Building Safety: Interesting decision on the meaning of 'just and equitable' in respect of remediation contribution orders

On the 19 January 2024 the First Tier Tribunal (Property Chamber) made an interesting  and useful decision on remediation contribution orders.

Remediation contribution orders can be obtained from the First Tier Tribunal in relation to any  self-contained building over 11 metres or 5 storeys in height which has at least two dwellings, where it is 'just and equitable' to make an order.  For more information, see our 2022 blog on remediation contribution orders.

This decision, which relates to the Olympic Park development in East London and is known as Triathlon v Stratford Village Development Partnership (1), Get Living PLC (2) and East Village Management Limited (3), considered the meaning of 'just and equitable.

1. The tribunal rejected an argument that a remediation contribution order should not be made if remedial works are already underway and funding is secure (in this case via the Building Safety Fund).  It was argued that in such a case, the applicant, Triathlon, should be left to  its contractual and common law remedies with liability apportioned by the Court on normal principles (in other words, Triathlon should pursue those it felt were liable through the courts, rather than the short cut of a remediation contribution order).  The tribunal rejected this argument.

2.The tribunal felt that the Building Safety Fund should not fund the works where a party falling within section 124 (ie someone against whom a remediation contribution order can be made) was well able to fund the works. 

3. The fact that the properties were now owned by a completely different entity to the one  which owned them when they were originally constructed did not stop a remediation contribution order being made.  In this case the respondent had third-party rights against the contractors and consultants responsible for the condition of the building, so could pursue them. The tribunal stated ‘responsibility for the purpose of the 2022 Act is not synonymous with fault’.

4. It would be an unusual case in which the source or extent of a respondent’s assets or liabilities would carry much weight when deciding whether it is just and equitable to order it to bear the cost of remediation

The decision considered two other points of interest:

a) A remediation contribution order can be made in relation to costs incurred before the Building Safety Act 2022 came into force (for these purposes, that is 28 June 2022). 

b) A remediation contribution order can be made in respect of costs incurred in preventing risks from materialising or reducing the severity of a building safety incident. This means effectively that it can include measures to reduce risks or to in respect of  non- remedial work costs.  In other words remediation contribution orders are not limited to remedial work costs.  The tribunal decided that a remediation contribution order could include not only remedial work costs, but also the cost of work to limit or prevent risk and the cost of reducing the severity of building safety incidents, such as waking watch costs.