More reform to cladding regulations on the way - Katherine Metcalfe

The Scottish Government’s cladding remediation programme continues to generate law reform with the announcement yesterday that the Single Building Assessment (SBS) programme will be expanded.

The pilot SBS scheme, designed to replace the EWS1 external wall assessment process in Scotland, came at a high cost in terms of time and demand, resulting in changes to the process.

The UK Government earlier agreed a scheme with major developers to fund the remediation of unsafe cladding in England – and Holyrood now also wants to take action to deal with the costs of remediation of existing buildings. It has agreed with Homes for Scotland to develop a Scottish Safer Buildings Accord with their members and the broader sector, which replicates the English scheme.

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The Scottish Government has indicated that it will use powers at its disposal to bring developers to the table if required, and will also take on the role of procuring surveys, with fire engineers conducting surveys and taking responsibility away from home owners and factors.

Cladding being removed from a tower block in Sheffield, Yorkshire. Picture: Danny Lawson/PA Wire

However, the English Building Safety Act 2022 will have other implications for cladding in Scotland. The Act establishes a new, UK-wide, construction products regulator with stronger powers to undertake market surveillance and testing, and to require the withdrawal of unsafe products from the market.

A new liability relating to construction products installed on residential buildings which result in homes being unfit for habitation will also apply in Scotland. This liability is targeted at manufacturers who make false or misleading statements about the suitability of their products for a particular purpose. However, the wide drafting could trip up others involved in the design and construction of buildings. For new projects, construction firms in Scotland will also need to consider how changes to cladding regulations which come into force next month could impact new and ongoing projects. Legislation has been introduced to ban the use of the highest risk cladding and combustible materials in buildings above 11 metres tall.

The reforms, which will come into force on 1 June, will also ban the highest risk metal composite cladding materials from any new building of any height – with replacement cladding also required to meet the new technical standards.

Firms have just over two weeks before the legislation is due to come into force and so will need to carefully consider how the changes impact their pipeline of projects to ensure they remain legally compliant.

New cladding systems on high rise blocks of flats are currently required to use non-combustible materials or pass a large-scale fire test called a BS 8414. If the cladding passes the test – even when it contains combustible materials - it can be used.

But the new building standards legislation removes the option of a BS 8414 test, completely banning combustible materials from use on domestic and other high-risk buildings above 11 metres. The combustible cladding ban will apply to all buildings with a storey 11 metres or more above the ground, as well as high risk buildings like hospitals, entertainment venues and residential care homes.

Katherine Metcalfe, Partner and HSE law expert at Pinsent Masons

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