Housing (Cladding Remediation) (Scotland) Bill: More questions than answers

Hot off the press is the Scottish Government’s Housing (Cladding Remediation) (Scotland) Bill (“Bill”) which seeks to deal with cladding remediation in Scotland.

According to the explanatory notes, the purpose of the Bill is to facilitate the delivery of the Scottish Government’s Cladding Remediation Programme which applies to the following buildings:

• multi-residential domestic buildings;
• 11 metres and over in height; and
• incorporating some form of external wall cladding system.

The key issues arising out of the bill are as follows:

Cladding Assurance Register

The Scottish Ministers will maintain a register of buildings. The primary aim of this register is to provide assurances to those living in properties and those purchasing properties that the buildings in question do not have any external wall cladding systems which pose a risk.

Power to arrange a single building assessment (“SBA”).

The Bill gives the Scottish Ministers power to arrange for an SBA to be carried out with the consent of the owner(s). Whilst the Bill is silent on an SBA being carried out by developers, the explanatory notes states that developers and other partners may elect to undertake SBAs on their buildings.

Access has been an area of concern for developers and the Scottish Ministers have clearly taken the decision not to mandate owner consent. Instead, it is expected that there will be engagement with owners.  However, there is an acknowledgement that what constitutes owner consent will vary which may mean that where one owner refuses consent, it would prevent an SBA and/or work proceeding. If developers encounter obtaining consent, then it appears to be envisaged that they would require to seek assistance from the Scottish Ministers who can use their powers under this bill.

Power to arrange remediation work and urgent remediation work

The Scottish Ministers may arrange for work to be carried out that is identified in an SBA as being needed to eliminate or mitigate risks to human life created or exacerbated by the building’s external wall cladding system. Where the risk to human life is so immediate that it would be inappropriate to delay the work, then the Scottish Ministers can arrange for urgent remediation work to be undertaken.

Power to evacuate

Where in the Scottish Ministers opinion there is a substantial risk to the occupant’s lives due (directly or indirectly) to the external wall cladding system, then occupants of the building may be removed from the building.

Responsible Developers Scheme

For those following Building Safety in England, this is the equivalent of the Responsible Actors Scheme. As with England, there will require to be regulations establishing a scheme.

At present, there is no visibility on who will be eligible to be a member of the scheme. Given that there are a significant number of SMEs in Scotland, it is not clear whether Scotland will follow England’s lead in setting out a financial threshold.

The scheme will also introduce a prohibited developers list. If on this list, the regulations may

• prohibit the developer from carrying out (i) any development or (ii) development of a kind described in the regulations;
• prevent a building warrant from being granted, or amended, on an application by the developer; or
• require a verifier to reject any completion certificate submitted by the developer.

As ever, the devil will be in the detail and we will need to see the regulations when they are published.

So many questions

We will need to wait and see how this legislation works in practice. The lynchpin of the Scottish Ministers approach to cladding remediation is the SBA which still need to be finalised. However, we understand that the Scottish Ministers are seeking to have this finalised by the end of the year. So, continue to watch this space!