Unsafe cladding: what the new Remediation Bill means for local authorities

This article considers the Bill as introduced and specifically the impact it may have on local authorities; the proposals may change as it progresses through Parliament.

Strengthening the local authority toolkit

The proposed duties focus on residential buildings in England containing at least two dwellings, which are at least 11 metres high or have at least five storeys and were completed before 28 June 2022. Subject to exceptions, those responsible under a lease or legislation for repairing or maintaining the external walls would need to arrange an assessment of external wall fire risks and, where required, implement interim safety measures and take the necessary remediation steps as soon as reasonably practicable. There are exclusions, including where the walls have been, or must be, remediated under a developer Self Remediation Contract.

Local housing authorities and fire and rescue authorities are being put forward as the enforcers of the new duties, alongside the Building Safety Regulator for higher-risk buildings. They would be able to impose significant financial penalties directly, including up to £500,000 for failures to comply with the new mitigation or remediation duties, subject to statutory safeguards.

Local housing authorities would also gain powers to require information about the ownership and beneficial ownership of residential blocks containing at least two dwellings. This should help authorities trace complex ownership structures and investigate potential enforcement targets.

Perhaps the most significant proposal, however, is a route for public authorities to step in and deliver remediation themselves referred to in the Bill as the 'Remediation Backstop'.

From enforcement to remediation

The proposed Remediation Backstop would allow a local housing authority or Homes England to apply to the Tribunal for a Remediation Management Order which is an order that would allow a local authority to step in and arrange remediation works where those responsible have failed to act.

The obvious question is: will the local authority be expected to pay for the works? The Bill does propose that funding will be made available to local authorities who obtain a Remediation Management Order.

This may, therefore, provide a route to tackle fire risks, where building owners are sitting on their hands.

The tribunal would need to be satisfied that there had been a specified compliance failure and that an order was just and convenient. This could follow a failure to comply with certain enforcement notices or orders, once the time for appealing has passed or any appeal has concluded. Alternatively, failure to comply with the Bill’s new remediation duty could trigger an application without an earlier notice or order. Before applying, the authority would need to notify the relevant parties and allow three months for representations.

An order could give the authority powers to arrange contracts, access the building and carry out works using rights that would ordinarily belong to the duty-holder. Once an order was made, the authority would have to use its powers to remediate the external walls as soon as reasonably practicable.

The Bill also provides a route to recover costs from the duty-holder. Following discharge of the order and tribunal certification that remediation expenses were reasonably incurred, the authority would issue a costs notice. Once that notice took effect, the recoverable amounts would become a debt and, where the duty-holder held a legal estate in the building, a legal charge over that estate, with enforcement powers including sale.

Existing powers remain important

The proposed new regime should not be viewed in isolation. Local authorities already have potentially powerful enforcement tools, including under the Housing Act 2004 and the Building Safety Act 2022.

Housing Act Powers

For example, failure to comply with a Housing Act improvement notice addressing an external wall fire risk could support an application for a Remediation Management Order, subject to the statutory conditions. Having successfully acted for local authorities, it is recognised the Housing Act powers are already an effective tool

The Bill proposes to link restrictions on occupation more closely with remedial action. For relevant buildings, if an authority considers that reasonably practicable works would allow a prohibition order to be revoked, and it could require those works through an improvement notice, it would have to serve that notice alongside the prohibition order. The same conditions would apply to emergency prohibition orders, but with up to 28 days to serve the improvement notice. The aim is to secure a route back to safe occupation, not simply prevent use of the building.

Building Safety Act 2022

The Bill is a timely reminder of the powers that the Building Safety Act 2022 introduced and which are available to local authorities.  Walker Morris acted for the London Borough of Tower Hamlets in securing a remediation order requiring the removal of dangerous ACM cladding from a high-rise building in Stepney, as reported by BBC News.  There is also the power for local authorities to apply for Remediation Contribution Orders to require prescribed parties, including developers, to fund remedial work.

Walker Morris' experience is that it is important to look at the statutory toolkit as a whole and selecting the enforcement route most likely to secure a practical outcome, rather than considering each statutory regime separately. 

Remediation Enforcement Support Fund

For those authorities requiring funding to pursue those responsible for remediating buildings, the Government's Remediation Enforcement Support Fund remains open until 28 February 2027 for local authorities to obtain legal expert services to pursue enforcement.

What should local authorities do now?

The proposals are not yet law, and further detail would follow through regulations and guidance. Nevertheless, local authorities can begin reviewing their building safety caseloads and considering how the proposed powers could help progress stalled remediation.

In particular, they may want to:

• identify buildings with external wall fire risks where remediation has stalled;
• review whether existing enforcement powers could move those cases forward now;
• check who is responsible for the external walls and bring together evidence of the risks and any failure to comply with existing notices or orders;
• consider how they would arrange and manage works if intervention became necessary, and explore the government funding available to support that work;
• review working arrangements with fire and rescue authorities and the Building Safety Regulator in anticipation of the proposed statutory co-operation requirements.

The Bill’s significance is not simply that it proposes more enforcement powers. Taken alongside existing tools, it could give local authorities a clearer route from identifying unsafe external walls, to requiring action and, where necessary, stepping in to secure remediation.

Asia Munir is a Director in the Real Estate Litigation team at Walker Morris.