Breaking new ground – The tribunal’s approach to ‘just and equitable’ in Remediation Contribution Orders

The First Tier Tribunal (the tribunal) has handed down a judgment in the case of Grey GR Limited Partnership v Edgewater (Stevenage) Limited and others [2025] UKFTT concerning a Remediation Contribution Order (RCO), marking an important development in building safety legal proceedings.

As part of the criteria for awarding an RCO, the tribunal must determine whether it is ‘just and equitable’ to make an RCO. Given that an RCO is a relatively new legal tool, this case provides some much needed insight into understanding how the tribunal defines ‘just and equitable’.

Remediation Contribution Order (RCO)

Under section 124 of the Building Safety Act 2022 (BSA), an RCO is an order requiring a body corporate to make payments towards the cost of remedial works that have been or will be incurred and are required to remedy “relevant defects” relating to a “relevant building”.

A relevant building is defined as a self-contained building or part of a building containing at least two dwellings, and that is either 11 meters or five storeys high.

Under section 120(2) of the Building Safety Act 2022, a relevant defect is a building defect that arises “as a result of anything done (or not done) or anything used (or not used) in connection with relevant works” that also “causes a building safety risk”, and in this case, the tribunal decided that this definition is not limited to non-compliance with Building Regulations, stating that “if ‘defect’ meant only non-compliance with building regulations, the Act would say so”.

Section 120(5) of the Act defines a building safety risk as a risk to the safety of people in or about the building arising from the spread of fire or the collapse of the building or any part of it.

The tribunal decided that any risk above ‘low’ risk (“understood as the ordinary unavoidable fire risks in residential buildings and/or in relation to PAS9980 as an assessment that fire spread would be within normal expectations”) may constitute a building safety risk.

Any “interested person” can apply for an RCO, including the Secretary of State, the Building Safety Regulator, local fire services, local authorities, or anyone with a legal or equitable interest in the building, such as a leaseholder.

A RCO can be made against landlords, freehold owners, developers, or a company associated with those entities.

Background to Vista Tower case

Vista Tower is a 16-storey building in Stevenage which underwent conversion works between 2014 and 2016 into residential flats.

Following the conversion works, serious fire safety defects were discovered including hazardous combustible materials in the building, as well as no cavity barriers/fire stops in the areas inspected.

The Landlord, Grey GR Limited Partnership (Grey) sought funding through the Building Safety Fund (BSF) for the remediation of these defects.

However, the available funding did not cover all necessary works, and therefore Grey pursued an RCO against the developer and other companies totalling 96 respondents, all involved in the building’s construction or associated with those companies involved in the building’s construction, to cover the costs of remediation.

Interestingly, Grey had a Remediation Order made against it in April 2024 and so this application for an RCO shows how landlords faced with a Remediation Order could consider seeking their own RCO to recover any remedial costs they might be faced with.

The tribunal’s decision

Grey’s claim was based on the fire safety defects present in the building, particularly the use of flammable cladding and inadequate insulation, arguing that the respondents responsible should contribute to the remediation costs.

The tribunal’s role was to assess whether the respondents should be held accountable financially.

The tribunal undertook a fact-sensitive approach, and ultimately issued an RCO against 76 of the 96 respondents.

In this instance, the tribunal decided that it was ‘just and equitable’ to make the respondents jointly and severally liable, concluding that the Respondent should not be “confined to a limited share from each relevant Respondent”, nor that they should have to “wait to see whether a given Respondent is solvent (or how much they can pay) before they move on to the next”.

Key legal issues and ‘just and equitable’

The tribunal issued the RCO, considering whether it was ‘just and equitable’ to require the respondents to contribute financially to the remediation efforts.

The BSA does not define what is “just and equitable” and therefore its meaning depends on judicial interpretation.

The tribunal acknowledged that the test is deliberately wide to ensure that funds for remediation can be sourced promptly to enable timely safety improvements.

The tribunal also emphasised that financial status and direct fault were not decisive factors.

The RCO mechanism is a fair allocation of responsibility for safety cost, and therefore the tribunal considered the following factors when determining what was ‘just and equitable’:

• The severity of the fire safety risks posed by the defects in Vista Tower.
• The proportionality of the financial contribution required from the respondents compared to the remediation costs.
• Whether the remediation costs were within a reasonable range of responses or costs.
• The degree of responsibility the respondents had in the unsafe features of the building.

The tribunal also addressed the wide definition of “associated persons” under section 121 of the BSA, which allows for RCOs to be issued against associated corporate bodies.

The tribunal made a distinction between those it considered ‘associated companies’ and those it didn’t by deciding that there is no automatic presumption that an associated person is liable.

Therefore, a body may be ‘associated’ but that does not guarantee liability, instead determining liability is fact sensitive, with a requirement of “additional linking factors”.

For example, the tribunal held that where a respondent was genuinely independent, such as external investors, it would not be just and equitable to make an RCO against that entity.

The tribunal distinguished these independent respondents from those that “do not appear to have operated in a way that a prudent property developer looking to ring fence assets and liabilities in an SPV might”.

What does this mean in practice?

Although not binding, this judgment emphasises the importance of proactive enforcement of building safety standards.

It also highlights the significant legal and financial risks following unsafe construction practices.

• Liability for fire safety defects: Buildings must meet fire safety regulations. Failing to act on identified risks, could lead to legal claims or financial liabilities.
• Ongoing oversight: Continuous fire safety inspections and the adherence to modern building safety standards is crucial. It is important to take more proactive measures in ensuring buildings comply with these standards.

Conclusion

The Vista Tower case and the issuance of these RCOs illustrate the growing role that RCOs have in addressing unsafe building practices and fire safety risks, whilst also shedding light on the ‘just and equitable’ test.

This case demonstrates how the BSA may be used to recover remediation costs, and clarifies that those responsible for unsafe construction practices can be held financially accountable for remediation efforts, helping to shape future decisions on RCOs.

Elizabeth Withers is a Trainee Solicitor and David Owens is a Partner at Sharpe Pritchard LLP.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk.