Authors
Authors
Stratford Village Development Partnership and others v Triathlon Homes LLP [2025] EWCA Civ 846
Key takeaway
The Court of Appeal has drawn from the recent decision in URS Corporation Ltd v BDW Trading Ltd (see our recent insight on this case here) in terms of how the Building Safety Act 2022 (BSA) is to be applied. In doing so, the Court of Appeal dismissed SVDP’s appeal, finding that:
- it was just and equitable for the First-Tier Tribunal, Property Chamber (FTT) to award a Remediation Contribution Order (RCO); and
- an RCO could be made in respect of costs incurred before section 124 of the BSA came into force on 28 June 2022.
Background – the case being considered by the Court of Appeal
The case of Triathlon Homes LLP v Stratford Village Development Partnership and others [2024] UKFTT 26 (PC) concerned the remediation of cladding defects identified in five residential buildings at the former Olympic Village in Stratford, East London (the Village).
The Village contained residential buildings that were originally developed by Stratford Village Development Partnership (SVDP) (now owned by Get Living plc), providing accommodation to 17,000 athletes and officials during the London 2012 Olympic Games. The Village has since become a large permanent residential estate providing 2,818 homes, including 1,379 affordable homes and houses.
The freehold interest in the Village is ultimately held by SVDP. East Village Management Ltd (EVML) held a headlease over part of the Village, with Triathlon Homes LLP (Triathlon) in turn holding a lease over the blocks that were the subject of this dispute. The repair and maintenance of the structure and common parts of the Village was the responsibility of a respondent in these proceedings, EVML. EVML was co-owned by Get Living and Triathlon.
By December 2017, it had been identified that blocks in the Village had been constructed of the same highly combustible aluminium composite material (ACM) used as cladding at Grenfell. Further investigations also identified that there were serious fire safety defects, relating both to the design and construction of various non-ACM cladding systems. The total cost of the remedial works was stated to exceed £24.5 million, which were being incurred by both EVML and Triathlon.
Triathlon made five applications (one for each of the blocks it owned) to the FTT for RCOs under section 124 of the BSA. In particular, the FTT had to consider whether: (i) Triathlon and EVML could recover costs incurred before section 124 of the BSA came into force; and (ii) the test of whether it was “just and equitable” to make an RCO.
Dealing with the first issue, the FTT considered that it would have been inconceivable that a leaseholder of a flat which had not been remediated by the time the BSA came into force could enjoy its protections whereas a leaseholder who had already remediated the building at their expense would be prevented from seeking an RCO. The FTT therefore concluded Triathlon could recover the costs it had incurred prior to 28 June 2022. Turning to the second issue, the FTT also noted that there was no immediate guidance on how it should decide what was “just and equitable“, but they stated:
“…that the power is discretionary and should therefore be exercised having regard to the purpose of the 2022 Act and all relevant factors, it is not possible to identify a particular approach which should be taken. But the FTT is well used to exercising its discretion by reference to what is just and equitable in other contexts…”
The FTT identified the factors it thought were important in determining whether it was just and equitable to make the order sought. This included considering the policy of the BSA 2022, which is that:
“… primary responsibility for the cost of remediation should fall on the original developer, and that others who have a liability to contribute may pass on the costs they incur to the developer.”
The FTT found that Triathlon was entitled to the RCOs sought, being a sum of £16,031,244.53 payable to EVML for the forecast cost of the “Major Works and professional fees, apportioned between the Blocks“, a sum of £767,438.79 payable to EVML for “other remedial measures“, and a sum of £1,158,358.18 payable to Triathlon for other “additional costs“.
The issues in appeal to the Court of Appeal
SVDP appealed the decision with the hearing taking place between 19 and 21 March 2025. It was agreed that it was right to dispose of this matter at the Court of Appeal, rather than at the Upper Tribunal – in effect creating a leapfrog appeal, to consider whether an RCO:
- should have indeed been made (i.e. by concluding that it was just and equitable to make such an order); and
- can be made in respect of costs incurred before section 124 of the BSA came into force on 28 June 2022.
SVDP argued that an RCO cannot and should not have been made on both accounts.
The Court of Appeal’s Decision
The Court of Appeal delivered judgment on the above issues on 8 July 2025, dismissing SVDP’s appeal, finding on each respective issue that:
- the FTT was justified in awarding the RCO, expressing a view that it is difficult to see why the public should fund the works rather than the responsible developer and its associates (especially where they continue to own the buildings and can afford to fund the works). Further, the Court was not concerned with Triathlon’s motivation for bringing the proceedings where it had a legitimate interest in ensuring the defects were remediated, both as an owner of a long leasehold interest, and as a landlord to many tenants; and
- an RCO can be made in respect of costs incurred before section 124 of the BSA came into force. Lord Justice Newey stated at paragraph 160 of the judgment:
“… section 124 of the BSA empowers the FTT to make an RCO “for the purpose of meeting costs incurred or to be incurred in remedying relevant defects (or specified relevant defects)”. Having regard to the definition of the term given in section 120(2), a “relevant defect” may have arisen as a result of work done (or not done) many years before the BSA was enacted and, as the FTT pointed out in paragraph 73 of its decision, section 124 does not expressly impose any other temporal limitation. Nothing said in section 124, therefore, prevents the provision from having retrospective effect.”
Michelmores’ comments
While the government has made public funding available to help remediate higher-risk buildings in England, that funding does not displace the provisions of the BSA, which regulates who is responsible for contributing to the cost of carrying out those remedial works.
Drawing from the recent case of URS, the Court noted that “that a central purpose of the [Building Safety] Act was to hold those responsible for building safety defects accountable“. This included rejecting SVDP’s argument that it should not be liable where responsible parties had changed ownership to fall within SVDP’s corporate structure.
The Court also found that denying section 124’s retrospective effect would result in RCOs being unavailable in circumstances where Parliament expected such relief to be available, and inconsistencies could arise.
It is now expected that the developer/SVDP will pursue the original contractors and professional teams. The prospect is for there to be lengthy legal battles to come and for some contractors involved in high rise developments, the potential of huge liabilities and possibly insolvency. It has been reported that the remedial costs to the whole of the Village could run to over £400m.
This decision will be a welcome addition to those parties who are tasked with the responsibility of carrying out remedial works to higher-risk buildings; but inevitably places risk on developers in terms of the claims it could face. The recent string of building safety cases is establishing a chain of how liability can be attributed, from those directly affected here and now down to those who are historically responsible for the construction of a development (even where ownership of a company has changed).
Should you have any queries or need assistance with any building safety matters, please do not hesitate to contact Ashley Pigott (Partner) or Andrew Pratten (Associate) in Michelmores’ specialist Construction and Engineering team.