UK government sets clear deadlines to fix buildings with unsafe cladding

The government has recently set out clear new targets to speed up the process of fixing buildings with combustible cladding in England. The new measures will also introduce significantly tougher penalties for failing to act.

Under the government’s Remediation Acceleration Plan, all buildings over 18 metres with unsafe cladding in a government-funded scheme will have to be remediated by the end of 2029. All buildings over 11 metres with unsafe cladding will either have been remediated or have a date for completion by the end of 2029, otherwise, the landlords will be liable for severe penalties.

Of the 54 developers who have signed the Developer Remediation Contract, 29 have signed up to a joint plan with the government which includes even tighter timescales for assessing and remediating buildings.

Katherine Metcalfe of Pinsent Masons, who specialises in building safety regulation, said a variety of new sanctions have been introduced by the government to try to improve the pace of remediation. “The new sanctions include a legal duty to complete remediation within a clear timescale, supported by significant financial consequences for inaction, a new criminal offence of failing to remove unsafe cladding and further enforcement powers for regulators such as the Building Safety Regulator (BSR), fire and rescue services and local authorities,” she said.

As part of the enhanced enforcement capacity, landlords who fail to fix unsafe homes for leaseholders and residents could face legal action by the government’s Recovery Strategy Unit (RSU). The RSU has obtained remediation contribution orders against a number of non-compliant freeholders, seeking to recover up to £72 million of leaseholder and taxpayer funds. The number of enforcement targets is expected to increase as the Ministry of Housing, Communities and Local Government (MHCLG) has Increased the RSU’s funding for enforcement.

Meanwhile, the MHCLG will also provide additional funding to enable local authorities to double enforcement activity and ensure the BSR has the capacity to deal with the additional requirements the acceleration plan will bring. In addition to financial penalties, the government intends to create a new criminal offence for those who fail to remove unsafe cladding.

Metcalfe noted that one area of concern in the construction industry is the possible capacity issues at the BSR in relation to the new approval system for HRB applications.

The Building Safety Act 2022 (BSA), which came into force in England and Wales in October 2023, has introduced a more stringent regulatory framework for the design and construction of higher-risk buildings (HRB), which are buildings over 18 metres or with 7 or more storeys. A key change under the new regime requires the developer of the HRB project to obtain “building control approval” from the Building Safety Regulator (BSR) prior to commencing development work. The so-called “Gateway 2” approval is to ensure that the building’s design is safe before building work starts.

“The capacity of the BSR could be a significant blocker to progress with remediation plans for higher-risk buildings.  Too many Gateway 2 applications are taking longer than anticipated to process, or are being rejected due to a lack of information to support the application.  It is perhaps a missed opportunity that there are no proposals to address this within the plan,” she said.

Another significant aspect of the remediation acceleration plan is that it aims to help resolve issues between freeholders and developers, according to Neal Anderson, infrastructure dispute resolution expert at Pinsent Masons. 

The government has identified that barriers to developer-led remediation include disputes between developers and freeholders over access to the building and/or scope of works, access to competent and independent assessors and delays to securing the necessary regulatory approvals. As part of its plan, the government will work with developers and other parties to overcome those issues.

The plan is also set to address another problem encountered by enforcement agencies – the difficulty in knowing who is ultimately responsible for each building. It noted that in many cases, the identity of a legal owner’s parent company, who makes the decisions and benefits financially, is “obscured” due to layers of corporate ownership above the freehold interest.

To tackle this issue, the government proposes to give regulators powers to compel property owners to disclose their beneficial ownership chains. It also plans to expand the existing building register to require building owners to provide beneficial ownership information, in a bid to improve transparency more broadly for buildings that are over 11 metres. This is part of the government’s effort to identify all buildings with unsafe cladding, as it is estimated that between 4,000 and 7,000 buildings that are above 11 metres and below 18 metres with unsafe cladding in England have not been identified. For those buildings, landlords are responsible for assessing fire risks in their buildings but they are often falling short, said the government.