The Building Safety Act 2022 (“BSA 2022”) was introduced in the wake of the 2017 Grenfell Tower disaster. In view of the complexity of the legislation, there have been disputes between leaseholders and landlord on the application of the law. As disputes have arisen over the scope of Building Safety Act protections, two recent Court of Appeal decisions – Adriatic Land 5 Ltd v Long Leaseholders at Hippersley Point [2025] EWCA Civ 856 and Triathlon Homes LLP v Stratford Village Development Partnership [2025] EWCA Civ 846 – have provided a clarification on the scope and purpose of the BSA 2022.
Together, they demonstrate the courts’ firm commitment to giving effect to Parliament’s intention: shifting the financial burden of building safety defects away from leaseholders and onto those responsible for developing, owning, or deriving commercial benefit from affected buildings.
Adriatic Land 5 Ltd v Long Leaseholders at Hippersley Point: Retrospective Exclusion of Service Charge Recovery
In Adriatic Land, the Court of Appeal held that paragraph 9 of Schedule 8 to the BSA 2022 prevents landlords from recovering, via the service charge, their legal and professional costs associated with liability for safety defects under qualifying leases. Crucially, this protection applies retrospectively, covering costs incurred even before the Act came into force on 28 June 2022.
Key Findings
Wide interpretation of excluded costs
The court confirmed that the exclusion covers a broad range of legal and professional expenses, including:
- Legal advice
- Court or tribunal proceedings
- Alternative dispute resolution
This ensures that leaseholders are not indirectly made to fund the landlord’s defence or pursuit of building safety liability matters.
- Retrospective effect is deliberate
The court considered retrospective application necessary to secure the full scope of leaseholder protection intended by Parliament. Without it, landlords could pass on substantial historic legal costs, undermining the purpose of the Act.
Implications
The decision significantly strengthens leaseholder protections by:
- Preventing the “back-door” recovery of legal expenses through service charges;
- Encouraging landlords to take responsibility for the costs of managing safety defect liabilities; and
- Reinforcing the principle that leaseholders are not a funding source for disputes arising from historic building safety failings.
Triathlon Homes LLP v Stratford Village Development Partnership: Retrospective Application of Remediation Contribution Orders
Triathlon Homes LLP’s application of Remediation Contribution Orders (“RCOs”) under section 124 of the BSA 2022 against the developers and its parent company, aiming to recover substantial costs already incurred in remedying the defects, was first granted by the First-tier Tribunal, and the Court of Appeal upheld that decision.
Key Findings
Section 124 applies retrospectively
The Court of Appeal affirmed that RCOs may cover remediation costs incurred before the BSA 2022 came into force. This ensures that leaseholders who have already paid for works are not left without recourse merely because expenses were incurred earlier.
Purpose of the Act favours recovery from developers, not leaseholders
The Court of Appeal emphasised that public funds – such as the Building Safety Fund – were never intended to shoulder the full burden of historic defects. Allowing retrospective recovery from developers aligns with the fundamental purpose of the Act.
The “just and equitable” test is deliberately broad
In upholding the First-tier Tribunal’s assessment, the Court of Appeal confirmed that the test allows wide discretion. Relevant factors include:
- The developer’s role in creating or contributing to the defects;
- The availability (or uncertainty) of public funding;
- The overarching aim of allocating responsibility fairly.
- The applicant’s motives or the identity of ultimate beneficial owners are irrelevant considerations.
Implications
The decision significantly strengthens leaseholder protections by:
- Empowering leaseholders and housing providers to reclaim historic remediation costs;
- Confirming the developers may face liability long after construction;
- Clarifying that tribunals have broad discretion when determining what is “just and equitable”.
Conclusion
The Court of Appeal’s decisions in Adriatic Land and Triathlon Homes are crucial to the development of building safety law. They affirm the retrospective application of key provisions of the BSA 2022 and illustrate a consistent judicial approach to interpreting the Act purposively and expansively.
It is worth noting that permission to appeal to the Supreme Court on the ground of retrospectivity was just granted for both cases. It remains to be seen whether the Supreme Court will affirm the Court of Appeal’s robust, purposive approach or whether it will recalibrate the limits of retrospectivity within the BSA 2022. Whatever the outcome, the appeals will shape the future scope of Building Safety Act protections and the allocation of financial responsibility for historic building safety defects and for the wider interpretation of the BSA 2022.
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