Key takeaways
Developers remain firmly in the frame
Developers and, where appropriate, their associated entities remain primary targets.
‘Just and equitable’ remains fact sensitive
A broad discretion, but yet to offer respondents much protection once the statutory conditions are satisfied.
Wallace -v- Durkan: one to watch
The case may develop the test and could clarify how applicant conduct affects recovery.
The Building Safety Act 2022 (BSA) introduced powerful remedies which can extend liability for building safety defects beyond conventional contractual and corporate boundaries. However, both remediation contribution orders (RCOs) and building liability orders (BLOs) are subject to an important qualification: an order must be ‘just and equitable’.
The developing authorities, particularly Triathlon Homes LLP -v- Stratford Village Development Partnership [2025] EWCA Civ 846 and Edgewater (Stevenage) Ltd -v- Grey GR Ltd Partnership [2026] UKUT 18 (LC), establish that this is a broad, fact-sensitive discretion informed by the policy of the BSA. Triathlon emphasises the legislative intention that developers and appropriate associated entities should bear remediation costs, while Edgewater confirms that satisfying the statutory gateways does not automatically determine whether, or to what extent, an RCO should be made.
The High Court's decision in Crest Nicholson Regeneration Ltd -v- Ardmore Construction Ltd [2026] EWHC 789 (TCC) (going to Appeal) points in the same direction, treating the ‘just and equitable’ requirement as a broad statutory discretion to be exercised consistently with the remedial aims of the BSA rather than as a narrow or exceptional jurisdiction.
The developing litigation in Wallace Estates Ltd -v- Durkan Estates Ltd may test that discretion in a new context.
The £13.6 million question
Much of the commentary on Wallace -v- Durkan has focused on its procedural significance as the first coordinated TCC/First Tier Tribunal (FTT) proceedings. That coordination, however, creates the opportunity to address a more difficult question:
‘What happens where the respondent to an RCO was already contractually committed to carrying out the necessary remediation at its own expense, but the applicant terminated that arrangement and employed others to complete the works at a substantially greater cost?’
Should the RCO cover the entire increased cost? Or does ‘just and equitable’ allow the Tribunal to distinguish between the remediation cost the respondent would have borne and additional costs attributable to the applicant's conduct?
Authorities to date
At first glance, the Tribunal's recent decision in Secretary of State for Housing, Communities and Local Government -v- EDR Builders Ltd and Hollybrook (UK) Ltd (Hallings Wharf Studios) might suggest a straightforward answer. There, the Tribunal rejected arguments that the remediation costs should be reduced because a cheaper alternative scheme could allegedly have been adopted, focusing instead on whether the works undertaken fell within the range of reasonable responses to the relevant defects.
However, Wallace -v- Durkan arguably raises a different issue altogether. The point is not simply that another remediation scheme might have been available at a lower cost. Rather, Durkan's case is understood to be that it had already accepted responsibility for carrying out the remediation works and that the additional expenditure arose only because Wallace brought that arrangement to an end and engaged others to undertake the works instead.
That distinction exposes a potential tension within the developing RCO jurisprudence.
On one view, Triathlon points towards a strongly purposive approach. The Court of Appeal emphasised that the statutory objective of the BSA is to ensure that those responsible for defects bear the financial consequences of remedying them, without requiring applicants first to pursue every available contractual remedy.
On another view, Edgewater confirms that the ‘just and equitable’ assessment remains a separate and fact-sensitive exercise. Satisfying the statutory gateway does not automatically determine either whether an order should be made or the extent of any order made against a particular respondent.
The question in Wallace -v- Durkan may therefore be whether the Tribunal's broad discretion extends to taking account of costs which are said to have been caused, not by the defects themselves, but by the applicant's own contractual conduct.
