The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023

• (3) Where the Secretary of State grants an exception under this regulation, it may be revoked at any time and the person to whom it was granted included on the prohibitions list, if the Secretary of State considers that the person has commenced carrying on activities in the building industry.

• (4) An application under this regulation must—

• (a) be accompanied by evidence as to why the applicant is not a person in the building industry;

• (b) state that, if the application is granted, the applicant undertakes to notify the Secretary of State if they commence or intend to commence carrying on activities in the building industry.

• (5) The Secretary of State may refuse the application if the statement in paragraph (4)(b) is not provided.

• (6) The Secretary of State may, by notice in writing, require the applicant to provide by a time specified in the notice any further information which the Secretary of State requires to make a determination under this regulation.

• (7) If a person requested to produce information under paragraph (6) does not, within the period specified in the notice, produce the specified information, their application under paragraph (1) is to be treated as having been refused.

• (8) The Secretary of State may not grant an exception under this regulation unless satisfied that granting the exception is not contrary to or likely to frustrate the purposes of the scheme provided for in regulation 5.

PART 4 — Review

Review

43

• (1) The Secretary of State must from time to time—

• (a) carry out a review of the regulatory provision contained in these Regulations, and

• (b) publish a report setting out the conclusions of that review.

• (2) Section 30(4) of the 2015 Act requires that the report must, in particular—

• (a) set out the objectives intended to be achieved by the regulatory provision,

• (b) assess the extent to which those objectives are achieved,

• (c) assess whether those objectives remain appropriate, and

• (d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way that involves less onerous regulatory provision.

• (3) Section 30(5) of the 2015 Act requires that the first report must be published before the fifth anniversary of the date on which these Regulations come into force.

• (4) Section 30(6) of the 2015 Act requires that subsequent reports must be published at intervals not exceeding five years.

• (5) In this regulation—

• “the 2015 Act” means the Small Business, Enterprise and Employment Act 2015;

• “regulatory provision” has the meaning given in section 32 of the 2015 Act.

SCHEDULE — Modifications to the Town and Country Planning Act 1990

1

Part 7 of the Town and Country Planning Act 1990⁹ applies—

• (a) as if the following sections were omitted—

• (i) section 173ZA (enforcement warning notice: Wales);

• (ii) section 187A (enforcement of conditions);

• (iii) section 189 (penalties for contravention of orders under s. 102 and Schedule 9);

• (iv) section 190 (enforcement of orders under s. 102 and Schedule 9);

• (v) sections 191 to 196 (certificate of lawful use or development); and

• (vi) section 196D (offence of failing to obtain planning permission for demolition of unlisted etc buildings in conservation area in England);

• (vii) section 196E (power to provide relief from enforcement of planning conditions); and

• (vii) section 172ZA (enforcement warning notice: England.

• (b) subject to the modifications set out in the following paragraphs of this Schedule.

Modification of section 171A (expressions used in connection with enforcement)

2

Section 171A¹⁰ applies as if—

• (a) for subsection (1) there were substituted—

(1) For the purposes of this Part, carrying out any material operation in contravention of the prohibition in regulation 29 of the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023, constitutes a breach of planning control.

• (b) for subsection (3), there were substituted—

(3) In this Part— - “planning permission” includes permission under Part III of the 1947 Act, or of the 1962 Act or of the 1971 Act; - “the prohibition” means the prohibition in regulation 29 of the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023; - “Responsible Actors Scheme” means the scheme established under regulation 5 of the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023;

• (c) after subsection (3) there were inserted—

(4) In this section, “material operation” has the meaning given in section 56(4).

Modification of section 171C (power to require information about activities on land)

3

Section 171C¹¹ applies as if—

• (a) in subsection (1), for paragraph (b) there were substituted—

(b) appears to the local planning authority to have breached planning control.

• (b) in subsection (2)—

• (i) at the end of paragraph (a), “and” were omitted;

• (ii) at the end of paragraph (b), there were inserted—

and (c) any matter relating to that person’s membership of the Responsible Actors Scheme or the application at any time of the prohibition to that person,

• (c) in subsection (4)(a), for the words “to apply for planning permission” to the end, there were substituted “to remedy the breach of planning control”.

Modification of section 171E (temporary stop notice)

4

Section 171E applies as if in subsection (1)—

• (a) in paragraph (a), at the end “and” were omitted;

• (b) paragraph (b) were omitted.

Modification of section 171F (temporary stop notice: restrictions)

5

Section 171F applies as if—

• (a) in subsection (1), paragraph (b) were omitted;

• (b) subsections (2) to (4) were omitted.

