perhaps a day will come where this decision is overruled. What is already clear is that the DPA, once dismissed as changing little, has become the cornerstone of modern building safety litigation.
