Moved by
Lord Greenhalgh
67: Before Clause 117, insert the following new Clause—
“Associated persons
(1) For the purposes of sections (Remediation costs under qualifying leases) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases), a person (A) is associated with another person (B) in the circumstances mentioned in subsections (2) and (3).
(2) If A is an individual, A is associated with any body corporate of which A was a director at any time in the period of 5 years ending at the qualifying time.
(3) If A is a body corporate, it is associated with another body corporate (B) if—
(a) at any time in the period of 5 years ending at the qualifying time, a person who was a director of A was also a director of B, or
(b) at the qualifying time, one of them controlled the other or a third body corporate controlled both of them.
Subsections (4) to (6) set out the cases in which a body corporate is regarded as controlling another body corporate.
(4) A body corporate (X) controls a company (Y) if X possesses or is entitled to acquire—
(a) at least half of the issued share capital of Y,
(b) such rights as would entitle X to exercise at least half of the votes exercisable in general meetings of Y,
(c) such part of the issued share capital of Y as would entitle X to at least half of the amount distributed, if the whole of the income of Y were in fact distributed among the shareholders, or
(d) such rights as would, in the event of the winding up of Y or in any other circumstances, entitle it to receive at least half of the assets of Y which would then be available for distribution among the shareholders.
(5) A body corporate (X) controls a limited liability partnership (Y) if X—
(a) holds a majority of the voting rights in Y,
(b) is a member of Y and has a right to appoint or remove a majority of other members, or
(c) is a member of Y and controls alone, or pursuant to an agreement with other members, a majority of the voting rights in Y.
(6) A body corporate (X) controls another body corporate (Y) if X has the power, directly or indirectly, to secure that the affairs of Y are conducted in accordance with X’s wishes.
(7) In subsection (5) a reference to “voting rights” is to the rights conferred on members in respect of their interest in a limited liability partnership to vote on those matters which are to be decided on by a vote of the members of the limited liability partnership.
(8) In determining whether one body corporate (X) controls another, X is treated as possessing—
(a) any rights and powers possessed by a person as nominee for it, and
(b) any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph).”
Member’s explanatory statement
This new Clause defines “associated person” for the purposes of the provisions relating to the remediation of defects arising out of works carried out before commencement.
68: Before Clause 117, insert the following new Clause—
“Remediation costs under qualifying leases
Schedule (Remediation costs under qualifying leases)—
(a) provides that certain service charge amounts relating to relevant defects in a relevant building are not payable, and
(b) makes provision for the recovery of those amounts from persons who are landlords under leases of the building (or any part of it).”
Member’s explanatory statement
This new Clause introduces a new Schedule, containing protections for certain leaseholders and others, relating to certain remediation costs, and imposing corresponding liabilities on certain landlords.
69: Before Clause 117, insert the following new Clause—
“Remediation orders
(1) The Secretary of State may by regulations make provision for and in connection with remediation orders.
(2) A “remediation order” is an order, made by the First-tier Tribunal, requiring a relevant landlord to remedy specified relevant defects in a specified relevant building by a specified time.
(3) In this section “relevant landlord”, in relation to a relevant defect in a relevant building, means a landlord under a lease of the building or any part of it who is required, under the lease or by virtue of an enactment, to repair or maintain anything relating to the relevant defect.
(4) The following persons may apply for a remediation order—
(a) the regulator (as defined by section 2);
(b) a local authority (as defined by section 29) for the area in which the relevant building is situated;
(c) a fire and rescue authority (as defined by section 29) for the area in which the relevant building is situated;
(d) any other person prescribed by the regulations.
(5) In this section “specified” means specified in the order.”
Member’s explanatory statement
This new Clause confers a power to make provision about remediation orders, which are orders requiring a landlord to remedy relevant defects.
70: Before Clause 117, insert the following new Clause—
“Remediation contribution orders
(1) The First-tier Tribunal may, on the application of an interested person, make a remediation contribution order in relation to a relevant building if it considers it just and equitable to do so.
