Lawbite: Driving Remediation Forward - Key Changes to be introduced by the Building Safety (Remediation of Unsafe Cladding etc) Bill

The Government's Building Safety (Remediation of Unsafe Cladding etc) Bill (Bill) expands the building safety regime introduced by the Building Safety Act 2022.

Aimed at accelerating the remediation of unsafe residential buildings in England, the Bill introduces new statutory duties to assess, mitigate and remediate external wall fire safety risks, supported by tougher enforcement powers and sanctions. It also broadens the scope for claims against manufacturers of unsafe or mis-sold construction products across the UK.

The measures are likely to have the greatest impact on freeholders, head lessees, resident management companies, right to manage companies, investors and developers. The Bill is currently progressing through Parliament, with its core duties expected to come into force two months after Royal Assent.

A New Duty to Assess and Remediate

The Bill introduces a new statutory framework requiring those responsible for repairing affected residential buildings to identify, assess and remediate external wall fire safety risks. The proposals are intended to bring greater consistency to remediation activity and provide regulators with clearer powers to drive progress where works have stalled.

The new duties apply to residential buildings in England that contain at least two dwellings, are at least 11 metres high or have at least five storeys and were completed before 28 June 2022. In-scope buildings must be assessed within 12 months of Royal Assent, unless an exception applies. Buildings needing works will require a remediation compliance plan within 15 months of Royal Assent.

Some buildings fall outside the new duties because other arrangements already secure their remediation. For example, the duties will not apply where a developer has committed to fix the building under the Government's developer remediation contract. They will also not apply where a public authority has taken over the works under a remediation management order.

Separately, the Bill requires medium-rise residential buildings (11 to 18 metres high) to be registered. This mirrors the existing register for buildings over 18 metres and should help regulators identify buildings with unsafe cladding. Owners of these buildings should check whether they will need to register.

Responsibility falls on 'responsible entities' (broadly, those with repairing obligations), which may include freeholders, head lessees, resident management companies and right to manage companies. Responsible entities will be expected to assess affected buildings and address identified risks where necessary.

Stronger Enforcement Powers

The Bill's enhanced enforcement regime is one of its most significant features. Failure to comply with remediation obligations may result in criminal sanctions, including up to two years' imprisonment, or, as an alternative to prosecution, civil penalties of up to £500,000. Directors and, in some circumstances, group companies may also face liability. Together, these measures reinforce the Government's intention to place responsibility for building safety failures on those involved in the delivery, ownership and management of buildings, rather than on residents.

The Bill also broadens the scope for claims against manufacturers of unsafe or mis-sold construction products, which could increase recovery and contribution claims across the construction and real estate sectors.

Clause 89 of the Bill would also confirm that no time limit under the Limitation Act 1980 applies to applications for remediation orders, remediation contribution orders or building liability orders. The Explanatory Notes say these orders were unlikely to be time-barred, but the change puts the point beyond doubt. This is welcome news for leaseholders and others seeking to recover remediation costs, as delay alone will not defeat a claim. The Supreme Court is also due to hear the Triathlon appeal shortly, which concerns whether remediation contribution orders can cover costs incurred before 28 June 2022.

What Does This Mean for Property Owners and Investors?

Although the Bill may change as it progresses through Parliament, owners and investors should begin identifying potentially affected buildings, reviewing existing remediation strategies, considering available funding options and ensuring clear governance and record-keeping arrangements are in place.

Takeaways

• the Bill replaces a largely reactive enforcement model with a clear statutory framework for assessing and remediating external wall fire safety risks. Those responsible for affected buildings will be expected to take proactive steps to identify and address risks, rather than waiting for regulatory intervention
• the proposals increase accountability across ownership and management structures. Directors, group companies and, in some circumstances, controlling individuals may face liability where remediation obligations are not met, making it important to review governance arrangements and ownership structures now
• we expect greater scrutiny of remediation programmes and an increase in disputes relating to access, scope of works and cost recovery as statutory deadlines approach. The proposed obstruction offence may encourage parties to resolve access issues at an earlier stage
• the Bill expands routes for pursuing manufacturers of unsafe or mis-sold construction products, creating further opportunities to recover remediation costs. Developers and building owners may wish to preserve evidence now to support any future recovery action