Developers were requested in the letter to “inform the department by Friday 10th February 2023 of your timeline for deciding whether to sign the contract and to whom our lawyers, Slaughter and May, should send execution copies”.

Mr Goodman confirms that his team is available to answer questions about the contract and assist you in meeting this date if required. The DLUHC team and Mr Goodman himself can be contacted as follows:

• http://www.gov.uk/dluhc
• Richard.goodman@levellingup.gov.uk

As soon as they sign the contract, Participant Developers (PD) must (as reasonably practicable, meaning, in summary, that developers do not need to undertake a physical inspection of all buildings developed or refurbished by it or another ‘PD Group Company’);

• Identify all buildings requiring remediation works.
• Obtain a copy of an ‘Up-to-Date’ Fire Safety Assessment (FSA) for each Building (see here for HSE advice on fire safety guidance).
• Obtain a copy of an ‘Up-to-Date’ Fire Risk Appraisal of External Walls (FRAEW) for each building should it have been recommended by the FSA, or there is reason to suspect that a FRAEW is required, having regard to the guidance in PAS 9980 (see here for BSI guidance on PAS 9980).

Note also that the PD must, of course, ensure that FSA and/or FRAEW be carried out by a suitably experienced, qualified, independent and competent fire risk assessor (in the case of the FSA) or external wall assessor (in the case of the FRAEW).

The PD is expected to take into account all “reasonable interests and concerns of the leaseholders, residents, occupiers and other users of the Building Requiring Works” and:

• Undertake at its own costs;
• Procure at its own cost through a suitably experienced and qualified sub-consultant, sub-contractor or supplier or any other person (other than the Responsible Entity), or;
• Fund the costs of the Responsible Entity (via a funding agreement or otherwise) to undertake or procure,

All necessary work in relation to each Building Requiring Works to ensure that any and all Defects are remediated and/or fully mitigated as soon as reasonably practicable.

Costs of the remediation ‘Works’ will not include the following;

• The cost of interim safety measures (including waking watch costs and alarm upgrades);
• Increases in buildings insurance premiums;
• Any leaseholder compensation (although there are exceptions); and
• Other works (as defined and subject to various clauses) that the PD is responsible for, including, but not limited to;
  • any works required solely as a result of any Alterations)
  • Any works identified in any survey, assessment, inspection or investigation into the design and/or construction and/or maintenance of a Building, including in any FRAEW and/or Fire Safety Assessment, or otherwise as the Works progress, the undertaking of (and the costs associated with) such ‘other’ works are not within the scope of the PD’s liability.

Once in place and submitted to DLUHC, they hold the rights to audit the FSA and/or FRAEW for a period of 2-years from the date of receipt (providing 20-Business Days’ notice) to check, amongst other things:

• The FSA assessor and/or FRAEW assessor is suitably experienced, qualified, independent and competent.
• The criteria outlined in the definition of “Up-to-Date” have been satisfied.
• The conclusions of the Up-to-Date FSA and/or Up-to-Date FRAEW (as applicable) are justified, taking into account all relevant factors as set out in the Standard as applicable at the date of the relevant assessment.

The Participant Developer (PD) will be deemed to be discharged in full and will be released from its obligations under the Self-Remediation Terms and the Contract once and only if:

• The 2-year period for DLUHC to complete the Fire Safety Assessment (FSA)/FRAEW Audit for the building has expired, or
• An FSA/FRAEW Audit has/have been conducted and has/have found that such assessment(s) is/are compliant with the Standard applicable as of the relevant assessment date.
• The PD has complied with and is satisfied with all relevant obligations under the Self-Remediation Terms.
• The relevant Up-to-Date FSA and/or Up-to-Date FRAEW indicates that the building does not require work.

In respect of that Building without any possibility of the obligations under these Self-Remediation Terms and the Contract repeating in future in respect of that Building, provided that this will be without prejudice to any rights, remedies, obligations or liabilities of DLUHC, the Participant Developer and/or any Third Party under any other agreement or at law which has arisen or may arise, and to any rights, remedies, obligations or liabilities of the Participant Developer and/or DLUHC in respect of these Self-Remediation Terms and/or the Contract that have accrued up to such date.

The PD must retain, for a minimum period of 2-years (or for the duration of a PD-DLUHC Dispute, whichever period is longer) after the date the FSA/FRAEW is provided, all documentation to enable DLUHC to carry out its own audit. Promptly following a written request, the PD will give DLUHC access to all documentation and will instruct the PD’s directors, officers and employees to promptly provide all information and explanations that DLUHC as DLUHC may request, in each case as is required to enable DLUHC to carry out the audit.

DLUHC do state that they may (‘acting reasonably’) amend the ‘Self-Remediation Terms’ from time to time, on providing not less than 10 Business Days prior written notice to the Participant Developer and always provided that any such variation will only be effective if it:

• Is of an administrative, formal, minor or technical nature or which is made to correct a manifest error; or
• Does not materially prejudice the Participant Developer.

Given the number of amendments we are experiencing with recently released legislation, not least the Buuidling Safety Act 2022, one imagines that edits to the contract should be expected as it is reviewed by developers and their legal representations, either in the short or long term.