Guidance

Responsible Actors Scheme: prohibitions key facts

Updated 15 February 2024

Applies to England

Overview

This page provides information about how the Responsible Actors Scheme prohibitions would be applied and what protections are in place for third parties who might otherwise be adversely affected by the imposition of such prohibitions, notably the residents and leaseholders of buildings owned by a prohibited developer and people who are considering purchasing a property ‘off-plan’ from a prohibited developer. The Responsible Actors Scheme, as established by the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (’the Regulations’), requires members to identify and remediate, or pay to remediate, life-critical fire safety defects in residential buildings 11 metres or over in height which they developed or refurbished in England over the 30 years ending on 4 April 2022.

The Scheme is supported by planning and building control prohibitions that impose consequences on any developer who is eligible for the Scheme and is invited to join, but who chooses not to join or who joins and later fails to comply with the Scheme’s membership conditions. The prohibitions would also apply to companies controlled by a prohibited developer, so that the developer cannot circumvent the prohibitions by acting through other entities which it controls.

The prohibitions incentivise developers to take responsibility for remediating and/or mitigating defects in unsafe buildings, and make sure that responsible developers who decide to take on the cost of remediation are not disadvantaged compared to any eligible developer who fails to do so.

What are the prohibitions?

The Regulations introduced the planning prohibition and the building control prohibition, both of which are subject to limited exceptions.

The planning prohibition prevents a prohibited developer from carrying out major development in England. If development of land is carried out in breach of a prohibition, this will constitute a breach of planning control and may lead to enforcement action.

The building control prohibition prevents a prohibited developer from gaining building control approval to start work, including through initial notices, as well as to complete work through completion or final certificates. In some cases, being prohibited may result in the developer receiving a notice to terminate or suspend the work.

You can find out more about the prohibitions in our Responsible Actors Scheme: plain English guide.

Under what circumstances might a developer be prohibited?

An eligible developer will be prohibited if (1) it is invited to join the Responsible Actors Scheme but does not sign up to the Scheme or provide evidence to Government that it is not eligible to join the Scheme, or (2) if it joins the Scheme and later has its membership revoked because it has failed to comply with the Scheme’s membership conditions.

The prohibitions would also apply to companies controlled by a prohibited developer, so that the developer cannot circumvent the prohibitions by acting through other entities which it controls.

Can the prohibitions be lifted?

Yes. The prohibitions will be lifted as soon as the eligible developer comes into compliance with the Regulations, typically by joining the Scheme (if it had failed to do so) or by taking steps to comply with the Scheme’s membership conditions (if it had already been a member, but had failed to comply with those conditions).

How can I tell who is prohibited?

You can see which developers are prohibited on our Responsible Actors List: prohibitions list.

What happens if the freeholder or managing agent for the building where I live is prohibited?

It is possible that a prohibited company might own a freehold, or act as a managing agent of a residential building. The Regulations allow prohibited persons to continue to keep any residential buildings they operate safe and in good repair. Exceptions to the building control prohibition allow for emergency repair work and work on occupied residential buildings to continue.

If you are concerned that emergency repair work or other work to the building in which you live may not be carried out due to prohibitions imposed on a developer, please consult with the freeholder or managing agent in question and consider seeking legal advice. If the issue remains please reach out to the building control team in your local authority or contact us at Building.Safety@levellingup.gov.uk with the subject heading “Responsible Actors Scheme Prohibitions” specifying the building in which you live, the developer in question, and a description of the situation.

Should I buy a home ‘off-plan’ from a prohibited developer?

If you are considering purchasing a property ‘off-plan’ from a developer who is prohibited, we strongly recommend that you seek your own legal advice before making a decision. A prohibited developer may be unable to proceed with the development while they are prohibited, and may be unable to secure the building control approvals necessary for buyers to move in.

I exchanged contracts on a new home before my developer was prohibited. What happens now that my developer has been prohibited?

If a developer is prohibited, the Regulations provide protection for purchasers who exchanged contracts on a new home and paid (or need to pay) a deposit. The developer can apply to the Secretary of State for an exception from the prohibitions that may allow the developer to secure the final or completion certificates needed to properly complete the building. For the exception to be granted:

• the applicant must have commenced building work in respect of the building in which the property sits before being prohibited
• a third-party purchaser must have exchanged contracts on a residential property in the building before the applicant was prohibited; in addition, the purchaser must have paid, or be liable to pay, a deposit
• the purchase of the property must have been an arm’s length transaction at market value and on arm’s length terms
• the Secretary of State must be satisfied that the interests of the purchaser will be materially prejudiced if the exception is not granted and that the granting of the exception is not contrary to or likely to frustrate the purposes of the Scheme

How can a prohibited developer apply for the exception for purchasers who have exchanged contracts?

An application for this exception must be submitted by the prohibited developer to the Secretary of State for Levelling Up, Housing and Communities.

Any developer that has been prohibited will have received a formal prohibition notice from the Department, which includes information about how prohibited developers can apply for this exception. The Department will encourage a prohibited developer to work with prospective purchasers to protect their interests.

A prohibited developer who applies for an exception will be required to provide evidence to the Department demonstrating that they qualify for the exception and may reach out to off-plan purchasers to ask for assistance in preparing an application or agreement to share specific information. We recommend that prospective purchasers work with developers in these instances, unless there are exceptional reasons not to do so. Any information presented to the Department will be dealt with in accordance with information law requirements.

What should I do if my transaction appears to be at risk and the developer is not helping?

If you have exchanged contracts on a residential property and believe the process is at risk of being stalled by these prohibitions then you may wish to seek legal advice. If you (or your legal adviser) are concerned that the developer is delaying the submission of an application for an exception, please contact us at Building.Safety@levellingup.gov.uk with the subject heading “Responsible Actors Scheme Prohibitions” specifying the building in which you are purchasing a residential property, the developer in question, and a description of the situation.

What if a prohibited developer is responsible for developing important infrastructure, like a new hospital or power station?

The Regulations allow the Secretary of State to disapply the prohibitions for prohibited developers on specific sites where the work contributes to the availability of essential services such as hospitals and utilities, national security or the functioning of the State, and where it is in the public interest. If you are responsible for developing, running, or overseeing critical national infrastructure and believe that an exemption is needed so that the project can progress, please contact us at Building.Safety@levellingup.gov.uk with the subject heading “Responsible Actors Scheme Prohibitions” specifying the building or site in question, the developer in question, and a description of the situation.