“A presumption by any other name…” The Court of Appeal in Triathlon Homes

The Court of Appeal has delivered judgment in the much-awaited Triathlon Homes LLP v Stratford Village Development and ors [2025] EWCA Civ 846, giving construction and property lawyers some poolside reading before the summer vacation. Much of the judgment focuses on when it is “just and equitable” to make a Remediation Contribution Order (“RCO”) pursuant to s.124 of the Building Safety Act 2022 (“the BSA”). It is also now confirmed, if confirmation were needed, that there is a clear hierarchy of respondents against whom an RCO will be made, with developers being at the very top of that list. However, whilst the Court appears to deny that there is a presumption in favour of it being just and equitable making RCOs against developers, meaning that it is in practice necessary for the respondent to prove the absence of justice and equity, the language and focus of the judgment suggest otherwise. This confirms what could well be thought of as a change in the focus of RCOs, as enacted, from being a tool to secure fast completion of remedial works (with determination of the civil liability being something for a later date), to a tool that can be used as another route to place responsibility (or at least the burden of TCC litigation to recover such costs from those ultimately responsible) on developers.

The facts

The case concerns the former Olympic Village in Stratford, which has been converted into 5 residential blocks. Stratford Village Development Partnership (“SVDP”) was the original developer, albeit the works were carried out by Galliford Try Construction Ltd. SVDP is now ultimately owned by Get Living plc, after a sale in 2018. The freehold of the site is owned by two companies (SVPH1 and SVPH2) on trust for SVDP. A headlease was granted to East Village Management Ltd (“EVML”), a company set up in 2009 in agreement between Triathlon and SVDP to manage the estate. 58% of the voting rights in EVML are held by Get Living, and 39% by Triathlon. Long leases were granted out of the headlease to Triathlon and a subsidiary of Get Living. Both have then granted individual tenancies to residents of social and private housing, respectively.

In 2020, serious fire safety defects were discovered in each of the 5 blocks, regarding both the design and the construction of the non-ACM cladding used for the facades. EVML applied to the Building Safety Fund (“the Fund”), a central government scheme to help building owners meet the cost of remedying fire risks. This was approved in 2023, and it appears that, by the time of the Court of Appeal hearing, the works were due to be completed ahead of schedule.

Despite the provision of finance from the Fund and the works being carried out, Triathlon applied to the FTT for RCOs against SVDP and Get Living for the costs of the remedial works and costs incurred by Triathlon, such as the original investigations and mitigation strategies, including a waking watch; costs which would not, themselves, be covered by the Fund.

The FTT granted the RCOs sought, finding that it was “just and equitable” to do so, as the primary purpose of the BSA was to place responsibility on developers, it was legitimate to seek to secure a further source of funding in case of delays with the works/funding, and the “public purse” should not carry the costs of the remedial works when there was a well-capitalised parent company of the developer able to meet those costs. The ensuing appeal was then essentially ‘leapfrogged’ into the Court of Appeal, without any substantive issues being decided before the Upper Tribunal.

The decision on the “presumption” argument

Ground 1 of the appeal focused on whether it was just and equitable to make an RCO in this case, as required by s.124 of the BSA. 10 sub-grounds were set out. We will first focus on Ground 1.1 regarding an unexpressed presumption.

It was argued by the appellants that when the FTT stated “it is difficult to see how it could ever be just and equitable for a party falling within the terms of section 124(3) and well able to fund the relevant remediation works to be able to claim that the works should instead be funded by the public purse”, it wrongly created a presumption in favour of making RCOs against developers.

The Court of Appeal dismissed this ground of appeal, holding that (i) it is correct that the purpose of the BSA is to place primary responsibility on the developer and, separately, (ii) as between public funding and those listed in s.124 of the BSA, public funding should be a matter of last resort.

While the Court of Appeal suggests that no ‘presumption’ is created, much of the decision seems to suggest otherwise. For instance, the Court concludes that the FTT was correct to hold that, when choosing between a developer and its well-capitalised owner, on the one hand, and the public purse, on the other, the burden of paying for remedial works should fall on the former. Likewise, whilst the Court provided an example of when it may not be just and equitable to order an RCO against an associated company (giving the example of otherwise unrelated companies coincidentally sharing a director), this appears to be an argument used to rebut a presumption rather than an argument showing such a presumption does not exist.

