The Upper Tribunal has lowered the bar for what counts as a 'building safety risk' in upholding a Remediation Contribution Order made in respect of Vista Tower In doing so, it effectively confirmed a recent First-tier Tribunal judgment in respect of Canary Riverside that found that a 'building safety risk' is any risk, not just a more-than-low or intolerable risk.
Vista Tower Appeal
In Edgewater (Stevenage) Limited v Grey GR Limited Partnership [2026] UKUT 18, the Upper Tribunal appeal focused primarily on whether it was 'just and equitable' for a Remediation Contribution Order to be made against 76 companies and, if it was, whether the FTT had jurisdiction to make it on the basis of joint and several liability (that is, that any one of the companies could be made responsible for the entire amount, and would then have to litigate against the others to obtain their fair contributions).
The Upper Tribunal held both that it was indeed just and equitable, and that the FTT had the necessary powers to make the defendants jointly and severally liable.
A further ground of the appeal regarding remediation works included in the RCO was refused, but the central point, that the FTT had erred in its interpretation of the definition of 'building safety risk', was considered by the Upper Tribunal despite it being academic, as it would usefully give 'guidance to other tribunals on the question of what constitutes a building safety risk'.
The definition of 'building safety risk' in the Building Safety Act 2022 (the Act) is a critical part of the definition of a 'relevant defect' under the Act, and hence the works that must be carried out by developers or responsible persons to mitigate that risk.
Section 120 provides that'building safety risk', in relation to a building, means a risk to the safety of people in or about the building arising from—
(a) the spread of fire, or
(b) the collapse of the building or any part of it.
The appellants argued that a 'building safety risk' cannot be any risk however small, but must be at least a risk identified by expert assessments as more than a 'tolerable risk'; and that the FTT had erred in holding that it was any risk above a 'low risk'.
The Upper Tribunal disagreed, going even further than the FTT. It undertook a careful review of other parts of the Act where there was particular qualification of 'risk' and concluded that in section 120, where there was no such qualification, it was intended that the reference to risk was to 'any risk' and not just a 'low risk'.
Canary Riverside RO/RCO
A similar decision as to what constitutes a 'building safety risk' was made by the FTT in Secretary of State for Housing Communities and Local Government v Canary Riverside Estate Management Limited and others (2025) LON/00BG/BSA/2024/0005.
Here, in an application brought by the Secretary of State for a remediation order and remediation contribution order, the FTT decided that 'the reference to “building safety risk” in s.120 is to any risk, however small' on the basis that there was no threshold test in s.120 and 'words such as “tolerable,” “low,” “medium,” high” or “ordinarily unavoidable” are noticeably absent'.
Implications for remediation orders / remediation contribution orders
At first glance, the judgment might be seen to increase pressure on landlords and developers to ensure that every risk is remediated, no matter how small.
However, it is interesting in this respect to look at what the FTT went on to say in Canary Riverside about remediation. Despite holding that a building safety risk was 'any risk', the Tribunal concluded that this did not prevent a more pragmatic approach.
The Tribunal pointed out that while a very low bar for 'building safety risk' may bring more defects within the definition of 'relevant defects', it did not follow that those defects must always be remediated. It still remained for expert evidence to be considered, and for more pragmatic approaches to be applied, such as those set out in the government's PAS9980 code of practice. As the FTT noted, this accepts that notwithstanding that defects are present, remediation may not be necessary when a risk is low.
As the judgment noted, the FTT may exercise discretion and review expert evidence, and 'may decide that it is inappropriate to order remediation if it considers that the level of risk posed by a relevant defect does not warrant it.'
Whilst these decisions are likely to increase the number of 'relevant defects' that need to be considered as representing a 'building safety risk', it will not necessarily prevent a pragmatic approach to remediating buildings. The key will be expert evidence and well argued, thoughtful, remediation schemes that do in fact reduce the risk in affected buildings to an acceptable level such as to persuade a Tribunal that further remediation is not warranted.
