Over the past 18 months, the recently enacted Building Safety Act 2022 has been a hot topic of discussion in the industry. It has made significant changes to construction projects, health and safety regulations, and leaseholder rights in England, and to some extent Wales, however much of the act does not directly apply to Scotland. Even though many provisions of the Act do not extend to Scotland, certain aspects do, and their implications are likely to be significant. This blog offers an insight into the Act’s impact on Scotland’s industry landscape and recent developments in relation to building safety in Scotland.
While much of the Building Safety Act 2022 does not directly apply to Scotland, there are two significant parts which do.
Firstly, the Act introduces new legal rights of action against parties who fail to comply with cladding or construction product requirements, produce inherently defective products, or make misleading statements about products during provision or marketing. For the new law to be triggered, a product must have been used in constructing a residential building, rendering it subsequently ‘unfit for habitation.’
These provisions establish potential liabilities for anyone involved in manufacturing, marketing, supplying, or installing construction products. Importantly, under the new Act, anyone from property owners to tenants with a stake in a residential building can now initiate a claim, regardless of whether they have a direct contractual relationship with the party in breach. Furthermore, the scope of the claim extends beyond personal injury or property damage, to include economic losses such as expenses for alternative accommodation arising from the aforementioned circumstances.
Secondly, the extended prescription period introduced by the Act also applies in Scotland. This extension lengthens the limitation period for liability related to construction products to 15 years, with the exception of buildings using cladding products completed before the Act’s enactment, which now have a 30-year time limit. This significantly diverges from Scotland’s existing prescription law period of five years.
Claims brought under the new Act as primary legislation would override existing contractual agreements regarding limitation periods. A retrospective clause is included, possibly permitting claims previously time-barred to be revived under the new law.
The Housing (Cladding Remediation) (Scotland) Bill
The Bill, introduced by the Scottish Government on November 1, 2023, addresses fire safety risks posed by certain types of external wall cladding systems. It empowers Scottish Ministers to conduct assessments to determine the safety of cladding on buildings. If unsafe, Ministers can arrange for necessary repairs and, if required, mandate occupants to vacate the premises until redemption work is completed.
Applicable to specific buildings, the Bill requires structures built or refurbished between June 1, 1992 and June 1, 2022, to be assessed. Eligible buildings must include at least one residential unit and be 11 meters or taller.
Scottish Ministers are mandated to maintain a register documenting cladding assessments and redemption efforts (the “Cladding Assurance Register” or “CAR”). This register will log assessment dates, repair details, and completion dates, facilitating easy access to information about buildings undergoing cladding repairs.
Additionally, the Bill grants Scottish Ministers authority to establish a responsible developers scheme through secondary legislation. This scheme aims to incentivise developers to undertake redemption works by setting membership conditions.
The Building Standards Enforcement and Sanctions Consultation
Following the Grenfell tragedy, a Ministerial Working Group was established in Scotland to review fire safety regulatory frameworks. This led to the initiation of a Consultation seeking feedback on proposed amendments to the Building (Scotland) Act 2003. The aim of these proposals is to strengthen enforcement powers used by local authorities and enhance penalties for offences under the Act, aligning Scotland’s regulations more closely with those of England and Wales. The proposals encompass three main areas within the Act: Section 21 Occupation or use without completion certificate; Section 27 Building warrant enforcement notices; and Section 48 Penalties for offences of the Building (Scotland) Act 2003.
These proposals aim to remind and encourage those responsible under the Act to ensure compliance with the legal and regulatory framework, emphasising the potential severe consequences on the health and safety of building occupants for non-compliance. The Scottish Government closed its responses to the Consultation on January 22, 2024.