City of Lincoln Council v Plantview on Remediation Contribution Order costs: What’s recoverable?

About City of Lincoln Council v Plantview

The First-tier Tribunal (Property Chamber) (FTT) has issued a preliminary issue decision in relation to an application for a remediation contribution order (RCO) in City of Lincoln Council v Plantview Ltd. The case, which is one of the first involving an RCO application against a freeholder by a local authority, provides early guidance on the scope of recoverable costs under section 124 of the Building Safety Act 2022 (BSA).

In this article, we explain the key aspects of, and headline takeaways from, the case.

What are the issues in City of Lincoln Council v Plantview Ltd?

The case concerns an application by the local authority for a RCO following a prohibition notice which led to residents leaving the building and being rehoused.

At this stage, the FTT hasn’t determined liability, or whether an RCO will be made; instead, it has addressed two preliminary questions: (1) what types of costs are, in principle, recoverable; and (2) is recovery barred because the authority incurred those costs under statutory duties?

Taking these in turn:

Do the claimed costs fall within s.124 (2A) (c) BSA?

The claimed “temporary accommodation costs” comprised:

• costs associated with temporarily rehousing residents;
• staff overtime; and
• legal costs in connection with agreements securing accommodation.

The FTT treated the statutory definition of “temporary accommodation costs incurred or to be incurred in connection with a decant” (s.124 (2A) (c) of the BSA) as limiting, drawing a clear distinction between:

• recoverable costs: the direct cost of providing temporary accommodation and costs analogous to residents’ relocation expenses (such as moving, storage or travel); and
• non-recoverable costs: wider expenditure incurred by the authority, including staff overtime and legal costs.

The FTT’s approach is twofold: it is prepared to interpret the gateway requirements broadly so that claims can proceed, but applies a much tighter, statutory approach when determining what costs are actually recoverable.

Consistent with that approach, the FTT took a relatively broad view of the gateway requirements. It held that a prohibition notice preventing residential occupation could in substance to amount to a “decant”, even though some residents remained and the notice was not enforced directly against individuals. It also accepted that the prohibition notice was prima facie evidence of an “imminent risk” for the purposes of the statutory test for decant costs under s.124 (2A) (c).

Importantly, however, the FTT made clear that was only enough to allow the claim to proceed. Whether there was in fact an imminent risk remains a live issue for determination at the final hearing.

The FTT also rejected attempts to bring staff and legal costs within the “relevant steps” provisions, emphasising that those provisions relate to measures addressing the defect risk itself, not the consequences of it.

Is recovery barred due to costs being incurred under other statutory powers?

On the second issue, the FTT rejected the freeholder’s argument that recovery should be barred because the Council was acting under other statutory regimes.

The freeholder’s case was that Parliament had already established specific schemes under the Civil Contingencies Act 2004 and the Housing Act 1996 governing when, and from whom, a local authority can recover such costs – and that landlords/freeholders do not fall within those regimes. On that basis, it argued that section 124 shouldn’t be interpreted so as to circumvent or expand those existing statutory limits.

The FTT disagreed. It held that section 124 operates as a distinct and additional mechanism for allocating the costs of building safety defects, intended to shift the financial burden away from the public purse and onto those connected with the building.

Key Takeaway

Local authorities are likely to be able to clear the threshold for bringing RCO claims where emergency measures are taken. However, recovery will be closely scrutinised, with only a narrow category of costs falling within s.124. Parties facing RCO claims should therefore focus on challenging the categorisation of costs, not just liability.

How we can support you with navigating the Building Safety Act 2022

At Walker Morris, our experience in BSA-related claims is unrivalled. Our specialist Building Safety team, comprising experts in construction, real estate litigation, and restructuring, has been at the forefront of many of the most significant cases that have been decided under the BSA provisions. Together as a team, we have:

• Acted in the first RCO applications issued by the Secretary of State, seeking recovery of over £48m of public money from developers / freeholders and their associates that had been used to fund remediation works;
• Represented clients in the first RO application involving purpose-built student accommodation;
• Successfully obtained the first RO for a local authority, and continue to advise Tower Hamlets and other councils on ongoing proceedings;
• Acted for a freeholder in defending an RCO from leaseholders and applying for an RCO against the developer and its associates;
• Advising developers on their potential liabilities in relation to RCOs;
• Acting for and advising leaseholders in connection with possible ROs and RCOs;
• Delivered expert training on the role of Accountable Persons under Part 4 of the Act in collaboration with LexisNexis.

As the legal landscape continues to evolve, our specialist team remains committed to helping clients navigate the complexities of the BSA with clarity, confidence, and strategic insight.

Our experts are here to help. Please contact Asia Munir, Sue Harris, Lewis Couth or Paul Hargreaves, if you would like to discuss how the BSA may affect your organisation, or if you need strategic advice on remediation obligations, cost recovery, or navigating ongoing proceedings.

You can also view our earlier briefings and knowhow on remediation contribution orders under the BSA here.