Triathlon Homes LLP v Stratford Village Development Partnership & Ors

An RCO under section 124 of the Building Safety Act 2022 is discretionary. The FTT must consider whether making the order is just and equitable in light of the statutory scheme and all relevant circumstances. The scheme places primary responsibility for remediation on the original developer and appropriate associated entities. Public funding is generally a last resort and does not prevent an order where connected parties can fund the works. An applicant need not exhaust other claims or await their outcome. The identity or subjective motivation of an eligible applicant is ordinarily immaterial where it has a legitimate interest. Section 124 can apply to remediation costs incurred before its commencement, subject to the safeguard that an order must remain just and equitable.

The appeal concerned remediation contribution orders made against Stratford Village Development Partnership, the original developer, and Get Living plc, its associated parent, in respect of fire-safety remediation costs for five residential blocks at East Village, Stratford. Triathlon Homes LLP, a social-housing provider and long leaseholder, had applied for the orders. East Village Management Ltd was the intended recipient of payments.

The First-tier Tribunal made the orders in its decision dated 19 January 2024, reported at [2024] UKFTT 26 (PC). The Upper Tribunal formally dismissed the appeal and granted permission to appeal without determining the substance, creating an effective leapfrog appeal. The issues were whether it was just and equitable to make orders while public funding was available and whether section 124 of the Building Safety Act 2022 applied to costs incurred before 28 June 2022.

1. Appeal dismissed. Nugee LJ gave the leading judgment, with Holgate LJ and Newey LJ agreeing. The FTT had not created an irrebuttable presumption that every well-resourced person within section 124(3) must pay. It had correctly treated the discretion under section 124 as requiring consideration of the purposes of the Building Safety Act 2022 and all relevant circumstances.
2. The statutory scheme places primary responsibility for historic remediation costs on the original developer and relevant associates. Public funding stands outside the statutory hierarchy and is properly viewed as a last resort. The availability of Building Safety Fund support did not make an RCO unjust or unnecessary: the relevant question included who should provide interim funding and whether public funds should remain committed when the developer and its associate could pay.
3. An RCO is an independent, essentially non-fault-based remedy. An applicant need not pursue or await contractual, tortious or other claims against contractors and other responsible parties. The fact that works were already funded and under way did not alter that conclusion. The applicant’s identity and subjective motivation were ordinarily irrelevant, provided it had a legitimate interest and was not acting improperly.
4. The Grant Funding Agreement did not prevent an RCO against Get Living. Its restriction on claims against a leaseholder applied to a person acting in the capacity of leaseholder. It did not prevent a claim against the same person in another capacity, such as an associate of the freeholder. The Court applied the contextual approach to contractual construction in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38.
5. Changes in ultimate ownership, Get Living’s later acquisition of the development, the absence of its involvement in construction and the development’s former public ownership did not make an order unjust. Those acquiring the corporate structure assumed the risk of liabilities attaching to it.
6. Section 124 has retrospective effect and permits orders for costs incurred before 28 June 2022. The Court relied on the statutory purpose of protecting leaseholders from historic building-safety costs, the incoherence that would otherwise result between section 124 and schedule 8, and the just-and-equitable safeguard. It applied the principles in L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 and Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712. The appeal was dismissed on both grounds.

1. Court of Appeal (Civil Division) dismissed the appeal against the effective First-tier Tribunal decision and upheld the remediation contribution orders.
2. Upper Tribunal (Lands Chamber) formally dismissed the appeal and granted permission to appeal to the Court of Appeal without engaging with the substance.
3. First-tier Tribunal made remediation contribution orders in its decision dated 19 January 2024, reported at [2024] UKFTT 26 (PC), and gave effect to them by an order dated 5 March 2024.