Upper Tribunal upholds landmark Vista Tower ruling

On 27 January 2026, the Upper Tribunal (UT) handed down its judgment on three appeals arising from the earlier decision of the First Tier Tribunal (FTT) in Grey GR Limited Partnership v Edgewater (Stevenage) Limited and others (2025) (the “Vista Tower” case). Our previous article Vista Tower – (another) order in the court! set out the detail of the Remediation Contribution Order (RCO) made against 76 respondents pursuant to s124 of the Building Safety Act (BSA) 2022.

Mr Justice Johnson, Chamber President of the UT was asked to consider four consolidated issues:

• Did the FTT have jurisdiction to make an RCO against a large number of respondents on a joint and several liability basis?
• Was it just and equitable for the FTT to make an RCO as it did?
• Had the FTT erred in its interpretation of the definition of a “building safety risk” under s120(5) of the BSA?
• Was it reasonable for the FTT to have included certain costs within the RCO?

The appeals were dismissed on all grounds and whilst understandably a disappointing result for the appellant respondents, the judgment provides further useful guidance relating to RCO’s and key provisions of the BSA.

Ground 1

Did the FTT have jurisdiction to make an RCO against a large number of respondents on a joint and several liability basis?

In the UT’s opinion, yes, the FTT had jurisdiction. The legislative purpose of the BSA, specifically the remediation provisions at Part 5, permit the FTT to make an RCO against multiple respondents pursuant to s124. The Judge disagreed with the appellants that the wording of s124 restricted the FTT to making a single RCO against a single specified body corporate or partnership at any one time and that each specified person could only be responsible for a distinct and separate liability. Instead, the Judge determined that the jurisdiction was broad and the reference at s124 to a “specified body” could include specified bodies (respondents) in the plural. The transmission of liability at s124 was more flexible and open ended than argued by the appellants and it was for the FTT to decide how liability should be attributed and to whom.

Ground 2

Was it just and equitable for the FTT to make an RCO as it did or was the FTT wrong in its approach?

The Judge rejected this second ground of appeal. The Judge was satisfied that the FTT had got it right and had carefully considered and applied the gateway conditions for making an RCO. The FTT had made no error in its approach, nor did it falter in exercising its discretion in deciding whether it was just and equitable to make the RCO as it did.

The Judge’s postscript highlighted the importance of respondents to an RCO properly explaining to the FTT the nature and extent of the relationship(s) between multiple respondents where an applicant is seeking an RCO on a joint and several liability basis. An RCO with respondents’ liability on a joint and several basis is not however the starting point. The FTT must carefully consider in respect of each respondent, what would constitute a just and equitable outcome. That may not always be joint and several liability. It may be just and equitable to order an apportioned liability or alternatively between respondents, a finding of no liability at all.

Ground 3

Whilst not a ground of appeal, permission having been refused, the Judge was asked to consider, academically, whether the FTT had erred in its interpretation of a “building safety risk” under s120(5) BSA. The appellants’ argument was that the FTT should have limited themselves to the principle that only an “intolerable” risk could constitute a “building safety risk”. This was swiftly rejected by the Judge, along with any attempt to add an artificial threshold to the level of risk. A “risk” at s120(5) BSA referred to “any risk”. The parameters of what would constitute a building safety risk were already tightly prescribed by virtue of the risk having to (1) exist in relation to the safety of people in or about a building (2) arise from the spread of fire or the collapse of the building or part of it (3) be caused by a relevant defect (4) exist in relation to a relevant building. To that end, the definition of a “building safety risk” at s120(5) required no further qualification. The Judge said that the FTT had been wrong to impose the requirement that the level of risk had to exceed the “low” category applied in PAS9980 assessments.

Ground 4

Was it reasonable for the FTT to have included certain remediation costs within the RCO.

This final ground of appeal also failed. The Judge found no reason to interfere with the findings of fact of the FTT and determined that the FTT could not, in the circumstances, be criticised.

Take aways

The latest decision from the UT reinforces the strength and breadth of the BSA’s remediation regime and provides important clarity that:

• RCOs can be made against multiple parties on a joint and several liability basis.
• That risk in respect of a “building safety risk” does not require any threshold qualification.
• The FTT retains wide discretion when determining what costs to include as part of an RCO.

How we can help

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