RCOs and BLOs – deliberately far-reaching remedies
Section 124 of the BSA permits the FTT, if it considers it just and equitable to do so, to make an RCO requiring a specified body corporate or partnership to make payments towards costs incurred, or to be incurred, in remedying or otherwise connected with relevant defects in a relevant building. The statutory regime is deliberately capable of reaching not merely the immediate entity responsible but associated companies falling within the BSA's association provisions.
BLOs perform a related but distinct function. Under section 130, the High Court may, where it considers it just and equitable, make certain liabilities of one body corporate also liabilities of an associated company, including on a joint and several basis.
The distinction is important: an RCO creates a statutory payment obligation, whereas a BLO extends an existing relevant liability to an associated entity. Both, however, depend upon the controlling requirement that the result be ‘just and equitable’.
Where does Durkan fit?
Centrillion Point in Croydon is subject to a remediation order against its freeholder, Wallace Estates Ltd (‘Wallace’). In July 2024, Wallace entered into a remediation agreement with the original developer, Durkan Estates Ltd (‘Durkan’), under which Durkan agreed to remedy the relevant defects at its own cost.
After the FTT refused Wallace's application to extend the deadline for compliance with the remediation order, Wallace purported to terminate the agreement and took over the works. Durkan alleges that the termination was unlawful and has brought TCC proceedings seeking declarations and damages. Wallace has separately applied for an RCO against Durkan and its parent company for approximately £13.59 million including VAT.
The merits remain to be determined. Wallace Estates Ltd -v- Durkan Estates Ltd & Anor [2026] EWHC 2133 (TCC) instead established a coordinated procedure under which the TCC and FTT proceedings will progress together.
That matters because Durkan's contractual case and the RCO exercise may be difficult to separate. If Durkan establishes that Wallace wrongfully terminated an arrangement under which Durkan could have completed the remediation at materially lower cost, what sum is it ‘just and equitable’ for Durkan to contribute?
Two possible routes through
The joint TCC/FTT panel may potentially take one of two approaches:
1. Limit the RCO to Durkan's counterfactual remediation cost
The first would treat ‘just and equitable’ as controlling not simply whether an RCO should be made, but its amount.
An RCO could therefore be made against Durkan but limited to the reasonable cost Durkan would have incurred had it been permitted to complete the works under the remediation agreement.
That would recognise Durkan's position as the original developer, while avoiding the transfer to Durkan of additional costs which may ultimately be found to result from Wallace's wrongful termination.
2. Make the full RCO and address wrongful termination through damages
Alternatively, the FTT could make an RCO reflecting Wallace's remediation expenditure, leaving Durkan's separate contractual rights to be resolved through its TCC damages claim. On that analysis, Wallace could recover the remediation expenditure through the statutory regime, while Durkan could separately recover any loss caused by wrongful termination.
That approach arguably reflects Triathlon's emphasis on the independence of the BSA regime from conventional contractual remedies. However, it raises obvious questions around double recovery and the proper accounting of the two awards.
The coordinated proceedings are particularly useful in that scenario: common factual and expert findings should enable the TCC and FTT to address both sides of the equation consistently.
The next development of ‘just and equitable’
The authorities to date strongly support developers and appropriate associated entities bearing the financial consequences of historic building safety defects. But they do not render the words ‘just and equitable’ redundant.
Triathlon provides the overarching statutory purpose. Edgewater confirms that satisfying the gateway conditions and establishing association are distinct from the discretionary question of whether an order against a particular respondent is just and equitable.
Wallace -v- Durkan may now take that analysis one step further by considering how the applicant's own conduct affects the amount it is just and equitable to recover.
If Durkan establishes that Wallace wrongfully terminated an arrangement under which the same remediation would have been delivered at lower cost, the Tribunal may have to decide whether to limit the RCO to that counterfactual cost or make an order for the wider expenditure and leave the consequences of wrongful termination to the parallel damages claim.
Either route could provide important clarification. The next stage in RCO jurisprudence may therefore be less about who should pay, and more about how much it is just and equitable to require them to pay.
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