24 May 2022
Under construction - May 2022 – 1 of 5 Insights
The Building Safety Act received Royal Assent on 28 April 2022.
The Act is a significant piece of legislation which will bring into law the regulatory changes to building regulation and control for higher-risk buildings in England based on the proposals of Dame Judith Hackitt in 2018.
The Act also introduces changes to building control that will affect all buildings, strengthens the Regulatory Reform (Fire Safety) Order, provides new accountability and duties and introduces competency standards and provisions to strengthen the construction products regulations.
Although the Building Safety Act has achieved Royal Assent there is still more work to do before the Building Safety Act is fully implemented.
The government's transition plan published in July 2021 set out an outline for the provisions to come into effect in stages with a number of provisions coming into effect in the first 12 months, but the majority of the provisions coming into effect 12 – 18 months after Royal Assent. Some provisions, however, including the extended limitation provisions (see Commencement below) come into effect two months after Royal Assent.
The HSE has published an operational timetable that suggests that from 1 April 2023 new higher-risk buildings will need to follow the gateway approval process during design and construction and that existing higher-risk buildings will need to be registered within a six-month period between April – October 2023. Building inspector and building control approver registers will open from April 2024.
Those involved in higher-risk buildings will need to understand the requirements of the new regulatory regime, but employers, contractors and consultants will also need to prepare for the new duties and competencies that will apply across all projects in England.
We set out below a summary of key points.
The Building Safety Act was first introduced to Parliament in July 2021 and has been subject to much scrutiny and debate. Several changes are included in the new Act which were introduced by the government late in the day and mainly centre around ensuring the leaseholders are not faced with the financial burden of significant remediation costs. These include:
There are provisions that protect leaseholders under qualifying leases from paying for remediation work for 'relevant defects' for which the landlord or developer is responsible.
There are also powers to allow the Secretary of State to make provision to enable the First-Tier Tribunal to make Remediation Orders to require landlords to carry out remediation works where it is just and equitable and for Remediation Contribution Orders to be made against former landlords and developers or persons associated with such landlords or developers.
The Building Safety Act introduces new rights for those who have a legal or equitable interest in a dwelling to take action against construction product manufacturers where a construction product fails to comply with a construction product requirement, has been mis-sold; or is inherently defective, and where use of those products cause or contribute to dwellings becoming unfit for habitation.
The Act also contains powers for the Secretary of State to make regulations relating to the making of Cost Contribution Orders by the court or the Secretary of State, if just and equitable to do so, to compel manufacturers and other economic operators successfully prosecuted under the construction products regulations to contribute to remediation costs where the use of their products has caused or contributed to dwellings being unfit for habitation.
Broad powers are contained in the Building Safety Act to enable the Secretary of State to make regulations which prohibit 'persons of a prescribed description' from carrying out development of land in England in order to secure the safety of people in or about buildings, or for similar reasons, to impose building control orders prohibiting a person from applying for building control approval.
The Building Safety Act contains provisions requiring developers to provide a new homes warranty providing 15 years' cover. Consultation on this provision is expected.
The Building Safety Act introduces extended liabilities for certain actions.
The Defective Premises Act enables claims to be made for defective work concerning the construction of dwellings where the work renders the dwelling unfit for habitation. The limitation period for claims brought under the Defective Premises Act is extended from 6 years to 15 years for claims that accrue after the commencement date. This will include claims relating to construction of dwellings, and also refurbishment of dwellings through the introduction of a new section to that Act.
Where the claims relate to construction (not refurbishment) of dwellings completed before the commencement, there will be a retrospective 30-year limitation period to bring claims.
Section 38 of the Building Act provides a statutory right of action for breach of a duty imposed by the building regulations, so far as it causes physical damage (injury or damage to property). This section will be brought into force by separate regulation alongside changes to the Defective Premises Act. The limitation period for breaches of s 38 of the Building Act is also extended to 15 years.
The right to bring claims for breach of duty is not limited to dwellings and will apply to all breaches of the building regulations and not just those relating to fire spread.
The limitation period for claims for defective construction products used on dwellings after the provisions come into force where the use leads to the dwelling being uninhabitable will be 15 years, but where the claim relates to cladding products, there will be a 30- year retrospective limitation period.
There are new powers for a court to make building liability orders where just and equitable. These would allow a liability arising under the Defective Premises Act or s 38 of the Building Act, or because of building safety risks, to be made the liability or the joint and several liability of an associated body corporate. These provisions are aimed at ensuring that the original developer should not be able to set up corporate structures to avoid their obligations to pay for remediation work.
