The Building Safety Act 2022 (the BSA) introduced new powers and created legal protections designed to ensure that those responsible to fix buildings undertake the necessary remediation works and to ensure that those who are liable to pay, actually do so. Those new powers include remediation orders, remediation contribution orders and building liability orders.

Our team of BSA related specialists from the Real Estate and Housing Litigation and Construction and Engineering teams examine a recent First tier Tribunal decision that sheds new light on how these powers, particularly Remediation Orders and Remediation Contribution Orders, are being interpreted and applied in practice.

First-tier Tribunal Property Chamber (Residential Property) London: Empire Square

A recent First- tier Tribunal (FTT) decision concerning Empire Square[1] in South London marks a pivotal development in the interpretation and application of Remediation Orders (RO/ROs) and Remediation Contribution Orders (RCO/RCOs) under the BSA.

This is the first reported case where:

• The FTT has considered an RO against a background where the developer had signed the Deed of Bilateral Contract incorporating the Self-Remediation Terms (SRTs);
• An RCO has been made in relation to litigation costs;
• The FTT has suspended the RO and RCO to promote timely remediation.

While a decision at first instance (and likely to be appealed), it provides much-needed clarity for building owners, developers and leaseholders navigating the post-BSA landscape.

Background

The case relates to Empire Square, a 500-unit residential scheme developed by Berkeley Group Holdings plc (Berkeley) and owned by Fairhold Athena Ltd (Fairhold). Cladding and façade defects were first identified over a decade ago. In 2023, Southwark Council issued an improvement notice against Fairhold, which was neither appealed nor complied with.

In 2022, Berkeley signed the Developer Pledge, committing to remediate life-critical fire-safety defects. However, by the time of the hearing in April 2025, remedial works had not begun – prompting leaseholders to seek an RO against Fairhold. In response, Fairhold sought a RCO against Berkeley.

Key Takeaways from the Tribunal’s Decision

1. The Tribunal’s Approach to ROs – A Purposive Test

The FTT adopted a purposive approach to ROs, focusing on the goal of securing building safety, rather than establishing fault. Referring back to the Vista Tower case[2] (in which Walker Morris acted successfully), the FTT noted:

“The focus is not redress for non-compliance, but remediation of life-threatening safety defects… The practical needs of leaseholders to live in a safe building must be given priority.”

This represents a shift from earlier case law which had emphasised a “fair and just” test. Pursuant to this decision, where the statutory preconditions are met and remediation is best achieved via an RO, the FTT is likely to grant the order.

2. Developer Pledge Does Not Preclude an RO

The FTT rejected Fairhold’s argument that the fact that Berkeley had signed the Developer Pledge (and subsequently, the SRTs) made an RO unnecessary. While acknowledging delays linked to the inability to access the Building Safety Fund where a developer has signed the SRTs, the FTT held:

“The fact a developer has entered into the SRTs is at best neutral… and is no fetter to our discretion.”

3. RCOs Can Cover Future or Unquantified Costs

In a significant clarification, the FTT confirmed that RCOs can operate as indemnities for future costs – a key point for landlords seeking contribution before final costs are known. This follows recent amendments to section 124 of the BSA.

4. RCOs Can Extend Beyond the Scope of the SRTs

The FTT determined that whilst there may be differences with the SRT, this would not prevent the FTT making an order in respect of:

• Interim costs, such as waking watch services – whilst not recoverable under the SRTs the FTT found that they were recoverable under an RCO.
• The standard of repair in the SRTs (i.e. “tolerable risk”) was said by the FTT to be the ‘minimum approach’.

The FTT reiterated that what is just and equitable under the BSA prevails, regardless of any limitations within the SRTs.

5. Mitigation: Reasonable Response, Not Perfection

In line with the FTT decision in Vista Tower, the FTT confirmed that landlords will not be penalised where their actions to mitigate losses fall within a range of reasonable responses – reaffirming a pragmatic approach.

6. RCOs Can Include Litigation Costs

Breaking new ground, the FTT held that litigation costs can fall within the scope of an RCO, provided they are incurred “in connection with” remedying relevant defects. The decision is significant because:

• It allows applicants (including building owners and leaseholders) to recover legal costs through an RCO, rather than relying on the high threshold of “unreasonable conduct” under Rule 13 of the Tribunal Rules[3].
• It prevents leaseholders (including RTMs) from having to bear all of the cost of litigation intended to protect their interests.

This aspect of the ruling introduces a form of one-way cost shifting in favour of applicants under the BSA regime, albeit in making an RCO in respect of costs, the FTT will still have to consider whether it is just and equitable to do so.

It would be interesting to see how wide the FTT is willing to interpret “in connection with” remedying relevant defects. For example, could this include costs of other types of proceedings such as High Court litigation where proceedings where issued “in connection with” remedying relevant defects prior to the introduction of the BSA 2022?

7. Suspended Orders Are Within the Tribunal’s Powers

The FTT made use of suspended orders to incentivise remediation. Both the RO and the RCO were suspended to allow Berkeley one last opportunity to carry out the works – which it said it could do at lower cost than Fairhold.

However, the FTT made clear: if the developer fails to act, the orders “bite” immediately, reinforcing the principle that the FTT’s powers are ultimately geared toward delivering safe homes for leaseholders.

Implications for the Industry

This case is likely to be a reference point in future litigation involving:

• Developers who have signed the SRTs but have not yet started works;
• Building owners and leaseholders seeking indemnities for future or litigation-related costs; and the use of suspended orders as a strategic enforcement tool.

It further signals that the FTT is prepared to take a robust, purposive, and leaseholder-centric approach to the BSA framework.

The one-way cost shifting may also result in the increased use of RCOs where leaseholders and/or freeholders (or any other Interested Party) pursuing an application for an RCO had previously been less inclined to issue an application where they were unlikely to recover the costs doing so. In this case, the costs claimed by the successful party overall for solicitors and counsel was £308,574.23 (which are to be assessed at the County Court, if not agreed).

We anticipate appeals will follow – particularly on the novel application of RCOs to legal costs – but for now, this decision is a significant decision for developers where buildings, for whatever reason, are yet to be remediated or where they are being asked to pay the costs of remediation.

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 BSA 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 our team,  Sue Harris, Lewis Couth, Asia Munir 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.

[1]Robert Zampetti & Ors v Fairhold Athena Limited v Berkeley Group Holdings plc.

[2] Secretary of State for Levelling Up, Housing and Communities v Grey GR Limited Partnership

[3] The Tribunal Procedure (First-tier Tribunal) (Property) Chamber) Rules 2013