The Court of Appeal has upheld the decision of the First-tier Tribunal (FtT), on appeal from the Upper Tribunal (Lands Chamber), in Triathlon Homes LLP V Stratford Village Development Partnership & Others [2025] EWCA Civ 846.
In a judgement which appears to be steered by policy considerations and focuses on the purpose of the post-Grenfell reforms, the Court of Appeal held that it was just and equitable to make remediation contribution orders against both Stratford Village Development Partnership (SVDP) and Get Living. But what does this mean? For a refresher on remedial contribution orders (RCOs) and the decision reached by the FtT, you can revisit our commentary here.
Key Points Determined by the Court of Appeal
- Just & Equitable - Whether the FtT was incorrect in concluding it was “just and equitable” to make the RCOs.
Liability of Developers
- The Court upheld the FtT's finding that it was just and equitable to impose RCOs on SVDP as the original developer and its associated parent company Get Living . SVDP's connection to the construction (although not the developer) and Get Living's control over the estate, meant it was just and equitable to impose liability. It did not matter that the major remediation works were already being funded by a Government Fund, nor did the broader policy (reflected throughout the Building Safety Act 2022 and its associated regulations) that developers are primarily responsible for remediation costs. The Court made clear that the policy aims of the BSA do not prevent RCOs being made against other parties where it is just and equitable to do so. In keeping with the policy aims, an RCO against SVDP or Get Living would not prevent the leaseholder from pursuing the original developer.
Piercing the Corporate Veil:
- The Court dismissed arguments that the complex corporate structure of the development should shield the appellants from liability. The “just and equitable” test was applied, looking at who ultimately benefited from and controlled the development.
- The change in the beneficial ownership of the developer from the Olympic Authority to Get Living therefore did not affect the "justice" of making an RCO against Get Living.
2. Retrospectivity- Whether an RCO could be made in respect of costs incurred before section 124 of the BSA came into force on 28 June 2022.
- In welcome news to leaseholders, it was held that such costs can still be subject to a remediation contribution order, therefore widening the scope of potential recovery.
- The retrospective application did not violate Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights. Any interference with property rights was proportionate and justified in light of the public interest in ensuring building safety and protecting leaseholders.
- However, service charges which were demanded and paid before that date will not be impacted and are therefore not recoverable.
Takeaways from Triathlon
Triathlon Homes marks the first major appellate decision interpreting section 124 of the BSA, providing clarity on how the courts will determine future RCO applications, as well as offering critical guidance on how the courts are likely to approach and apply the "just and equitable" test in similar BSA cases.
Developer Liability
- Arguably, Triathlon serves as a stark reminder that attempts to sidestep liability (whether via corporate restructuring, or by relying on technicalities) are unlikely to find favour with the courts.
- The message to building owners and developers is clear - relying on the Building Safety Fund (the public purse) to remediate fire safety defects is a last resort. Those who developed or profited from defective buildings must bear the financial burden of putting them right.
Interim Funding
- But what if you're a developer who is currently engaged in litigation attempting to recover remediation costs from a contractor for example?
- Triathlon makes clear that the existence of ongoing or potential third-party recovery does not absolve the developer or landlord from their liability under the BSA.
- The courts will look unfavourably and are unlikely to permit delays in remediation or cost-shifting to the public purse while disputes play out. This judgement reinforces that remediation must come first, and litigation can follow.
- The FTT was therefore correct in its conclusion that the interim funding should be provided by Get Living rather than the Building Safety Fund.
We have an experienced and dedicated Building Safety Group at Howard Kennedy LLP. If you would like further information, please contact the Co-Head of our Building Safety Group, Bhavini.Patel@howardkennedy.com and Ellie.Doran@howardkennedy.com.
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