Housing (Cladding Remediation) (Scotland) Act 2024

Part 5 Responsible developers scheme

25 Power to establish scheme

(1) The Scottish Ministers may by regulations establish a responsible developers scheme (or more than one).

(2) The purpose of a responsible developers scheme is to secure that persons in the building industry address, or contribute towards the costs of addressing, risks to human life created or exacerbated (directly or indirectly) by the external wall cladding systems of buildings that are wholly or partly residential.

(3) Regulations establishing a scheme are to include provision about—

(a) who is eligible to be a member of a responsible developers scheme,

(b) the conditions of becoming, and remaining, a member,

(c) loss of membership,

(d) the consequences of a person who is eligible to be a member not being a member.

(4) Without prejudice to the generality of any other provision in this Part, regulations under subsection (1) may in particular—

(a) make provision about who is to operate a scheme (including by allowing a person to be appointed for that purpose in accordance with the regulations),

(b) confer functions on persons,

(c) require members, or persons seeking to become members, of a scheme to pay fees,

(d) make provision about the processes to be followed by the person operating a scheme (including in relation to decisions by the person about another person’s membership of the scheme),

(e) make different provision for different developers with regard to the size or other characteristics of a developer,

(f) make provision—

(i) requiring the Scottish Ministers to use their best endeavours to secure the outcome mentioned in subsection (5), and

(ii) describing circumstances in which such a requirement is to be regarded as having been complied with.

(5) The outcome is that, in relation to any single-building assessment, additional work assessment or work identified in a single-building assessment report or an additional work assessment report as being needed to eliminate or mitigate risks to human life that are (directly or indirectly) created or exacerbated by a building’s external wall cladding system arranged by a member of the scheme, the member uses the member’s best endeavours to ensure that the owners and occupiers of the building are—

(a) informed that the assessment or work is to be carried out, and

(b) given a reasonable opportunity to put questions about the assessment or work to a person appointed for that purpose by the member.

(6) Before making regulations under subsection (1), the Scottish Ministers must consult—

(a) such persons as appear to the Scottish Ministers to represent the interests of persons carrying on, for business purposes, activities connected with the construction or other development of buildings which are wholly or partly residential, and

(b) such other persons,

as the Scottish Ministers consider appropriate.

26 Eligibility for membership

(1) This section elaborates on the provision that is to be made by regulations in accordance with section 25(3)(a).

(2) Regulations must make being eligible for membership of a scheme depend on a person—

(a) being a developer, and

(b) having a connection to a building of a kind described by the regulations that has problematic cladding.

(3) It is for the regulations to describe the kind of connection to a building that a developer must have in order to be eligible for membership of a scheme.

(4) The regulations may provide for a connection of an indirect kind to suffice.

(5) Subsection (2) is not exhaustive of the matters that regulations may specify as criteria for being eligible for membership of a scheme.

(6) In this section—

• “developer” means a person carrying on, for business purposes, activities connected with the construction or other development of buildings,

• “problematic cladding” means an external wall cladding system in relation to which a single-building assessment report states that—

  (a)

  (directly or indirectly) the cladding system creates or exacerbates a risk to human life, and

  (b)

  work is needed to eliminate or mitigate that risk.

27 Conditions of membership

(1) This section elaborates on the provision that is to be made by regulations in accordance with section 25(3)(b).

(2) Conditions of becoming, and remaining, a member of a scheme may include conditions relating to—

(a) carrying out single-building assessments and additional work assessments and the carrying out of work identified as needed in a single-building assessment report or an additional work assessment report,

(b) making financial contributions towards meeting costs associated with carrying out single-building assessments and additional work assessments and the carrying out of work identified as needed in a single-building assessment report or an additional work assessment report,

(c) the provision of information to the Scottish Ministers or any other person,

(d) abiding by the terms of an agreement.

(3) Regulations must provide for a right of appeal to a court or tribunal against a decision of the person operating a scheme to refuse to allow another person to become a member of the scheme on the grounds that the person does not meet the conditions for becoming a member.

28 Loss of membership

(1) This section elaborates on the provision that is to be made by regulations in accordance with section 25(3)(c).

(2) Regulations must enable a person who has become a member of a scheme to choose to stop being a member.

(3) Regulations must provide for a right of appeal to a court or tribunal against a decision of the person operating a scheme to stop another person’s membership of a scheme on the grounds that the person has not met the conditions for becoming or remaining a member.

29 Consequences of not being a member

(1) This section elaborates on the provision that is to be made by regulations in accordance with section 25(3)(d).

(2) Regulations are to provide that the person operating a scheme is to publish a list of persons who are eligible to be members of the scheme but are not (“a prohibited developers list”).

(3) Regulations may, in relation to a person included on a prohibited developers list—

(a) prohibit the person from carrying out—

(i) any development, or

(ii) development of a kind described in the regulations,

(b) prevent a building warrant from being granted, or amended, on an application by the person,

(c) require a verifier to reject any completion certificate submitted by the person.

(4) Regulations may modify any enactment for a purpose mentioned in subsection (3).

(5) Regulations may, in particular, modify Part 6 (enforcement) of the Town and Country Planning (Scotland) Act 1997 so that its provisions apply in relation to the carrying out of development in breach of a prohibition created by virtue of subsection (3)(a) as though doing so were a breach of planning control.

(6) Regulations may create offences in connection with breaching a prohibition on carrying out development created by virtue of subsection (3)(a).

(7) The maximum penalties that may be provided for in respect of offences created by virtue of subsection (6) are—

(a) on summary conviction, a fine not exceeding £50,000,

(b) on conviction on indictment, a fine.

(8) Regulations must provide for a right to appeal to a court against a decision to include a person on a prohibited developers list.

(9) In this section—

(a) “development” has the meaning given by section 26 (meaning of “development”) of the Town and Country Planning (Scotland) Act 1997,

(b) the following terms have the meanings given by section 56 (interpretation) of the Building (Scotland) Act 2003—

(i) building warrant,

(ii) completion certificate,

(iii) verifier.