Building Safety (Remediation of Unsafe Cladding etc) Bill: what does it propose?
The Government has published the Building Safety (Remediation of Unsafe Cladding etc) Bill, proposing a significant expansion of the building safety regime introduced by the Building Safety Act 2022 (the “Act”).
The Bill is designed to accelerate the assessment and remediation of unsafe external walls, make it easier for regulators to intervene where progress stalls, and strengthen the routes by which remediation costs can be recovered. It also introduces new obligations for those responsible for residential buildings and expands existing liabilities for developers, construction product manufacturers and others involved in the construction process.
Although many of the details will follow in secondary legislation, the direction of travel is clear: greater accountability, stronger enforcement and increased pressure to remediate unsafe buildings more quickly.
1. New statutory duties to assess and remediate unsafe external walls
The centrepiece of the Bill is a new regime for certain residential buildings in England that are at least 11 metres high or five storeys and were completed before 28 June 2022.
Responsibility falls on the building’s “responsible entity” – broadly, the person or organisation responsible for maintaining or repairing the external walls. Importantly, this could include RTM and RMC companies where they hold those obligations.
Responsible entities will generally be required to commission a fire risk assessment of the building’s external walls within a set period of the new regime taking effect. (The exact period will need to be confirmed: the draft Bill indicates this will be 10 months, whereas the government guidance published alongside the draft says 12 months.) Where intolerable fire safety risks are identified, the assessment must recommend interim safety measures and any required remediation works.
The responsible entity must then implement those interim measures and take the steps reasonably necessary to carry out the recommended works as soon as reasonably practicable. Where remediation is required, it must also prepare and publish a remediation compliance plan setting out how and when the work will be carried out.
A notable feature of the regime is that the statutory objective is not necessarily to remove every defect or restore a building to a “new-build” standard. Instead, the focus is on reducing fire safety risks to a tolerable level. In some cases, that may result in a more limited scope of works than residents expect.
The proposals are particularly significant for resident-led RTM and RMC companies. They would impose additional statutory responsibilities on companies run largely by volunteer directors and would address the gap highlighted in the Thanet Lodge decision, where the FTT held that RTM companies could not be made subject to a remediation order.
2. Tougher enforcement and wider liability
The new duties are backed by a significantly strengthened enforcement regime.
Local authorities, fire and rescue authorities and, for higher-risk buildings, the Building Safety Regulator will be given enforcement powers. Failures to comply could result in substantial financial penalties, with some breaches attracting fines of up to £500,000 and, in certain cases, criminal liability and imprisonment.
The Bill also extends potential exposure beyond the immediate duty-holder. In some circumstances, remediation costs and penalties may be imposed on connected companies and controlling individuals.
3. Regulators can take control of stalled remediation projects
Where those responsible for a building fail to act, the Bill introduces a new remedy: the remediation management order.
This would allow the First-tier Tribunal, on application by a remediation authority, to authorise that authority to step in and take control of the remediation process. The authority could enter contracts, carry out works, take control of relevant parts of the building and pursue legal claims where necessary. It would then be able to recover its costs from the duty-holder, with those sums capable of becoming a charge over the building owner’s interest.
4. Medium-rise buildings brought further into scope
The Bill introduces a registration regime for medium-rise residential buildings, broadly those between 11 and 18 metres in height.
Duty-holders will be required to ensure buildings are registered and provide prescribed information to regulators and residents. Failure to comply may lead to financial penalties and criminal sanctions.
5. Greater transparency over ownership
The Bill gives authorities enhanced powers to obtain information about the ownership of residential blocks, including details of beneficial owners, trusts and related parties.
The aim is to make it more difficult for those with responsibility for buildings to remain hidden behind complex ownership structures.
6. Wider construction product claims
The Bill proposes important changes to the construction product liability regime.
Among other things, it broadens the concept of misleading conduct, introduces a new definition of “inherently unsafe” products and lowers certain hurdles for claimants seeking to establish causation. It also expands the categories of recoverable loss and gives courts new powers to order disclosure where potential claims are being investigated.
These changes are likely to be of particular interest to developers, contractors, manufacturers and insurers.
7. Stronger Building Safety Act remedies
The Bill also strengthens the existing remediation powers introduced by the Building Safety Act 2022.
Most notably, it provides that remediation orders, remediation contribution orders and building liability orders will no longer be subject to any limitation period. It also introduces new powers to penalise non-compliance with remediation orders and strengthens mechanisms for monitoring compliance.
8. New insolvency provisions
The Bill addresses situations where landlords with building safety obligations become insolvent. The Act had originally contained similar provisions but they were disapplied by subsequent legislation.
New provisions would require notifications to regulators and local authorities in certain insolvency scenarios and are intended to ensure that a building owner cannot simply avoid its obligations by putting the company into insolvency – the intention would be for the relevant authority to step in to ensure remediation is carried out.
9. Increased regulatory cooperation
The Bill also seeks to improve coordination between local authorities, fire and rescue authorities and the Building Safety Regulator through enhanced duties to cooperate, share information and coordinate enforcement activity.
What does this mean in practice?
The Bill reflects the Government’s view that remediation of unsafe residential buildings has progressed too slowly and that existing powers do not always provide an effective route to securing action.
If enacted in its current form, it will substantially increase the obligations and potential liabilities of those involved in the ownership, management and remediation of residential buildings. Resident-led management companies should pay particular attention to the proposals, as many volunteer directors could find themselves assuming statutory responsibilities they had not previously anticipated.
For developers, contractors and manufacturers, the expansion of liability and enforcement powers will be equally significant. The Bill broadens the range of parties against whom claims may be pursued and reinforces the Government’s determination to ensure that remediation costs are ultimately borne by those considered responsible.
Whether the Bill succeeds in accelerating remediation remains to be seen. New powers can remove legal obstacles, but the practical challenges of funding, procuring and delivering complex remediation projects will remain. In particular, much will depend on whether regulators and local authorities are given the resources needed to exercise their expanded responsibilities effectively.
The Bill is at an early stage and may change as it progresses through Parliament. This article provides a high-level overview only and does not constitute legal advice.
