The Housing (Cladding Remediation) (Scotland) Bill was passed by the Scottish Parliament on 15 May. The Bill is intended to support the Scottish Government’s existing Cladding Remediation Programme. The Programme is designed to identify, assess via a ‘Single Buildings Assessment’ (SBA) and remediate medium and high-rise buildings with unsafe external wall cladding systems. ‘Single Buildings Assessments’ are defined in the Bill as assessments on flatted buildings (with at least one residential flat but could also include commercial premises) constructed or refurbished between 1 June 1992 and 1 June 2022 (when legislation banned or limited certain cladding). The building must be over 11m high and have a form of external wall cladding system. The Programme is funded by the Scottish Government which will also look to developers to contribute to the cost of the works. Similar schemes operate in the rest of the UK, which have been established following the tragic events of the Grenfell Tower fire in 2017.
The Bill covers three key areas, summarised as follows.
Notice and right of entry
Firstly, the Bill equips the Scottish Government with statutory powers to arrange Single Building Assessments (or subsequent ‘additional work assessments’), remediation works and other steps in relation to the Programme. The main policy aim is to overcome delays experienced due to difficulties in obtaining owner consent. Notice must still be given to owners and occupiers before an assessment or works can be carried out. This is 7 days in the case of Single Building Assessments and 21 days for remediation works: although where an assessment identifies that the risk to human life is ‘so immediate that it would be inappropriate to delay’ then they must give such notice ‘(if any) as the circumstances permit’.
The Bill also enables those instructed to carry out the assessment or works, such as surveyors or engineers, to enter premises, bring with them other workers and equipment and carry out testing. They must do so at a ‘reasonable time of day’, with 24 hours’ notice (unless urgent) and be able to produce written evidence of their right to be there. The Scottish Ministers may seek a warrant to permit entry by reasonable force in specific cases, e.g., where there is evidence that entry has been refused or the premises are unoccupied. There are also powers to evacuate occupants (immediately) in specified circumstances where there are substantial risks to life. The Bill makes it a criminal offence to breach certain requirements, such as occupying premises when forbidden to do so.
Cladding Assurance Register
Secondly, the Bill makes provision for a ‘Cladding Assurance Register’ to be maintained by the Scottish Ministers as an accurate record of buildings which have been assessed and remediated. The aim is to alleviate problems experienced by homeowners and lenders in buying, selling, re-mortgaging and insuring affected properties. Information should include when an assessment was done and what (if any) work is required in relation to the external wall cladding system. It is to be updated once required works are completed to evidence the safety status of the building. The Register is to be publicly available (a fee may be applicable) and it is hoped will provide reassurance or at least more clarity and certainty for those affected, about the status of the building.
Responsible Developers Scheme
Thirdly, the Bill gives power to the Scottish Ministers to establish a ‘responsible developers scheme’. This scheme, which will be detailed in regulations, is aimed at encouraging developers who have a connection to buildings with problematic cladding to address or contribute towards the costs of remediation. The regulations are to determine (amongst other things) eligibility and conditions of membership, loss of membership and the consequences of an eligible developer not joining, which is designed to ensure that those developers who commit to remediation works are not then disadvantaged.
It is intended that SBAs will replace the current system whereby individual flat owners and buyers ordinarily instruct (and pay for) their own external wall cladding system (EWS) assessment to determine its safety and for mortgage purposes. The SBA will mean one assessment arranged by the Scottish Government and available to all owners within the building. So far over 105 SBAs have been conducted in a pilot stage but this is intended to increase at pace with the passing of the Bill. However, we await further updates from the Scottish Government as to the practical application and timing.
If you are a homeowner or looking to purchase a property please contact our Residential Team to discuss further.