Cladding Remediation Case Law Triathlon Homes

In the Cladding Remediation Case Law judgement in Triathlon Homes LLP v Stratford Village Development Partnership & Ors [2025], the Court of Appeal upheld remediation contribution orders (RCOs) under Part 5 of the Building Safety Act 2022 (BSA).

The Court confirmed that developers and their well-resourced associates can be ordered to fund remediation even where public money is already paying for the works, and that RCOs can cover some costs incurred before 28 June 2022. This judgment matters for housing associations, estate managers, developers, funders, and leaseholders navigating cladding remediation at scale.

Background : Cladding Remediation Case Law Triathlon Homes

The appeal concerned five mixed-tenure blocks in East Village, Stratford (Plot N26), part of the former 2012 Olympics Athletes’ Village. Triathlon Homes LLP (a social housing provider with long leasehold interests) applied to the First-tier Tribunal (FTT) for RCOs against Stratford Village Development Partnership (SVDP, the original developer) and Get Living plc (now the owner of SVDP’s group companies).

The estate manager East Village Management Ltd (EVML) had engaged contractors to strip and replace defective non-ACM façades; the Building Safety Fund (BSF), administered in London via the GLA, was paying most of the bill. Triathlon sought orders compelling SVDP and Get Living to fund the portion that would otherwise have been charged to Triathlon via service charges—but which Schedule 8 BSA prevents where the developer or its associates remain a landlord.

The FTT granted wide-ranging RCOs (including reimbursement of certain historic costs and forward funding of remaining major works). A “leapfrog” appeal brought the case to the Court of Appeal on two issues: (1) whether it was “just and equitable” to order SVDP/Get Living to fund works already being paid for by the public purse; and (2) whether RCOs can reach back to costs incurred before Part 5 of the BSA commenced on 28 June 2022. The Court of Appeal dismissed the appeal on both grounds.

The Statutory Framework

Part 5 of the Building Safety Act (ss.116–124 and Schedule 8) was Parliament’s retrospective response to the post-Grenfell building safety crisis. It protects leaseholders from heavy service-charge liabilities and sets up mechanisms—RCOs among them—to shift costs to developers, landlords and associates who retain interests in buildings. Paragraph 2 of Schedule 8 is particularly powerful: where the developer (or an associate) remains a landlord or superior landlord at the qualifying time (14 February 2022), no service charge is payable for relevant measures to remedy fire safety defects. Section 124 then lets the FTT order specified corporate bodies or partnerships (including developers and associates) to pay remediation costs if it is “just and equitable.”

The 2022 Leaseholder Protections (Information etc.) Regulations also create a “cascade” allowing landlords who cannot recover via service charges to pass costs upward to “responsible” landlords—typically the developer or its associated superior landlord. The Court emphasised this policy “hierarchy,” with developers and their associates at or near the top.

The Project, Parties and Defects

The scheme: East Village was built for the 2012 Games, then converted for legacy residential use: 3,000 homes across 66 mid-rise blocks; the five blocks at issue (A–E) sit within Plot N26. Ownership splits affordable housing (Triathlon long leases) and market rent (Get Living subsidiaries), with EVML as estate manager (peppercorn rents; funded by service charges).

Corporate structure: SVDP, originally owned by the Olympic Delivery Authority (ODA), was the developer. Post-Games, a Qatari/other investor JV opted to acquire SVDP itself (not just the land) via QDD Athletes Village UK Ltd; Get Living eventually became the ultimate owner (from 2018). The freeholds sit with SVPH1/2 on trust for SVDP; Get Living is associated with those landlords.

Defects and works: Investigations from late 2018 onwards identified serious non-ACM façade issues. EVML installed waking watch and temporary alarms. Major works (full façade removal and replacement) were let to Errigal Facades in December 2022; as of March–April 2025, three blocks were complete and two were due to complete imminently, with BSF support increased to £27.5m paid/approved.

What the First Tier Tribunal Ordered

The FTT required SVDP and/or Get Living to: reimburse £1.16m to Triathlon (historic spend); pay £0.73m to EVML for other remedial measures; fund Triathlon’s apportioned share of alarms, professional fees, and major works - including £3.63m already paid to Errigal and £11.32m forecast for remaining works - with “reasonable amounts” for completion and servicing.

In short, the orders redirected what would have been Triathlon’s service-charge burden onto the developer group.

The Appeal : Two Key Questions

1) Is it “just and equitable” to make RCOs where the Building Safety Fund is already paying?

