The Scottish Government has published its Housing (Cladding Remediation) (Scotland) Bill. The stated purpose of the proposed legislation is ‘to reduce the risk to life from unsafe cladding on people’s homes’.
The background to the Bill is the devastating Grenfell Tower fire in 2017 and subsequent investigations which have disclosed that the cladding on some buildings is unsafe.
The Bill gives the Scottish Ministers power to identify and assess external wall cladding systems on residential buildings that ‘create or exacerbate risks to human life’ and to address those risks. How will that be done?
Application of the Bill
The Bill does not apply to all buildings. Stated briefly, for a building to be assessed under the proposed legislation, it must meet certain criteria:
- it must have been built or refurbished between 1 June 1992 and 1 June 2022;
- it must contain at least one residential unit; and
- it must be 11 metres or more in height.
That said, the Bill gives the Scottish Ministers power to amend the criteria by regulations.
The proposed legislation gives Scottish Ministers the power to carry out assessments to find out if the cladding on certain buildings is safe. If it is not, the Scottish Ministers can organise repairs, including urgent repairs, to remediate certain types of building which have unsafe cladding. If necessary, it will be possible to require people to evacuate the relevant building until any necessary remedial work has been done.
A warrant can be obtained to authorise the use of reasonable force to enter relevant premises which are to be the subject of an assessment.
Register of Assessments and Remedial Works
The Scottish Ministers will need to record the building assessments and any remediation works carried out in a register to be known as the cladding assurance register.
New Statutory Offences
The legislation creates certain new offences including:
- failure to provide information reasonably required to carry out a building assessment or for the purpose of maintaining the register;
- occupying evacuated premises;
- obstructing assessments and works;
- failing to provide information or assistance reasonably requested for the purposes of the assessment; and
- providing false or misleading information for the purposes of the register.
Creation of a responsible developers scheme
The Bill also allows the Scottish Ministers to create, by regulations, a responsible developers scheme. The purpose of such a scheme is to secure that persons in the building industry address, or contribute towards, the costs of addressing risks to human life created or exacerbated (directly or indirectly) by the external wall cladding systems of buildings that are wholly or partly residential.
Regulations establishing a scheme must make being eligible for membership dependent on a person being a developer, which is defined 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’. Some will regard it as noteworthy that the definition of ‘developer’ is very wide in scope. The regulations can include provision about the consequences for a person who is eligible to be a member not being a member. These can include being placed on a prohibited developers list. Any entity placed on such a list can be prohibited from, among other things, carrying out future development.
It will be interesting to see if the detailed provisions of the Bill are changed as it progresses through the Scottish Parliament.