Building Safety Act 2022: who is responsible for the cost of rectifying fire safety defects?  

On 8 July 2025, the Court of Appeal upheld the First-Tier Tribunal’s landmark ruling in the case of Triathlon Homes LLP v Stratford Village Development Partnership & Others [2025] EWCA Civ 846, dismissing the developer’s appeal on all grounds.  

This judgment is another cornerstone in the edification of the Building Safety Act 2022 (BSA), affirming and elaborating on the ‘just and equitable’ test which applies in considering whether to award a RCO and confirming their retrospective effect.  

Background 

Triathlon Homes LLP (Triathlon) is a social housing provider and owner of the long leasehold interest in various residential blocks in the former Olympic Village in Stratford, London. Stratford Village Development Partnership (SDVP) was the original developer and the beneficial owner of the freehold of those residential blocks; with Lend Lease Development Ltd the project manager and Galliford Try Construction Ltd the design and build contractor. Whilst SDVP was originally established by the Olympic Village Authority as a special purpose vehicle, post completion, it was acquired by Get Living plc (Get Living), the second respondent in this case.  

In 2020, serious fire safety defects were found in the blocks, necessitating costly remedial works that were due to be completed in August 2025. Contractual responsibility for remedying those defects fell to the estate manager, East Village Management Ltd (EVML), with both Triathlon and Get Living, main shareholders of EVML.  

EVML applied to and secured funding from the Building Safety Fund for the remediation works in the sum of £27.5m.  This scheme, which pre-dates the BSA, was enacted to protect leaseholders from remediation costs where building owners (or other responsible entities) are unable to meet them.  

However, with Triathlon’s share of the works valued at over £16 million, and paragraph 2 of Schedule 8 of the BSA precluding Triathlon from recovering its costs through the service charge (on the basis that (a) the remedial works related to fire safety defects and (b) the original developer or associated company is also the landlord), the question arose as to who should pay for Triathlon’s share of the works.  

Triathlon applied to the First-Tier Tribunal (FTT) for RCOs against SDVP and its parent company Get Living (together the Appellants) pursuant to Section 124 of the BSA. This allows the FTT to make an order that a specified body corporate make payments to a specified person for the purpose of meeting costs attached to remedying relevant defects.  

The FTT granted the RCOs, holding SDVP and Get Living responsible for  Triathlon’s share of the remediation costs as well as reimbursing costs already paid by Triathlon before the BSA came into force. The Appellants appealed to the Court of Appeal on two principal grounds: 

• that it was not ‘just and equitable’ for the FTT to make the RCOs 

• that the RCOs should not apply retrospectively and, therefore, not allow Triathlon to recover costs incurred before the BSA came into force. 

The Court of Appeal’s decision: key takeaways 

The Appellants made ten ‘wide-ranging and well-argued’ sub-grounds as to why the FTT erred in deciding it was just and equitable to make the RCOs. The Court of Appeal rejected them all, making the following notable points. 

1. Developers ‘sit at the top of the hierarchy’: it is the policy of the BSA to ‘place primary responsibility on the developer’. Therefore, where an original developer retains an interest in the property, any other landlord bearing the cost of works can ‘pass that liability’ on to the developer. 

2. Piercing the corporate veil: the BSA is ‘very far-reaching’, meaning ”well-resourced’ parent companies of a ‘poorly-resourced developer could be made to contribute without being at fault in any way”. 

3. Public funding is ‘a last resort’:  the purpose of the BSA is not just to ensure that required remedial works are carried out, but is also to ‘deal with the “who pays” question’. Public funding is a temporary measure that sits outside the hierarchy of ‘potential funders’. 

4. Applicants must have a ‘legitimate interest’: although parties’ motivations for seeking legal remedies are ‘usually irrelevant’ to the merits of the claim, it may be relevant to establish whether an applicant can evidence its interest in the remediation works being ‘remedied efficiently and effectively’. 

5. RCOs can be made ‘from the outset’:  RCOs are essentially ‘non-fault based’ and cut through any outstanding liability claims between developers and contractors. RCOs may still be ordered even when remedial works are being carried out and are publicly funded. 

6. Safety valve for developers: it may not be just and equitable to make an RCO against a developer. Such an example was given where a director of a landlord who was also the director of a company that had nothing to do with the development whose business was entirely different or was a charity. 

On the second principal ground, the Court of Appeal held that an RCO can be applied retrospectively, allowing a party to recover costs incurred before the BSA came into force on 28 June 2022. Reaffirming obiter comments in the landmark Supreme Court case of URS v BDW, which we report on here, the Court of Appeal ruled that failing to apply Section 124 retrospectively would lead to ‘serious inconsistencies’ in relation to leaseholder protection. 

Conclusion  

This judgment reaffirms the BSA’s intention to protect leaseholders and ensure that those responsible for costly safety defects are held accountable. More specifically, it sets in stone the accountability of developers and their holding companies who retain an interest in a building requiring remedial works due to building safety risks.  

The Birketts view 

By expanding the scope of RCOs to extend both outwards, piercing the corporate veil to capture related companies, and backwards to include retrospectively incurred costs prior to the BSA, the Court of Appeal has provided a new impetus for the construction industry to uphold building safety compliance. Both leaseholders and landlords will welcome the news of greater availability to secure remediation funding through RCOs.  

For developers and investors, there should now be careful due diligence on acquisitions of development entities, with detailed risk analysis carried out to identify and ascertain the nature and extent of any possible exposure to liability for the costs of remediating historic fire safety defects. When facing an RCO application, layered ownership structures may not afford their intended protection. 

However, to offset the retrospective and far-reaching effect of RCOs, the ‘just and equitable’ test survives as a safety valve for developers. It remains to be seen whether the judgment will be appealed further, but watch this space for future FTT cases that are bold enough to challenge the scope of what the courts consider to be ‘just and equitable’.