By two separate judgments each handed down on 8 July 2025, the Court of Appeal has dismissed the appeals in both Triathlon Homes v Stratford Village Development Partnership [2025] EWCA Civ 846 and Adriatic Land 5 Ltd v Leaseholders of Hippersley Point [2025] EWCA Civ 847, ruling in doing so that the leaseholder protection provisions contained in Schedule 8 to the Building Safety Act 2022 have retrospective effect.
The Court of Appeal heard both cases together in March 2025, following appeals from the 2024 decisions of the Upper Tribunal (Lands Chamber) ("UT") in Hippersley and of the First-tier Tribunal ("FTT") in Triathlon Homes (although heard by the President and Deputy President of the UT). Both cases concerned the retrospective application of aspects of the Building Safety Act 2022 ("BSA 2022"), including Schedule 8 which contains what are commonly referred to as the "leaseholder protection provisions", and what costs can be within the scope of section 124 of the BSA 2022, which details the ability of an "interested person" to bring an application for a remediation contribution order ("RCO") in circumstances where it is "just and equitable" to do so.
Triathlon Homes
Triathlon Homes concerned fire safety defects within the East Village Estate, which was formerly part of the Athletes' Village at the London 2012 Olympic Games. Triathlon Homes, a provider of social housing with long leasehold interests in properties on the estate, sought an RCO against Stratford Village Development Partnership, the freeholder of the estate, for over £16 million of remediation costs.
At first instance, the FTT made an RCO against Stratford and its parent company, Get Living plc, holding that it was just and equitable to do so, and that the scope of an RCO could include costs that had been incurred before the relevant part of the BSA 2022 had come into force on 28 June 2022.
The Court of Appeal (Lord Justices Newey, Nugee and Holgate) unanimously dismissed the appeal by Stratford and Get Living, reinforcing the decision of the FTT.
In particular, the Court of Appeal affirmed that the FTT has discretion when considering whether to make an RCO and that factors such as the developer's financial capacity were relevant. Further, the reach of the BSA to include associated entities such as parent companies, even where they were not involved in the original construction, was reinforced by the decision.
The only real point of departure between the Court of Appeal's reasoning and that previously given by the FTT was that the Court of Appeal considered that the FTT had expressed themselves "rather more widely than was needed for the present case" when the FTT said it was difficult to see how it could ever be just and equitable for a party falling within the terms of section 124 of the BSA 2022 and well able to fund the relevant works to claim that the works should instead be funded by the public purse. The Court of Appeal gave an example of a case where a director of a landlord was also a director of other companies which have no other connection with the landlord or its group, commenting that it is not obvious that it would always be just and equitable to make RCOs against such associated companies even if the effect of refusing to do so was to leave the costs to be borne by the public.
It was also confirmed, by reference to the Supreme Court's decision in URS Corporation v BDW Trading [2025] UKSC 21, that "retrospectivity is central to achieving the aims and objectives of the BSA" and accordingly Part 5 of the BSA 2022 has retrospective effect. The judgment confirmed that this is a crucial aspect of the effectiveness of the BSA 2022.
Hippersley Point
In Hippersley Point, the Court of Appeal considered whether paragraph 9 of Schedule 8 to the BSA 2022, which limits recovery via service charges of legal or professional costs incurred by the landlord with respect to relevant defects, could apply to costs incurred before the commencement date of that part of the BSA 2022 (28 June 2022).
The landlord (Adriatic) had, in particular and amongst other things, incurred costs in respect of an application for dispensation from consultation requirements pursuant to section 20ZA of the Landlord and Tenant Act 1985, seeking permission not to consult on major building safety works needed to Hippersley Point. It was Adriatic's position that the costs of that application should not be within the scope of paragraph 9, and even if they were within the scope, paragraph 9 should not operate retrospectively to capture costs incurred prior to 28 June 2022, when the BSA 2022 came into force. If it did, then this would be contrary to Article 1 of Protocol 1 to the European Convention on Human Rights ("A1P1 rights") and accordingly the Court should read the legislation in such a way as to prevent it having retrospective effect.
The Court of Appeal unanimously held that the costs of the dispensation application were within the scope of paragraph 9, and further that even if the legislation did have retrospective effect, this would not interfere with Adriatic's A1P1 rights.
However, the Court was split 2:1 on the issue of whether the legal and professional costs incurred before 28 June 2022 are within the scope of paragraph 9. Lord Justices Nugee and Holgate dismissed the appeal on the basis that paragraph 9 operates to block the recovery of service charges related to legal and professional costs associated with relevant defects from 28 June 2022 onwards, regardless of when those costs were incurred or demanded. Effectively, service charges demanded that were caught by paragraph 9 but not paid before 28 June 2022 are no longer payable, but those demanded and paid before 28 June 2022 do not need to be repaid. However, an RCO could be sought with respect to costs already paid.
Lord Justice Newey, dissenting, considered that the presumptions against the retrospective effect of legislation and interference with property rights were not rebutted. He concluded that paragraph 9 should instead be interpreted as meaning that no service charge was payable with respect to relevant costs incurred or payable after 28 June 2022 as a result of a relevant defect.
There was general agreement amongst the Lord Justices that the interpretation of paragraph 9 has implications for other paragraphs in Schedule 8, which use similar language.
Analysis
The decisions are significant for leaseholders and demonstrate that the broad protections detailed by the BSA 2022 are being supported by the courts to give effect to the primary purpose of protecting leaseholders. The retrospective reach of the BSA 2022 may also be critical when interpreting the remainder of Schedule 8 and Part 5 of the BSA 2022 generally. Courts and Tribunals are generally interpreting the legislation in leaseholders' favour, which echoes the government's intended waterfall effect of the legislation when it was first introduced.
The Court of Appeal's approach also confirms how Courts and Tribunals can pierce the corporate veil and hold landlords, developers and associated companies to account where it considers that those organisations have the financial means to cover the costs. This, combined with a general effect of shifting reliance away from public funds or recovering costs from leaseholders who have had no involvement in the construction of a building, shows a further reinforcement of the leaseholders' protections under the BSA 2022.
