Case summary of Triathlon Homes LLP v Stratford Village Development Partnership [2025] EWCA 846

The Facts

1. The case concerns five residential blocks in the East Village in Stratford. Stratford Village Development Partnership (“SVDP”) was the original developer of the estate. Get Living plc (“Get Living”) is now the (in effect) owner of SVDP. However, it was not at the time of the development. Triathlon Homes LLP (“Triathlon”) is a social housing provider and has long leasehold interests in the social housing in the blocks. The management of the estate is the responsibility of East Village Management Ltd (“EVML”).
2. Fire safety defects were found in the external walls of the blocks and EVML incurred the cost of engaging contractors to do the work required to the remedy the defects.
3. EVML applied to the Building Safety Fund (“the Fund”), a central government scheme to provide assistance to building owners to meet the cost of remedying fire risks. The Fund agreed to provide £27.5 million to cover the costs of the major remediation works.

4. Triathlon applied for Remediation Contribution Orders (“RCOs”) under section 124 of the Building Safety Act 2022 (“BSA”) against SVDP and Get Living. Section 124(2) defines RCO as follows:

   “…in relation to a relevant building, means an order requiring a specified body corporate or partnership to make payments to a specified person, for the purpose of meeting costs incurred or to be incurred in remedying [, or otherwise in connection with,] relevant defects (or specified relevant defects) relating to the relevant building”

5. Importantly, under Section 124(1), the First-tier Tribunal (“FTT”) only makes an RCO if it considers it just and equitable to do so.
6. But for the BSA, Triathlon would have been liable to contribute to the costs incurred by EVML through its service charges. However, Schedule 8, Paragraph 2 of the BSA relieves any lessee from having to pay via their service charges for the costs of remedying fire safety defects if the original developer – or an associated company – is their landlord, or is a superior landlord. It was therefore common ground that Triathlon was not liable for service charges related to the remedying of the fire safety defects. The main effect of the RCOs was to require SVDP and Get Living to pay to EVML what would have been Triathlon’s share of the costs incurred by EVML, as well as Triathlon being reimbursed for certain costs it had already paid.
7. The FTT granted the RCOs against both SVDP and Get Living in March 2024. The Court of Appeal, in effect, heard a leapfrog appeal from the decision of the FTT, the Upper Tribunal having not engaged with the substance.

Grounds of Appeal

8. There were two grounds of appeal by SVDP and Get Living (“the Appellants”):

a. The first ground was that the FTT erred in concluding that it was just and equitable to make the RCOs [5].

b. The second ground was that the FTT erred in concluding that an RCO can be made in respect of costs incurred before the relevant part of the BSA came into force on 28 June 2022 [5].

Ground 1 - Just and equitable test

9. The Appellants broke the first ground of appeal into ten sub-grounds. The Court of Appeal unanimously rejected all of them. In our view, the key points made by the Court of Appeal were:

10. First, the policy of the BSA was to place primary responsibility on the developer [61]. For example, the Court noted:

a. The “developer sits at the top of the hierarchy” [61] and see [69].

b. The “…developer responsible for the defect who retains an interest in the building should stand at the top of the hierarchy or cascade of those who will pick up the costs” [87].

11. Secondly, public funding was a matter of last resort [62]. The Court found “as between those connected to the building and the taxpayer, those who were connected to the building and could afford to pay should do so rather than expect the taxpayer to do so” [63].

12. The fact that works were being carried out and were adequately funded by the Fund did not render RCOs unnecessary. In relation to the purposes of the BSA: “…one of those purposes is to ensure that works that are required are actually done. But another purpose is to deal with the “who pays” question…” [87]. The Court also noted that the Fund was not out-and-out grant; the applicant was required to use all reasonable endeavours to pursue claims [110]. There was a public interest in securing reimbursement of funds [112].

13. Thirdly, Triathlon’s motivation in making the application was irrelevant. Parties are generally entitled to pursue their legal rights without explaining why they have decided to do so [78]. In any event, Triathlon was the owner of long leasehold interests and was landlord to many tenants. It undoubtedly had an interest in ensuring that the defects were remedied efficiently and effectively [78]-[80].

14. Finally, it was irrelevant that the beneficial owners of SVDP and Get Living had changed since the time of the development: “…if you invest in a company, you take the risk of unforeseen liabilities attaching to that company” [118].

Ground 2 – Retrospectivity

15. The Court of Appeal also rejected this ground. It found that an RCO could be made in respect of costs incurred before Section 124 of the BSA came into force in June 2022.

16. The Court relied on the Supreme Court’s judgment in URS Corp Ltd v BDW Trading Ltd [2025] UKSC 21, which it considered was “self-evidently in favour of s124 being given retrospective interpretation” [149].

17. The Court concluded it was necessary to interpret Section 124 in a way that gives effect to the purposes of the BSA. This included interpreting Section 124 “…as providing the statutory mechanism for leaseholders who have paid to seek to pass on the costs they have already incurred – whether before or after the Act came into force” [151].

18. We may receive further clarity on the scope and application of section 124 of the BSA. SVDP and Get Living lodged an application for permission to appeal with the Supreme Court on 28 August 2025 (Case ID UKSC/2025/0156). Permission is sought in relation to both grounds argued before the Court of Appeal, i.e.:

a. Did the Court of Appeal take the wrong approach to whether it was ‘just and equitable’ to make an RCO under Section 124 of the BSA?

b. Was the Court of Appeal wrong to conclude that an RCO under Section 124 can be made in respect of costs incurred before that provision came into force on 28 June 2022?

Key Takeaways

19.We consider that there are two main takeaways from the Court of Appeal’s judgment:

20. First, it is even clearer that developers are at the top of a hierarchy of responsibility.

21. Secondly, the scope of the just and equitable test remains unclear, and ripe for clarification by the Supreme Court. The Court of Appeal gave the following example of when it may not be just and equitable to make an RCO: the associated company from whom a contribution was sought was a charitable company and the only link with the developer was a common director who gave time voluntarily to the charity [65]. Plainly, those are extreme facts. It will be interesting to see whether the just and equitable test is used as a safety valve, effectively only being used to refuse the grant of an RCO in the most extreme cases, or whether subsequent cases seek to establish clear criteria for when it will be just and equitable to make an RCO.