Building Safety Responsible Actors Scheme – are you invited to the party?

On 4 July 2023, the Responsible Actors Scheme for residential developers in England came into force. Not every developer will be invited to join the scheme. Do you make the cut?

Scheme Membership - invitations only

Under The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023, developers who meet the eligibility criteria may be invited by the Secretary of State to apply to join the Responsible Actors Scheme (“the Scheme”).

If you become a member of the Scheme, you will be required, amongst other things, to sign a Self-Remediation Contract. This will require you, primarily, to:

• identify buildings you are responsible for in accordance with the Self Remediation Terms; and
• undertake or procure, at your own cost, the works necessary to remediate or fully mitigate fire safety defects in these buildings.

If you do not comply with the requirements of the Scheme, you can be given a warning and ultimately have your membership revoked.

Prohibition List – the unwanted invitation

If you (i) do not apply to join the Scheme following an invitation; or (ii) have your membership revoked, you will be added to a prohibition list.

Developers who are included on the prohibitions list are banned from carrying out major development of land in England.

“Major development” is defined in the Town and Country Planning (Development Management Procedure) (England) Order 2015 and can include schemes providing ten or more dwellinghouses, residential schemes on a site at least 0.5 hectares in size (where it is not known if it will provide ten units or more), commercial development creating at least 1,000 square metres of floorspace, and development on a site over one hectare in size.

Prohibited persons must notify the relevant local authority about their prohibited status when making relevant planning applications, reserved matters applications and prior approval applications. They also need to notify the Local Planning Authority if they acquire or transfer an interest in land that has the benefit of planning permission for major development.

If development of land is carried out in breach of a prohibition, that constitutes a breach of planning control.

You will also be prevented from gaining building control approval in respect of any building work that requires such approval.

Exceptions can be made for critical national infrastructure, but this exception can only be applied by the Secretary of State for specific types of projects.

Scheme Eligibility – a select crowd

Membership of the Scheme is based on eligibility criteria set out in the Regulations. The criteria, and the exclusions, require careful examination as they are not straightforward. Group companies should take particular care.

In the main, developers will be eligible if they fulfil one or more of the following sets of criteria:

• their principal business is residential property development, they meet the profits condition (currently average operating profit of over £10m over a three-year period), and they developed or refurbished a Relevant Building;
• they meet the profits condition and developed or refurbished multiple buildings that have been assessed as eligible for a relevant government cladding remediation scheme. The relevant schemes are:
  • the Building Safety Fund;
  • the Private Sector ACM Cladding Remediation Fund; and
  • the Social Sector ACM Cladding Remediation Fund.
• they are a developer who developed or refurbished at least one Relevant Building during the relevant period that would qualify for remediation under the terms of the self remediation contract, and they volunteer to join the Scheme.

Check if you make the guestlist

Developers are strongly encouraged to review the eligibility criteria in the Regulations and consider if they are likely to be invited to join the Scheme. If invited, the consequences for staying at home or failing to follow the house party rules are severe – prohibition.

Finally, it’s worth bearing in mind that the Scheme does not apply in Scotland.

If you would like to discuss if you should expect an invitation, please get in touch with our Building Safety Group.