The new regulatory regime to be introduced under the Building Safety Act will apply to higher-risk buildings and will be implemented by the newly established Building Safety Regulator. The Regulator will also be responsible for overseeing and driving improvements in the safety and performance of all buildings and promoting the competence of professionals working on all buildings.
The Building Safety Act defines higher-risk buildings during construction as buildings in England which are at least 18 metres or have at least 7 storeys, and are of a description set out in secondary legislation. The draft Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations  confirm that provided that the height threshold is met, buildings in scope are those containing at least two residential units, and hospitals or care homes during the construction phase. Residential units are dwellings or any other unit of temporary accommodation.
Excluded from the definition are secure residential institutions, temporary leisure establishments and military premises. There are also powers to enable the scope to be widened by the Secretary of State should the need arise.
The policy on gateway interventions for higher-risk buildings is being developed through secondary legislation. The draft Building (Higher Risk Buildings) (England) Regulations  set out the proposed framework for how the Gateway points and provision of golden thread information is intended to operate. This is discussed in more detail here.
The golden thread of information will be held digitally to ensure that the design intent and any design changes are captured, preserved and used to support safety improvements.
Formal duties to comply with the building regulations will apply to those involved in the design, construction and refurbishment and these are modelled along the lines of the CDM Regulations 2015.
The draft Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations  set out the framework of proposed building safety duties for the duty holders. These regulations will apply to all buildings in England but for higher-risk buildings additional provisions will be required such as the submission to the Building Safety Regulator of written declarations concerning the competency of the Principal Designer and Principal Contractor.
The duty holders appointed under the CDM Regulations will be able to be the duty holder for building safety duties provided the client is assured that they have the required competencies and skills to do so.
For occupied higher-risk buildings, which are buildings in England of at least 18 metres (7 storeys) and containing at least 2 residential units, a new Accountable Person will be the duty holder.
The Accountable Person will have statutory duties to register the building prior to occupation, apply for the Building Assessment Certificate, and proactively manage and assess building safety risks through a Safety Case report which they will be required to keep up to date and submit to the Building Safety Regulator
Higher-risk buildings will need to be registered with the Building Safety Regulator before occupation. Registration of existing higher-risk occupied buildings will also be required. Once registered the Building Safety Regulator will manage the Building Assessment process by calling in higher-risk buildings. For new buildings, this is likely to be within six months of occupation although this is not confirmed. Existing higher-risk buildings will be called-in in tranches by the Building Safety Regulator and this process is unlikely to start until April 2024 according to dates noted by the HSE.
Building Control will be unified under the Building Safety Regulator who will assume responsibility for the oversight, competence and performance of building control across all buildings.
The Building Safety Regulator will need to maintain a register of Building Inspectors and Building Control Approvers. Registration will open from April 2024.
The Registered Building Inspector is a new role for individuals who will be able to advise local authority building control and registered Building Control Approvers. Building Control Approvers will perform a role similar to the current Approved Inspectors.
For higher-risk buildings, the building control body will be the Building Safety Regulator removing the ability of developers of such buildings to choose the building control authority.
The Building Safety Regulator is also responsible to oversee the development of competency frameworks and drive improvements within the industry and a series of competency frameworks are being developed in conjunction with the building industry.
Architects will also face greater regulation as the Building Safety Act introduces a power for the Architect's Registration Board (ARB) to monitor the competence of architects. Architects will need to register with the ARB and the ARB will have the power to remove them from the Register for misconduct or serious professional incompetence.
The Building Safety Act creates the powers to enable the Secretary of State through regulations to make provision for the marketing and supply of construction products placed on the UK market.
The draft Construction Products Regulations 2022 published as the new Act was making its way through Parliament set out the designated standards for construction products which will be required to be safe before being put on the UK market.
A new national Regulator is being established in the Office for Product Safety and Standards.
The Building Safety Act will amend the FSO to require that all Responsible Persons (RPs) will record their fire risk assessments and fire safety arrangements and appoint only competent persons to undertake those assessments. RPs will also need to work with other RPs in the same premises. In the case of residential higher risk buildings, RPs will need to co-operate with the Accountable Person.
While most of the provisions of the Building Safety Act are intended to come into force within 12 to 18 months of the Bill receiving Royal Assent, a number of the provisions come into force within two months. These include the leaseholder protection provisions, extended liability periods, the new cause of action against construction product manufacturers and powers enabling the strengthening of the construction products regulation.
We will provide further updates as more clarity around implementation dates is available.
24 May 2022