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 Cladding Remediation in Scotland – an update
Construction & engineering

Cladding Remediation in Scotland – an update

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INSIGHTS

Michael Conroy is a partner and head of construction and engineering at law firm Harper Macleod. He is accredited by the Law Society of Scotland as an expert in construction law with particular experience of the Scottish Government approach to cladding remediation and acting for owners and managing agents of affected buildings in relation to related contracts for remedial works.

Introduction

The new year has seen tangible steps taken forward by the Scottish Government in its Cladding Remediation Programme for high-rise residential buildings with the coming into force of the Housing (Cladding Remediation) (Scotland) Act 2024 (“the Act). The Act has been underpinned by the publication of statutory “Standards” (“the Standards”) which will apply to those persons carrying out assessments and remedial works for affected buildings, both on 6th January 2025.

The Scottish Government envisages that the Act and the Standards will be key to accelerate the pace of delivery of its Cladding Remediation Programme for the assessment of affected buildings and the carrying out of necessary remedial works.

Powers of Scottish Ministers under the Act

The Act applies to multi-residential domestic buildings built or refurbished between 1st June 1992 and 1st June 2022; which stand 11 metres or more above the ground; and incorporate some form of external wall cladding system.

The Act provides Scottish Ministers with powers to carry out assessments of buildings, arrange remediation works and require evacuation of buildings while works are being carried out or if there is a substantial risk to life and creates offences for obstruction or non-compliance by owners and occupiers.

These powers were identified as necessary where experience from the Scottish Government pilot scheme and efforts by developers to progress remediation of affected buildings in Scotland has highlighted the difficulties and delays of obtaining owner consent and co-operation for necessary works.

Whilst developers have encountered delays in reaching agreements with responsible entities for buildings in England, these are exacerbated for Scotland where the relevant statutory regulations relating to fire safety do not identify a single responsible entity and the system of property ownership does not separate freehold and leasehold interests. Therefore, in Scotland, there is not a single responsible entity freehold owner of affected buildings as is the case in England but rather a multitude of individual owners all required to consent to any works being carried out.

These powers are tempered with provisions related to engagement with owners and occupiers pre- and post-assessment and in advance of remediation work. It is hoped that the exercise of powers will be exceptional.

The Standards for single building assessments and additional work assessments

The Act provided Scottish Ministers with the power to specify standards to be complied with by persons carrying out single building assessments or additional works assessments of affected buildings. The Standards, now published, comprise the technical Single Building Assessment Specification (previously published on 21st June 2024) as well as compliance, audit and assurance processes to be followed.

The technical Specification document was well-received where it outlined assessment processes aligned to the PAS 9980 standard in England and Wales to ensure consistency for assessors, developers and reliance by funders throughout the UK.

The Standards, now published, also cover matters such as the necessity for updating assessments carried out prior to publication of the Specification, the requirement for peer review of any assessment retention of information for audit purposes and dispute resolution where there are differences of opinion following any audit.

The Standards also confirm timescales for creating and updating entries in the Cladding Assurance Register to be maintained by Scottish Ministers pursuant to section 1 of the Act. An entry will ordinarily be created 30 days following receipt of a Single Building Assessment and updated 30 days following notice that remedial works have been completed.

Further updates

As well as reporting on the foregoing statutory/regulatory measures, in December 2024 the Minister for Housing updated the Scottish Parliament on further practical steps being taken to accelerate the Cladding Remediation Programme including:

• the allocation of £52.2 million in the draft Scottish Budget for 2025/26 to support cladding remediation during the next financial year.

• an assurance process for assessments carried out for pilot scheme buildings and commissioning of further assessments for buildings where no responsible developer has been identified.

• ongoing negotiations with large developers facilitated by industry body Homes for Scotland to secure agreement on a form of framework contract for assessment and remediation by those developers of buildings in scope of the Act which they developed.

These developers have already accepted the principle of their responsibility for the buildings that they developed by their signing of developer commitment letters pursuant to the Scottish Safer Buildings Accord in June 2023.

Where these large developers have agreed similar contracts with the UK Government, it is hoped that agreements will be entered into in the early part of the year which will lead to the acceleration of assessment and remediation by those significant developers.

• planned work to identify and prioritise social housing at risk from unsafe cladding engaging with local authorities, registered social landlords and other local partners.

Other matters

The establishment of a Scottish Building Safety Levy (a self-assessed tax on new build residential developments) similar to the UK Government Building Safety Levy has also been confirmed by Scottish Government as forthcoming this year where the UK Government has agreed to the transfer of powers to Scottish Ministers for that purpose.

The Scottish Government estimates that the Scottish Building Safety Levy will generate £30 million per annum with funds being allocated to the remediation of buildings with unsafe cladding until that work is done.

The Act also provides for the establishment by the Scottish Government of a Responsible Developers Scheme. Details of this are still to be promoted. It is anticipated that this will be similar to the UK Government Responsible Actors Scheme so that eligible developer members of such a scheme will have their continued entitlement to statutory consents for future development dependent upon compliance with obligations to remediate unsafe buildings falling within the scope of the Act.

Conclusions

The horror of the Grenfell disaster remains fresh in the memory with the spotlight shone on the UK legislatures by the Inquiry findings of its Phase 2 Report last year. It is considered that the Act and the Standards, together with the other actions highlighted above, demonstrate the commitment by the Scottish Government to the accelerated delivery of its Cladding Remediation Programme in 2025 and beyond.

This article originally appeared in PBC Today on 22nd January 2025

 

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