Modification of section 171H (temporary stop notices: compensation)

6

Section 171H applies as if for it there were substituted—

(171H) (1) Subject to paragraph (2), this section applies where— (a) a temporary stop notice is issued; and (b) either— (i) it is determined that there has not been a breach of planning control; or (ii) the authority withdraws the notice. (2) This section does not apply in a case where a person is member of the Responsible Actors Scheme on or after the day on which a copy of the notice is first displayed as mentioned in section 171E(6), whether or not their membership has been treated as having retrospective effect. (3) A person who at the time the notice is served has an interest in the land to which the notice relates is entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition effected by the notice. (4) Subsections (3) to (7) of section 186 apply in relation to a claim for compensation payable under this section— (a) as they apply to compensation payable under that section; and (b) reading each reference to a “stop notice” in those subsections as if it were a reference to a temporary stop notice.

Modification of section 172 (issue of enforcement notice)

7

Section 172 applies as if for subsection (1)(b) there were substituted—

(b) that it is expedient to issue the notice

Modification of section 173 (contents and effect of notice)

8

Section 173 applies as if—

• (a) for subsection (1) there were substituted—

(1) Subject to subsection (10), an enforcement notice must state the matters which appear to the local planning authority to constitute the breach of planning control.

• (b) in subsection (2), for “subsection (1)(a)” substitute “subsection (1)”;

• (c) for subsection (4), there were substituted—

(4) Those purposes are— (a) ensuring compliance with the prohibition; (b) remedying any injury to amenity which has been caused by the breach.

• (d) for subsection (10) there were substituted—

(10) An enforcement notice must— (a) specify the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise; (b) contain a list of the names and addresses of the persons on whom a copy of the enforcement notice has been served; (c) be accompanied by an explanatory note providing information relating to— (i) any relevant right of appeal; (ii) the grounds on which an appeal may be brought under this Part.

Modification of section 174 (appeal against enforcement notice)

9

Section 174¹² applies as if—

• (a) in subsection (2), paragraphs (a) and (f) were omitted;

• (b) Reg 3(2) subsections (2A), (2AA), (2AB), (2AC), (2B) and (2D) to (2F) were omitted.

• (c) in subsection (4)—

• (i) in the opening words, for “prescribed time” there were substituted “time specified in subsection (4A)”;

• (ii) for paragraph (b), there were substituted—

(b) setting out briefly the facts on which the person proposes to rely in support of each of those grounds.

• (d) after subsection (4), there were inserted—

(4A) If the statement in writing referred to in subsection (4) is not included with the notice of appeal, it must be delivered to the Secretary of State not later than 14 days after the date on which the Secretary of State sends the person concerned a notice requiring that person to do so.

• (e) in subsection (5), for “prescribed time” there were substituted “time specified in subsection (4A)”.

Modification of section 175 (appeals: supplementary provisions)

10

Section 175 applies as if—

• (a) for subsections (1), there were substituted—

(1) The Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 apply to appeals under section 174 as if— (a) Part 2 were omitted; (b) regulation 9(1)(b) were omitted.

• (b) subsections (2) were omitted;

• (c) at the end there were inserted—

(8) The following Regulations and rules apply to appeals under section 174— (a) the Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002¹³; (b) the Town and Country Planning (Enforcement) (Determination by inspectors) (Inquiries Procedure) (England) Rules 2002¹⁴; (c) the Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002¹⁵; (d) the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002¹⁶, but as if regulation 7(4)(b) were omitted.

Modification of section 176 (general provisions relating to determination of appeals)

11

Section 176 applies as if—

• (a) in subsection (1), for “On an appeal” there were substituted “Subject to subsection (1A), on an appeal”;

• (b) after subsection (1), there were inserted—

(1A) Nothing in subsection (1) permits the Secretary of State to determine the question of whether the appellant is eligible to be a member of the Responsible Actors Scheme if that question has already been determined in accordance with regulation 14 and 16 of the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023.

• (c) in subsection (3)(a), for “prescribed time” there were substituted “time specified in section 174(4A)”.

Modification of section 177 (grant or modification of planning permission on appeals against enforcement notices)

12

Section 177 applies as if for it there were substituted—

(177) On the determination of an appeal under section 174, the Secretary of State may determine whether, on or before the date on which the appeal was made, major development of land in England was being carried out in breach of the prohibition.

Modification of section 180 (effect of planning permission, etc, on enforcement or breach of condition notice)

13

Section 180 applies as if—

• (a) for subsection (1) there were substituted—

(1) Where after the service of a copy of an enforcement notice the person undertaking development to which the notice applies ceases to be a prohibited person within the meaning of regulation 29 of the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (“the 2023 Regulations”), the notice ceases to have effect so far as it is inconsistent with the 2023 Regulations.

• (b) subsection (2) were omitted;

• (c) in subsection (3), “or breach of condition notice” were omitted.

Modifications of section 181 (enforcement notice to have effect against subsequent development)

14

Section 181 applies as if for it there were substituted—

(181) Compliance with any requirements in an enforcement notice does not discharge the notice, and accordingly, any resumption of major development after they have been discontinued in compliance with the enforcement notice will be in contravention of the enforcement notice

Modification of section 183 (stop notices)

15

Section 183 applies as if paragraphs (5) and (5A) were omitted.

