AC-2024-LON-0001595 - [2025] EWHC 2182 (Admin)

Meanwhile, the Building Safety Bill was introduced to Parliament on 5 July 2021, and the Building Safety Act 2022 (“BSA 2022”) received Royal Assent on 28 April 2022. The BSA 2022 makes provision for the remediation of certain defects in buildings with two or more dwellings that are at least 11m high or have at least 5 storeys.

Section 126-127 of the BSA 2022 provide for the making of regulations to establish building industry schemes to secure the safety of people and improve building standards, including the remedying of defects in existing buildings or contributing to the costs associated with remedying those defects. Sections 128-129 make further provision for the making of regulations to prohibit prescribed persons from carrying out development of land in England. Section 168, BSA 2022 makes general provisions relating to the regulations made under BSA 2022.

The regulations made pursuant to the enabling power in the BSA 2022 are the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (“RAS Regulations”) which came into force on 4 July 2023. Regulation 5 establishes a scheme known as the Responsible Actors Scheme (“the Scheme”). The purpose of the Scheme is to secure the safety of people in or about buildings and to improve the standard of buildings by securing that those in the building industry remedy defects in buildings relating to fire safety and contribute to costs associated with remedying such defects.

Regulations 6 – 8 of the RAS Regulations set out the eligibility criteria to be a member of the Scheme, with Regulation 7 making it clear that a company is to be treated as responsible for the development or refurbishment of a building if another company in the same group is so responsible. Regulations 13 and 14 make provision for the SoS to “invite” eligible persons to apply for membership of the Scheme.

Regulation 14(2) provides that where a person is “invited” to become a member of the Scheme, he must within 60 days either enter into a Self-Remediation Contract (if he has not already done so) or give notice to the SoS, supported by evidence, that neither he nor any body corporate in the same group is eligible to join the Scheme.

If the person “invited” to join the Scheme does not comply with regs. 14(2)(a) or (b) then, after the expiration of 60 days, he will be treated as a person who is eligible to join the Scheme but has not joined and will have his name published on the prohibitions list (“the Prohibitions List”) – i.e. a list prepared, maintained and published by the SoS and to which reg. 28 applies.

Where reg. 28 applies, the applicable person is prohibited under reg. 29 from: (1) carrying out major development of land in England (i.e. development of 10 houses or more); and (2) under reg. 33, is subject to a range of building control prohibitions. These prohibitions in respect of building control would affect future and current or ongoing developments.

Regulation 21 provides:

“Self Remediation Terms

21.—(1) Subject to paragraph (3), a member of the scheme must enter into a contract with the Secretary of State (“a Self Remediation Contract”) which contains terms that apply to contracts between a developer and the Secretary of State providing for the developer to undertake the remediation of the buildings for which they are responsible, as published by the Secretary of State on 16th March 2023 and referred to as the developer remediation contract (“the Self Remediation Terms”).

…

(3)

A member of the scheme who has entered into a contract with the Secretary of State on the same or substantially the same terms as the Self Remediation Terms before the date on which these Regulations come into force is to be treated as satisfying the scheme condition in paragraph (1), and references to Self Remediation Contract in these Regulations are to be treated as including references to the terms of such a contract.”

The SRTs referred to in reg. 21 as having been published by the SoS on 16 March 2023 were those that had been the subject of negotiations as described above.