In the case of Edgewater (Stevenage) Limited and others v Grey GR Limited Partnership [2026] UKUT 18 (LC), the Upper Tribunal (Lands Chamber) (UT) dismissed an appeal brought by 75 of the original respondents against whom remediation contribution orders (RCOs) had been made under section 124 of the Building Safety Act 2022 (BSA) by the First Tier Tribunal (FTT). Please see here for a reminder of the FTT's decision.
In considering the grounds of appeal, the UT provided some helpful takeaways:
General
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The legislative purpose of the BSA is important for the interpretation of its provisions, and this had already been explored by the courts, including the Supreme Court in the case of BDW v URS and the Court of Appeal in both cases of Hippersley Point and Triathlon (all of which can be read about in our roundup of BSA caselaw from 2025).
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In considering legislative purpose, explanatory notes may assist in clarifying meaning, but they play only a secondary role in interpretation. Furthermore, explanatory notes that post-date the enactment of their relevant statutory provisions (as was the case for those relating to RCOs here) carry even less weight as indicators of Parliament's intention.
Joint and several RCOs
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In light of the above and using the Interpretation Act 1978, the UT came to the decision that s124 allows the FTT to make an RCO against a number of specified body corporates on a joint and several basis, if it considers it just and equitable to do so. The UT said that to conclude otherwise would contradict the statutory purpose of protecting leaseholders behind part 5 of the BSA.
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When determining whether it would be just and equitable to make an RCO on a joint and several basis, the FTT may consider whether respondents would be able to arrange contributions amongst themselves (for instance, where there is some degree of linkage between them). This suggests that in certain contexts, RCOs could incorporate an element of apportionment between respondents, particularly where it would be impractical or problematic for the respondents to determine the allocation of contributions amongst themselves.
Just and equitable test and 'burden of proof'
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The UT did not think it sensible to seek to set out the factors upon which the FTT may rely on in determining if it is just and equitable to make an RCO, in light of it being a matter of wide discretion for the FTT.
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To address a particular point argued by the respondents, the UT concluded there is no requirement for a recipient of an RCO to have participated in the relevant development or to have received remuneration (directly or indirectly) from the same, however these are matters that the FTT could take into account in considering the just and equitable question.
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The FTT was correct to recognise that association in and of itself is not enough to warrant an RCO, but that evidence of association can be relevant when considering whether an RCO is just and equitable.
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As part of this, the applicant for the RCO has the initial burden to put forward its case as to the gateway requirements for an RCO and why it is just and equitable for an RCO to be made, and then it is for the respondent(s) to put their case in response, with satisfactory evidence provided by both sides to support their cases. The FTT is entitled to draw inferences from unsatisfactory evidence.
Building safety risk
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The FTT was wrong in ruling that the reference to "a risk" in section 120(5) in the definition of a "building safety risk" meant a "low risk". Instead, the UT determined that no risk threshold should have been imposed, noting that where the building safety regime requires a particular threshold of risk to be established, the legislation makes this explicit, and in any event, the definition of building safety risk imposes other criteria to restrict the term "a risk". This seems to align with the FTT's interpretation in the case of Canary Riverside Estate.
Costs covered by RCOs
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In assessing the reasonableness of costs subject to RCOs, the UT's decision indicates that remedial works which might be considered disproportionate from a technical standpoint can nonetheless constitute reasonable costs, particularly where there were causative pressures to carry out remedial works swiftly due to building safety concerns. This demonstrates that multiple factors may be taken into account when determining whether a remedial scheme is reasonable.
The UT has set out helpful guidance to those involved in applications for RCOs on both a practical and legal level. Applicants will find some encouragement, whilst respondents may see this as a warning to approach any RCOs claimed against them seriously and with care.
