Court rules it is just and equitable for building developers to be liable for cladding remediation costs

Building developers can be liable for a contribution towards cladding repairs despite the availability of public funding according to a recent court decision. The Court of Appeal affirmed that it is just and equitable to make a remediation contribution order (RCO) for cladding repairs against a building developer. The retrospective nature of RCOs was also clarified in the decision.

The case of Triathlon Homes LLP v Stratford Village Development Partnership & Others [2025] was an appeal against a decision by the First Tier Tribunal (the tribunal) from January 2024. The tribunal’s decision concerned five apartment blocks constructed as part of the London 2012 Olympic Village, which were later converted for use as private housing. An inspection uncovered serious fire safety defects, with the total cost of the remedial works estimated to be around £25 million.

Triathlon Homes LLP (Triathlon) intended to claim from the original building developer, via an RCO under s.124 of the Building Safety Act 2022 (the BSA). Triathlon sought to claim £16 million as a contribution towards the remediation costs.

The developer rejected the claim on two grounds, arguing that it was not just and equitable to grant the RCO, and that the RCO should not extend to costs incurred before the introduction of s.124 of the BSA.

The tribunal rejected the developer’s arguments and granted the RCO. The decision was not considered by the Upper Tribunal and reached the Court of Appeal as a ‘leapfrog appeal’.

The appeal centred on two grounds. It was argued that the tribunal erred in:

concluding that it was just and equitable to grant the RCO; and
interpreting the RCO as having retrospective effect.

Just and equitable

The court affirmed the tribunal’s decision that the granting of the RCO was just and equitable. The developer’s objection was that it was not fair or reasonable to place the liability on them, considering the availability of public funding via the Building Safety Fund (the Fund).

While the court acknowledged the existence of the public funding, it noted that it did not displace the provision of the BSA that requires a contribution from the developer. The purpose of the BSA is to ensure that building safety remedial works are completed and to resolve who pays for that. In respect of the latter, the court characterised the Fund as “temporary funding” and a “last resort”.

The availability of such funding was not a reason not to make an RCO, and primary responsibility for paying the costs should fall on the developer and its associates, leaving the developer to pursue its own remedies against others.

The funding agreement necessary to access the Fund required the applicant to use reasonable endeavours to pursue claims and this could include applying for an RCO.

There was a public interest in the Fund being reimbursed to prevent unnecessary depletion. The requirement of the developer to pay was upheld and the granting of the RCO was deemed just and equitable.

Retrospective effect

The policy behind the enactment of the BSA was considered and the Court of Appeal was satisfied that RCOs are retrospective in nature. This retrospectivity was necessary to uphold the purposes that the BSA was introduced for.

As a consequence, the developers were held liable for the costs incurred prior to the introduction of s.124 of the BSA, which totalled “some £1,1m”.

The court noted that the potential unfairness of this approach is limited by the requirement for an RCO only to be made where “just and equitable”.

Key takeaways

This ruling sets a precedent that it is just and equitable for an RCO to be issued against a building developer, even where public funding is available for remedial works. Furthermore, with the retrospective effect of s.124 of the BSA having been affirmed, landlords and developers can now be held liable via RCOs for costs incurred prior to 28 June 2022 in respect of building safety defects.

If you would like any further information, please get in touch with a member of our Construction, Engineering and Infrastructure Disputes team.

This article was co-authored by Trainee Ruaridh Brown.

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