Two recent judgments reinforce protections for leaseholders, while government plans for stricter remediation deadlines and the new building safety levy regulations signal continued momentum in building safety reform.
The Court of Appeal recently confirmed the retrospective nature of the Building Safety Act 2022 (BSA 2022) and dismissed an appeal against some of the first Remediation Contribution Orders (RCOs) to have been made under the BSA 2022 in:
- Triathlon Homes LLP v Stratford Village Development Partnership [2025] EWCA Civ 846; and
- Adriatic Land 5 Limited v Long Leaseholders of Hippersley Point and Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 856
These decisions support the policy of the BSA 2022 to protect leaseholders from historic building safety defects. The judgments align with the approach in other recent BSA 2022-related decisions, as discussed in our recent case law update: Spotlight on Building Safety: What do the latest cases on the Building Safety Act 2022 mean for the industry?
Away from the courts, the government has also announced that it plans to support remediation of unsafe buildings under a new Remediation Bill which will impose strict deadlines for repairs to be done. It has also published the draft Building Safety Levy regulations which are due to come into force next year.
Triathlon – RCOs at the Olympic Village
Triathlon, as long leaseholder of social housing blocks at the site, previously obtained RCOs against Stratford Village Development Partnership (SVDP) (the original developer of the Olympic Village site) and Get Living PLC (as an associated entity), in March 2024. The First Tier Tribunal deemed it just and equitable to make the orders which require SVDP and Get Living to make substantial contributions to the cost of the remedial works. SVDP and Get Living appealed, and the appeal "leapfrogged" to the Court of Appeal.
There were two main grounds of appeal:
- It was not just and equitable to make the RCOs in relation to the major remedial works, citing ten reasons.
- It was wrong to make an RCO for costs incurred before section 124 BSA 2022 came into force on 28 June 2022.
Just and equitable?
The Court of Appeal unanimously dismissed each of the grounds presented by Get Living and SVDP.
The court was clear that where there are developers and associates who can afford to fund the works, they should do so. Although the government has made public funding available via the Building Safety Fund, there was no reason to think that the Fund was intended to displace the provisions of the BSA 2022. The court considered that the tribunal had been right to say that the Fund (ie, the public purse) is a last resort.
The court did note, however, that it would not always be just and equitable to make an order against a company that is "associated" with the developer (or landlord) under the legislation. It might not be just and equitable to make an order against a company which shares a director with the developer where that company has no link to the development (for example where it is involved in a different business or where it is a charitable concern). This aligns with the reasoning in the recent Vista Tower decision discussed in our case law update: Spotlight on Building Safety.
Triathlon's motive in seeking the RCOs was held not to be relevant to the just and equitable test. Triathlon was entitled under the legislation to seek the orders and there was no malice or other consideration which might taint its case. The availability of other contractual claims, rather than applying for a RCO, also did not impact the finding that it was just and equitable to make the orders.
SVDP had been publicly owned at the time the development was constructed. Get Living acquired its interest at a later date, but before the BSA 2022 had come into force. The court held that this was irrelevant for applying the just and equitable test to make the orders, noting that "if you invest in a company, you take the risk of unforeseen liabilities attaching to that company". This decision underlines the overall policy of the BSA 2022 that businesses will be required to pay for remediation, regardless of whether the relevant legislation was in place when decisions to develop or invest in these properties were made.
Retrospectivity
The court also confirmed that costs incurred before the BSA 2022 was enacted could be included in RCOs and the legislation therefore has retrospective effect in this context. The court referenced the Supreme Court's recent judgment in URS v BDW which had considered the retrospective nature of several elements of the BSA 2022 and stated that retrospectivity was central to achieving the aims of the BSA 2022 (for more on the URS v BDW decision, see: The final verdict on URS v BDW).
The Triathlon appeal was heard and handed down alongside an appeal from Adriatic Land.
Adriatic Land – Protection for tenants at Hippersley Point
Adriatic, the landlord of a high-rise residential building, had attempted to recover from its tenants by way of service charge certain costs it had incurred for remediation works due to fire safety defects in the building's structure. Due to the considerable costs involved, Adriatic sought to dispense with the statutory consultation requirements that would ordinarily be required where works of this nature were to be carried out. However, during this process, the BSA 2022 came into force, including paragraph 9 of Schedule 8 to the BSA 2022 which provides that "no service charge is payable under a qualifying lease in respect of legal or other professional services relating to the liability (or potential liability) of any person incurred as a result of a relevant defect [of the sort which had been identified here]".
The Upper Tribunal had concluded that this paragraph prevented Adriatic from recovering the costs of its dispensation proceedings from the tenants who hold qualifying leases (and therefore benefit from additional protections regarding the recovery of costs incurred in remedying or reducing the severity of building safety defects), despite the fact that these costs had been incurred before 28 June 2022 when the BSA 2022 took effect (the "relevant date"). Adriatic disputed the retrospective application of this part of the BSA 2022 which brought the case to the Court of Appeal.
Although not unanimous in its decision, the Court of Appeal upheld the Upper Tribunal's decision, and dismissed Adriatic's appeal. Whilst paying regard to the common law presumption that a statute does not have retrospective effect, the Court re-emphasised that the purpose of the BSA 2022 is to provide leaseholders with protection from having to contribute towards costs of repairing building safety defects, the majority of which were created prior to the implementation of the BSA 2022. The Court of Appeal did, however, impose a time limit of sorts on the application of paragraph 9, Schedule 8, to the effect that from the relevant date, no service charge is payable in respect of costs of this nature. Practically speaking, this means that where service charges had accrued, but not been demanded by the relevant date, the landlord will no longer be entitled to receive such sums from tenants.
Frustratingly for those tenants that had already paid their requested service charge on demand, the Court of Appeal did not go so far as to hold that such sums should be repaid to them by the landlord. However, for all tenants, there should now be further clarity as to the protections provided to the holders of a qualifying lease by the BSA 2022. This case may also have wider implications for the interpretation of other provisions of the BSA 2022, which contain drafting similar in nature to that found in paragraph 9 of Schedule 8.
Remediation remains at the forefront
The government announced on 17 July 2025 that it intends to put in place legislation which will require landlords of buildings 18m or more in height with unsafe cladding to complete remediation by the end of 2029, and landlords of buildings 11-18m in height to complete remediation by the end of 2031. Those who fail to comply without reasonable excuse could face unlimited fines or imprisonment. A new Remediation Bill will be brought forward when the parliamentary timetable allows. See: Deadline set for unsafe cladding removal.
The government has also published the draft Building Safety Levy (England) Regulations 2025 which are intended to come into force on 1 October 2026 and will apply to "major residential developments" (ie developments of 10 or more new dwellings, or 30 or more new bedspaces in PBSA developments) subject to some exemptions. Funds raised by the levy will be used to meet government costs of remediating unsafe buildings. For background on the levy, see our previous blog: The Building Safety Levy - New timeline and charges.
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