The Building Safety Act

16th May 2022

The Building Safety Act 2022 was introduced as a response to the tragic fire at Grenfell Tower in 2017 and achieved Royal Assent on 28 April 2022. In this article Steven Finney, Associate in Kuits’ commercial property team, discusses the key provisions of the Building Safety Act 2022 (‘the Act’).

Scope of the Act

The Act (which is due to take up to 18 months to implement, with a transitional period of up to 24 months for secondary legislation) creates a new regulatory regime with the aim of improving building standards to ensure the safety of residents in high-risk buildings (‘HRBs’) in England. The Act will not apply to Scotland, however, and only in limited parts to Wales and Northern Ireland.

The Building Safety Regulator

A new Building Safety Regulator (‘BSR’) has been established within the Health and Safety Executive (‘HSE’) to enforce the measures introduced by the Act. In addition, it creates a National Regulator for Construction Products (also based within the HSE) with the power to remove any product from the market that presents a significant safety risk, and to prosecute any companies breaching the rules.

All HRBs will need to be approved by the BSR at the planning application stage and designs will need to be submitted at various planning ‘gateway’ points. Approval will be required from the BSR before building work can start, and the BSR will have the power to halt a project if safety is compromised.

Accountable Person

The Act creates a new role of Accountable Person (‘AP’) for HRBs, removing the duty to appoint a Building Safety Manager. The AP will be the organisation or person who owns or has responsibility for the building. It may also be an organisation or person who is responsible for maintaining the communal areas of a building.

The AP will have a duty to take all reasonable steps to:

  • prevent a building safety risk happening. ‘Building safety risk’ is defined as ‘spread of fire and/or structural failure’
  • reduce the severity of an incident if one does occur.

The AP will also be required to report to the regulator any fire and structural safety occurrences.

Who is affected by the Act?

The Act affects not only construction professionals, but developers, building owners, leaseholders and residents as well.

Under the Act, developers will be responsible for fixing their own buildings, whether it be for cladding or non-cladding defects. However, leaseholders will still be expected to contribute towards the costs of remediation for combustible cladding and other building or fire safety defects where government funding is not available, i.e., for buildings below 11m. For buildings taller than 18m, the Building Safety Fund is available for cladding remediation and the Government has reiterated that leaseholders will not have to pay to rectify unsafe cladding. For 11-18m buildings, a further £4Billion fund has been announced, and developers and building owners will be expected to pay for non-cladding building safety costs in the first instance (developers will be subject to a new tax and a building safety levy to contribute to the costs of correcting existing defects in buildings). However, where developers and owners do not have the resources to pay, leaseholders may still have to contribute, albeit their contributions would be capped at £10K outside London, and £15K within Greater London.

Developers should also note that the Act extends the reach of civil liability to associated companies. This means that developers could now be pursued for contributions even where they have used shell companies or SPVs to construct and manage a specific development.

Building owners will be required to manage structural and fire safety risks, from the earliest planning stage onwards, and must demonstrate that they have effective measures in place to manage safety risks, with clear lines of responsibility for safety during design, construction, completion and occupation of HRBs. They must create and maintain a ‘golden thread’ of information containing all the information about a building required to understand it and keep it safe, as well as the information management to ensure the information is accurate, easily understandable, accessible and up-to-date. In addition, the Regulatory Reform (Fire Safety) Order 2005 will be amended, to ensure stronger sanctions for non-compliance, and building owners should note that, if they don’t comply with their obligations, they could face criminal charges.

Residents in HRBs will have more say in the running of their building and will be able to raise building safety concerns directly to the owners and managers of buildings. Owners and managers will have a duty to listen to residents’ concerns and, if they do not, residents can raise them directly with the BSR if they feel they are being ignored.

Those carrying out the roles of Principal Contractor and Principal Designer for HRBs will be subject to a higher level of competency. The BSR will also oversee and be responsible for building control professionals, private building control approved inspector firms, building surveyors, quantity surveyors, building managers, and project managers.

Amendment to the Defective Premises Act 1972

Controversially, the time in which homeowners can claim compensation for sub-standard construction work under section 1 of the Defective Premises Act 1972 is being extended from six years to thirty years.

The extended limitation period for claims will apply both prospectively and retrospectively, allowing for any residential property owner (not just of HRBs) to challenge sub-standard construction work that may have come to light after the existing six-year limitation period had expired. This could lead to a number of claims being brought for defective work previously thought to have been out of time.

It remains to be seen how this retrospective change to limitation periods will affect the PII market, which has already contracted significantly in the wake of Grenfell, but it is unlikely that it will be welcomed by insurers, as it brings back into scope risks that will have previously been discounted and so will not be covered by current premiums. It may be that Contractors and Consultants find it even harder to obtain PII going forward.

Section 38 of the Building Act 1984

Section 38 of the Building Act 1984 will also be brought into force, giving parties a direct cause of action for a breach of the Building Regulations. Previously, those who suffered loss have been unable to sue anyone for breach of building regulations, unless they have some cause of action (e.g. under contract, tort or the Defective Premises Act 1972). That has now changed.

The Building Safety Act 2022 applies to anyone involved in the design, construction and management of buildings. While the government’s staged approach to implementing the Act will give companies time to consider and prepare for the new duties and liabilities being introduced, it is clear that clients and construction professionals will now need to prioritise fire safety from the earliest planning stage to building occupation and beyond.

At Kuit Steinart Levy LLP our specialist construction, property and litigation teams can advise on all legal issues arising out of the Building Safety Act including compliance, contractual disputes, BSR investigations, and claims for damages as a result of alleged breaches of professional duties.

Kuits FSQS registered
Kuits good employment supporter