RSUA calls for MLAs to reject Defective Premises Bill

1 July 2024

The Defective Premises Bill will go through its Final Stage in the Assembly tomorrow, 2 July 2024. The Royal Society of Ulster Architects (RSUA) has presented a paper to Members of the Legislative Assembly today in advance of the vote, as set out below.

What new information has come to light since MLAs agreed to allow the Defective Premises Bill to progress under the Accelerated Passage procedure?

We now know that:

1. Hundreds of NI homeowners seeking to claim under the Cladding Safety Scheme are likely to be disadvantaged if the Defective Premises Bill passes.
2. Passing the Defective Premises Bill will not mean that the people of Northern Ireland will be afforded the same protections as those in England under the Building Safety Act 2022
3. The Department for Communities has been on the go-slow in answering questions relating to the Defective Premises Bill. As a result, MLAs are being asked to pass a law without robust information on its consequences.
4. The Department for Communities has demonstrated a fundamental misunderstanding of the implications of retrospectively extending the liability period to 30 years for claims under the Defective Premises Order.

More information on each of these points is included below.

What is to be gained by passing this Bill?

The owners of apartments in Victoria Square may benefit from this. They also may find themselves locked into many more years of legal battles as a result. RSUA’s view from the outset has been that Government should have taken a much more targeted approach to addressing this problem rather than rushing through a highly controversial law that applies to dwellings across Northern Ireland.

An opportunity still exists to do this right.

Action

If Ministers and MLAs had been given the appropriate information upfront about the likely consequences of this Bill, we believe the decision to press ahead would have been very different.

However, with this information now in front of you, we are today asking all MLAs to reject this Bill.

Further explanation

1. Hundreds of NI homeowners seeking to claim under the Cladding Safety Scheme are likely to be disadvantaged if the Defective Premises Bill passes.

   
   The Department for Communities has now confirmed that the Cladding Safety Scheme requires applicants to demonstrate that they have exhausted potential avenues for redress before being able to access the funds.

   If MLA’s pass this law, you will open-up a new but very difficult avenue of redress under the Defective Premises Order for homeowners faced with cladding that poses a fire risk. This is likely to add additional cost and significant delay to hundreds of homeowners who are seeking to make safe the cladding on their building.

   The Department/Minister has stated that there are currently 5 apartment blocks seeking funding from the Cladding Safety Scheme. We understand this includes the Arc Apartments in Belfast’s Titanic Quarter.

   If MLAs pass the Defective Premises Bill it is likely to result in hundreds of people having to live for longer in buildings deemed to have unsafe cladding.

   In trying to help one group of residents, it now appears likely that MLA could end up hurting another.

2. Passing the Defective Premises Bill will not mean that the people of Northern Ireland will be afforded the same protections as those in England under the Building Safety Act 2022

   
   Following discussion of this proposed legislation in the media the Department released a statement including the line: “This legislation will help ensure citizens in Northern Ireland are afforded the same protections in England and Wales under the Building Safety Act 2022.”

   The English legislation runs to over 300 pages. The NI version is just a few paragraphs of this. The vast majority of protections provided to the citizens of England and Wales under the Building Safety Act 2022 will not be provided to NI citizens as a result of passing the Defective Premises Bill. We believe the Department’s statement borders on being misleading.

3. The Department for Communities has been on the go-slow in answering questions relating to the Defective Premises Bill, increasing the risk of MLAs passing a law without robust information on its consequences.

   
   RSUA wrote to the Minister for Communities on 31 May 2024 seeking reassurance that under this new law:
   
   (i) homeowners seeking to claim under the Cladding Safety Scheme would not be negatively impacted
   (ii) innocent parties would not be held liable for the failings of others
   
   Despite this legislation being rushed through, we did not receive a response until 19 June 2024, almost three weeks later. We did not get the reassurances we sought. The section of that response relating to defective materials was highly ambiguous. On 20 June 2024 we sought urgent clarification from the Department. After multiple follow-up emails, an unnamed official responded to say that we could expect a response on 9th July 2024 (one week after the Bill is due to pass its final stage in the assembly)
   
   The Construction Professional’s Council NI has received no response to its letter.
   
   These are not the actions of a Department which is eager to ensure that MLAs are making an informed decision.
   

4. The Department for Communities has demonstrated a fundamental misunderstanding of the implications of retrospectively extending the liability period to 30 years for claims under the Defective Premises Order.

The Department for Communities’ response to RSUA’s requests for reassurance demonstrated a fundamental misunderstanding of the consequences of this Bill.

The Defective Premises (NI) Order 1975 is an old piece of law which has been fairly irrelevant in modern times. It has been irrelevant because under the Limitation (NI) Order 1989, liability lasted for six years and within that period there were much better routes for redress under contract or tort.

The fact that an innocent party could have been held responsible for the failures of others under the potential ‘strict liability’ of the Defective Premises Order did not matter much as that route for redress was high unlikely to be used.

However, by retrospectively extending the liability period to 30 years, the Defective Premises Order would become the route for redress for older projects where there is no redress under contract or tort. This moves the Defective Premises Order from being quite irrelevant to highly relevant.

In England they recognised the weakness of solely extending the liability period under the Defective Premises Act. Their Building Safety Act included powers to ensure that those who are truly liable are held to account. In the rush, this has been ignored in NI. This makes it bad law.

RSUA does not recommend blindly following England on these matters, especially when the Republic of Ireland and Scotland have taken a different approach. However, where MLAs wish to follow England’s approach it is risky to only adopt one piece of a highly complex jigsaw of legislation.