The Building Safety Act 2022 (BSA) – together with the extensive secondary legislation made under the BSA – has brought the overhaul of the building safety regime in England, and to some extent also in Wales, into sharp focus in the past 18 months. Only limited parts of the BSA (such as those relating to construction and cladding products) apply in Scotland. Many of the issues covered by the BSA are devolved matters which the Scottish Parliament addresses via legislative action in Scotland.
We summarise below two recent developments in relation to building safety in Scotland. Namely:
- the Housing (Cladding Remediation) (Scotland) Bill (the "Bill"); and
- proposed changes to various provisions of the Building (Scotland) Act 2003 (Act) by way of the Building Standards Enforcement and Sanctions consultation (the "Consultation").
The Bill
On 1 November 2023, the Scottish government introduced the Bill. The Bill is intended to eliminate and mitigate risks to human life presented by the external wall cladding systems, by:
- conferring powers on Scottish Ministers to identify and address external wall cladding systems on buildings that pose risk to human life by carrying out "single-building assessments";
- providing for the creation of a Cladding Assurance Register ("CAR");
- extending liability for breaches of the legislation to certain "responsible individuals", where the breach involves their "consent or connivance", or is attributable to any neglect on their part; and
- granting Scottish Ministers the power to make regulations establishing responsible developers schemes ("RDS").
The Scottish Government consulted on the Bill from 8 November to 8 December 2023, and the outcome of the consultation is still awaited. The Bill is expected to be passed by mid-2024. We summarise some of its key proposals below.
Single-building assessments
Central to the Bill is the concept of "single-building assessments". A building cannot be entered in the CAR (see further below) unless a single-building assessment has been performed in respect of it. Single-building assessments can be carried out in respect of buildings which:
- have an external wall cladding system;
- contain at least one flat that is used or intended to be used as a dwelling;
- are at least 11m in height "above the ground";
- are "flatted" as defined in section 16 of the Land Registration etc. (Scotland) Act 2012; and
- have been constructed or refurbished between 1 June 1992 and 1 June 2022.
The Bill also grants the Scottish Ministers the power to modify the last three of the above criteria by regulations. Thus, the categories of buildings that can be included may in future be expanded or restricted, in particular by height or date range. However, the requirement for buildings to be at least partly residential in order to qualify for a single building assessment will remain.
Powers to Assess and Address Danger
Part 2 of the Bill provides Scottish Ministers with the power to address danger associated with external cladding systems on buildings by arranging single-building assessments. Ministers are required to obtain the consent of the owner of the premises before carrying out assessments by providing a 7-day notice-period. Notice is also required to be given to any occupiers of the premises. Ministers may require any person to supply information reasonably required to carry out a single-building assessment or to maintain the CAR. Failure to provide such information is proposed to constitute an offence under the legislation.
If a single-building assessment identifies work required to address risk to human life because of an external wall cladding system, Ministers may arrange for such works to be carried out with the consent of the owner. Ministers are required to provide both the owner and the occupier of the premises 21-days' notice prior to commencing remedial works.
If an external cladding system presents an immediate risk to human life, Ministers may arrange urgent remediation work. Ministers may require occupants to evacuate premises where an external cladding system presents a risk to life and / or where premises are undergoing remedial works that may endanger life. Failure to evacuate where required is proposed to constitute an offence under the legislation.
Cladding Assurance Register
Part 1 of the Bill requires Scottish Ministers to maintain a register of buildings (the "Cladding Assurance Register" or "CAR"). The purpose of the CAR is to provide assurance that a building does not present risk to human life because of any external wall cladding system. Buildings are to be placed on the CAR once a single-building assessment has been carried out identifying that either: (i) no work needs to be done to mitigate risk to human life or (ii) that remedial works are required to mitigate risk to human life and that those remedial works have been completed.
Individual culpability where an organisation commits an offence
The Bill introduces provisions whereby, in circumstances where an offence under Part 1 or 2 is committed by an organisation and involves:
- "consent or connivance on the part of a responsible individual"; or
- "is attributable to neglect on the part of a responsible individual",
both the organisation and the responsible individual commit the offence. A "responsible individual" includes directors, managers, secretaries or other similar officers, or those purporting to act in such capacity.
Responsible Developers Scheme
Finally, the legislation will provide Scottish Ministers with the power to establish responsible developers schemes ("RDS") through regulations. The purpose of a RDS is to ensure that those in the building industry address, whether themselves or through financial contributions, the risks to human life caused by external wall cladding systems. The Bill sets out eligibility for membership, conditions of membership, loss of membership and consequences of not being a member. Particularly pertinent is that in order to be eligible for a RDS, a person must be a developer and must have a connection to a building with problematic cladding (with the precise nature of the connection to be established in regulations). The Bill sets out consequences that developers may face in relation to their ability to carry out future development where they do not join a RDS where they are eligible to do so.
The Bill goes some way to align the position in Scotland with that in England following the Building Safety Act 2022 receiving Royal Assent, to provide a benefit to those with buildings of at least 11 meters with an exterior cladding system that presents a risk to life.
The Consultation
In Scotland, a Ministerial Working Group was set up following the Grenfell tragedy to review fire safety regulatory frameworks. The Consultation was commenced in order to seek views on various proposed changes to the Building (Scotland) Act 2003 (the "Act"). These proposals were made with a view to strengthening existing enforcement powers used by local authorities and to increase the penalties associated with offences under the Act. This would bring the position in Scotland in line with England and Wales, where stronger sanctions for breach of building regulations and the BSA have recently been implemented, as we described here.
The proposals are three-fold and relate to the following sections of the Act:
- section 21: the inclusion of owners in the offences for occupation without a completion certificate;
- section 27: the right for local authorities to remove work where work has been carried out in the absence of a building warrant or where work has been carried out contrary to building regulations, the introduction of a standalone "stop notice" where local authorities require work to be suspended; clarification as to the scope in which local authorities may take action after acceptance of the completion certificate and the introduction of a time limit in which local authorities may take action on work subject to a building warrant and building regulations; and
- section 48: the introduction of more proportionate penalties for failure to comply with the Act and building regulations.
The proposals will serve as a reminder to and encourage those whose responsibilities fall within the Act to ensure that their actions are compliant with the legal and regulatory framework in which they operate in the knowledge anything below could have severe consequences on the health and safety of the occupants within each respective building. The Scottish Government is inviting responses to the Consultation ahead of its closure on 22 January 2024.
If you have any questions about the points raised in this article, please contact Sue Ryan.