Fairhold Athena (landlord)/Berkeley Group Holdings (developer) and First-tier Tribunal (FTT)

A recent decision by the First-Tier Tribunal (FTT) in the Empire Square case has been widely reported as marking a pivotal development in the post-Grenfell UK building safety landscape, reshaping how Remediation Orders (ROs) and Remediation Contribution Orders (RCOs) under the Building Safety Act 2022 (BSA 2022) are applied and expanding the potential financial liabilities for developers and others responsible for unsafe buildings. Key Legal Findings and Financial Implications1. Developer Pledge and SRTs Are Not a Legal Shield
The FTT confirmed that signing the Developer Pledge and accompanying Self-Remediation Terms (SRTs) does not preclude the Tribunal from making Remediation Orders or Contribution Orders. This means developers cannot rely on these agreements to avoid enforcement under the BSA, potentially exposing them to significant future costs beyond what those voluntary terms would cover.
2. RCOs Can Include Litigation and Interim Costs
Significantly, the FTT held that Remediation Contribution Orders (RCOs) can be awarded to cover litigation costs and interim safety costs (such as waking watch services) that are incurred “in connection with” remediation. This marks a notable expansion in recoverability, meaning parties seeking to enforce safety remediation — including leaseholders or building owners — may now be able to recover legal and associated costs directly from liable developers via RCOs, instead of bearing these costs themselves.
3. Suspended Orders Provide Flexible Enforcement
The FTT also ruled that both ROs and RCOs can be suspended — effectively giving developers a final opportunity to commence remedial work of their own accord. If they fail to act, the suspended orders take effect automatically without the need for further tribunal hearings. This mechanism increases pressure on developers to begin remediation proactively to avoid automatic enforcement and subsequent financial liability. Case
Background
The decision arose in relation to Empire Square, a large residential scheme in South London developed by Berkeley Group Holdings plc and owned by Fairhold Athena Ltd. The site has faced long-standing façade and cladding defects, with leaseholders seeking legal remedies after remedial work had yet to begin years after safety notices were issued. The interplay between voluntary remediation commitments and statutory enforcement tools lay at the heart of the dispute.
Industry and Regulatory Impacts

• Remediation and liability costs: Developers may face larger financial liabilities than under voluntary terms alone because RCOs can now include costs for legal action and interim safety measures.

Shift toward stricter enforcement: The ruling underscores that the BSA’s enforcement tools are intended to ensure safety outcomes, not simply vindicate past non-compliance, increasing financial pressure on stakeholders to act early.
Strategic enforcement: Leaseholders and building owners now have a stronger basis to pursue claims for cost recovery, potentially accelerating litigation and contributing to higher historic and future financial exposures for developers and contractors.

ConclusionThe FTT’s decision in Empire Square significantly alters the building safety enforcement landscape by clarifying that voluntary remediation commitments do not shield developers from statutory orders, that RCOs may cover legal and interim costs, and that suspended orders can streamline enforcement. This places measurable financial risk on developers, as potential liabilities now extend beyond remediation works themselves to include associated costs — reinforcing that the BSA 2022 regime is designed not just to improve safety but to ensure those responsible for unsafe buildings also bear the associated costs.