Julie Scott-Gilroy, legal director at Morton Fraser MacRoberts
On 1 November 2023, the Scottish government published its Housing (Cladding Remediation) (Scotland) Bill. This proposed legislation gives Scottish Ministers the power to carry out assessments to find out if the cladding on certain buildings is safe – and if not, to organise repairs to bring it up to the required standard, if necessary evacuating the building until the work has been done. In the case of residential buildings, they will be able to do this even if consent of the owners cannot be provided (eg. where there is no identified developer, or for other reasons). To give residents confidence about these assessment and remediation works, Ministers will also have powers to create and maintain a Cladding Assurance Register – and to set up a Responsible Developers Scheme, by means of further regulations (more on this below).
The Bill does not apply to all buildings, but is limited to those built or refurbished between June 1992 and June 2022, that have an external wall cladding system, that contain at least one residential unit and are over 11 metres in height. That said, the Bill gives the Scottish Ministers power to amend the criteria by regulations so this is subject to change.
How will it work in practice? A Single Building Assessment will be carried out and a report prepared detailing any risk to human life directly or indirectly created, or exacerbated, by the building’s external wall cladding system, and the work needed to eliminate or mitigate any risks identified. As mentioned above, Ministers have powers to set up a Responsible Developers Scheme, but the details of how this would work are subject to consultation. However it is likely that the Scheme will make the building industry responsible for the costs of this type of remedial work, either completely or in part. Although the new Bill gives Ministers powers to remediate buildings, it remains unclear whether a scheme similar to the Building Safety Levy in England & Wales will be introduced to fund the remediation of buildings where no linked developer can be identified.
Only developers will be able to join the Responsible Developers Scheme, defined for these purposes as a person carrying on, for business purposes, activities connected with the construction of buildings, and having a connection to a building of a kind described in regulations as one with ‘problematic cladding’. The regulations will provide that the person operating the Scheme will keep not only a list of persons who are eligible to be members of the Scheme, but also those who are eligible to be members but are not: a “prohibited developers” list. Prohibited developers may be prevented from carrying out developments of the kind described in the regulations, or in fact any development at all. They may also find themselves unable to obtain warrants, or amendments to warrants – and any completion certificates submitted by the individual may be rejected.
Similar “Responsible Actor Schemes” were launched in England in July 2023, being part of the changes under the Building Safety Act 2022. These have given the government wide-ranging powers to block access to the market for any developers refusing to adhere to the membership conditions and join Schemes.
Until the finer points of the regulations have been announced, we will not know the exact implications for developers. But in the meantime, developers with buildings in Scotland that meet the current stated criteria should be aware of the Bill and keep a close eye on the pending regulations to take advice on what it will mean for them in due course.
