Beyond the Building Safety Act: fire safety remediation works outside the statutory regime

The recent decision of the Technology and Construction Court (TCC) in Essendi v LPC is an important reminder that liability for building safety is not confined to the Building Safety Act regime. As the case concerned a hotel, it fell outside the remit of the Building Safety Act – nevertheless, the court found that, under the terms of the parties’ lease, the landlord was required to remove and replace dangerous ACM cladding.

Background

In this case, the TCC considered who was responsible for removing dangerous cladding on a hotel building: the landlord or tenant?  

The case concerned a multi-storey tower block which housed the Ibis London Wembley Hotel. Essendi UK Hotels 2 Limited (Essendi) was the original owner of the freehold of the hotel building.  In 2005 Essendi installed replacement cladding on the building. The cladding panels were made of Aluminium Composite Material (ACM), which is comprised of a highly combustible polyethylene (PE) core sandwiched in between outer aluminium sheets.

In June 2007 Essendi sold the hotel building to WHL and immediately leased it back.  Under the terms of this Original Lease, Essendi retained an obligation to remedy defects in the cladding panels, up to a Cut Off Date in May 2017.  Coincidentally, this Cut Off Date fell one month before the Grenfell fire (June 2017).

London Property Company Ltd (LPC) acquired the freehold of the property in 2018 and, in March 2019, granted a new lease to Essendi.  This new lease (referred to in the judgment as the Current Lease), was issued almost 2 years after the Cut Off Date in the original lease, and it did not place any obligations on Essendi to remedy defects in the cladding.

By 2024 investigations had confirmed that the cladding panels presented a fire risk to the hotel.  The hotel closed in July 2025.

The principal issue before the TCC was who, if anyone, was responsible for undertaking the major building safety works to remove the external cladding panels from the hotel building: LPC or Essendi?  

Essendi's arguments  

Essendi's case was that LPC, as landlord and owner of the hotel building, was responsible for removing the cladding panels because:

1. As landlord, LPC were under an obligation to keep the premises in "good condition". As long as the cladding panels remained on the hotel building, the premises were not in a "good condition", due to the fire-safety risk they presented; and/or
2. The Current Lease required LPC to comply with all "legal obligations" that the law imposed on it. Under the Regulatory Reform (Fire Safety) Order 2005 (FSO), LPC was required to ensure that the hotel building was safe from fire risks.  Essendi argued that LPC's refusal to remove the ACM cladding panels amounted to a breach of the FSO and therefore, the Current Lease; and/or
3. As a result of the fire risks caused by the cladding, on the advice of fire safety experts, Essendi had closed the hotel. Essendi therefore argued that LPC's refusal to remove the cladding panels deprived Essendi of using the premises for the purpose for which the Current Lease had been granted (i.e. operating a hotel).

The TCC's decision

LPC's Case

LPC argued that Essendi, who installed the cladding panels in 2005, had been under an obligation under the Original Lease with WHL to remedy any defects in the cladding panels until the May 2017 Cut-Off Date.  Therefore, LPC contended, Essendi ought to have replaced the cladding panels prior to the Cut Off Date, and their failure to do so constituted a breach of that obligation.

However, the TCC held that before Grenfell (June 2017) the construction industry did not fully appreciate the fire safety risks associated with ACM PE core cladding panels.  Accordingly, the TCC held that for LPC to argue that Essendi had been responsible for replacing the cladding panels prior to the Cut-Off Date (May 2017), it had to establish that Essendi either:

1. had been under an obligation in the Original Lease to replace the cladding panels irrespective of whether Essendi knew or ought to have known that they were defective; or  
2. was, or ought to have been, on notice of the fire safety risk and the need to take measures to remedy this defect.

The TCC decided that LPC failed to establish either of these requirements. Though the cladding panels were considered "defective" because of the fire risk they presented, there was nothing to put Essendi on notice as to the fact that they were defective, or of the need to investigate as to whether they were defective, because:

1. they had not deteriorated in a way as to make them more of a fire safety risk than they already were upon installation; and  
2. Essendi could not have been aware of the intolerable fire safety risk that the Cladding Panels posed prior to the Cut-Off Date and therefore could not have been under an obligation to remedy them.  The Cut-Off Date was prior to the Grenfell fire and the resulting increase in awareness / knowledge of the dangers of ACM PE core cladding panels that followed.

Key Lessons from Essendi v LPC  

Essendi provides an important reminder that liability for building safety is not confined to the Building Safety Act regime. Owners, landlords, tenants and investors should carefully review existing lease obligations, fire safety responsibilities and historic contractual arrangements, as liability for remediation may arise through conventional property and contractual principles even where statutory remediation orders are unavailable.

Key Lessons from the case:

1. "Good condition" obligations extend beyond simple repairing obligations.  As in this case, it may require a landlord to undertake substantial remediation work, such as removal of unsafe cladding.
2. Breach of fire safety legislative duties may have contractual consequences.  In this case, the landlord's obligations under the FSO were capable of giving rise to a breach of the lease, which required compliance with legal obligations.
3. It is important to understand historic contractual arrangements, including sale and leaseback arrangements, repairing covenants and defect liability provisions, all of which may impact where responsibility lies for building safety remediation.
4. Timing can be crucial.  LPC's case that Essendi ought to have removed the cladding prior to the May 2017 Cut Off Date fell flat, largely due to the fact that the risks associated with ACM PE cladding panels only became widely known post Grenfell.
5. Courts will order specific performance in suitable cases – including orders requiring landlords or building owners to carry out fire safety remediation, rather than simply awarding damages.

If you have any questions about building safety, or the subjects discussed in this article, please contact Dominic O'Tuminu, Katherine Doran or your usual contact at TLT.

Authors: Dominic O'Tuminu and Katherine Doran

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2026.  For more information see our terms & conditions.