(2) “Remediation contribution order”, in relation to a relevant building, means an order requiring a specified body corporate to make payments to a specified person, for the purpose of meeting costs incurred or to be incurred in remedying relevant defects (or specified relevant defects) relating to the relevant building.
(3) A body corporate may be specified only if it is associated with a landlord under a lease of the relevant building or any part of it.
(4) An order may—
(a) require the making of payments of a specified amount, or payments of a reasonable amount in respect of the remediation of specified relevant defects (or in respect of specified things done or to be done for the purpose of remedying relevant defects);
(b) require a payment to be made at a specified time, or to be made on demand following the occurrence of a specified event.
(5) In this section—
“associated”: see section (Associated persons);
“interested person”, in relation to a relevant building, means—
(a) the regulator (as defined by section 2),
(b) a local authority (as defined by section 29) for the area in which the relevant building is situated,
(c) a fire and rescue authority (as defined by section 29) for the area in which the relevant building is situated, or
(d) a person with a legal or equitable interest in the relevant building or any part of it;
“relevant building”: see section (Meaning of “relevant building”);
“relevant defect”: see section (Meaning of “relevant defect”);
“specified” means specified in the order.”
Member’s explanatory statement
This new Clause confers power on the First-tier Tribunal to make an order requiring a person associated with certain landlords to contribute towards the costs of remedying certain defects in relevant buildings.
71: Before Clause 117, insert the following new Clause—
“Meeting remediation costs of insolvent landlord
(1) This section applies if, in the course of the winding up of a company which is a landlord under a lease of a relevant building or any part of it, it appears—
(a) that there are relevant defects relating to the building, and
(b) that the company is under an obligation (howsoever imposed) to remedy any of the relevant defects or is liable to make a payment relating to any costs incurred or to be incurred in remedying any of the relevant defects.
(2) The court may, on the application of the liquidator, by order require a body corporate associated with the company to make such contributions to the company’s assets as the court considers to be just and equitable.
(3) An order may be made where proceedings for the winding up of the company were commenced before (as well as after) the coming into force of this section.
(4) In this section—
“associated”: see section (Associated persons);
“the court” means a court having jurisdiction to wind up the company;
“relevant building”: see section (Meaning of “relevant building”);
“relevant defect”: see section (Meaning of “relevant defect”).”
Member’s explanatory statement
This new Clause confers power on a court winding up a company to require a body corporate associated with the company to contribute to the assets of the company.
72: Before Clause 117, insert the following new Clause—
“Building industry schemes
(1) The Secretary of State may by regulations—
(a) establish a scheme, and
(b) make provision about the scheme.
(2) Regulations that establish a scheme must prescribe the descriptions of persons in the building industry who may be members of the scheme (“eligible persons”).
(3) Where a scheme is established, the Secretary of State must set and publish the criteria that an eligible person must meet in order to become, and remain, a member of the scheme (“membership criteria”).
(4) Membership criteria may be set for any purpose connected with—
(a) securing the safety of people in or about buildings in relation to risks arising from buildings, or
(b) improving the standard of buildings.
(5) The Secretary of State must ensure that a list of members of a scheme is kept and published (and may publish a list of persons who are eligible persons but are not members of a scheme).”
Member’s explanatory statement
This new Clause confers power on the Secretary of State to establish one or more building industry schemes.
73: Before Clause 117, insert the following new Clause—
“Building industry schemes: supplementary
(1) This section supplements section (Building industry schemes).
(2) Regulations may provide that a scheme is to be maintained by—
(a) the Secretary of State, or
(b) a person designated by the Secretary of State (a “designated person”), acting on behalf of the Secretary of State.
(3) Regulations may provide for the charging of fees, in connection with—
(a) an application for membership;
(b) renewal of membership;
(c) a review;
(d) any other prescribed matter.
(4) The Secretary of State may publish a document setting out the procedure relating to any of the following—
(a) applications for membership of a scheme;
(b) the periodic renewal of membership;
(c) termination of a person’s membership;
(d) the review of any decision relating to a person’s membership;
(e) the suspension of a person from membership.
