The Upper Tribunal has delivered an important decision for those operating under the Building Safety Act 2022, dismissing the appeals brought by Edgewater (Stevenage) Limited and its associated companies and upholding the First‑tier Tribunal’s £13.26 million Remediation Contribution Order relating to Vista Tower. The judgment provides valuable clarity on the FTT’s ability to impose joint and several liability, the scope of the “just and equitable” test, and what constitutes a “building safety risk,” offering key guidance for developers, associated corporate groups, and building owners navigating the post‑Grenfell remediation regime.
On 28 January 2026, Mr Justice Johnson, sitting in the Upper Tier Tribunal ("the "UTT") dismissed the combined appeals of Edgewater (Stevenage) Limited and 74 associated companies against the First‑tier Tribunal’s (“FTT”) decision to make a Remediation Contribution Order ("RCO") against them on a joint and several basis under section 124 of the Building Safety Act 2022 ("BSA 2022").
This decision provides important guidance on:
- The FTT's power to make joint and several RCOs
- The approach to the “just and equitable” test
- The meaning of "building safety risks"
Background
Grey GR Limited Partnership owns Vista Tower, a high‑rise residential building over 18m in height in Stevenage. Grey purchased Vista Tower from Edgewater (Stevenage) Limited (the “developer”) in 2018.
Following the identification of fire safety defects at the Building, Grey sought an RCO against the developer and 95 other entities associated with it under s.121 of the BSA 2022 on the basis that:
- Relevant defects were present at Vista Tower, including in the external wall which, for the purposes of the claim, was comprised of two wall types (Wall Type 1 and Wall Type 2)
- The developer was responsible for introducing those defects
- The developer had limited assets, but was part of a group of “associated” companies operating under the “Edgewater Group” brand
- It was therefore just and equitable for all respondents to be made jointly and severally liable
On 24 January 2025, the FTT made an RCO against the developer and 75 respondents1 for over £13.26 million on a joint and several basis, with a balancing provision for later adjustment. It considered such an order would be just and equitable on the following basis:
- Developers are primary targets in relation to the waterfall of liability under the BSA 2022 and RCOs are non-fault remedies, however the developer in this case had little to no remaining assets left.
- The associated companies were part of the same wider group structure as the developer, in addition to common directorship, they operated as a disorganised and blurred network with a complex and interconnected web of relationships and interdependencies.
- No counter-veiling reasons were provided by the respondents at the time as to why an RCO would not be just and equitable.
A Schedule was included with the first instance decision which gave reasons as to why an RCO would be just and equitable for each of the respondents made subject to the order.
DACB's full summary of that decision and the key points can be found here.
Appeal
The developer and 74 appellants appealed on four grounds:
Ground 1 – the FTT lacked jurisdiction to make a single joint and several RCO against multiple respondents. In any event, it was not just and equitable to make such an order, rather it should have allocated each respondent a fixed and separate share of the total sum due.
Ground 2 – the FTT erred in its approach to the “just and equitable” test insofar as:
- It wrongly failed to appreciate and decide that participation in a particular development or receipt (directly or indirectly) of remuneration from that development is a "touchstone"
- It wrongly placed an evidential burden on the respondents to show why an RCO would not be just and equitable
- It wrongly drew adverse inferences from the appellants' failure to discharge that evidential burden
Ground 3 – the FTT wrongly concluded a “building safety risk” was any risk above a low risk.
Ground 4 – The FTT wrongly included the costs of wall type 1 in the scope of the RCO on the basis that: (i) the technical experts had agreed that the remedial works were disproportionate and (ii) the evidence did not support the FTT's conclusion that Grey had acted reasonably.
All four grounds of appeal were dismissed for the reasons set out below.
Joint and several RCOs
The FTT does have jurisdiction to make a joint and several RCO. However, this is not a starting point but dependent on case-specific facts2.
