Watching from Scotland, we have seen significant changes to building safety in England under the Building Safety Act 2022 (the Act).

The Act has introduced:

• a more rigorous regulatory regime for buildings, particularly high-rise buildings;
• enhanced oversight and enforcement powers through the creation of the Building Safety Regulator; and
• a shift towards a more proactive approach to building safety, focusing on risk management and prevention.

Many of these changes came into force in England following a transitional period which ended in April 2024, resulting in significant legislative development aimed at enhancing safety standards within the construction industry.

Although many provisions of the Act do not apply in Scotland, it does make some important changes for Scotland, which include the four key changes below.

1. Liability for Construction and Cladding Products

The Act introduces two important provisions regarding liability for construction and cladding products, where a dwelling becomes ‘unfit for habitation’ in relation to these products. These provisions are applicable in Scotland. Very broadly:

• Section 148 establishes liability where construction products are inherently defective, fail to comply with construction product requirements, or are marketed with misleading statements. If such a product is installed in a relevant building and renders it unfit for habitation, the party responsible for the defect, failure to comply with the requirements, or misleading statement is liable for damages to those with a relevant interest in the building for personal injury, property damage, or economic loss.
• Section 149 addresses liability for defaults relating to cladding products. It outlines conditions under which liability arises due to inherently defective cladding products, failure to comply with cladding product requirements, or marketing with misleading statements. This includes instances where these products were installed before the Act came into force (more on this below). The party responsible for the defect, failure to comply, or misleading statement is liable for damages if the defective cladding product causes a relevant building to be unfit for habitation.

2. Extended Prescription Periods

Sections 148 and 149 came into force in June 2022, and there are extended prescription periods in relation to these. The provision of the Act which impacts Scotland is Section 151.

As a broad summary, this extends the typical 5 year prescriptive period for a claim for a defective construction products set by the Prescription and Limitation (Scotland) Act 1973, to:

• a 15-year limitation period for actions under Sections 148 and 149 (from June 2022),
• a 30-year retrospective limitation period for Section 149 (before June 2022) depending on when the right of action accrued.

By extending the typical limitation period for liability for construction and cladding products in this way, the Act significantly expands the previous prescriptive rules in this area, with the potential for costly disputes.

3. Marketing and Supply of Construction Products

The Act empowers the Secretary of State to regulate the marketing and supply of construction products. This authority extends to ensuring that construction products meet stringent safety standards, thereby safeguarding public safety.

Section 146 establishes the regulatory framework, while Schedule 11 outlines the detailed provisions of these regulations. These measures are crucial in maintaining high safety standards and ensuring that construction products used in Scotland are compliant with UK-wide regulations.

Schedule 11 emphasises the duty of manufacturers and suppliers to ensure that construction products are safe and meet established standards before being marketed. It provides for significant penalties for non-compliance, including fines and potential criminal charges. These provisions collectively outline a framework which aims to ensure that construction products are subject to rigorous scrutiny, thereby enhancing the overall safety and reliability of the built environment.

Furthermore, Schedule 11, paragraph 20(1) of the Act provides flexibility for different provisions to be applied in Scotland. This flexibility allows for the adaptation of regulations to suit the specific needs and circumstances of the Scottish construction industry. The Secretary of State can tailor regulations to address unique challenges faced in Scotland, ensuring that the regulatory framework is both effective and relevant. This adaptability is crucial for maintaining high safety standards while accommodating regional differences in construction practices and materials.

4 The New Homes Ombudsman Scheme (the Scheme)

Last but certainly not least, the Act introduces the Scheme, which applies across the UK, including Scotland (Sections 136 to 143 and Schedule 9). This Scheme was designed to provide a mechanism for addressing complaints related to new homes. The Scheme applies uniformly across the UK, including Scotland, and can mandate that developers of new homes become members. Points worth noting include:

• The Ombudsman is empowered to investigate complaints and enforce resolutions, thereby aiming to ensure that homebuyers have a reliable avenue for redress.
• The Scheme aims to boost consumer protection by ensuring developers are accountable for the quality and safety of new homes, thereby increasing trust in the housing market.
• While the Scheme applies in Scotland, its enforcement mechanisms are mainly focused on England. Any impact in Scotland will rely on further legislative actions or adaptations by the Scottish Government.

What’s next for Scotland?

While the Act primarily extends to England and Wales, as you can see, it has significant impacts for Scotland also, and we await further developments around construction products and the new Homes Ombudsman Scheme in Scotland.

Furthermore. Scottish building safety developments do not only stem from the Act. For example, the Building Safety Levy (Scotland) Bill was recently introduced into the Scottish Parliament – but the Act only provided for a building safety levy in England. This demonstrates that while the Act sets a precedent, Scotland is actively shaping its own legislative path to address building safety in a way that reflects its distinct regulatory landscape.