SVDP/Get Living argued: (i) RCOs are for “getting the works done,” not reimbursing the public purse; (ii) the BSF is working; (iii) claims against the main contractor (Galliford Try) should be pursued first; (iv) Triathlon’s motives and the identity of the applicant matter; (v) the funding agreement supposedly restrained claims against Get Living (as “leaseholder” under an extended definition); and (vi) the public history of the project (ODA origins) should blunt the equities.

The Court’s response: the FTT applied the right test and reached a permissible, principled result.

Developers sit at the top of the cost hierarchy. The Court endorsed the FTT’s view that BSA policy places primary responsibility on the original developer and associates. The combination of Schedule 8 (blocking service-charge recovery) and the Regulations (passing costs upward) reveals Parliament’s intent: where the developer/associate retains an interest, they—not leaseholders or the taxpayer—should bear the costs. That the BSF has stepped in does not displace this statutory scheme.

“Public funding is last resort” is a fair organising principle. The Court approved the FTT’s reasoning that it is difficult to see why the public should forward-fund remediation when a well-resourced developer group exists and is within s.124(3). The Fund’s standard grant terms themselves expect EVML to pursue recoveries and reimburse the grant. Using RCOs to replenish public funds now fits the legislative purpose; waiting years for TCC litigation does not.

No need to await third-party claims. Section 124 creates a non-fault-based, stand-alone route to prompt funding. Parliament designed it so applicants do not have to embroil themselves in complex, multi-party liability litigation before money flows. The FTT therefore did not err in prioritising immediate funding from SVDP/Get Living over waiting for the outcome of the Galliford Try claim.

Triathlon’s motive/identity didn’t undermine the merits. Triathlon had standing as an “interested person.” Its wish to avoid paying service charges is not an improper motive; nor does it change whether it’s just and equitable to require the developer group to fund what Schedule 8 prevents from being charged to Triathlon. EVML’s initial board deadlock also rationalised Triathlon taking the initiative to ensure financial certainty.

Grant Funding Agreement did not block an RCO against Get Living. A clause preventing recovery “from any Leaseholder” (including controllers of a leaseholder) sensibly applies to leaseholders in their capacity as leaseholders, not to a party being pursued as developer’s associate. Reading it the wider way would create absurd work-arounds (e.g., a developer buying a flat to immunise itself). The Court agreed the FTT could treat this as no bar.

ODA origins and subsequent ownership changes weren’t decisive. Investors deliberately acquired SVDP itself (with latent liabilities), not just the land. Subsequent owners—including Get Living—took the structure as they found it, including the risk that Parliament would later create strong, non-fault-based mechanisms (RCOs) that reach associates. That history doesn’t make it unjust to order payment now.

Summary on Ground 1: the Court of Appeal found no error in the FTT’s conclusion that it was just and equitable to make the RCOs - even though BSF money was already funding the works. Reimbursing the public purse swiftly and shifting ongoing funding to the developer group aligns with the BSA’s structure and aims.

2) Can an RCO cover costs incurred before 28 June 2022?

The appellants argued RCOs should not be retrospective. The FTT had allowed Triathlon to recover certain pre-commencement costs (e.g., investigations, waking watch, interim alarms). The question: does s.124 reach back?

The Court’s answer: Yes - section 124 can apply to pre-28 June 2022 costs. The Court stressed:

Text and purpose pull toward retrospectivity. Section 124 authorises orders “for the purpose of meeting costs incurred or to be incurred.” Read with Part 5’s purpose—protect leaseholders from the financial impact of historical defects and hold those responsible to account—retrospective reach makes sense. Otherwise, leaseholders who already paid would have no statutory route, while neighbours who hadn’t paid would be fully protected by Schedule 8. Parliament can’t have intended such arbitrary results.

Coherence across Part 5 matters. The Supreme Court in URS v BDW described retrospectivity as “central” to Part 5’s reforms (e.g., 30-year limitation extensions, new product claims, and building liability orders). The Court of Appeal drew on that analysis to reinforce that RCOs form part of the same backward-looking toolkit. Importantly, s.124 includes a “just and equitable” safeguard, making any retrospective effect fairer than blunt, automatic rules.

Summary on Ground 2: RCOs can include some historic remediation-related costs where it is just and equitable to do so.

Why the Decision Matters

A firmer funding route for managers and social landlords

Estate managers (like EVML) and social landlords (like Triathlon) often face immediate invoices and programme-critical cashflow gaps once Schedule 8 has knocked out service-charge recovery. This judgment confirms they can use RCOs now to shift the “Triathlon share” (and similar shares) to developers/associates, instead of waiting for contractor litigation to finish or relying indefinitely on the BSF.

