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Preparing for changes to how cladding is regulated in Scotland

Following the Grenfell Tower disaster, we have seen changes to how cladding is regulated in Scotland. The most recent change comes into force on 1 June 2022 in terms of the Building (Scotland) Amendment Regulations 2022.

The Grenfell Tower disaster changed the lives of local residents and their families forever. It also brought the use of cladding and what lies beneath the external aesthetics of a building into sharp focus.

We have since seen a series of changes to how cladding is regulated in Scotland. The most recent change comes into force on 1 June 2022 in terms of the Building (Scotland) Amendment Regulations 2022 (the 2022 regulations) - introducing a ban on the use of combustible cladding on buildings of 11 metres or more in height.

The key changes are as follows:

1. Previously developers could use combustible cladding on high-rise buildings provided that they pass a large-scale fire assessment. The regulations now categorically ban any combustible cladding.

2. The combustible cladding ban will apply to all buildings of 11 metres or more in height and which fall into one of the following categories:

  • residential dwellings – including a sheltered housing complex or a shared multi-occupancy residential building
  • buildings used as a place of assembly
  • a place of entertainment or recreation
  • hospitals or residential care building

3. The legislation is retrospective and so will also apply to incompliant cladding on buildings constructed prior to 1 June 2022.

As a result, current owners of buildings that were originally constructed in full compliance with buildings regulations at the relevant time may now find themselves in breach of the new regulations overnight.

This leads to the question, who is going to foot the bill to remedy works that have been rendered defective due to the retrospective nature of the new regulations?

In England, to assist in the funding of any re-cladding projects required by regulations, developers have seen an extension to the Building Safety Levy - now chargeable on all new residential buildings constructed in England.

There is no equivalent regime for Scotland and with only a handful of weeks left until the new regulations come into force, it remains to be seen whether the UK or Scottish governments will assist building owners or developers in funding retrospective remedial works.

Alongside the cost of the re-cladding of buildings that are no longer compliant with the new regulations, there are a number of other challenges and costs faced by developers as a result of these works. 

As the 2022 regulations apply retrospectively, in many - perhaps the majority of - cases, affected buildings will be fully occupied as businesses and homes, with occupants anxiously waiting to see what effect it might have for them. Buildings to which works are required will frequently adjoin other buildings in third party ownership.

So, what does this mean for those embarking upon such projects?

  • Access – Either access to or the ability to oversail adjoining buildings or third party property may be required to facilitate works to sections of cladding on the affected block – bearing in mind that third party property could include airspace or common parts of the development, such as open ground or car parks, that may now be owned by residents’ associations.
  • Third party costs – Inevitably, any third party engagement required will have a cost attached that may include compensation for the inconvenience caused, as well as professional fees incurred in documenting any access rights.
  • Delays - Even if things go smoothly, the requirement to obtain the agreement of third parties can cause unforeseen delay in getting projects off the ground – particularly if the third party is a residents’ association, which may have hundreds of members, and there are set processes to be followed in terms of deeds of conditions regulating the carrying out of repairs.
  • Funders - The fact that many properties to which works are, or access may be, required may also be secured to a third party lender can add a further layer of complexity, involving having to get consent from any lender to carry out the re-cladding works and the timescales often associated with that.

While the spotlight has been on residential blocks of flats in the traditional sense, the impact of the new regulations is much wider reaching and extends to living sector developments that also exist as commercial investments, such as student accommodation, and some purely commercial developments that fall into the recreation and entertainment categories e.g. cinemas.

There is no doubt that the Grenfell tragedy has resulted in a step change in the approach to construction of buildings across the UK. Ahead of the introduction of the 2022 regulations, it is crucial that Scottish developers and building owners are proactively identifying what they must do now to achieve full compliance – so that history does not repeat itself.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022.

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