When The Regulator Says No: The Impact Of Building Safety Regulator Rejections On Construction Litigation

A recent decision of the Technology and Construction Court (TCC) provides important guidance on the intersection of the new building safety regulatory regime and the Court's case management powers in high-value construction disputes.

In GS Woodland Court GP 1 Ltd & Anor v RGCM Ltd & Ors [2026], the TCC considered the case management consequences of the Building Safety Regulator (BSR) rejecting a claimant's proposed remedial scheme for a Higher Risk Building (HRB).

This case is significant: it is one of the first TCC judgments to grapple directly with the case management implications of BSR delays. It makes clear that the BSR's decision on a remedial scheme is a factual matter that may materially influence how a court manages proceedings, particularly in relation to quantum. For parties procuring remedial works to HRBs, this illustrates the risk that BSR delays or adverse decisions can derail even well-advanced litigation timetables.

Below we examine how the dispute arose, the parties' arguments, and how the TCC reached its decision.

How the GS Woodland dispute arose

• The case concerns a nine-storey student accommodation development in Islington (the Development), comprising three blocks, and constructed using modular construction methods under a construction management procurement model.
• Woodland alleged numerous fire safety defects as a result of breaches of contractual, tortious, and statutory duties by several defendants, including the construction manager, architect, cladding contractor, modular manufacturer, installer and M&E contractor.
• The total sum claimed is approximately £35 million, of which £19.7 million relates to a "Mitigation Remedial Scheme" said by Woodland to be necessary to remediate the totality of the defects identified.
• As the Development is an HRB, Woodland had to obtain approval from the BSR before commencing any remedial works.
• On 30 October 2025, the BSR rejected Woodland's proposed remedial scheme, citing concerns including lack of compartmentation, combustible materials in the external wall system, extended travel distances in unventilated corridors, and the proposal to use a watermist system in lieu of a sprinkler system.
• Woodland applied to adjourn the trial listed for June 2026, seeking to adjourn to the first convenient date after 1 June 2027. The application was opposed by a number of the defendants.

TCC decision: a split trial

The TCC held that the "least imperfect" option was to order a split trial: rather than adjourning the entirety of the proceedings, the June 2026 trial date would be retained for the determination of liability issues, with quantum to be heard separately at a later date.

Mr Justice Constable acknowledged that, in a typical construction defects case where remedial works have not yet been commenced, the court will ordinarily rely on expert evidence to determine what remedial works are reasonably necessary and their cost. There is an inherent degree of uncertainty in any such exercise: the scheme ultimately carried out may cost more or less than that assessed by the court, and the claimant bears the risk of subsequent regulatory changes or delay. Ordinarily this uncertainty would not be sufficient to affect a case management decision about when the trial should be heard.

However, the Building Safety Act 2022 and the Building (Higher Risk Procedures) Regulations 2023 introduced a qualitatively different consideration. Because the Development was an HRB, it was unlawful to commence any remedial works without BSR approval. Following the BSR's rejection, the "one certainty" was that Woodland was not legally permitted to carry out its pleaded remedial scheme. This was not merely a risk of future non-approval materialising after trial — which the judge accepted was a risk any claimant bears — but an established fact that the proposed scheme could not, as matters stood, be implemented.

Ultimately, the judge concluded that it would be unfair to require Woodland to proceed to trial on quantum in circumstances where the situation had arisen through no fault of Woodland's own. Applying the guiding principle from Bilta UK Limited v Tradition Financial Services Limited [2021] — that the assessment of fairness is fact-sensitive and not to be judged by mechanistic application of any checklist — he held that an adjournment of the quantum issues was necessary to afford Woodland the opportunity to regroup and re-plead its losses.

Key takeaways

• Regulatory delay as a litigation risk: building owners pursuing claims predicated on the cost of remedial schemes must now factor in the very real possibility that the BSR process will not align with court timescales. Although recent BSR updates signal that there have been improvements to BSR review periods.
• The "unlawfulness" problem: the judgment highlights that where the BSR has rejected a remedial scheme, the claimant is left in the position of seeking damages based on works it cannot lawfully carry out.
• BSR approval does not establish legal reasonableness: equally important is the Court's observation that BSR approval does not, of itself, establish that a remedial scheme is legally reasonable for the purposes of a damages claim. The BSR is concerned with building safety compliance, not with whether a claimant has mitigated its loss appropriately. Defendants may therefore still challenge a BSR-approved scheme as over-designed or unnecessarily costly. Obtaining BSR approval, whilst necessary, will not shield claimants from scrutiny of their remedial proposals at trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.