The Building (Scotland) Amendment Regulations 2024 Fairer Scotland Duty Assessment

Rationale for decision

The policy impacts on housing developers and on network operators in the telecommunications sector by introducing a requirement for domestic dwellings. Every building and building unit must be designed and constructed in such a way that:

a. each building unit is equipped with a network termination point for a gigabit-capable public electronic communications network;

b. gigabit-capable physical infrastructure from a network termination point to a building access point or common access point is provided;

c. gigabit-capable physical infrastructure from a building access point or common access point to a network distribution point is provided within the curtilage of the development site;

d. a means of connecting each network termination point to a gigabit-capable electronic communications network is provided, to the extent this is reasonably practicable.

For non-domestic buildings requirements a) and b) above apply.

This puts on a statutory basis standards of connectivity in new build developments largely being delivered commercially and already included in existing Scottish Government housing policies – the Affordable Housing Supply Programme and Housing to 2040.

The increase in the availability of gigabit-capable connectivity will be smaller than what the market has achieved in recent years in increasing the availability on commercial terms between network operators and housing developers. Agreements are negotiated on commercial terms although larger developments (20+ premises) can get a connection at no cost from Openreach, subject to conditions. The market has driven significant improvements in terms of gigabit-capable connectivity in recent years data from Openreach, the largest network operator, indicates around 4% of new build homes in Scotland do not receive gigabit-capable connectivity.

This proposal is to increase the availability of infrastructure supporting gigabit-capable connectivity to new build developments for all homes – and as a consequence all buyers in the marketplace and all social housing.

Where gigabit-capable connectivity is available there is no requirement on a buyer of a property to subscribe to a service. The socio-economic digital divide is a wider issue than simply the availability of a connection (e.g. the affordability of broadband services and devices). All legislative and regulatory responsibility for the telecommunications sector (including the affordability of broadband services) is a reserved matter to the UK Government under the Scotland Act 1998. While there is no statutory social tariff around the affordability of broadband services a number if Internet Service Providers make these available on a voluntary basis.

Socio-economically disadvantaged groups are less likely to be buying new build homes although indirectly these changes will have impacts on landlords, social or otherwise, that could be passed on to tenants. However, by delivering what the market is largely providing and connectivity already included within Scottish Government strategies the proposals are unlikely to result in indirect impacts to any significant further extent.

In summary, this policy aims to increase the availability of gigabit-capable infrastructure to ensure that gigabit-capable connectivity is available in new build homes at outset and to lower the cost of retrospective deployment. Retrospective deployment, either commercially funded or through public subsidy, is frequently This aligns with wider Scottish Government commitments and ambitions through the Reaching 100% programme and Project Gigabit. The UK Government has legislated for similar standards through building regulations in England and the purpose of this legislation is to align closely with the UK Government approach to gigabit-capable connectivity in new build developments.

The policy will have an indirect positive impact on all users irrespective of socio-economic background.

As such, undertaking a Fairer Scotland Duty (FSD) assessment has been determined to not be appropriate at this stage.

I confirm that the decision to not carry out a Fairer Scotland assessment has been authorised by:

Name and job title of Deputy Director (or equivalent): Robbie McGhee, Head of Digital Connectivity Division.

Date authorisation given: 15 August 2024