22/07/2025
The Court of Appeal’s recent decision in Triathlon Homes LLP v Stratford Village Development Partnership & Ors [2025] EWCA Civ 846 8 July 2025 offers important clarification on how tribunals should apply the “just and equitable” test under section 124 of the Building Safety Act 2022 (BSA).
Although the case also confirmed that Remediation Contribution Orders (RCOs) can apply to costs incurred before the BSA came into force, the main takeaway for corporate landlords, developers and property owners is the court’s endorsement of a principled but pragmatic approach to the allocation of liability.
What Does ‘Just and Equitable’ Really Mean?
The appellants argued that the tribunal had treated the ‘just and equitable’ discretion as effectively automatic, simply because a developer or its associate had the financial means to pay. The Court rejected this characterisation but confirmed that the purpose of the BSA is central to how this discretion should be exercised.
The Court recognised Parliament’s clear intent:
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The primary responsibility for funding building safety remediation lies with developers and their associates.
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Public funding, such as the Building Safety Fund, is intended only as a last resort.
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Where a corporate structure retains ownership and financial capacity, tribunals will be slow to accept that public money should step in ahead of those connected with the original development.
Importantly, the Court acknowledged this is not a presumption or automatic rule, but an exercise of discretion guided by the objectives of the Act.
Corporate Structures: Function, Not Fault
For our corporate clients, many of whom operate within complex structures for entirely proper and functional reasons, this decision does not suggest that legitimate structuring to manage risk and ringfence liabilities is improper and the Court’s reasoning should not be read as criticism of well-managed corporate groups whose structures serve commercial and operational needs, not liability avoidance.
However, where those structures retain the benefits of ownership, the BSA’s provisions are clear: financial responsibility may follow. The Act is designed to prioritise access to funds for remediation over the strict legal form of ownership. For most responsible businesses, this reinforces the importance of understanding and proactively managing contingent liabilities, not an accusation of wrongdoing.
Other Key Findings
The Court also confirmed that:
· RCOs can apply to costs incurred before 28 June 2022, notwithstanding concerns about retrospectivity.
· The availability of public funding does not preclude orders where corporate capacity exists.
· There is no requirement to exhaust claims against contractors before seeking an RCO.
What should Corporates take from this?
This judgment reflects a pragmatic interpretation of the BSA. For responsible businesses, it provides clarity on how courts will balance the equitable distribution of liability against the backdrop of corporate structures. It reinforces the importance of ongoing risk assessment, governance, and open communication with stakeholders.
Most companies are already taking this approach. For those managing legacy portfolios, the case serves as a reminder to remain proactive in reviewing potential exposures — not because corporate structures are under attack, but because the law now demands careful consideration of how liabilities are met.
If you would like to discuss how this decision might affect your business, please get in touch.
FSW Law are a London based law firm who specialise in Health, Safety and Environmental Law . If you have recently had a health and safety incident occur in your workplace and require legal advice, please phone us on 0207 993 6960.