Unpicking a landmark shift in building safety accountability

Elizabeth Weeks is a partner specialising in dispute resolution at Rosenblatt Law

Those following the interpretation and implementation of the 2022 Building Safety Act (BSA) will note the Supreme Court’s grant of permission to appeal in Triathlon Homes LLP v Stratford Village Development Partnership (SVDP).

To recap, the Supreme Court granted permission for SVDP to appeal, in part, the determination as to whether a remediation contribution order (RCO) under section 124 of the BSA can apply to costs incurred before the provision came into force on 28 June 2022.



An RCO requires a specified body to contribute to the costs of remedying fire-safety defects. Section 124 sets out the statutory criteria, while giving the court discretion to make an order where it considers it “just and equitable” to do so.

SVDP – now owned by Get Living – developed five blocks at East Village, Stratford, constructed for the 2012 Olympics. Triathlon Homes LLP holds long leases for the social and affordable housing; East Village Management Ltd (EVML), the headlease holder and estate manager, procured the remediation works.

Following the 2017 Grenfell Tower fire, EVML reviewed the cladding materials used in constructing the Olympic blocks and discovered serious defects. Although EVML carried contractual responsibility for the remediation, Triathlon applied for the RCOs, seeking to require SVDP and Get Living to pay Triathlon’s share of the remediation costs. EVML separately secured public funding for the cladding work from the Building Safety Fund (BSF).

Consequently, SVDP and Get Living were ordered to pay some £18m to EVML. Their appeal challenged whether the First-tier Tribunal had correctly applied the “just and equitable” test, and whether RCOs could operate retrospectively by capturing costs incurred before the relevant BSA provisions commenced.

For developers, the discretion under section 124 requires only that an RCO be “just and equitable” and that they undertook or commissioned the building’s construction. 

While the Court of Appeal discussed a possible “hierarchy of responsibility” and the part played by public funding, section 124 remains the starting point for liability. 

The court also upheld the extension of potential liability to “associates”, in line with the BSA’s broader policy aims. Section 121 sets out the test – one which Get Living met in this case.

Some practical and commercial considerations follow:

• This is a landmark legal precedent under the BSA, shifting the burden from leaseholders and/or public funds onto developers and their associates, the latter to be correctly applied pursuant to the BSA.
• The potential scope of the BSA could increase scrutiny in corporate transactions involving past projects, giving rise to potential building safety liabilities and the need to proactively address legacy and defects issues.
• Parties will sharpen their pencils regarding litigation strategy; recovery of funds; third-party claims; and the review and drafting of contractual clauses in relevant documentation targeted at limiting liability, and allocating risk.
• Triathlon sought and obtained RCOs to recover its share of the costs and related interim expenses. An RCO could shift financial responsibility back onto parties deemed accountable, rather than leaving the public purse to absorb costs where liable developers or their associates can pay.

That said, the Court of Appeal’s ruling, noting Get Living had been incorporated in 2018 and played no role in the original development, does not mean that any well-resourced party will always be ordered to pay pursuant to an RCO. The fact that a party can afford the works does not automatically make it “just and equitable” to impose liability, even if this means the public purse would otherwise meet the cost.

Whether liability remains rooted in the original developer or extends more widely places further weight on the need for the “just and equitable” discretion to be fairly and flexibly applied, and on a case-by-case basis, to prevent genuinely unfair outcomes. Watch this space…