On 14 May, the Cladding Remediation Bill was passed by the Scottish Parliament. In short, the new legislation gives the Scottish Government the power to remediate dangerous cladding on certain buildings without the consent of owners and engage with developers to fund this work.

We previously wrote about the bill as introduced to parliament in November 2023. To recap, the legislation gives Scottish Ministers powers to:

  • Assess and remediate residential buildings over 11m high with unsafe cladding, where consent of the owners cannot be provided;
  • Create and maintain a Cladding Assurance Register to give residents confidence about the assessment and works undertaken once those buildings are remediated; and
  • Establish a Responsible Developers Scheme, to support engagement with developers and encourage them to pay for or carry out remediation work.

With some changes having been introduced through the legislative process, we now know a little more about how the proposals will work in practice. However, as explained below, a lot of the detail is still to be introduced by way of secondary legislation.

Single Building and Additional Work assessments

As previously noted, the Single Building Assessment is the process by which the Scottish Government can assess the need for remedial works to buildings 11 meters or higher, with or without the owner's consent.

In addition to the Single Building Assessment, the Additional Work Assessment has also been introduced since the bill entered parliament. This essentially provides a mechanism to carry out any work required to assess risk to life, where consent is lacking.

Where an entitlement to carry out work on the premises already exists under the legislation, the Additional Work Assessment can begin immediately and there is no need to wait until the expiry of a notice period (as is required with the Single Building Assessment).

Responsible Developers Scheme

As noted above and in our previous article, the legislation gives the Scottish Government the power to establish a Responsible Developer Scheme.

Although exact membership conditions will be provided for in secondary legislation, the legislation as passed states that this "may" (and in our view is likely to) include developers:

  • making financial contributions towards meeting costs associated with carrying out Single Building Assessments and Additional Work Assessments (i.e. general contributions); and
  • carrying out the Single Building and Additional Work Assessments themselves in relation to the specific buildings for which they are responsible.

If a developer is eligible for the Scheme but doesn’t satisfy the membership conditions, e.g. refuses to make a financial contribution, they will be put on a "prohibited developers list" meaning they will be prohibited from carrying out any development in Scotland.

Since entering parliament a definition of "developer" has been introduced into the legislation – with this defined as a person "carrying on, for business purposes, activities connected with the construction or other development of buildings".

Those eligible for membership of the Scheme are developers (as defined above) who have a "connection to" buildings which:

  • have an external wall cladding system;
  • have been found to create or exacerbate a risk to life; and
  • in relation to which remedial work is required.

Visit our Building & Fire Safety Hub for more updates.

Contributors

Lucy McCracken

Senior Solicitor

Louise Shiels

Head of Dispute Resolution and Risk & Partner

Amy Pairman

Senior Associate