(5) Membership criteria may be framed by reference to—
(a) standards, or a document, from time to time published by any person;
(b) the opinion of the Secretary of State, or a designated person, in relation to any matter.
(6) Different membership criteria may be set for different purposes.
(7) In section (Building industry schemes) and this section—
“building” means a building in England;
“building industry”: a reference to persons in the building industry is to persons carrying on, for business purposes, activities connected with the design, construction, management or maintenance of buildings, including persons carrying on activities in relation to construction products (within the meaning of paragraph 24 of Schedule 11) in England;
“prescribed” means prescribed by the regulations;
“regulations” means regulations under section (Building industry schemes);
“scheme” means a scheme established under section (Building industry schemes);
“standard”(except in subsection (5) of this section) is to be read in accordance with section 29.”
Member’s explanatory statement
This new Clause makes supplementary provision about building industry schemes.
74: Before Clause 117, insert the following new Clause—
“Prohibition on development for prescribed persons
(1) The Secretary of State may by regulations prohibit a person of a prescribed description from carrying out development of land in England (or a prescribed description of such development).
(2) A prohibition may be imposed for any purpose connected with—
(a) securing the safety of people in or about buildings in relation to risks arising from buildings, or
(b) improving the standard of buildings.
(3) A prohibition under the regulations applies despite planning permission (or any prescribed description of planning permission) having been granted.
(4) The regulations may provide that, in prescribed cases, no prescribed certificate under the 1990 Act may be granted (and any purported grant is of no effect).
(5) The regulations may require a person of a prescribed description to give a notification relating to the proposed beginning of development (and may make provision about the content and form of a notification and the way in which it is to be given).
(6) The regulations may contain exceptions.
(7) The regulations may make provision about enforcement, including in particular provision applying (with or without modifications), in relation to a breach of the regulations, any provision of Part 7 of the 1990 Act (enforcement).
(8) For the purposes of this section—
(a) “the 1990 Act” means the Town and Country Planning Act 1990;
(b) a reference to the “beginning” of development is to be read in accordance with section 56(2) of the 1990 Act;
(c) “building” means a building in England;
(d) “development” has the meaning given by section 55 of the 1990 Act;
(e) “planning permission” has the meaning given by section 336 of the 1990 Act;
(f) “prescribed” means prescribed by regulations under this section;
(g) “standard” is to be read in accordance with section 29.”
Member’s explanatory statement
This new Clause confers power on the Secretary of State to prohibit a prescribed person from carrying out development (or certain development).
75: Before Clause 117, insert the following new Clause—
“Building control prohibitions
(1) The Secretary of State may by regulations impose a building control prohibition, as regards buildings or proposed buildings, in relation to persons of a prescribed description.
(2) A prohibition may be imposed for any purpose connected with—
(a) securing the safety of people in or about buildings in relation to risks arising from buildings, or
(b) improving the standard of buildings.
(3) A “building control prohibition”, in relation to a person, prohibits—
(a) the person from applying for building control approval or from depositing plans,
(b) the person from giving an initial notice (whether or not jointly with anyone else) or a public body’s notice, public body’s plans certificate or public body’s final certificate,
(c) the granting of building control approval to the person,
(d) the passing of plans deposited by the person,
(e) the acceptance of an initial notice given by the person (whether or not jointly with anyone else) or a public body’s notice, public body’s plans certificate or public body’s final certificate given by the person,
(f) the giving of a final certificate in relation to works carried out by the person,
(g) the person from giving a prescribed document,
(h) the giving of a prescribed document to the person or in respect of works carried out by the person, or
(i) the acceptance of any prescribed document given by the person or in respect of works carried out by the person.
(4) A building control prohibition applies despite any provision made by or under the Building Act 1984.
(5) The regulations may contain exceptions.
(6) The regulations may provide that anything done in contravention of the regulations is of no effect.
