Since March 2021 all building warrants for the development of (among other types of building):

  • new-build social homes (whether flats or houses);
  • flats (whether build for sale or rent (across all tenures));
  • residential care buildings; and
  • shared multi-occupied residential buildings,

….must be designed and constructed in such a way that, in the event of an outbreak of fire within the building, fire and smoke will be inhibited from spreading through the building by the operation of an automatic life safety fire suppression system (noted in schedule 5, section 2, paragraph 2.15)….

to comply with mandatory standard 2.15 of the Building (Scotland) Regulations 2004.

The Building Standards Technical Handbook 2020: Domestic provides guidance on achieving the standards set out in 2004 Regulations, and notes that that “automatic life safety fire suppression system” includes sprinkler systems but can include other systems which may be just as effective (noted in schedule 5, section 2, paragraph 2.15.1).

For Registered Social Landlords ("RSLs") contracting with house builders for the delivery of social homes by way of on-site affordable housing contributions required by planning agreements (i.e. s.75 Agreements), sprinkler systems require some special consideration during the conveyancing process to make sure that once they are installed, they can be maintained in operational condition. In this blog, we consider what RSLs should look out for.

In circumstances where the house builder is building out a development of houses (i.e. where the house builder's for-sale development does not include any flats) there will be no sprinkler system requirement for the house builder’s own development. The requirement for a sprinkler system will only arise in connection with the portion of the site being developed under contract for the RSL in satisfaction of the affordable housing contribution obligation in the house builder's planning agreement. On this basis, the land requirements of the sprinkler system may not have been considered during the early conveyancing stages - particularly the laying down of the development deed of conditions.

The development deed of conditions will usually identify all of the intended individual dwellings to be developed on the house builder’s larger site, as well as all common areas and infrastructure, including access roads, sustainable urban drainage ponds and common amenity areas to name a few which don’t form part of the individual dwellings and serve the house builder’s larger development (or multiple homes within the development).

It is often the case that the house builder will only transfer the individual dwellings to third party owners (including an RSL buying multiple dwellings) and retain ownership and control of all of the common parts with the intention of transferring these to an owners' association in terms of a Development Management Scheme ("DMS") forming part of the development deed of conditions. In fact, it wouldn’t be unusual for it to only be the footprints of the homes themselves that are conveyed to the RSL, and for even car parking areas to be retained by the house builder to be later transferred to the owners' association.

All owners on the development, including the RSL, will have a wide range of rights and obligations in connection with the common areas owned (ultimately) by the owners' association, however the right to unilaterally undertake specific works to any of the common areas will be limited.

The RSLs should therefore be aware that for the practical operation of the sprinkler system following its construction (assuming this will be part of the house builder’s obligations to the RSL in terms of the development agreement) rights will be required over the areas of the development which will be owned by the house builder or owners' association if these have not already been created.

Sprinkler systems serving houses require reasonably significant infrastructure for them to be operational, similar to the requirements for other utilities such as electricity supply.

Key requirements of sprinkler systems are adequate water flow and pressure. Although the system can be connected to the mains water supply which will usually deliver the required flow, to deliver the necessary pressure, a pump may be required, installed directly onto the main water supply pipe to add pressure to the incoming water supply.

The requirement for a pump leads to a requirement for a physical pumping station (similar to a requirement for an electricity substation or pad mount transformers to be situated above ground) which will require a physical presence on the development. This pumping station will either be located on land within the house builder’s ownership (likely intended to form part of the common parts), or additional land to be transferred to the RSL.

The water supply and pumping station will then need to be connected to the individual social homes by way of a piping system, generally installed below ground across land within the house builder’s ownership / intended common parts (and similar to electricity supply cables) and connecting finally into the houses to be transferred into the RSL’s ownership.

If the house builder’s development plan is advanced, there may already be a deed of conditions (incorporating a DMS) in place. If this is the case, the RSL should review the terms for what specific provision is made for the apparatus required for the sprinkler system.

Ideally, there will be:

  • Provision for the pumping station site, both in terms of identifying its location and providing rights for the RSL (often described as the Affordable Housing Provider or similar in the deed of conditions) to access the pumping station on an unrestricted basis to carry out maintenance and repair. This assumes that the pumping station would form part of the common parts and ultimately be held in the ownership of the owners' association. If the pumping station will only serve the RSL’s social homes, it is likely that the cost of maintaining the pumping station will lie solely with the RSL notwithstanding the ownership position. Alternatively, the cost of maintenance will be shared among the members of the owners' association; and
  • Servitude rights across the common parts along routes necessary for the pipe work to carry water from the pumping station to the individual homes, together with additional rights for the RSL to access these pipes to carry out maintenance and repair. Considering that maintenance and repair of the pipes will likely require the RSL to break ground which forms part of the common parts and within the ownership of the owners' association, the RSL will generally be required to make good any damage caused as a result of these works.

If for any reason the deed of conditions has been put in place but does not include provision dealing with the sprinkler system infrastructure, the RSL should consider asking the house builder for a separate disposition (transfer deed) of the pumping station site together with the grant of the servitude rights referred to above over the common areas.

This will mean that the RSL will own the pumping station and have the rights necessary to ensure that it can maintain the whole sprinkler system (i.e. the pumping station, connecting pipes and apparatus within the homes themselves) in operational condition into the future.

Even if the house builder has a preferred deed of conditions that does deal with the sprinkler system apparatus, if this has not been registered at the point of completion of the first transfer to the RSL (this could be the case particularly in “golden brick” scenarios), the RSL could consider seeking agreement from the house builder to deal with the apparatus by way of the disposition and grant of servitude rights referred to above as an alternative.

Although this approach may involve the RSL in some additional costs (the additional conveyance will attract additional land registration dues, for example) there may be benefits for the RSL of having complete control of the pumping station when compared with the particular rules to be applied to the pumping station in terms of the DMS - these could include unrestricted access to the pumping station site.

It is also possible, that where Scottish Water Sewers for Adoption criteria are satisfied, the sprinkler system pumping station could be adopted by Scottish Water for maintenance. As part of this process, Scottish Water would take title to the pumping station (and any other above ground assets connected with the sprinkler system) and associated servitude rights using special provisions contained in the Title Conditions (Scotland) Act 2003. Particularly in circumstances where the RSL’s social homes are the only homes on the development served by sprinkler system infrastructure, the RSL holding separate title to the pumping station would likely be advantageous for the purposes of the vesting process.

For the house builder too, there could be benefits - simplification of the deed of conditions (including the terms of the DMS) will be attractive to other third party purchasers of homes on the development potentially making the plot sales process easier.

We are experienced in acting for RSLs in site acquisition scenarios where affordable housing land is conveyed to the RSL by a house builder and built out under contract by that house builder, where special sprinkler system conveyancing has been required. Please get in touch if this is an issue you would like to discuss.


Jenna Monteith

Legal Director