One of the criticisms in the Dame Judith Hackitt Report, Building a Safer Future, was levelled at the inadequate regulatory oversight and failure of enforcement tools and powers. The report also noted that "Where enforcement is necessary, it is often not pursued. Where it is pursued, the penalties are so small as to be an ineffective deterrent."
Adopting the recommendations of that report, the Building Safety Act (BSA) introduces radical new causes of action, enforcement powers and criminal offences of which building owners need to be aware. We highlight some of the more significant enforcement tools below, and in particular, the potential personal liability of directors.
Existing enforcement powers toughened up
Under the Building Act 1984 (section 36), enforcement action for contravention of Building Regulations requiring removal or alteration of non-compliant work can be taken by local authorities. Before the BSA came into force, the relevant period to take enforcement action was within 12 months of completion of the work. The BSA significantly extends this time limit for bringing enforcement action from one year to ten years.
Additionally, section 39 BSA introduces a new section 35 (of the Building Act) making it an offence for a "person to contravene a provision of the building regulations" and increases the penalty for breach of Building Regulations under section 35 Building Act 1984. Breach of Building Regulations is now punishable by unlimited fines and/or imprisonment of up to two years (as opposed to a summary only offence).
Compliance notices and stop notices
New provisions included in the BSA (section 38) will enable building control and the Building Safety Regulator (BSR) to issue compliance notices (requiring non-compliant work to be remedied by a set date) and stop notices (requiring work to be halted until serious non-compliance is addressed). These provisions are broader in scope than enforcement notices since they relate to non-compliance with the building regulations as a whole (rather than just matters relating to fire safety) and are intended to apply at an earlier stage, for example, to prevent dangerous non-compliant work from being continued or completed where there is a risk of serious harm to people. The Explanatory Notes (para 379) state that the powers are intended to enable the BSR to stop work immediately on sites where the gateway requirements for higher-risk buildings have been contravened.
Failure to comply with compliance and stop notices will be a criminal offence, with a maximum penalty of up to two years in prison and an unlimited fine. Failure to comply with an enforcement notice is similarly a criminal office, with a maximum penalty of up to two years in prison and an unlimited fine.
New criminal offences – personal liability of officers
One of the new notable powers in the BSA is the ability of the BSR to prosecute individuals of corporate bodies in certain circumstances. As the explanatory notes to the BSA set out, many of the persons carrying out duties under the Building Act 1984 and under the new regime under the BSA are corporate bodies. However, these bodies operate through the actions of individuals and so to "bring home" the importance of the building safety responsibilities to individuals, including managers and directors, a new offence is introduced under the BSA. The intention is that individuals complicit in breaches can be held responsible for their action where there is some measure of personal failure.
Section 40 BSA provides that for offences committed under the Building Act 1984, where that offence is committed by a corporate body with the "consent or connivance of a director, manager, secretary or other similar officer" of that corporate body, or is attributable to their neglect, that person will be liable to be prosecuted as well as the corporate body.
Section 161 makes the same provision where an offence is committed under Parts 2 and 4 of the BSA. The Part 2 potential offences are obstructing or impersonating an authorised officer in the exercise of a relevant building function (clause 23) and knowingly or recklessly providing false or misleading information to the BSR (clause 24).
The potential offences under Part 4 of the BSA relate to the management of building safety risks of occupied higher-risk buildings. These offences include allowing occupation of a higher risk building without a completion certificate (section 76), failure to register an occupied higher risk building (section 77), failure to apply for a building assessment certificate without reasonable excuse (section 79), failure to display a building assessment certificate (section 82), and failure to give prescribed information to the BSR (section 87).
The offences introduced by sections 40 and 161 are broad in scope. Consent and connivance are not defined and much of course will depend on the facts and circumstances of each case and the extent to which adequate management processes are in place in relation to building safety. Whilst consent implies knowledge and permission to do something, connivance usually applies to a situation of tacit knowledge where an individual "shuts his eyes to the obvious" (Huckerby v Elliot (1970)). In the case of neglect, in the absence of specific knowledge, it seems likely that the issue will centre around whether adequate procedures were in place or whether steps were taken to prevent the offence. (R v P (2007, CA)).
What approach will the BSR take to enforcement?
Guidance published last year states that the BSR's approach to enforcement will be proportionate to the safety risks and the seriousness of any breach.
The guidance states that the BSR will adopt a consistent approach to enforcement but that enforcement decisions will require the exercise of discretion and appropriate judgment. The degree of risk and the seriousness of any breach, including the attitude and competence of management, any previous incident history or enforcement action, will shape the exercise of the BSR's discretion. It therefore appears likely that regulatory intervention will be targeted on activities where there is a high actual or potential harm arising from any breach and that action may be directed at repeated offenders, those who act irresponsibly or whose actions could cause serious harm.
The BSR will also be empowered to hold to account local authorities, registered building control approvers and registered building inspectors where they have not registered or are performing below the appropriate standard. The BSR will be able to suspend or remove inspectors from the register and to prosecute where necessary. In addition, the BSR will have power to apply to the First Tier Tribunal for an order to appoint a Special Measures Manager to take over the functions of the Accountable Person, where there is a significant failure or repeated failures on the part of the Accountable Person to comply with their statutory duties.
Remediation Orders and Remediation Contribution Orders
Although not related to criminal proceedings, the BSA also gives significant new powers to the First Tier Tribunal to make orders relating to remediation of historic building safety defects under sections 123 and 124 of the BSA. These provisions are already in effect and enable the First Tier Tribunal to order the remediation of relevant defects in relevant buildings or order contributions to the cost of doing so from landlords, developers and entities associated with them. To be a relevant building it is necessary that a building is at least 11 metres or 5 storeys and contain two or more dwellings.
The introduction of these provisions gives the First Tier Tribunal jurisdiction to order a "relevant landlord" to remedy relevant defects (as defined) by a specified time. The BSR, together with the Secretary of State, local authorities, fire and rescue authorities and persons with a legal or equitable interest in the building (such as a leaseholder) can apply for such an order.
The First-tier Tribunal also has jurisdiction to issue a Remediation Contribution Order against a body corporate or partnership requiring a current landlord, the landlord as at 14 February 2022, developer or a person "associated" with those entities to contribute to the costs of remedying the relevant defects where it is "just and equitable" to do so. The BSR together with the same category of persons entitled to apply for a Remediation Order will be able to apply for a Remediation Contribution Order. These additional enforcement powers mean that the BSR and the Secretary of State can seek orders requiring remediation and / or contribution to the cost remediation of relevant defects in relevant buildings.
Summary
A combination of tougher existing powers and new powers are intended to act as a deterrent for individuals and corporates and to give the BSR the means to ensure compliance with the BSA. A key message and function of the new powers is to change industry culture and elevate responsibility for building safety so that it becomes of primary importance.
While many parts of the BSA are yet to be implemented, those involved in the development and management of higher-risk buildings will need to ensure that their responsibilities under the BSA are adequately addressed. When considering enforcement action, the Guidance suggests that the BSR is likely to take a proportionate approach. Factors which it appears that the BSR are likely to take into account include a failure to put in place appropriate procedures dealing with building safety and any previous building safety incidents.