(7) Any reference in this section to a building or proposed building is to a building or proposed building in England.
(8) In this section—
“building” and “building control approval”, and references to the deposit and passing of plans, are to be read in accordance with Part 1 of the Building Act 1984;
“initial notice”, “final certificate”, “public body’s notice”, “public body’s plans certificate” and “public body’s final certificate” have the same meaning as in Part 2 of that Act;
“prescribed” means prescribed by regulations under this section;
“standard” is to be read in accordance with section 29.”
Member’s explanatory statement
This new Clause confers power on the Secretary of State to impose building control prohibitions on prescribed persons.
76: Before Clause 117, insert the following new Clause—
“Building liability orders
(1) The High Court may make a building liability order if it considers it just and equitable to do so.
(2) A “building liability order” is an order providing that any relevant liability (or any relevant liability of a specified description) of a body corporate (“the original body”) relating to a specified building is also—
(a) a liability of a specified body corporate, or
(b) a joint and several liability of two or more specified bodies corporate.
(3) In this section “relevant liability” means a liability (whether arising before or after commencement) that relates to a building in England and is incurred—
(a) under the Defective Premises Act 1972 or section 38 of the Building Act 1984, or
(b) as a result of a building safety risk.
(4) A body corporate may be specified only if it is, or has at any time in the relevant period been, an associate of the original body.
(5) A building liability order—
(a) may be made in respect of a liability of a body corporate that has been dissolved (including where dissolution occurred before commencement);
(b) continues to have effect even if the body corporate is dissolved after the making of the order.
(6) In this section—
“associate”: see section (Building liability orders: associates);
“building safety risk”, in relation to a building, means a risk to the safety of people in or about the building arising from the spread of fire or structural failure;
“commencement” means the time this section comes into force;
“the relevant period” means the period—
(a) beginning with the beginning of the carrying out of the works in relation to which the relevant liability was incurred, and
(b) ending with the making of the order;
“specified” means specified in the building liability order.”
Member’s explanatory statement
This new Clause confers power on the court to make an order under which certain liabilities relating to buildings in England are imposed on a person associated with the person who is primarily liable.
77: Before Clause 117, insert the following new Clause—
“Building liability orders: associates
(1) For the purposes of section (Building liability orders), a body corporate (A) is associated with another body corporate (B) if—
(a) one of them controls the other, or
(b) a third body corporate controls both of them.
Subsections (2) to (4) set out the cases in which a body corporate is regarded as controlling another body corporate.
(2) A body corporate (X) controls a company (Y) if X possesses or is entitled to acquire—
(a) at least half of the issued share capital of Y,
(b) such rights as would entitle X to exercise at least half of the votes exercisable in general meetings of Y,
(c) such part of the issued share capital of Y as would entitle X to at least half of the amount distributed, if the whole of the income of Y were in fact distributed among the shareholders, or
(d) such rights as would, in the event of the winding up of Y or in any other circumstances, entitle it to receive at least half of the assets of Y which would then be available for distribution among the shareholders.
(3) A body corporate (X) controls a limited liability partnership (Y) if X—
(a) holds a majority of the voting rights in Y,
(b) is a member of Y and has a right to appoint or remove a majority of other members, or
(c) is a member of Y and controls alone, or pursuant to an agreement with other members, a majority of the voting rights in Y.
(4) A body corporate (X) controls another body corporate (Y) if X has the power, directly or indirectly, to secure that the affairs of Y are conducted in accordance with X’s wishes.
(5) In subsection (3) a reference to “voting rights” is to the rights conferred on members in respect of their interest in a limited liability partnership to vote on those matters which are to be decided on by a vote of the members of the limited liability partnership.
(6) In determining under any of subsections (2) to (4) whether one body corporate (X) controls another, X is treated as possessing—
(a) any rights and powers possessed by a person as nominee for it, and
(b) any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph).”
Member’s explanatory statement
This new Clause sets out who is an associated person for the purposes of the preceding new Clause.