Thread by @nearlylegal

Those behind the Polluter Pays proposed amendment keep making this assertion. I explained why it wasn’t the case based on the (finally) released draft amendment in a comment on their site before Xmas. It has been held in moderation and not published. 1/16 #PolluterPaysAmendment

https://twitter.com/polluterpaysbsb/status/1484611962554232842

I was told it would be published with a reply by the middle of last week. It wasn’t. And these assertions are still being made. So, here is why they are wrong. It means some detail, I’m afraid.
2/16

The PP amendment says there will be ‘assessors’ appointed by the Govt. These assessors will i) decide if a building falls within the scheme, ii) decide what the fire safety defects are, iii) decide how much should be awarded for works, and iv) decide who pays.
3/16

This is beyond any individual’s ability, so would have to be a team. But more problematically, as this is effectively a judicial role, they would have to be free of any involvement or interest in the current mess. Such people don’t exist. Obviously an assessor couldn’t
4/16

decide on a building they had previously been involved with, but they also couldn’t decide on a building when they had previously been involved with a building with similar issues. This takes the available people down to a very small number indeed. So, slow to find & to act.
5/16

And subject to challenge on assessors’ history. Which relates to the next point. The PPB provides for the assessor’s decision as to whether a building falls within the scheme to be final. No route of appeal. So, that is subject to judicial review as a public body decision.
6/16

There will be a lot of judicial reviews of such decisions (hey, facing a couple of million in a payout, of course the developers/builders will take a punt on a JR). Challenges on public law grounds (including assessors being interested parties). Some will succeed.
7/16

And then PPB provides for an appeal to the First Tier Tribunal on extent of works and amount of award. Either the assessor body or the Secretary of State would be the respondent. The Tribunal is a ‘no costs’ jurisdiction. Which means for an appeal - even if they lost -
8/16

it would only cost the developer/builder their own legal costs, but every appeal would cost the assessor body/SoS, win or lose. So, every award would be appealed. Again, the developer’s costs of taking a punt on on appeal are minimal next to the size of the award.
9/16

There are other problems & potential challenges as well, and the suggestion that the regulations required to set up the Scheme would be in place in 6 months is, shall we say, highly optimistic, given the complexity of what the amendment leaves to be done in such regulations
10/16

But the baseline is that even if regs were in place in 6 months, an assessor team won’t be. & even if an assessor team was in place, the amount of litigation that would follow would mean no money would be paid out for at least the following 2 years, very probably longer.
11/16

As one lawyer I know put it, ‘the PP amendment would ensure I could pay my mortgage off early’.

And then, of course, the PP amendment doesn’t cover buildings below 18m with hazardous cladding like HPL, or wood to balconies, or anything else that wasn’t
12/16

a breach of building regs at time of building (& heaven knows what was a breach at the time is *highly* arguable - not a simple issue for the assessors, & definitely another basis for court proceedings).

PP amendment has other technical issues, but mostly more correctable 13/16

Though it also has to be said it doesn’t offer any protection to leaseholders for current costs & demands, or any way to reimburse.

While a version of Polluter Pays may be a part of the solution, it is a long way from *the* solution,& by itself would mean years of delay
14/16

So, as a lawyer who is wholly on the side of leaseholders in the #BuildingSafetyCrisis , I just cannot accept that what @polluterpaysbsb is saying here is accurate. And I can’t see this as *the* solution, because it simply isn’t.

15/16

If anything in this is wrong, I have very happy to have it explained why (NB explained, not just told it is wrong and accused of betraying the cause etc.) So far, it hasn’t been.

@team_greenhalgh @BishopStAlbans @polluterpaysbsb Thread for your information and views.

16/16