Modification of section 186 (compensation for loss due to stop notice)

16

Section 186 applies as if—

• (a) in subsection (1)—

• (i) paragraph (a) were omitted;

• (ii) in paragraph (b), the words “(otherwise than” to in “that paragraph)” were omitted;

• (iii) in paragraph (c), the words “otherwise than in consequence” to “notice relates” were omitted;

• (b) in subsection (3), for the words “within the prescribed time and in the prescribed manner” there were substituted “in accordance with regulation 12 of the Town and Country Planning General Regulations 1992¹⁷”.

Modification of section 188 (Register of enforcement and stop notices)

17

Section 188 applies to enforcement action taken under these Regulations as if the references in that section—

• (a) to planning enforcement orders included a reference to planning enforcement orders issued under these Regulations;

• (b) to enforcement notices included a reference to enforcement notices issued under these Regulations;

• (c) to stop notices included a reference to stop notices issued under these Regulations.

Signed

Lee Rowley — Parliamentary Under Secretary of State — Department for Levelling Up, Housing and Communities — 3rd July 2023

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These regulations establish the Responsible Actors Scheme (“the scheme”) and the prohibitions under the Act. They identify certain developers who are eligible to become members of the scheme, and, as a condition of membership, require such developers to enter into and comply with a contract with the Secretary of State for Levelling Up, Housing and Communities under which they are to, among other things, remediate relevant residential buildings for which they are responsible at their own expense and reimburse to the government amounts paid out by government remediation funds to remediate buildings for which they are responsible.

Part 1 (regulations 1 to 4) contains introductory provisions.

Part 2, Chapter 1 (regulations 5 to 12) establishes the scheme, sets out the description of the persons who are eligible to become members of the scheme, and those who may choose to become members of the scheme.

Chapter 2 (regulations 13 to 20) makes provision for applications to join the scheme and for lists to be published by the Secretary of State. The Secretary of State is required to publish two lists: a list of the persons who are members of the scheme, and a list of those persons who, though eligible, are not members of the scheme, and the persons whom they control (“the prohibitions list”) (regulation 20).

Chapter 3 (regulations 21 to 23) sets out the conditions with which members of the scheme must comply and gives the Secretary of State power to require scheme members to produce certain information.

Chapter 4 (regulations 24 to 27) makes provision for the revocation of a member’s membership of the scheme and for a member’s membership to end where the member has fulfilled its obligations under the scheme.

Part 3 (regulations 28 to 42), with the Schedule to the regulations, set out the consequences which apply to those persons who are included on the prohibitions list. They are prohibited from carrying out major development in England (regulation 29), except for development for which planning permission has been granted before the regulations come into force (regulation 32). They are required to notify the relevant local authority of certain circumstances (regulation 30). Persons on the prohibitions list are also subject to the building control prohibitions set out in regulation 33. The effect of things done in contravention of the building control prohibitions (regulation 39) and the effect of the prohibitions on the validity of documents given or accepted in relation to building control before a person was prohibited is set out (regulation 40). Regulation 41 and the Schedule to the regulations modify Part 7 of the Town and Country Planning Act 1990 to take account of the prohibition on development provided for in these regulations. The prohibitions are subject to certain exceptions (regulations 31, 34, 35, 36, 37, 38 and 42).

Part 4 contains a review clause (regulation 43).

A copy of the International Accounting Standard 28 Investments in Associates and Joint Ventures the Financial Reporting Standard 102 and the Self Remediation Terms, which are referred to in these regulations, are available for inspection during office hours at the Department for Levelling Up, Housing and Communities Environment, 2 Marsham Street, London, SW1P 4DF. The Self Remediation Terms are also available at https://www.gov.uk/government/publications/developer-remediation-contract.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available from www.legislation.gov.uk and from the Department for Levelling Up, Housing and Communities, 2 Marsham Street, London, SW1P 4DF.

Footnotes

Editorial notes

34A

• (1) Where an applicable person proposes to carry out work to existing HRB which consists of emergency repairs then—

• (a) the provision by them of a notice under regulation 10(1)(a) (notification of emergency repairs to existing HRB) of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, and

• (b) an application for a certificate in relation to that work under regulation 47 (regularisation of unauthorised building work) of those Regulations,

are not to be treated as a breach of the building control prohibition.

• (2) Where paragraph (1) applies, the regulator is not prohibited from giving the applicable person a certificate under regulation 47 (regularisation of unauthorised building work) of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023.

• (3) In this regulation—

• “emergency repairs” has the meaning given in regulation 10(2) of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023;

• “the regulator” has the meaning in section 126 of the Building Act 1984;

• “work to existing HRB” has the meaning given in regulation 2 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023.

Exception to building control prohibitions and modification of the Building Regulations 2010: regularisation

Exception for critical national infrastructure

Effect of things done in contravention of these Regulations

Transitional provision