By two eagerly anticipated judgments handed down by the Court of Appeal on 8 July 2025, Triathlon Homes v Stratford Village Development Partnership [2025] EWCA Civ 846 (“Triathlon Homes”) and Adriatic Land 5 Ltd v Leaseholders of Hippersley Point [2025] EWCA Civ 847 (“Hippersley Point”), the Court of Appeal has ruled that certain leaseholder protection provisions contained in the Building Safety Act 2022 (“BSA”) have retrospective effect.
Both appeals were heard in the week of 17 March 2025 by the same panel of Court of Appeal Lord Justices (Newey, Nugee, and Holgate LJJ). Both cases concerned the retrospective application of aspects of the BSA, including Schedule 8 containing the leaseholder protection provisions, and what costs can be within the scope of §124, regarding applications for a Remediation Contribution Order (“RCO”).
As there is no express statement about retrospectivity in the provisions of the BSA most relevant to both cases, the question of retrospectivity turns on what the statute means, having regard to the principles of statutory construction. A recent example of how the implicit meaning of property statutes is judicially construed is the Supreme Court’s decision in A1 Properties v Tudor Studios [2024] UKSC 27, in which Bishop & Sewell acted on behalf of the Intervener.
Bishop & Sewell’s Building Safety Group has been following both these cases in the Court of Appeal with great interest, not least because the issue of retrospectivity is fundamental to the ability of the BSA to address historic defects during the 30-year period leading up to the commencement of the BSA.
Triathlon Homes
This case concerned fire safety defects at the East Village Estate, formerly part of the Athletes’ Village at the London 2012 Olympic Games. Triathlon Homes, a social housing provider with long leasehold interests in properties on the estate, pursued an RCO against the estate’s freeholder, Stratford Village Development Partnership (“SVDP”), seeking over £16 million in remediation costs.
At first instance, the First-tier Tribunal (“FTT”) made an RCO against SVDP and its parent company, Get Living plc. The FTT found it was just and equitable to do so, and that the scope of an RCO could extend to costs that had been incurred prior to when the relevant provisions of the BSA had come into force on 28 June 2022.
The Court of Appeal unanimously dismissed the appeal by SVDP and Get Living, confirming that the FTT has discretion when considering whether to make an RCO, and that factors such as the developer’s financial capacity are relevant to that assessment. The judgment further underscores the broad scope of the BSA, making clear that associated entities, including parent companies, can be held liable even if they were not directly involved in the original construction.
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” with the overall goal to ensure that those with the broadest shoulders should pay.
Hippersley Point
Hippersley Point is a higher-risk building based in South East London, comprising of 10 storeys with a commercial premises on the ground floor and containing 32 residential flats held on long leases above. The Court of Appeal considered in this case whether Paragraph 9 of Schedule 8 to the BSA (“Paragraph 9”), which limits landlords from recovering legal or professional costs through service charges where those costs relate to certain works concerning fire safety and/or structural defects, applies to costs before the relevant provisions came into force on 28 June 2022.
The landlord had incurred legal costs in respect of an application under §20ZA of the Landlord and Tenant Act 1985, seeking dispensation from consultation requirements to enable them to not consult on major fire safety works needed to Hippersley Point. The Court of Appeal unanimously held that these costs fell within the scope of Paragraph 9 and further held that, even if these provisions in the BSA did have retrospective effect, this would not interfere with the landlord’s rights under Article 1 of Protocol 1 of the European Convention on Human Rights.
On the issue of whether the legal and professional costs incurred before 28 June 2022 fall within the scope of Paragraph 9, the Court of Appeal found by a majority of 2:1 that this provision blocks 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. Hence, the effect of Paragraph 9 is retrospective insofar as 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. Importantly, the Court of Appeal noted that an RCO could still be pursued in respect of costs already paid.
Conclusion
The Court of Appeal has reinforced the broad protections of leaseholders under the BSA to shift reliance away from recovering costs from leaseholders who have had no involvement in the construction of a building. 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 such parties have the financial means to cover the costs. These decisions also clarify why a retrospective reach of certain provisions in the BSA is vital in fulfilling a core objective of the BSA: relieving leaseholders from service charge liabilities arising from historic building safety defects.
Matthew Davies works in our Litigation & Dispute Resolution Team and is a member of our Building Safety Group.
If you have a query concerning how you may be affected by the Building Safety Act 2022, then please contact our expert Building Safety Group by email to: [email protected].
If you wish to resolve a dispute concerning fire safety or structural defects then please contact our Litigation & Dispute Resolution Team by contacting [email protected] or call 020 7631 4141 and ask to speak to a member of the team.
The above is accurate as at 25 July 2025. The information above may be subject to change. The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