The purpose of RCOs

In placing such emphasis on the ability of the developer (or its ultimate owner) to meet the costs of remedial works, the Court of Appeal appear to shift the focus of RCOs from ensuring remedial works are carried out promptly – so that it might be thought that an RCO would not necessarily be granted where Works were already in train – to taking the first step to resolving liability for defects.

The very fact of RCOs being a remedy that is to be obtained through the FTT, where applications can be made by leaseholders and others interested in ensuring the safety and habitability of the building, tends to indicate that the original purpose of section 124 was not simply to provide another route for parties to resolve their civil disputes. The Explanatory Notes to the BSA, likewise, focus on making sure remedial works are in fact carried out, stating that the purpose is to ensure “timely remediation of buildings”. The Explanatory Notes give two examples: (i) allowing thinly capitalised freeholders or leaseholders to obtain funding for the works from the developer and (ii) where the developer cannot be identified, requiring the landlord (or the wider corporate group) to forward fund the remedial works before pursuing alternative claims.

In the present case, the grant from the Fund meant that neither issue was in play. The works were being funded and progressing on time. Whilst the FTT did accept that there could be delays or cost overruns justifying pre-emptively securing additional funding, this appears to have played a secondary role for both the FTT and Court of Appeal compared to the desire to shift the immediate burden of funding the works onto the developer.

The purpose of the BSA

It now seems clear from both Triathlon and the Supreme Court’s decision in URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21 that the tools granted by the BSA will be used to shift the burden of building safety remedial works onto developers and others who were directly involved in the design and construction of an unsafe dwelling. Whilst there is of course much to be said in favour of such an approach, it does suggest no distinction is being drawn between the potentially different purposes of the different provisions of the BSA.

This can also be seen with the overlap between the “just and equitable” tests for both RCOs and Building Liability Orders (“BLOs”). The TCC has already highlighted the similarity in language between the two tests (381 Southwark Park Road RTM Company Limited and ors v Click St Andrews Ltd and anor [2024] EWHC 3569 (TCC)), relying on the FTT decision in Triathlon as part of the reasoning in favour of making a BLO in that case. Whilst the Court recognised that RCOs and BLOs are different jurisdictions, there was little discussion about whether the nature of each remedy would affect whether making either order was “just and equitable” in the circumstances of a given case. This again suggests the courts and tribunals consider the purpose of each remedy to be similar (ensuring the well-capitalised holding companies of developers pay for works) rather than distinguishing between RCOs (ensuring the swift resolution of remedial works) and BLOs (passing other private law liabilities onto associated companies by piercing the corporate veil).

We also understand the TCC’s Building Safety Act Working Group is considering encouraging applications for RCOs to be made in the TCC, with TCC judges sitting as FTT judges (pursuant to s.6(1) of the Tribunals, Courts and Enforcement Act 2007), presumably in part because of the view that the “just and equitable” test should be interpreted in the same way for both types of remedy. It is not entirely clear, however, that it will be “just and equitable” on precisely the same basis for an RCO and a BLO to be granted, where the former remains, despite the slight shift identified above, a remedy that is intended to provide funding to get the works done, so is likely to come at the start of the process, when liability is yet to be determined on a final basis. Although the courts have left open the question of when BLO applications should be made and, further, when they should be decided (i.e. at the end of a trial of liability for relevant defects/liabilities), it is perhaps more likely that an associated company’s liability under a BLO will be decided at the end of proceedings, once it is known whether any particular defendant is liable for fire safety issues. Obviously, it is important that the initial decision on the liability of the original company is not skipped over – however, it might also be that the court’s direction of travel in wanting to unite decisions on the justice and equity of RCOs and BLOs, is about seeking to give potential claimants the same sort of certainty as is afforded to parties who bring claims directly against the insurers of wrongdoers who have become insolvent under the Third Parties (Rights against Insurers) Act 2010, where it is not necessary to wait until a liability has been proven on a free-standing basis against the wrongdoer, before bringing the claim against the Insurer. That approach, in itself, essentially cements the status of RCOs as just another remedy to determine private rights and wrongs, rather than a method to allow leaseholders to make the buildings they live in safe. We will have to see how frequently the TCC ends up being the venue for the determination of RCOs, and how that impacts the BSA landscape more generally.

Regardless, it now seems well established that the BSA, including RCOs, will be used to place responsibility on developers and their parent companies, and that there is something akin to a presumption that RCOs will be granted where relevant defects exist, unless it is “just and equitable” not to do so (whether such language is adopted or not).

Article by David Pliener KC, Helena White and Philip Marriott.