Confirmation that Remediation Contribution Orders can be made retrospectively

Background

Part 5 of the Building Safety Act 2022 ("BSA") introduced Remediation Contribution Orders ("RCOs") which enable ‘interested persons’  to apply to the First Tier Tribunal ("FTT") for an order requiring landlords and developers (or persons ‘associated’ with them) to meet the cost incurred in remedying, or otherwise in connection with, ‘relevant defects’ in ‘relevant buildings’ where it is ‘just and equitable to do so’.

A relevant building is one that is at least 11 metres high or at least 5 storeys and has at least 2 residential dwellings. A relevant defect is one that arises as a result of something done, or not done, or anything used, or not used, in connection with ‘relevant works’  that cause a risk to safety of people in or about a building as a result of spread of fire or structural collapse. Relevant works include:

• the construction or conversion of a building;
• works undertaken or commissioned by a landlord or management company; or 
• works to remedy a relevant defect 

if undertaken in the ‘relevant period’ (i.e., during the period 30 years ending on 28 June 2022).

The first instance decision in the Triathlon Homes case in the FTT was the first decision following the BSA regarding RCOs. It related to a dispute involving fire safety defects in residential block in the Olympic Village in Stratford. Triathlon (a provider of social housing that held leasehold interests in the blocks) sought an RCO against Stratford Village Development Partnership (the developer) and Get Living PLC (its parent company) to pay for its share of the remediation costs that it had incurred rectifying the defects. The FTT granted the RCOs.

The decision was appealed on the grounds that the FTT erred in concluding it was ‘just and equitable’ to make the RCO and regarding whether RCOs could be made in relation to costs incurred before the BSA came into force (as was the case here).

The Court of Appeal handed down its judgment on 8 July 2025 and dismissed this appeal, upholding the first instance decision to grant the RCOs. Key reasons including:

Just and Equitable 

1. The policy position of the BSA is that the “developer pays”, which was accepted by the Supreme Court case of URS v  BDW [2025].
2. Public funding should be a matter of last resort and the costs should be allocated between those who have relevant connections to the building. 
3. An applicant's motive is not a relevant factor in granting an RCO. Subjective reasons for making a claim make no difference to any legitimate cause of action.
4. It is irrelevant if works are already funded or underway, the policy of the BSA that the cost falls to developers remains.
5. The Building Safety Fund is crucial, but is distinct from the BSA rights. its role is temporary and does not prevent valid claims for contributions.
6. An applicant does not need to have pursued all other claims to make an RCO. Even if there is a claim available against the contractor, an owner can still pursue an RCO against the developer.
7. Cooperation between parties to obtain public funding is not relevant as to whether developers should ultimately be required to fund works.
8. It is irrelevant if the original beneficial owner of the developer was publicly owned or that the current investors are not the same as the original owners; if you invest in a company, you take the risk of unforeseen liabilities arising.

Retrospective effect of the BSA

1. The language of the BSA simply refers to making an order ‘for the purpose of meeting costs incurred or to be incurred in remedying relevant defects’, which is not limited in scope. The absence of any time limitation is indicative that there is no limit.
2. The explanatory note to the BSA explicitly states ‘for example… if leaseholders have already paid costs towards remediation before the coming into force of the leaseholder protections, they may wish to seek to recover these costs using a remediation contribution order’.
3. Retrospective effect is consistent with the purpose and structure of Part 5 of the BSA, which provides ‘radical’  protection to leaseholders.
4. Including a restriction on retrospective applications would create an inconsistency with other parts of the legislation and would discriminate against individual leaseholders in similar circumstances. 
5. The BSA wording includes a ‘safety-valve’  in the form of ‘just and equitable’, so that potentially unfair claims would not proceed. 

Conclusion 

The Court of Appeal have provided useful clarity on the points in dispute and confirms that the BSA has a wide reach that will include retrospective costs.

As the wording of the BSA included no guidance on the meaning of ‘just and equitable’, all case guidance is a welcomed addition for parties looking to make applications to the FTT.

The decision also, in no uncertain terms, reaffirms the principle that the “developer pays” and that associated companies cannot, and will not, avoid liability for costs; public funds are not intended to replace any liability. 

If you have any queries regarding RCOs, please contact our Construction team.