Old Bills, New Rules: What do the Hippersley Point and Triathlon Appeal Decisions Mean for You?

• 18 July 2025
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Last week, the Court of Appeal (Newey, Nugee and Holgate LLJ) handed down two important decisions last week concerning the retrospective nature of aspects of the Building Safety Act 2022 (“the BSA”).

• In the case of Hippersley Point, the Court addressed the retrospective application of leaseholder service charge protections under Schedule 8 of the BSA.
• In Triathlon Homes, the Court considered whether the BSA allows for costs incurred before the BSA came into force to be the subject of a Remediation Contribution Order (“RCO”). 

The Secretary of State for Housing, Communities and Local Government (“MHCLG”) intervened in both appeals.

These cases raise important issues of principle – how far-reaching is the BSA, and what did Parliament actually intend?  The landlord in Hippersley Point also raised a human rights argument, on the basis that denying the landlord its ability to recover pre-BSA costs was akin to depriving it of enjoyment of its property rights, contrary to Article 1 of the First Protocol of the European Convention on Human Rights (“A1P1”). 

We have considered how these decisions will affect developers, landlords, managing agents and block managers and leaseholders. Here is what you need to know:

Key takeaways

Hippersley Point

• The case originated as a landlord’s application to dispense with leaseholder consultation in order to carry out building safety works.  The key question was whether qualifying leaseholders could be made to pay for the legal costs of that application, in light of paragraph 9 to Schedule 8 BSA.
• The parties agreed that the outcome would also affect the other provisions of Schedule 8. The central issue became whether qualifying leaseholders can be made to pay for remediation costs incurred before the BSA came into force (28 June 2022), i.e. whether the BSA has retrospective effect?
• The Court held that the leaseholder protection provisions in the BSA are broadly retrospective. This means that landlords cannot recover protected remediation costs via the service charge even when those costs were incurred, or even demanded and payable, prior to 28 June 2022.
• From that date, such service charges are no longer payable.

“A line is to be drawn as at 28 June 2022” 

[Adriatic Land 5 Limited v Long Leaseholders at Hippersley Point & Anor [2025 EWCA Civ 856, LJ Newey]

Impact in practice:

In our view, this means landlords and managing agents will need to work through the following decision tree:

Triathlon

• The case was an application by a social housing provider to obtain an RCO against a landlord who was not the original developer.
• The Court confirmed unanimously that the original developer is primarily responsible for remediation costs (see the Supreme Court’s decision in URS Corporation Limited v BDW Trading Limited [2025] UKSC 21)
• A key issue was whether an RCO could be made in respect of costs incurred before the BSA came into force. 
• The Court held that RCOs can apply retrospectively to cover costs incurred prior to 28 June 2022.

Impact in practice:

• This is positive news for leaseholders, as it further broadens the scope of protection available to them.
• Leaseholders who paid for remediation costs before the BSA came into force may apply for RCOs against third parties, including developers, associated companies and landlords.
• It is bad news for developers and landlords, who may now face RCO applications for costs they had thought were payable by others, including by way of public funding. 
• The statutory ‘just and equitable’ test still applies, meaning there might be exceptional circumstances where an RCO would not be made, even against a well-resourced associated entity or where public funding has been provided.

“the FTT were right to say that the Fund is to be characterised as a last resort. It does not take its place in the hierarchy of those whom the Act contemplates as potential funders of the costs which the leaseholders are relieved from meeting: it stands outside the Act (and in fact pre-dates it)”

[Triathlon Homes LLP v Stratford Village Development Partnership & Ors [2025] EWCA Civ 846 LJ Nugee]