Building Safety: Developments in the building safety regime in Scotland

Over two years after the Building Safety Act 2022 (“BSA”) received Royal Assent, building safety remains a key topic of conversation within the built environment sector. Whilst the BSA has brought about significant change in respect of building safety in England, it has limited application in Scotland. As reform to the building safety regime in Scotland begins to pick up pace, this article considers recent key developments in Scotland.

Housing (Cladding Remediation) (Scotland) Act 2024

On 21 June 2024, the Housing (Cladding Remediation) (Scotland) Act 2024 (the “Act”) came into force; marking a key milestone in Scotland’s building safety regime.

The Act empowers Scottish Ministers to assess and remediate risks to human life created, or exacerbated, by the external wall cladding systems of buildings that meet the following criteria:

• is a flatted building (as defined in section 16(4) of the Land Registration etc. (Scotland) Act 2012);
• contains at least one flat which is used or intended to be used as a dwelling;
• has an external wall cladding system;
• is 11 metres or more in height; and
• was built or developed between 1 June 1992 and 1 June 2022.

The scope of buildings covered by the Act therefore differs to those defined as ‘higher-risk buildings’ in England under the BSA and represents a divergence between the English and Scottish regimes. This divergence is deliberate and intended to ensure that the legislation reforming the current regime in Scotland is appropriate to the context / scale of the ‘issue’ within the building stock in Scotland. However, those operating in the built environment sector will need to be mindful of this and other divergences between the separate regimes in England and Scotland (and, for completeness, Wales). 

The key aspects of the Act are set out below:

1. Scottish Ministers’ powers to assess and address danger: Section 3 of the Act gives Scottish Ministers the power to arrange for a single-building assessment (“SBA”) to be carried out in relation to a building. Seven days after the Scottish Ministers provide the owner (and any occupier) with written notice of what the carrying out of the SBA may entail, they may proceed with the SBA in the absence of owner’s consent.

SBAs were introduced in March 2021, following recommendations from the Ministerial Working Group on Mortgage Lending and Cladding. The purpose of a SBA is to identify life critical fire safety risks and any mitigation or remediation required to move risks to a building from “high risk” to “low risk”. An SBA technical specification document has since been published, which sets out the methodology for carrying out an SBA under the Act. This specification is expected to form part of the SBA standards, which Scottish Ministers intend to publish later this year.

Other powers granted to Scottish Ministers under Part 2 of the Act include powers to arrange:

• additional work assessments (“AWA”) (undertaken after an SBA has been carried out); and
• remediation work in response to an SBA report or an AWA report identifying work needed to address risks to human life associated with a building’s external wall cladding system, with the cost to the Scottish Government of procuring any such works to be recovered via the Responsible Developers Scheme (as discussed below).

Scottish Ministers are also required to prepare progress reports on the arranging and carrying out of SBAs and remediation work identified as being required in SBA or AWA reports (section 24A).

2. Cladding Assurance Register: Section 1 of the Act requires Scottish Ministers to maintain a register of buildings, known as the “Cladding Assurance Register” (“CAR”), containing details of buildings which have had an SBA carried out. The CAR will also detail any work identified by an SBA report as being required to address risks to human life created or exacerbated by a building’s external wall cladding system.
3. Offences: Parts 1 and 2 of the Act set out a range of offences including providing false or misleading information for the CAR (section 2), failing to supply information required for carrying out an SBA or maintaining the CAR (section 5), occupying an evacuated premises (section 9) and obstructing or failing to assist with assessment work (sections 13 and 14). These are criminal offences punishable by a fine or in the case of occupying an evacuated premises, a fine and/or imprisonment.
4. Responsible Developers Scheme: Section 20 of the Act empowers Scottish Ministers to establish a responsible developers scheme (“RDS”) (or more than one). The purpose of the RDS is to encourage developers to address or contribute towards the costs of addressing the remediation of residential buildings that they were wholly or partly responsible for developing. This will include any costs incurred by the Scottish Government in arranging the carrying out of remedial works in response to a SBA report or an AWA report in relation to a building on the CAR.

As witnessed in England in respect of the UK Government’s Developer Pledge, developers in Scotland should note that if they are eligible to join the RDS once established but fail to do so, they could feature on a published ‘prohibited developers list’ which would likely have the effect of preventing them from carrying out / completing future developments (section 24).

The RDS will be established via regulations, following consultation between Scottish Ministers and those connected with the construction and development of applicable buildings. While Scottish Ministers have not yet taken steps to establish the RDS, it is likely they will do so in order to accelerate progress to mitigate / eliminate risks to human life relating to external wall cladding systems put in place by members.

5. Other developments

In addition to the Act, other notable recent developments in Scotland’s building safety regime include:

• a Scottish Building Safety Levy; and
• the consultation on building standards enforcement and sanctions.

Scottish Building Safety Levy

As discussed in our previous article, the BSA empowered the UK Government to impose a levy to provide a source of revenue to fund remedial works required to rectify historic building safety defects in residential buildings in England.

On 19 April 2024, the Scottish Government announced that following a consultation on devolving powers for a Scottish Building Safety Levy, it had secured powers from the UK Government to introduce an equivalent building safety levy on the construction of new residential buildings in Scotland.

The next step is for the UK Government to propose legislation to formally devolve the necessary powers to the Scottish Parliament. Further details regarding how the Scottish Building Safety Levy will operate will be progressed via consultation and discussion between the Scottish Government, UK Government and the built environment sector. We will therefore continue to monitor this space to seek further insight into any divergence between the operation of the two levies.

Building standards enforcement and sanctions consultation

Earlier this year, the Scottish Government launched a consultation seeking feedback on proposed amendments to the Building (Scotland) Act 2003 (the “Building Act”) in relation to:

1. occupation or use without completion certificate (section 21);
2. building warrant enforcement notices (section 27); and
3. penalties for offences (section 48.

The proposed amendments impose stricter sanctions and increase penalties for offences under the Building Act in a bid to deter the commission of offences and raise standards. A response was published on 7 June 2024, in which the Scottish Government concluded that as a result of the consultation and broad support for the proposals discussed within, it will seek to amend sections 21, 27 and 48 of the Building Act (taking into account the consultation responses).

Burges Salmon Comment

While the BSA in England represented a ‘first move’ to address concerns over building safety and to overhaul the existing building safety regime, the Scottish Government, as well as the Welsh Government (albeit not addressed in this article), are now moving at pace to reform their separate regimes; showing there is clear appetite across the UK to implement changes to ensure building safety is a core consideration to all.

For those operating within the built environment sector in Scotland, given the anticipated impact these reform are likely to have, it is crucial that these reforms are fully understood and implemented, and that parties operating across jurisdictions are aware of the developing divergences between the regimes in England and Scotland. We will continue to monitor and report on further developments.

This article was written by Tom Weld, Claire Logue and Joanna Rogers.