The Building Safety Act 2022 - what does it mean for Scotland?

The Building Safety Act 2022 (“the Act”) is a hot topic in the UK construction industry at the moment.  The Act (which was given Royal Assent no 28 April 2022) is a legislative framework designed to enhance the safety of buildings, particularly high-rise and multi-occupancy residential buildings. It is a significant piece of legislation that addresses various aspects of building safety after the tragic Grenfell Tower fire in 2017. Its key goal is to save lives.

The road to reaching that goal looks slightly different in Scotland than it does in England. To date, the Scottish and UK Governments have adopted different approaches to the legislation, with many aspects of the Act not yet extending to Scotland.

The English perspective

Last year, the UK Government published the Building Safety Act 2022 (Commencement No 4 and Transitional Provisions) Regulations 2023, SI 2023/362, which brought specified provisions of the Act (affecting England and Wales) into force on 1 and 6 April 2023; and 1 October 2023. Those key provisions were:

• On 1 April 2023, provisions were introduced to empower the Building Safety Regulator (BSR) to carry out its statutory functions, including in relation to the higher-risk building regime;
• On 6 April 2023, provisions were introduced which will enable the registration of occupied higher-risk buildings with the BSR; and
• On 1 October 2023, s.156 of the Act came into force, which amended the Regulatory Reform (Fire Safety) Order 2005.

The BSR is an independent regulator, which is part of the UK Government’s Health and Safety Executive and will have its own powers, strategic plan and programme of work. The BSR will provide advice to building control bodies such as local authorities and fire and rescue services.

The main role of the BSR is to oversee the safety and performance of all higher-risk buildings, which includes hospitals and care settings that meet the criteria. The BSR will provide a robust and proportionate regime throughout the lifecycle of a building. Higher-risk buildings in England are identified as those which:

• Have at least two residential units; and
• Are at least 18m in height or seven storeys.

From 1 October 2023, a high-risk building regime was introduced, meaning that:

• All new higher-risk buildings must be registered with the BSR. Until the new building has been registered, units must not be occupied; and
• All older, occupied higher-risk buildings must also have been registered with the BSR by 1 October 2023. Failure to register an occupied higher-risk building by this date is an offence and could result in a fine, imprisonment, or both.

How does Scotland compare?

Until recently, perhaps the most significant change in Scotland (since the Act came into force) was the regulation surrounding the supply, manufacture, marketing, or installation of construction products. These new provisions (which are given effect in Scotland under s. 151) equip claimants with new “rights of action” against persons who (i) fail to comply with construction product requirements; (ii) make a misleading statement about a construction product in the course of marketing or suppling it; or (iii) manufacture a construction product which is inherently defective.

Nevertheless, recent changes have been introduced in Scotland which appears to emulate the recent process introduced in England on 1 October 2023.  Whilst the Scottish Government has not yet introduced its own BSR, it has taken steps similar to that of the higher-risk buildings regime by introducing the Housing (Cladding Remediation) (Scotland) Bill. The Bill (which is currently at stage 1) only applies to buildings:

• Built or refurbished between 1 June 1992 and 1 June 2022; and
• With at least one residential until and be at least 11m tall – not too dissimilar to England’s own definition of a “higher-risk building”.

The purpose of this Bill is to reduce the risk to life from unsafe cladding on people’s homes. Crucially, it gives the Scottish Ministers the power to:

• Assess and remediate certain types of buildings with unsafe cladding;
• Record these assessments and any remediation works completed in a register;
• If necessary, require people to move out of the buildings until the work needed is done; and
• Create a Responsible Developers Scheme (by secondary legislation), with conditions for developers to be members of the Scheme in order to encourage remediation works to be undertaken.

The road to this legislative development began with the Scottish Safer Buildings Accord. The Accord is a voluntary commitment by developers to ensure that every affected building (being a high-rise residential development block above 11m in height, constructed or refurbished with a cladding system in the last 30 years) is the subject of a Single Building Assessment to assess the life-critical fire safety of the cladding system and identify any remedial works required.

Engagement with responsible developers has been positive. As at 11 January 2024, nine developers have signed up to the Accord process (the list of which the Scottish Government has published on its website) committing to remediate life-critical fire safety works in affected buildings they have played a role in developing or refurbishing over the last 30 years in Scotland. This commitment will protect these homeowners from the costs of remediation of life-critical fire safety defects.

This matter is extremely sensitive and time-critical. The Scottish Government requires to address the issues highlighted by the Grenfell disaster and take all reasonable steps to ensure no recurrence of such a horrific loss of life event.

The next step is for the Scottish Government to negotiate and agree on a legally binding, long-form contract with developers to change the process from voluntary to mandatory. Developers will be asked to sign that legally binding contract reflecting the Accord and its principles; and to engage with homeowners in affected buildings about how they will meet their commitments.

What next for the Act?

Whilst many aspects of the Act do not yet extend to Scotland, recent developments indicate that the Scottish Government has an appetite to implement changes which are already proving effective in England.

It is also worth noting that the Act confers powers on the UK Government to make regulations applicable to Scotland governing the supply and marketing of construction products and it is anticipated that this secondary legislation will be implemented in due course. Watch this space.