Government declines to fix date for Responsible Actors Scheme

The government has declined to indicate when it plans to bring in the Responsible Actors Scheme designed to punish housebuilders that refuse to agree to repair fire safety risks in their own homes, despite publishing details of how the scheme will work.

The Department for Levelling Up, Housing and Communities (DLUHC) set out guidance on Friday which said the scheme will prevent developers from carrying out major planning permissions or from receiving building control approvals for any works. The publication of the guidance follows the naming of 11 firms earlier in March that had failed to sign up to the government’s contract committing to repair all life-critical fire safety defects on homes they’d built going back 30 years - albeit four of those have now since signed.

However, the guidance on the Responsible Actors Scheme (RAS), which makes use of powers brought in under the 2022 Building Safety Act, made no mention of when the government intends to lay the detailed regulations required to enable it to start operating. 

A spokesperson for the government said only that “more details on the RAS will be available in due course”.

The government has come under increasing pressure in recent weeks from cladding campaigners and the Labour Party – which supports the introduction of the RAS – to say when the scheme will be brought in. In a debate on March 14, Labour shadow housing secretary Lisa Nandy asked her opposite number Michael Gove whether he will “be using the powers at his disposal to designate the developers who cannot be granted planning permission? Crucially, can he tell us from when?”

The guidance published on Friday set out in detail three criteria, meeting any of which will mean developers fall under the scheme, which a developer is then expected to join. These are essentially that a developer has developed and refurbished residential buildings of more than 11m in height in the last 30 years, and generated a profit of more than £10m per annum in the last three years; or has made that level of profit while building schemes assessed as eligible for a government cladding remediation scheme; or has developed at least one 11m+ building and volunteers to join the scheme.

The guidance also confirms that while the government has begun with major developers – 43 have now signed its “self remediation” contract making them potentially part of the scheme – it intends to “over time be expanded to cover other developers who developed or refurbished defective 11m+ residential buildings and should pay to fix them.”

Any developer who is invited to join and refuses to sign the contract is then subject to the sanction under the RAS, which are that “prohibited persons” – sanctioned companies – “will be prohibited from carrying out major development in England” and will also be prevented from “gaining building control approval in respect of any building work that requires such approval.”

>> See also What Gove’s Responsible Actors scheme is likely to mean for building safety

Major development is defined as any scheme of ten homes or more. The guidance said the planning prohibition will be enforced by local authorities, with any development in breach of a prohibition viewed as a planning breach, and subject to the usual enforcement powers.

Developers will continue to be able to submit and receive planning permissions, and buy and sell land with permission.

Regarding building control, the guidance said sanctioned developers would be prohibited from giving documents such as full plans, notices of passing of plans, plans certificates, and initial notices to councils, with councils also barred from accepting the documents.

The government said it wanted to create a system whereby “developers who take on the cost of remediating unsafe buildings are not disadvantaged as compared to other eligible developers who fail or refuse to do so.”

Michael Gove said on March 14 that while “the overwhelming majority” of major developers had signed the remediation contract, the RAS scheme was necessary for those that hadn’t. He said: “Those companies will be out of the house building business in England entirely unless and until they change their course.”

Gove also said he would say more “in the days and weeks to come” about pursuing freeholders and product manufacturers to pay for the cost of repairs, given so far all of the costs have fallen on housebuilders. In addition to the £2.5bn of costs borne under the RAS, housebuilders are facing a further £5bn in additional taxes to pay for cladding repair costs on other buildings.

In response to the consultation the Home Builders Federation said: “UK house builders are single-handedly providing the solution to the cladding crisis, despite having only built a fraction of the affected buildings and the Government’s own admission that the regulations of the day were at fault.

“Public posturing apart, Government has made no progress in securing contributions from foreign developers responsible for many of the buildings or the suppliers of the cladding at the heart of this crisis. The Building Safety Act gave ministers powers to target other parties, such as multinational product manufacturers, but yet again ministers choose to only target British house builders”.

“The RAS provides Government with unprecedented powers to retrospectively impose conditions on UK businesses. Such powers have clear implications for investor confidence in the sector and for the international view of UK plc”.