Building safety in Scotland - 2024 "wrapped" and what's on the playlist for 2025?

As Spotify moves into the season of telling us about this year’s listening habits, we’re here to wrap up the legal developments in building safety in Scotland and look forward to the developments we can expect in 2025.

2024 - the legislative shop front

The enacting of the Housing (Cladding Remediation) (Scotland) Act 2024 (the “2024 Act”) marked a significant milestone in Scotland’s journey to update building safety legislation in the aftermath of the Grenfell fire. The 2024 Act is designed to deliver a cladding remediation programme in Scotland to deal with buildings that have problematic cladding systems, from a fire safety perspective. The legislation received royal assent in June and introduced the framework that is aimed at addressing key risks associated with cladding in residential buildings. The 2024 Act itself is really an enabling piece of legislation to allow the Scottish Government the legislative power to move forward with key components of the programme including Single Building Assessments (“SBAs”), the Cladding Assurance Register, the Responsible Developers Scheme and the Scottish Building Safety Levy.

SBAs

While SBAs have been piloted in Scotland since March 2021, the SBA “Standards” i.e. the exact requirements of the assessments, are not yet finalised. An SBA specification document was published by the Scottish Government in June 2024. That pre-dated the coming into force of the 2024 Act and whilst it set out a methodology for the carrying out of an SBA, it will only form part of the SBA Standards. Broadly, SBAs are reports that will be required for buildings that meet the specific criteria, including that they contain a dwelling unit (i.e. are part residential), are 11m+ in height, have an external wall cladding system and have been constructed or developed between 1 June 1992 and 1 June 2022. The SBA culminates in a report on any risk to human life that is directly or indirectly created or exacerbated by the building’s external wall cladding system and what work is needed (if any) to eliminate or mitigate any risks that are identified. The SBA requires to be carried out by an Assessor. An Assessor requires to possess knowledge of fire safety strategy and it is advised that the best way to show this knowledge is through the person signing off the SBA being a Chartered Engineer with a full membership of the Institution of Fire Engineers. An Assessor will also have powers to recover the information required for the SBA, including unrecorded information, from those involved in a building’s construction. Not complying with such a request will be a criminal offence.

An SBA will be required to allow entry of the building onto the Cladding Assurance Register.

Cladding Assurance Register

The register will be a centralised database that records the outcomes of SBAs and the completion of any recommended remedial work. It will allow information to be available to conveyancers, insurers and mortgage lenders and is aimed at combatting some of the ongoing uncertainty in the industry. We expect that checking this register will become part and parcel of a conveyancing transaction when dealing with a flatted dwelling in a building over 11m.

It is expected that there will be a charge for access to the register. It will be a criminal offence to provide false or misleading information to go on the register, with the penalty being a fine up to £1000 (level 3 on the standard scale).

The Responsible Developers Scheme and the Scottish Building Safety Levy

One of the big questions arising out of the need to remediate combustible cladding, is who is going to pay for the works. Where the original developer cannot be turned to for the financing of remedial works, the costs are to come out of central government, with the Scottish Government having access to some Barnett consequential funding. This will not be sufficient to cover the anticipated costs and so the Responsible Developers Scheme (the “RDS”) and the Building Safety Levy are expected to plug the gap.

The RDS is currently to be developed and is the Scottish equivalent of the English Responsible Actors Scheme. The RDS itself requires to be established under separate secondary legislation. The RDS is expected to build on the Developer Remediation Contract, which is to be a formal contract between developers and the Scottish Government. At a fundamental level, failure to join the RDS could mean planning and building control prohibitions which would inevitably impact the involvement of non-signatories in the Scottish housing development market.

The Scottish Building Safety Levy is currently in its consultation phase and is designed to be a devolved tax on developers of new-build residential properties. It is proposed that this will be a self-assessed tax which will be collected by Revenue Scotland. It is due to apply to new homes (not just developments over 11m), student flats, build-to-rent developments and the repurposing of existing buildings to provide residential accommodation.

2025 – the devil is in the detail

2024 brought forward necessary legislation to allow building safety developments to progress at a devolved level. However, as can be seen from the above round up, much of the detail is still to be progressed into secondary legislation. In 2025 we’re expecting to see events like:

• Official publication of the finalised SBA standards
• Secondary legislation to set up the Cladding Assurance Register
• Finalisation of the Developer Remediation Contract
• Introduction of a Scottish Government Bill for the Scottish Building Safety Levy

We will be watching this space and providing legal updates as and when further detail emerges.

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