The Upper Tribunal has dismissed an appeal brought by several respondents in the Vista Tower remediation contribution order (RCO) case, upholding a previous decision by the First-tier Tribunal (FTT). The case centers on whether parties associated with the original developer of Vista Tower should be held responsible for paying the costs of fixing fire safety defects at the building, which are estimated to exceed £20 million.
Grey, the owner of Vista Tower, applied for an RCO against both the original developer and 95 other individuals or entities deemed “associated persons” due to shared directorships between 2017 and 2022. The FTT had previously ruled in Grey’s favor, imposing joint and several liability on 75 respondents.
The appeal challenged four main points: whether RCOs can make multiple parties jointly and severally liable for a total sum; whether the FTT properly applied the “just and equitable” test; what constitutes a “building safety risk” under section 120(5) of the Building Safety Act (BSA); and whether disproportionate remedial costs should be included in such orders.
On joint and several liability, appellants argued that each respondent should have a separate order specifying their individual share. However, the Upper Tribunal disagreed. It found that section 124 BSA allows for flexibility and that joint and several liability ensures sufficient funds are available for remediation if some parties cannot pay. The tribunal president stated that issuing separate orders could leave applicants without remedy if certain respondents were insolvent or unable to pay.
Regarding application of the “just and equitable” test, many respondents contended they neither participated in nor benefited financially from Vista Tower’s development. They argued it was unfair to hold them liable solely based on technical association. The Upper Tribunal upheld the FTT’s broader interpretation, stating there is no legal requirement for proof of participation or remuneration—association through corporate structure was enough.
On defining a building safety risk, developers suggested only risks rated above “Medium:tolerable” under PAS 9980 standards should qualify. Both tribunals rejected this view. The Upper Tribunal held that any risk above “low” may constitute a building safety risk as defined by law, with no external gradation required beyond statutory language.
As to including disproportionate remedial costs in an RCO, expert witnesses agreed some works exceeded what was strictly necessary. Still, factors like high-risk assessments from professional advisers led both tribunals to conclude that Grey’s decision to pursue more comprehensive remedial work was reasonable under circumstances. As noted in judgment: “The first, and most obvious difficulty with the Appellants’ case is that Grey had advice…that it should proceed with Removal Works…it is difficult to see how the Tribunal went wrong in concluding that it was reasonable for Grey to proceed with Removal Works.”
This appellate ruling aligns with earlier decisions regarding RCO jurisdiction under UK building safety law. It provides further guidance on how courts will interpret key elements such as association between parties and definitions of building safety risks.