Court of Appeal considers retrospectivity of Building Safety Act 2022 – Lexology
Triathlon Homes LLP v Stratford Village Development Partnership & Ors [2025] EWCA Civ 846
Two Judgments. One Landmark Clarification.
In a significant moment for building safety law, the Court of Appeal recently handed down two decisions tackling the retrospective application of the Building Safety Act 2022 (BSA). This article focuses on the Triathlon Homes decision and it didn’t disappoint.
The Court dismissed the appeal in Triathlon and confirmed two key points:
- An RCO can cover costs incurred before section 124 of the BSA, which allows the Tribunal to make such orders, came into effect on 28 June 2022
- It was “just and equitable” for the First-tier Tribunal (FTT) to impose the RCO on the developer and its parent company, despite arguments around past public ownership, changes in control, and alternative remedies.
The Olympic Village: An Expensive Case Study
The original application arose from remedial works to the Olympic Village in London. Triathlon Homes, a leaseholder, applied for an RCO requiring the developer and its parent to contribute £18 million toward cladding remediation. This was the first substantive ruling on RCOs and set the stage for how tribunals should approach both retrospectivity and fairness under the BSA.
What Is a Remediation Contribution Order?
Section 124 of the BSA allows interested persons to apply to the FTT for an order requiring a landlord, developer, or someone associated with them to pay for costs linked to a relevant defect in a relevant building. The defect must relate to safety issues in buildings over 11 metres or five storeys high that contain at least two dwellings. The works must fall within a 30-year retrospective window ending 28 June 2022 or be carried out after that date to address earlier defects.
The ‘Just and Equitable’ Test: No Hard Rules
The appeal largely turned on whether it was “just and equitable” for the Tribunal to impose the order. The BSA offers no statutory guidance on this point, but the FTT highlighted that Parliament intended the financial burden to fall on those best placed to bear it, not on public funds.
The Court of Appeal broadly agreed, affirming that the Tribunal had approached the question correctly. However, it cautioned against treating some categories of respondents as always liable. There may be factual scenarios where imposing an RCO is inappropriate, for example, if a director is only tangentially connected via another business.
What Didn’t Sway the Court
The Court also clarified that the following arguments were largely irrelevant to whether an order was just and equitable:
- That the developer was previously under public ownership
- That the corporate structure had since changed
- That there was no expectation that public funds would be reimbursed
- That the applicant could have pursued other claims
The takeaway is clear. Provided the applicant is entitled to bring the claim and the facts justify it, motivations and historic changes in control are unlikely to block an RCO.
Retrospective Reach Confirmed
The second key issue was whether an RCO could cover costs incurred before section 124 came into force. Although the BSA is silent on this point, the Tribunal and the Court of Appeal interpreted the provision in line with the Act’s purpose: protecting leaseholders and ensuring those responsible pay. The Court also referenced the Supreme Court’s ruling in URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21, which supported a retrospective reading of similar provisions.
While the Court acknowledged the general principle against retrospective legislation, it stressed that Parliament has the authority to legislate this way when clearly intended. Denying section 124 retrospective effect would frustrate the purpose of the Act.
Where Does This Leave Landlords and Developers?
This judgment has real consequences for those connected to affected buildings, especially former landlords and parent companies. Key points include:
- RCOs can cover costs dating back decades, not just expenses incurred after the BSA came into force
- Applicants don’t need to prove fault, only that the defect qualifies and costs were incurred
- The “just and equitable” test is broad but now guided by helpful appellate commentary
Conclusion
Triathlon Homes provides the clearest view yet of how tribunals will exercise their powers under the BSA. It confirms that financial accountability can stretch back in time, across corporate structures, and beyond arguments about fairness, provided the facts support it. For stakeholders in residential buildings over 11 metres, this decision is not just a legal technicality. It is a financial reality.
If you would like to discuss how this may affect your position as a landlord, developer, or leaseholder, please contact our Dispute Resolution Team or call us on 01702 338338.
