The Building Safety Act 2022 (the Act) represents a radical change in the design, construction, and management of so-called ‘higher risk’ buildings. It enacts the recommendations of the UK Government’s review into the Grenfell Tower tragedy of 2017.
The Act received Royal Assent in April this year and is expected to be in force within stages, over an 18-month period.
The Act applies to Wales as well as England and the Welsh Government’s response to the tragedy, its White Paper ‘Safer Buildings in Wales,’ sets out proposals for a comprehensive reform of building safety legislation and how it will apply to the principality. The Act allows the Welsh Government to implement a slightly different regime from that envisaged in England and will apply to any building with two or more dwellings, which will need to have an ‘accountable person’, and an annual fire risk assessment.
This new regime will cover flats, maisonettes, and houses in multiple occupation but not individual dwellings. All parties involved in the construction and maintenance of ‘higher risk buildings’ (whether developer/client/contractor/consultant/subcontractors) need to start preparing for the impact of the Act now.
The Act is designed to address a lack of:
- regulatory oversight and enforcement mechanisms
- clarity on roles and responsibilities.
Building Safety Act 2022: some key themes
Building safety regulator
The formation of a new Building Safety Regulator, under the control of the Health & Safety Executive (HSE), who will be responsible for overseeing and driving improvements in the safety and performance of all buildings, and for enforcing a more stringent regime for higher-risk buildings. The provisions of the Act concerning the new Regulator only apply in part to Wales and the devolved administration’s exact position is still to be determined on this point.
Extension of limitation period
The extension of the limitation period under which homeowners may bring a claim against developers, contractors, and professional consultants if their dwelling is not fit for habitation under the Defective Premises Act 1972. This change applies to a ‘relevant dwelling’ defined as a building consisting of or containing one or more dwelling (so not just higher risk buildings). Alarmingly for developers, this will allow claims of up to thirty years from the completion of the dwelling. These provisions of the Act are now in force in both England and Wales.
Right to claim damages
The Act will now also allow private individuals the right to claim damages where they suffer harm because work on a building has not met Building Regulations standards. The limitation period for such claims is also extended to 15 years but is not retrospective.
Regulation and scrutiny
Each development will have to pass through a series of ‘gateways’ concerning planning, commencement of works and completion, designed to bolster HSE regulation and scrutiny.
Accountability for higher risk buildings
For all higher risk buildings (in England, defined as those of at least eighteen metres in height or at least seven storeys; the Welsh government has adopted a different position, as described above) the appointment of an identifiable ‘accountable person’, who is responsible for ensuring that the fire and structural safety is properly managed for the whole building.
New obligations concerning the collation of safety documents (the so called ‘golden thread’ of information). These obligations will apply to those commissioning work or who are involved in the design or construction phase and to the ‘accountable person’. The rule is designed to ensure all important documents on the safety of a building and its residents are in one place and they will need to be captured digitally and maintained for the lifecycle of the building. Wales will adopt the ‘golden thread’ proposals sometime over the next 18 months.
Action against defective products
A new framework whereby regulations will be enacted giving a cause of action against defective construction product manufacturers and suppliers, where a product:
- has been mis-sold
- is inherently defective, or
- is in breach of regulations.
This part of the Act is in force in England and Wales and the new regulations will be brought out in 2023.
New enforcement remedies relating to building safety measures, namely remediation orders against landlords requiring them to remedy ‘relevant defects’ that cause a ‘building safety risk’ and Building Liability Orders (BLOs), granted by the High Court and extending the liabilities of a company or corporate body to any of its associates (such as a parent or subsidiary) and making them jointly and severally liable. The provisions relating to BLOs came into force in June in England and Wales.
New rights for leaseholders
New rights, in force from June, for ‘qualifying’ leaseholders in respect of liability for historical safety defects in a building, for example replacement of flammable cladding or adding fire safety improvements to buildings. This means for the first time, many leaseholders are protected under new laws from bearing the costs of certain remediation and related building safety work on their building, thereby putting the cost liability onto a building’s developers.
New home warranty
A warranty to be provided by developers of new homes and lasting for 15 years.
New Homes Ombudsman scheme
A framework for a New Homes Ombudsman scheme to provide a forum for owners of newly built homes to seek redress against developers and builders. The Act also allows social housing complainants to escalate a complaint directly to the Housing Ombudsman service once they have completed their landlord’s complaints process.
Changes to Fire Safety Order
The Act will bring in several changes to the Regulatory Reform (Fire Safety) Order 2005, so that “responsible persons” (likely to be building owners or managers), will be under a duty to risk assess the structure and external walls (including windows, doors, and balconies) of buildings and entrance doors and take general fire precautions to ensure those areas are safe.
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These measures are just some of the main take outs on the Building Safety Act, which will have far reaching consequences for the construction industry whose participants will find their potential liabilities widen under the new regime.
Contracts may need to be reviewed and processes audited to ensure compliance as and when the Act is fully in force. Building owners and management companies should consider the new opportunities open to them to recover the costs of historic building defects.
And the interplay of the Act with devolved measures adds an additional layer of complexity with many of the key measures awaiting further regulations from either the devolved administration or central Government. The Construction team at Hugh James will be reporting as and when further details are published on the Building Safety Act in general and how the position in Wales will be affected.