Building Safety Act 2022: The “Just and Equitable” Test When Making Remediation Contribution Orders (Grey GR Ltd Partnership v Edgewater (Stevenage) and others – 2025)

The First-tier Tribunal considers the application of the “just and equitable” test in making remediation contribution orders under the Building Safety Act 2022.

The background

Grey GR Ltd Partnership v Edgewater (Stevenage) and others [2025] related to a 16-storey residential block containing 73 flats. A remediation order was granted in respect of the property against the building’s owner. The owner applied for a remediation contribution order (“RCO”) against the building’s original developer, together with 95 other “associated persons” respondents, seeking the costs of remedying fire safety defects of over £20m. The respondents had had shared directors over the period between 2017 and 2022.

The Tribunal considered whether an RCO should be made where the applicant is well-funded, and where it would have been aware of fire safety defects when it acquired the building. The Tribunal then considered whether an RCO should include costs that experts had agreed were disproportionate, and how the Tribunal should distinguish the parties when making an RCO.

The decision

The FTT made the RCO, which included most respondents. Respondents were included where they were involved in property, construction or development sectors, where they were presented to potential funders or third parties as part of a group, where they were linked to the families of two key individuals, where they were linked by financial or other dealings, or where information was found to be unreliable.

Respondents excluded were charities, those involved in other business sectors, and those who had shareholders and advisers who had declared their independence.

The Tribunal firstly found that non-compliance with the Building Regulations in force at the time of construction was, although falling within the definition of a “defect”, not the only way in which a matter could be considered a “defect”. In any event, the relevant Building Regulations in this case had been found to be unfit for purpose by the Hackitt review.

The Tribunal determined that a “building safety risk” did not turn on whether the risk was tolerable, stating that “any risk above “low” risk…may be a building safety risk.”

The owner was a property investor considered to be well-funded and well-advised, who had been aware of the building’s fire safety defects and had negotiated appropriate warranties and a retention as a result. However, the Tribunal found that the developer had failed to disclose significant fire safety warnings to the owner, had given an untrue warranty as to compliance with Building Regulations, and was therefore satisfied that an RCO was appropriate.

Referring to Triathlon Homes LLP v Stratford Village Development Partnership & others, the Tribunal noted the concept of the “hierarchy or cascade of liability”, stating that “the new jurisdiction appears essentially not to be fault-based, providing a route to secure funding for remedial works, with the emphasis on protection of leaseholders/residents and helping to expedite remedial action.”

With regards to disproportionate remedial costs, the Tribunal held that, even where costs related to works were not proportionate, costs could still be recovered through an RCO if they were within a reasonable range. There was adequate justification for the owner to progress with the remedial works, even where they may have been viewed as cautious or beyond what may be viewed as necessary.

When making the RCO, the Tribunal considered the final issue as to the respondents included. The owner included an extensive list of respondents, given the generous definition of “associated persons” under the Building Safety Act 2022. The owner’s argument centred on the fact that the developer, Edgewater, was a single purpose vehicle with few assets and, given the sums involved, it was a priority to ensure the RCO reached sufficiently widely to cover the entirety of the costs of the remedial works.

The Tribunal regarded the developer as sitting at the top of the hierarchy of liability. The assets under its control did not determine whether or not an RCO should be made against it. Additionally, where corporate or group entities exist, the Tribunal found that it is sufficient to demonstrate some or all relevant beneficial owners, or other connections through corporate structures.  

Advice and action for landlords

Landlords and investors of residential blocks affected by major remedial and building safety works will be reassured by the broad application of the statute provided by the FTT in this decision.

Developers should be aware of the guidance given by the FTT in making an RCO and identifying relevant respondents, which indicates that the Tribunals are willing to consider sizeable numbers of people as “associated persons”, including those with familial connections, those linked by financial or corporate arrangements, and those where individuals or entities form part of a group.

The RCO is intended to secure the funding that progresses essential remedial works, whilst respondents agree between themselves as to how to allocate liability.