The absence of explicit wording does not preclude joint and several liability, and the jurisdiction under section 124 is deliberately broader and more flexible than section 1303. Furthermore, reading section 124 as permitting joint and several liability does not change its character and fits "with the grain" of the BSA 2022.4
There is no requirement on the FTT to apportion each respondent a fixed share as this would:
- Severely "hamstring" the FTT's jurisdiction
- Create enforcement problems for the successful party
- Frustrate the statutory purpose of section 1245
Just and equitable
Considering an RCO application involves two exercises:
- First, the gateway conditions must be met:
- The application is made in relation to a relevant building
- The respondents are persons falling within one of sub-sections (3)(a) to (c)
- As the case may be, the respondents are associated within terms of sub-section (3)(d)
- The costs sought were, or will be, incurred for the purposes of remedying relevant defects to a relevant building
- The FTT must then consider if it is just and equitable to impose an RCO.6
Parties applying for an RCO bear an "initial burden" to establish the gateway criteria and put forward a case on why an RCO is just and equitable, but this is only an initial burden. An RCO cannot be made solely because the gateway conditions are met, there must be "something more" for the FTT to be satisfied it is "just and equitable". However, the FTT has broad discretion in that regard. 7
The UTT declined to give any guidance on the question of "just and equitable" and made clear "…It is for the FTT to decide what is just and equitable, on the facts of the particular case before the FTT…" (emphasis added).8
That said, there is no need for a "clear or rational nexus", nor is there any requirement of participation or remuneration from the development itself. 9
A respondent must then put forward why it would not be just and equitable in their specific circumstances. If they fail to do so, or provide problematic evidence (as was the case here), the FTT may take this into account and draw adverse inferences. 10
In this case, the FTT did not conflate the investigation of "association" with the "just and equitable" test. The FTT considered "specific linking factors" in addition to association, such as financial links, intercompany dealings, and family relationships, when deciding that almost all respondents were part of a wider group structure. [11]
Building safety risk
A building safety "risk" refers to any risk. It does not refer to a particular threshold or grade. 12
Albeit, the risk will only be a building safety risk if it satisfies the various conditions of section 120(5) and, for section 124, the risk must have been caused by a relevant defect and that defect must exist in relation to a relevant building.
Extent of remedial works
The UTT noted from the FTT Judgment that there was an "agreement between the experts that the scope of the remedial works may have been affected by other considerations".13 The UTT concluded that the FTT was right to adopt this approach and to take into account other factors, such as the pressure from the Secretary of State by way of the remediation order proceedings or the lack of information on the amount or configuration of the wall types.14
In addition, Grey was entitled to, and indeed did, rely on the advice it received from its professional consultants15.
Therefore, the FTT had not erred in concluding it was reasonable for Grey to proceed with the works, and that Grey was entitled to the full costs of the remedial works (subject to some minor adjustments from the quantum experts at first instance). 16
Key takeaways from UTT's decision
The decision acknowledges the broad discretion the FTT has when considering applications under section 124 of the BSA 2022. The UTT declined to place any restrictions on its scope that were not explicitly stated in the legislation e.g. connections to, or participation in, the relevant development, and particularly considered the impact such limitations would have on successful parties in terms of their ability to recover.
The UTT also agreed with the FTT's findings in relation to the "wider group structure" of the Respondents, although it did note in its post-script comments that, "…where the applicant’s case is that it is just and equitable to make a remediation contribution order on a joint and several basis against such respondents, it is important that the respondents explain clearly to the FTT the nature and extent of their relationship…".17
Applicants for an RCO will need to ensure the "initial burden" of particularising their case is properly satisfied, and note that an order and its terms will be made on the facts of the case. Equally, respondents will need to ensure they put a robust response forward that is not reliant solely on the applicant discharging its burden of proof.
DAC Beachcroft LLP acted for Grey GR Limited Partnership, the respondent to the appeal.
[1] NB: one of the Respondents, R96, was dissolved prior to the Appeal
[2] Paragraph 316
[3] Paragraphs 128 and 131
[4] Paragraph 164
[5] Paragraphs 134 and 137
[6] Paragraphs 176 to 179
[7] Paragraph 179, 181-182
[8] Paragraph 219, 315
[9] Paragraphs 216 and 221
[10] Paragraphs 182, 314
[11] Paragraphs 201, 206 and 209
[12] Paragraph 253(1)
[13] Paragraph 301
[14] Paragraphs 295-299
[15] Paragraph 310
[16] Paragraphs 291 and 293
[17] Paragraph 314
