There have been many changes to building and fire safety claims and it is easy to be confused by the evolving landscape. In the fourth in a six-part series explaining the most important legal vehicles being used, Chris Bates, Sara Stephens and Jamil Sanaullah take a look at remediation contribution orders.

Section 124 of the Building Safety Act 2022 gives the First-tier Tribunal the power to order a ‘specified body corporate or partnership’ to make payments to a ‘specified person’ for the purpose of meeting costs that have been or will be incurred in remedying ‘relevant defects’ relating to a ‘relevant building’. An order can only be made if the FTT considers it ‘just and equitable’ to make an order. Such an order is called a remediation contribution order.

Relevant defect

RCOs can be made in respect of works to address a ‘relevant defect’, which is defined as a defect which causes a building safety risk, arising as a result of anything done (or not done), anything used (or not used) in connection with ‘relevant works’. Relevant works mean:

• (a) works relating to the construction or conversion of the building;
• (b) works undertaken or commissioned by or on behalf of a relevant landlord or management company; or
• (c) works undertaken to remedy a relevant defect.

Relevant building

RCOs can only be made in respect of a ‘relevant building’, which means a self-contained building, or self-contained part of a building that contains at least two dwellings and is at least 11m high or has at least five storeys. The definition of ‘self-contained part’ of a building was considered (in the context of right to manage claims, but of likely relevance to the Building Safety Act) by the Upper Tribunal in two appeals (heard together): Courtyard RTM Co Ltd and others v Rockwell (FC103) Ltd and another; 14 Park Crescent Ltd and another v 14 Park Crescent RTM Co Ltd [2025] UKUT 39 (LC); [2025] EGLR 8. Permission to appeal has been granted in Park Crescent so the Court of Appeal will consider the definition of “self-contained part” in due course.

Costs that can be included

The 2022 Act sets out a number of different types of costs that can be included within an RCO application, but makes clear the list is not exhaustive and, further, allows for the secretary of state to specify further descriptions of costs in regulations. The costs explicitly mentioned in the 2022 Act are:

• (a) costs incurred or to be incurred in taking relevant steps in relation to a relevant defect in the relevant building;
• (b) costs incurred or to be incurred in obtaining an expert report relating to the relevant building; and
• (c) temporary accommodation costs incurred or to be incurred in connection with a decant from the relevant building (or from part of it) that took place or is to take place –
  • (i) to avoid an imminent threat to life or of personal injury arising from a relevant defect in the building,
  • (ii) (in the case of a decant from a dwelling) because works relating to the building created or are expected to create circumstances in which those occupying the dwelling cannot reasonably be expected to live, or
  • (iii) for any other reason connected with relevant defects in the building, or works relating to the building, that is prescribed by regulations made by the secretary of state.

In Empire Square, leaseholders applied for a remediation order and the freeholder then applied for an RCO against the developer. The FTT found the costs of both the remediation order and RCO could be recovered as part of the RCO noting: ‘If the building had been remediated, we would not be considering the applications. The RO application would not have been brought. The RCO would not in consequence have been sought.’

Relevant steps

Relevant steps are defined as steps to prevent or reduce the likelihood of a fire or collapse of the building (or any part of it) occurring as a result of the relevant defect, reducing the severity of any such incident or preventing or reducing harm to people in or about the building that could result from such an incident.

Who can apply?

An ‘interested person’ can apply for an RCO, which means:

• (a) the secretary of state;
• (b) the Building Safety Regulator;
• (c) the relevant local authority;
• (d) the relevant fire and rescue authority;
• (e) a person with a legal or equitable interest in the relevant building or any part of it; or
• (f) any other person prescribed by regulations, which now includes the Homes and Communities Agency, the manager of the building, a resident management company and a right to manage company.

Who can an RCO be made against?

RCOs can be made against a body corporate or partnership who is:

• (a) a landlord under a lease of the relevant building or any part of it;
• (b) a person who was such a landlord as at 14 February 2022;
• (c) a developer in relation to the relevant building; or
• (d) a person “associated” (as defined in section 121 of the 2022 Act) with a person within any of paragraphs (a) to (c).

What is their relevance in the new building safety landscape?

Several RCOs have been made at the time of writing. The most significant decision to date is Triathlon Homes LLP v Stratford Village Development Partnership and others [2024] UKFTT 26 (PC); [2024] PLSCS 16, in which the tribunal considered the extent of the ‘just and equitable’ test. The FTT ordered that an RCO be made against both the original developer, Stratford Village Development Partnership, and against SVDP’s owner, Get Living, despite the fact Get Living did not own SVDP at the time the buildings were developed. SVDP did not have the funds to comply with an RCO without the financial support of Get Living so the FTT considered it just and equitable to also make an order against Get Living.

In addition to considering the matter of who to make the RCO against, the FTT also determined it had jurisdiction to make an RCO in respect of costs that had been incurred before the 2022 Act came into force. Further, the FTT determined that an RCO can be made in respect of costs incurred in preventing risks from materialising, including the costs of a waking watch or the installation of a temporary fire alarm system.

The decision in Triathlon Homes was appealed and heard by the Court of Appeal in March 2025, with judgment awaited at time of writing. The appeal concerned whether an RCO can be made in respect of costs incurred before the 2022 Act came into force and, if so, whether the RCO should have been made in the circumstances.

The just and equitable test was further considered in Vista Tower (CAM/26UH/HYI/2023/0003), in which the FTT re-emphasised its broad discretion as to whether to grant an RCO. The FTT found the ‘just and equitable’ test is deliberately wide so funds can be found quickly to ensure remediation work can be carried out and/or funds obtained from public grants can be recovered promptly. The FTT made an RCO against numerous parties (76 in total) with joint and several liability. The respondent entities were all linked by certain directors/their families, who controlled the ‘fluid, disorganised and blurred network or structure’ or companies, and all were involved in property development.

The tribunal also determined that ‘defect’ was not restricted to meaning non-compliance with building regulations and that any risk above ‘low risk’ can constitute a building safety defect.

Permission to appeal in Vista Tower has been granted to consider several matters, including whether an RCO can be made on a joint and several basis and whether an RCO can be granted against defects which are considered ‘tolerable’.

The application of the ‘just and equitable’ test in Triathlon Homes was considered in relation to building liability orders in St Andrews House (LON/00AG/LDC/2023/0270), indicating that cases considering one remedy in the 2022 Act are likely to have relevance to other remedies. The applicant in Vista Tower has also applied for a BLO, showing the different types of remedy in the 2022 Act can be pursued, where appropriate, alongside each other, particularly where one type of application may not adequately deal with all the issues.

In Empire Square (LON/00BE/HYI/2023/0013 and LON/00BE/BSB/2024/0602), the FTT held that the RCO could be suspended to give the developer one last chance to carry out works and, if it failed to do so, it would be required to pay the sums under the RCO to enable the freeholder to complete the works. The decision in that case highlights the interaction between the various provisions in the 2022 Act, as well as improvement notices under the Housing Act 2004 and the government’s building safety repairs pledge.

RCOs are one of a number of tools introduced by the 2022 Act that can be used to help get vital building safety works carried out to buildings. They have been interpreted by the FTT to provide a wide discretion as to the defects covered, who they can be made against and on what basis. They are designed to be relatively easy to apply for and, on the FTT’s interpretation, applicants are not required to establish the exact relationship between ‘associated’ entities and, further, associated entities can be subject to an RCO even where they were not involved with the building at the time it was built.

This article was originally published in the Estates Gazette in July 2025.