Building safety in England and Scotland
Legal
by
Guy Fetherstonhaugh KC, Adam Rosenthal KC, Cecily Crampin and Daniel Black
London in 1666 resembled a film set built to provide a huge conflagration: its streets were narrow; its houses projected outwards at upper levels to maximise space, often meeting at top storey; its buildings used primarily wood, plaster and thatch; fire was used for cooking and illumination. It is no surprise the Great Fire of that year was so destructive, claiming more than 13,000 houses and many public buildings, including St Paul’s Cathedral.
London was not alone. All the major cities had their own fire safety problems – and huge fires – and each promulgated their own legislative remedies. London’s version was the Rebuilding of London Act 1667, which imposed a series of regulations concerning building heights, types and materials, enforced by surveyors. Scotland took its own course, passing an Act Regulating the Manner of Building within the Town of Edinburgh in 1698, requiring, among other things, that no buildings were to exceed five storeys.
Divergent practices
England and Scotland continue to chart separate courses in relation to the current threat to fire safety: the use of potentially flammable materials in tall buildings that was exposed in the Grenfell Tower tragedy in 2017. In England, the Building Safety Act 2022 seeks to put in place a stringent regime with 170 sections and 11 schedules, supplemented by a dense mass of statutory instruments (some 19 so far). The broad aim of this legislation is to subject the design and materials of buildings, at the point of creation or alteration, to the control of a Building Safety Regulator, with whom a “higher-risk building” (ie at least 18m in height/seven storeys and containing at least two residential units) must be registered by 30 September 2023. As part of the new fire safety requirements under the 2022 Act introduced in October 2023, the building owner (or other “principal accountable person”), who is made personally liable for any failure to comply with the Act, must apply for a building assessment certificate for any registered building within 28 days of being requested to do so by the BSR. Such a certificate will only be granted if the BSR is satisfied that the owner is complying with the relevant duties (to assess and manage building safety risks; to provide information; and to produce a residents’ engagement strategy). An accountable person must also record and update certain “prescribed information” about the building (the so-called “golden thread”, the content of which is contained in draft regulations currently before parliament).
London in 1666 resembled a film set built to provide a huge conflagration: its streets were narrow; its houses projected outwards at upper levels to maximise space, often meeting at top storey; its buildings used primarily wood, plaster and thatch; fire was used for cooking and illumination. It is no surprise the Great Fire of that year was so destructive, claiming more than 13,000 houses and many public buildings, including St Paul’s Cathedral.
London was not alone. All the major cities had their own fire safety problems – and huge fires – and each promulgated their own legislative remedies. London’s version was the Rebuilding of London Act 1667, which imposed a series of regulations concerning building heights, types and materials, enforced by surveyors. Scotland took its own course, passing an Act Regulating the Manner of Building within the Town of Edinburgh in 1698, requiring, among other things, that no buildings were to exceed five storeys.
Divergent practices
England and Scotland continue to chart separate courses in relation to the current threat to fire safety: the use of potentially flammable materials in tall buildings that was exposed in the Grenfell Tower tragedy in 2017. In England, the Building Safety Act 2022 seeks to put in place a stringent regime with 170 sections and 11 schedules, supplemented by a dense mass of statutory instruments (some 19 so far). The broad aim of this legislation is to subject the design and materials of buildings, at the point of creation or alteration, to the control of a Building Safety Regulator, with whom a “higher-risk building” (ie at least 18m in height/seven storeys and containing at least two residential units) must be registered by 30 September 2023. As part of the new fire safety requirements under the 2022 Act introduced in October 2023, the building owner (or other “principal accountable person”), who is made personally liable for any failure to comply with the Act, must apply for a building assessment certificate for any registered building within 28 days of being requested to do so by the BSR. Such a certificate will only be granted if the BSR is satisfied that the owner is complying with the relevant duties (to assess and manage building safety risks; to provide information; and to produce a residents’ engagement strategy). An accountable person must also record and update certain “prescribed information” about the building (the so-called “golden thread”, the content of which is contained in draft regulations currently before parliament).
In what has been one of the most contentious areas of the legislation, the owner cannot recover the costs of remedial works to improve safety, if it was itself responsible for the defect. There are also detailed enforcement provisions entitling those with an interest in the building (including lessees of flats) and relevant public authorities to seek an order of the First-tier Tribunal to require remediation works to be undertaken by the landlord of the building. The landlord of the building, or lessees, or the authorities, can in turn seek an order requiring the original developer to pay, if the FTT considers it just and equitable to do so. There are also elaborate provisions which allow for the extension of liabilities to associated companies of developers and landlords to prevent them hiding behind SPVs. There are corresponding provisions which limit the extent to which lessees of flats in qualifying buildings can be required to contribute to costs of remedial works.
The approach in Scotland
Although some aspects of the 2022 Act apply to Scotland, the bulk of the provisions relating to the construction, monitoring and remediation of buildings do not, with the devolved legislature being left to make separate provision. Scotland’s approach has therefore taken a different form. Legislation to ban combustible cladding on high-risk buildings, and the highest risk metal composite cladding material from all buildings, was passed by the Scottish parliament on 22 April 2022. That legislation was implemented by amendments to the Building (Scotland) Regulations 2004 introduced on 1 June 2022. The amendment completely prohibits the use of combustible materials on domestic buildings above 11m. This also includes certain categories of other high-rise buildings, such as care homes and hospitals.
The way in which the remedial works are to be implemented is covered by the Housing (Cladding Remediation) (Scotland) Bill, which was introduced into the Scottish parliament on 1 November 2023. In contrast with the English model, the Scottish approach is to give Scottish ministers powers to carry out an assessment of buildings with cladding. Where that assessment identifies any “risk to human life” directly or indirectly caused or exacerbated by the cladding system, the Scottish ministers have power to undertake the work required to eliminate or mitigate that risk with or without the owner’s consent (including powers to require occupants to vacate where necessary). Further, the Scottish ministers are charged with maintaining a Cladding Assurance Register of works.
As to the cost, the Bill seeks to build on the “single building assessment scheme” introduced by the Scottish government which previously operated consensually. Ministers are to be given power to establish schemes for responsible developers to ensure the building industry addresses or contributes towards the costs of works. A “prohibited developers list” that could prevent listed developers from carrying out any development is also envisioned. However, at least according to the financial memorandum published with the Bill, the Scottish government does propose to establish “developer remediation contracts” between the Scottish government and developers, in the Scottish government’s words to “mirror” the approach in England as to what developers will fund.
These powers are supported by various criminal sanctions for those who fail to comply.
Finally, to address the fact that the Scottish parliament does not currently have the power to introduce a “building safety levy”, the Scottish government will seek a transfer of powers from London.
The Scottish approach is thus very much more dirigiste, whereas the English approach has involved much more collaboration with developers, albeit underpinned by a more complex set of enforcement provisions. It will be interesting to see how much each legislative body learns from the other as they engage in this critical, complex and fast-moving area of the law.
Guy Fetherstonhaugh KC, Adam Rosenthal KC, Cecily Crampin and Daniel Black are all barristers at Falcon Chambers. Black is in the process of qualifying at the Scottish Bar
