Polluter Pays in the Building Safety Bill
Polluter Pays Redress Scheme (in the Building Safety Bill)
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We hope to convince the government to add the polluter pays redress scheme into the Building Safety Bill, based on the provisions of the Environment Protection Act 1990 as amended, to establish a statutory framework for the recovery of direct and indirect remediation costs from responsible parties where a building is found not to have been constructed in accordance with building regulations in force at the time of construction.
Part 2A of Environmental Protection Act 1990 provides a statutory framework for the identification and remediation of contaminated land. Based on the “polluter pays” principle, enforcing authorities identify contaminated land and “appropriate persons” to pay for the clean-up.
Statutory guidance prevents unfairness by allowing enforcing authorities to waive or reduce costs if there is a risk of business insolvency, or where the owner or occupier of the land is a charity or an individual homeowner.
Our bill will follow this precedent closely and will include the following provisions:
• Duty on a landlord to apply to a local authority to determine whether a building
was compliant with building regulations in force at the time of construction. Applications to be made in line with regulations issued by the Secretary of State.
• Duty on a local authority to determine whether a building was compliant with building regulations in force at the time of construction.
• Power for a local authority to require the provision of information and/or undertake testing for the purposes of making a determination.
• Power for a local authority to apportion liability for “remediation costs” between “appropriate person(s)” through a remediation costs order, or to appoint an external adjudicator to do so, if a building is determined to be non- compliant. Apportionment to be made in accordance with guidance issued by the Secretary of State.
• Provision for appeals to the Secretary of State against determinations of non- compliance and/or a “remediation costs order”.
• Creation of an offence of failing to comply with a “remediation costs order”, punishable by a fine.
• Power for a local authority and/or the Secretary of State to pay all or part of a “remediation costs order” and recover the costs from an “appropriate person” who has failed to comply with an order. These costs may be secured with a charge over an appropriate person’s assets.
• “Remediation costs” to include direct costs of repairing the defect(s) and the indirect costs caused by the defect(s) (waking watches, rise in building insurance premiums).
• “Appropriate persons” to include those responsible for the design, construction, or supervision of building work, and suppliers of materials.
• Power for the Secretary of State to make regulations setting charges for a determination and, minimum criteria to be met before applying for one, including:
o minimum sum to be charged to leaseholders;
o exclusion of wear and tear (e.g. replacement fire doors), and
o reasonable cause test (i.e. reason to believe that the work needs to be carried out owing to a failure to comply with building regulations in force at the time of construction).
• Power for the Secretary of State to issue guidance as to whether certain
“appropriate persons” should be excluded from liability on hardship grounds, and how costs should be apportioned when there is more than one “appropriate person”.
• Needs to override limitation periods in the Defective Premises Act 1972 (six years) and Latent Damage Act 1986 (fifteen years).