Developers and associates: “deep pockets” are in scope even without fault

RCOs are non-fault-based: the tribunal does not need to find negligence or breach to order payment. If you are a developer or an associate (widely defined, and including landlord associates and corporate group parents), expect robust scrutiny of your resources, structure, and ongoing connection with the building. The Court explicitly endorsed Parliament’s intent to prevent wealthy parents from “hiding behind” thinly capitalised development SPVs.

The public purse principle is real

Where BSF money is flowing, applicants can still seek RCOs to repay those funds “as quickly as possible.” Expect tribunals to ask: why should taxpayers be the interim funder when a capable developer group exists and is caught by the BSA? That question now has a clear, Court-approved answer.

Historic spend can be in scope

Reasonable pre-commencement costs—investigation, waking watch, interim alarms—can be wrapped into an RCO if it’s just and equitable. That gives landlords and managers a pathway to recover earlier outlay tied to relevant defects, reducing the inequity between buildings that started early versus those that waited.

How the Court handled specific defence themes

“We didn’t do the build; we just bought later.” The choice to acquire the developer entity came with latent liabilities. Later corporate reshuffles don’t dilute BSA exposure—particularly where the group still owns or controls interests in the building.

“But the grant says don’t pursue leaseholders.” Correct - but that reads sensibly as a bar to service-charge-style recovery from leaseholders in that capacity, not a bar to RCOs against a developer group as associates. The Court preferred this commercially coherent reading.

“RCOs should wait until we sue the contractor.” Parliament built RCOs precisely to avoid making safety funding hostage to lengthy fault litigation. Tribunals won’t force applicants to chase every potentially liable entity first.

Download Judgement

Practical steps for stakeholders

Map the cascade early. Identify developer status, superior landlords, and associates within s.124(3). Document the chain of title and associations for the five years preceding 14 February 2022. This frames who can be named in an RCO.

Evidence the “just and equitable” case. Prepare funding timelines, cashflow impacts from Schedule 8, details of BSF grants/conditions, and the public-interest angle in swift reimbursement. The Court has signposted what matters.

Wrap in sensible historic costs. Don’t leave pre-June 2022 investigations, waking watch, and interim systems unresolved. Explain their necessity and link to relevant defects.

Run parallel tracks where needed. RCOs now; liability claims (contractor/product) in the background. The grant’s “reasonable endeavours” clause expects pursuit and pay-over of recoveries; an RCO complements, it doesn’t preclude, those claims.

FAQs - Cladding Remediation Case Law Triathlon Homes

Does the presence of Building Safety Fund money defeat an RCO?
No. Tribunals can still order developers/associates to pay, including to replenish BSF funding already disbursed, because the public purse is a “last resort,” not the primary funder where a developer group exists.

Do applicants have to sue contractors first?
No. Section 124 is designed to get funding without waiting on fault litigation. Tribunals will weigh timing, fairness, and the public interest in prompt reimbursement.

Can we claim pre-28 June 2022 costs?
Yes, where just and equitable. The Court confirmed s.124 can reach back to historic outlay tied to relevant defects.

Do motives matter (e.g., a landlord avoiding service charges)?
Not usually. What matters is whether an order is just and equitable given the statutory scheme.

Case Law Resources :

Cladding Remediation Case Law Almacantar v De Valk

Cladding Remediation Case Law Adriatic Land

Design Defect Liability Case BDW v URS

Key Takeaways - Cladding Remediation Case Law Triathlon Homes

RCOs can run alongside BSF grants. Tribunals can order developers/associates to fund works even when the public purse is paying - so money can be repaid to the Fund quickly.

Developers and associates are first in line. The BSA’s “cascade” places primary responsibility on the original developer and associated landlord entities where they retain interests.

No need to wait for contractor/product claims. Section 124 is a non-fault-based, fast-funding tool; complex liability litigation can follow later.

Pre-commencement costs are in scope. The Court confirmed s.124 can cover certain costs incurred before 28 June 2022 where just and equitable.

Grant wording won’t shield associates. “No recovery from leaseholders” clauses don’t stop RCOs against a developer group as associates of landlords.

Corporate history won’t rescue you. Buying the developer entity (rather than only land) leaves you exposed to Part 5’s retrospective mechanisms.

Conclusion: Cladding Remediation Case Law Triathlon Homes

The cladding remediation case Law judgement in Triathlon Homes clarifies that the Building Safety Act’s funding logic runs through the developer and its associates - not the public purse and not the leaseholders.

If a developer group still sits in the ownership make up and has the means, tribunals can and should use RCOs to make them pay now, including for certain historic costs. That approach aligns with Part 5’s retrospective toolkit and the Supreme Court’s emphasis on holding responsible parties to account for historical defects. For anyone planning, funding, or delivering façade programmes, this judgment is a blueprint for structuring applications and defending them.

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