Building Safety Act | February 23, 2024

When will it be just and equitable to make a Remediation Contribution Order under Section 124 of the Building Safety Act 2022?

The Building Safety Act 2022 (BSA) gives the First-tier Tribunal (FTT) the power to make a Remediation Contribution Order (RMO) against a wide range of parties to contribute to the costs of remedying relevant defects under Section 124 of the BSA. Those parties do not necessarily have to be the original developer or landlord – those parties can include “associated persons”.

However and importantly, the making of the order by the FTT is not an automatic right or consequence of satisfying the test in Section 124 of the BSA. In addition, it must also be demonstrated that it is “just and equitable” for such order to be made. Unhelpfully, Section 124 of the BSA gives no guidance as to when it is ‘just and equitable’ in any particular case to make an order.

Developers, landlords and associated persons have therefore been left wondering how the FTT might approach this issue which erodes the fundamental English law principle of the corporate veil.

The start of an answer is beginning to take shape following Triathlon Homes LLP v Stratford Village Development Partnership (1) Get Living PLC (“) and East Village Management Limited (3) where the FTT considered the concept of “just and equitable”.

The Facts

The case concerned the East Village in the Olympic Village, home of the London 2012 Olympics. The Olympic Village was originally developed by Stratford Village Development Partnership (SVDP) which had been incorporated by the Olympic Development Association in 2009 for that specific purpose.

The Olympic Development Association sold its shares in SVDP in 2014 to QDD Athletes Village UK Ltd. (an entity ultimately owned by Qatari investors). After various reorganisations and share sales, Get Living PLC became the parent of SVDP. However, it was not the parent at the time of the development of the Olympic Village.

Triathlon took a long lease of all of the flats and apartments in two of the blocks and a long lease of other units in another three blocks with the purpose of providing affordable housing. The blocks exhibited unsafe cladding which required remediation in order to mitigate building safety risks.

Triathlon and Get Living jointly owned the relevant management company, East Village Management Ltd. who had applied to the Building Safety Fund to fund remedial works (and who Triathlon wanted to be the recipient of any payments under the orders).

Triathlon sought orders to require SVDP and Get Living to reimburse expenditure of £16.03 million incurred or to be incurred by East Village Management Ltd. in remedying the defects and reimburse/pay for expenditure in respect of interim fire safety measures, investigative and preparatory works and service charges.

Discretionary Power of the FTT

The FTT held that the power to make a remediation contribution order against a “specified person” is discretionary and must be exercised with the objectives of the BSA in mind. A specified person can include a landlord, a developer or anyone associated with them as defined in Section 121 of the BSA.

The FTT also held that the explanatory notes to the BSA emphasise that the FTT’s discretion should be used to consider all appropriate factors, including the wider public interest in building safety. This underlines the significance of balancing individual rights and interests against the broader safety concerns.

Corporate Veil

The FTT held that the BSA erodes the concept of the corporate veil for “but it does so for specific purposes and within specific limits.

It made some interesting comments regarding share sales as opposed to asset sales stating that:

“When QDD opted to acquire SVDP it could instead have taken a transfer of the land and buildings, leaving the liabilities of the developer behind,but it chose not to do so for its own reasons, knowing that it was acquiring not only the assets of the partnership but also its liabilities, including latent and consequential liabilities. The same is true of each of the investors who has subsequently bought in to the corporate structure above SVDP. Each willingly assumed the risks associated with their investment. In our judgment it is not open to any of them to ask that the timing and circumstances in which they made their investment in those assets be taken into account in determining whether it is just and equitable for the companies in which they invested to be the subject of contribution orders.”

The FTT also made some observations around the special purpose vehicle structure stating that where a development has been carried out by a “thinly capitalized or insolvent development company” that “a wealthy parent company or other wealthy entity which is caught by the association provisions cannot evade responsibility for meeting the cost of remedying the relevant defects by hiding behind the separate personality of the development company.”

The FTT held that this was exactly the situation of SVDP, with its relatively precarious financial position and its dependence for financial support upon Get Living, its wealthy parent.

Consideration of Third-Party Rights

Triathlon had its own remedies against other parties, including Galliford Try, arising in contract and/or under the Defective Premises Act 1972. The defendants argued that pursuit of these claims by Triathlon, could result in a situation where the liability would be fought out, by way of contribution claims under the Civil Liability (Contribution) Act 1978. In that case, the court would have to decide the amount of the respective contributions by reference to what was just and equitable under the 1978 Act. The Defendants argued that would lead to a fairer result.The FTT did not accept this and reiterated that the ability to make a claim for a remediation contribution order under section 124 is a new and independent remedy, which is non-fault based in order to provide a route to securing funding for remediation works “without the applicant having to become involved in, or to wait upon the outcome of other claims arising out of the relevant defects, which might involve complex, multi-handed, expensive and lengthy litigation.”

Public Purse

There was discussion around the burden on the “public purse” which raised questions about whether it is just and equitable to apportion liability for costs to a commercial entity when public funding is available. This however, would have allowed “the best part of £20m to remain in Get Living’s bank account, earning interest or being put to account for its benefit, rather than being returned to the Building Safety Fund where it could be used to remediate other buildings.” It was also noted that Section 124 contains a list of persons against whom a remediation contribution order may be made which created a hierarchy of liability which the taxpayer does not appear in.


The determination of whether it is just and equitable to make a remediation contribution order against specified persons involves a careful analysis of various factors and there is no “precedent”. However, what is clear it that is it not necessary to prove fault on the part of the “associated entities” and that public policy and the purpose of the BSA will mean that increasingly, remediation contribution orders will be sought against entities with the deepest pockets regardless of fault.

This may affect the way real estate transactions involving elements of residential units are structured. While the FTT made comments regarding the option for an asset sale as opposed to a share sale, it is not necessarily the case that this would avoid the same consequence given that landlords or those associated with them can also be subject to remediation contribution orders.

The case did not consider the detail of Section 121 of the BSA which sets out the definition of “associated persons”. This is because it was common ground in the case that Get Living was “associated” with the original developer. The definition of “associated persons” is widely drawn, however, it seems inevitable that we will start to see attempts to find loopholes in the definition in Section 121 of the BSA. Will that influence real estate development and real estate transactions where residential development is involved? We expect we will. Just what that might look like is yet to be seen.