Remediation Contribution Orders: Vista Tower Part II
February 2026The Upper Tribunal has rejected the appeal against the making of a Remediation Contribution Order for Vista Tower. This has potentially significant implications for such orders under the Building Safety Act 2022.
Background
We wrote about the First Tier Tribunal’s (“FTT”) decision in our February 2025 article. By way of brief recap, Grey GR Partnership Limited (“Grey”) purchased Vista Tower in Stevenage from Edgewater (Stevenage) Limited (“Edgewater”) in 2018. It subsequently came to light that the block had a number of building safety related defects, some of which were remediated by Grey in 2023.
In May 2024, the former Department for Levelling Up, Housing and Communities (DLUHC) sought and obtained a Remediation Order (“RO”) against Grey, which required Grey to remedy all defects by September 2025.
Prior to the RO, Grey applied to the First Tier Tribunal for a Remediation Contribution Order (“RCO”) against Edgewater, the original developer and 96 entities said to be associated with it. Edgewater argued that it was not just and equitable to grant an RCO, as the remedial works were disproportionate and many of the defects did not meet the definition of ‘relevant defect’ under section 120 of the Building Safety Act (“BSA”) so as to justify remediation.
The FTT held that it was just and equitable in the circumstances to grant the RCO (pursuant to section 124 of the BSA) against Edgewater and 75 related entities on a joint and several basis, and in the sum of £13,262,119.
The decision was reached on the basis that a ‘relevant defect’ for the purposes of sections 120 and 124 of the BSA is any building safety risk that is more than a “low risk” of concern. A wide view of ‘just and equitable’ was used to determine which parties would be included and how the total sum was reached.
Edgewater and the 75 related entities (referred to in this note as Edgewater for simplicity) appealed to the Upper Tribunal (“UT”).
Appeal
Edgewater’s appeal was advanced on four grounds.
- Ground 1: the FTT did not have jurisdiction to make a single RCO on a joint and several basis against a large number of parties under section 124 of the BSA, or if it did have jurisdiction, it would only have been just and equitable to require fixed, separate contributions.
- Ground 2: the FTT was wrong to grant the RCO without establishing whether parties participated or received remuneration from the project. This sought to touch on the principle of separate legal personality.
- Ground 3: The FTT should have held that the risk standard in section 120 (and thus the gateway to making an RCO) was one that was ‘intolerable’ and not merely ‘more than low’ risk.
- Ground 4: the FTT was wrong to include the costs of replacing one specific wall type in its entirety within the RCO.
Decision
The UTT rejected all four grounds of appeal.
Ground 1 was rejected on the basis that, when viewing section 124 in light of the purpose of the BSA, it was appropriate to conclude that joint and several liability was applicable. While it is not necessarily the starting point for determining liability, it was both permissible and appropriate in this instance. This conclusion was found to have been reached justifiably, considering the method used by the FTT to distinguish and exclude 21 parties from liability.
Ground 2 had two interconnected issues. First, did the FTT need to individually assess the position of each party, and second, if not, would this undermine separate legal personality.
On the first point, the UT rejected the suggestion that a party-by-party assessment was required. It was permissible for the FTT to determine that Edgewater and 75 of the respondents were part of a “wider corporate structure” so as to justify a single RCO against all parties. This did not require a defined connection or threshold, as the wording of ‘just and equitable’ permitted the discretion used here.
In answering the second issue, the UT rejected the notion that referring to a wider corporate structure undermined the separate legal personality of these companies. Association is a statutory concept under the BSA that permits the grouping of distinct companies in specified circumstances. At first instance, the FTT used a substantive link of a wider corporate structure, to group parties in respect of liability, and not to undermine their separate corporate identity. Liability through association was therefore permitted by statute and not judicial overreach by the FTT.
In terms of Ground 3, the FTT can make an RCO if it considers it “just and equitable” to do so. If granted, these orders require a specified body to make payments in connection with the remediation of “relevant defects”.
A relevant defect is defined as a building defect that arises “as a result of anything done (or not done), or anything used (or not used), in connection with relevant works” and that causes a building safety risk (section 120 of the BSA). A “building safety risk” is defined in section 120(5) as “a risk to the safety of people in or about the building” arising from the spread of fire, or the collapse of the building or any part of it.
At first instance, the FTT interpreted “building safety risk” as being any risk above “low risk” (which the FTT said was the “ordinary unavoidable fire risks in residential buildings and/or in relation to PAS9980 as an assessment that fire spread would be within normal expectations”). This set a low bar for whether it was just and equitable to make an RCO.
Edgewater took issue with this logic, arguing that the threshold must be higher: that of an “intolerable risk”. The implication of this is that there could be risks which were tolerable, such that they were not a building safety risk or a relevant defect (for the purposes of the BSA), requiring remediation, so it would not be just and equitable to make an RCO accordingly. This reflected the evidence before the FTT, where the fire safety experts opined that a “medium” fire risk considered to be “tolerable” would not be a building safety risk.
The UT rejected Edgewater’s argument, finding that no threshold is required given the wording in section 120(5) of the BSA, which defines risk without qualification – i.e. as “a risk to the safety of people in or about the building”. There was no need to reading the word “intolerable” into the legislation. In this regard, the UT also disagreed with the FTT’s “low risk” threshold: as the UT put it, “if a risk is a low risk, it is still capable of qualifying as a risk, …but whether it will be a building safety risk will depend upon whether it can satisfy the other conditions of a building safety risk”.
Ground 4 was rejected on the basis that it was a decision of fact which the UT did not see as incorrectly interpreted.
Key takeaways
This decision is unlikely to represent the last word in this particular dispute: it is understood that in 2023 Grey issued proceedings against Edgewater and some of its associated entities in the Technology and Construction Court seeking a Building Liability Order. Those proceedings have not yet come to trial.
The UT decision (like the FTT before it) is made within the confines of the BSA’s stated policy objective of ensuring the costs of remediating buildings is not borne by leaseholders, but by freeholders (via the RO) and developers (via the RCO). Given this, and the fact ROs and RCOs are non-fault-based orders, it is unsurprising that both Tribunals took expansive views of not only what amounts to a relevant defect, but also the just and equitable test.
However, the UT’s view that any risk (which was also stated in another recent decision in the FTT)¹ is sufficient, may have significant implications for downstream claims if developers take steps to pursue other project parties to recover losses incurred. Each case is fact dependent but, arguably, there could be a situation where freeholders and/or developers have liability under an RO or RCO but are unable to pass this on to others given the different standards in professional appointments.
If you have any questions in relation to the information discussed in this article, please contact the authors or your usual Beale & Co contact.
¹Canary Riverside Estate LON/00BG/BSA/2024/0005
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