The Building Safety Act – A summary of the key points
The Building Safety Act 2022 (‘’the Act’’) received Royal Assent on 28 April 2022. It paves the way for the largest regulatory reform to the UK’s built environment industry in almost 40 years, since the enactment of the Building Act 1984.
The Government have stated the reform will “create lasting generational change and set out a clear pathway for the future on how residential buildings should be constructed and maintained”.
The Act is in response to the proposals set out in Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety. The Review was commissioned in the aftermath of the Grenfell Tower fire.
The Act comprises more than 200 pages covering a myriad of topics and is supplemented by extensive guidance, including 31 factsheets each dealing with a separate issue within the Act’s framework.
While the Act has received Royal Assent, the bulk of its provisions are yet to take effect. Certain provisions will come into force on 28 June (as per section 170 of the Act), but the Government’s Outline Transition Plan published in July 2021 anticipates most provisions will not come into force until 12-18 months’ time, as secondary legislation is developed.
This article will:
- look at who the act applies to;
- provide an overview of some of the most important provisions within the Act; and
- consider the next steps.
Who does the Act apply to?
The Act is largely aimed at England and Wales with some sections applying to Scotland and Northern Ireland.
The provisions of the Act cover all parts of a building lifecycle: from the initial planning stages, to design and construction, through to post-completion maintenance. Therefore the provisions apply to parties involved in any of these stages e.g. developers, architects, landlords and so on.
Defective Premises Act 1972
- Widening of the Scope
The Act widens the scope of the Defective Premises Act 1972 (“DPA”) to insert a new section 2A, whereby a claim can be brought as a result of refurbishments or rectifications which render the property unfit for habitation (e.g. not safe for occupation).
- Extension of Limitation Periods
One of the most significant provisions of the Act is the extension of the time periods within which legal claims can be brought against developers and contractors.
The limitation period for which claims can be brought under the DPA is extended from 6 years from practical completion, to either 15 years for s.1 and s.2A DPA claims arising after the Act came into force, or 30 years for retrospective s.1 DPA claims i.e. those that arose before the Act came into force.
The extension provisions are to come into force on 28 June.
Section 38 of the Building Act 1984
- Bringing it into Force
Section 38 of the Building Act 1984 (‘’BA’’) allows a claim for compensation to be brought for physical damage (e.g. injury or damage to property) caused by a breach of building regulations. Unlike the DPA, claims are not limited to dwellings or residential properties and can apply to all buildings in England and Wales.
The provision to date has not been brought into effect, but the Act is set to do so.
- Extension of Limitation Period
The Act also extends the limitation period for claims under s.38 of the BA arising after the Act came into force to 15 years.
The extension provision will also come into force on 28 June.
Building Liability Orders
The High Court can now (where it considers it just and equitable to do so), grant a building liability order to extend the liability of a company, LLP or their associates, to make them jointly and severally liable, in claims made under the DPA or s.38 of the BA, or claims resulting from a building safety risk.
New Construction Product Cause of Action
The Act introduces a new cause of action against a manufacturer of construction products which will apply where a product has been mis-sold, is found to be inherently defective or if there has been a breach of existing construction product regulations.
A claim may be brought if the above contribute to a building or dwelling becoming unfit for habitation.
The limitation period for such claims is 15 years, however this extends to 30 years for retrospective claims relating to defective cladding products.
This provision also comes into force on 28 June 2022.
New Build Home Warranties
All developers will be required to provide a minimum 15-year warranty for all new build homes i.e. a form of insurance covering against construction defects.
New Building Safety Regulator
Part 2 of the Act establishes the Health and Safety Executive as the Building Safety Regulator (‘’BSR’’).
The BSR’s role involves:
- overseeing the safety and performance of all buildings;
- implementing a more stringent regulatory regime for higher-risk buildings (defined below); and
- assisting and encouraging competence among the built environment industry.
New Home Ombudsman
The Act provides a framework for a New Homes Ombudsman scheme, which will provide a route to recourse for owners of new builds against developers.
The Ombudsman will have powers under the Act to:
- require developers join the scheme;
- introduce a code of practice members are expected to follow; and
- set sanctions for breach.
The Act creates a more stringent regime for higher-risk buildings, i.e. residential buildings in England over 18 metres in height, or which have at least seven storeys; and which contain at least two residential units.
Some elements of the new regime are discussed below.
All occupied higher-risk buildings will be required to have at least one clearly identifiable Accountable Person, who is responsible for:
- registering the building with, and obtaining a Building Assessment Certificate from, the BSR before occupation;
- assessing building safety risks and taking all reasonable steps to prevent/limit the impact of a major incident (evidenced by compiling and maintaining a Safety Case Report); and
- complying with obligations covering engagement and participation, complaints handling, information provision and the role of residents in helping keep the building safe (evidenced by maintaining a Resident’s Engagement Strategy).
Duty Holder Regime
The Act provides a framework for those who procure, plan, manage and undertake building work to be held under a duty to ensure that higher-risk buildings are safe and compliant with building regulations.
To do this, the Government have published draft Dutyholder Regulations modelled in a manner similar to the Construction (Design and Management) Regulations 2015, but which impose a greater burden to comply.
In practice, this involves appointing the right people, with the right competencies for the work, and ensuring those appointed have systems in place to ensure compliance with building regulations.
Golden Thread of Information
One of the main principals of the Act is the requirement on duty holders and the Accountable Person to compile and maintain a “golden thread” of information running through the life cycle of every higher-risk building. This information shall provide an understanding of the building and the steps needed to keep both the building and people safe, now and in the future. The information must be kept digitally and made accessible to residents.
The Government intend to bring forward the Golden Thread Regulations, which will define the responsibilities the duty holder or Accountable Person must follow in maintaining and storing their golden thread information.
The Act incorporates three ‘’gateways’’, designed to ensure building safety is considered at each stage of a building’s lifecycle, namely:
- the planning application stage;
- before building work starts; and
- when building work is completed.
The requirements under gateway one are provided for by secondary legislation and statutory guidance under the Town and Country Planning Act 1990 (as amended) and in respect to gateways two and three, the Government has published its ‘’Building control regime for higher-risk buildings (Gateways 2 and 3): factsheet’’.
Building Safety Levy
The Act introduces a Building safety Levy for developers seeking permission to develop certain buildings in England. A failure to pay will result in the gateway two application not being signed off by the BSR.
The levy will be used to pay for the remediation of buildings, where no developer is available to take responsibility for repairs.
Prohibition Orders on Development and Building Control
The Act empowers the Government to make regulations prohibiting certain parties from carrying out development in England or applying for building control, in order to secure building safety and improve the standard of buildings.
Removing the Democratic Filter for Social Housing Residents
Social Housing tenants who have exhausted the landlord’s complaints procedure no longer have to escalate their complaint by way of a ‘’designated person’’ (i.e. an MP, councillor or recognised tenant panel) or wait eight weeks. They can now escalate a complaint to the Housing Ombudsman service directly.
The Act includes a number of new measures to shield leaseholders from costs related to remediation works, which landlords and associated companies can be ordered to carry out.
House builders are held liable under the Act for paying for any cladding-related remediation works and a new “Building Safety Pledge” scheme has been created, under which many of the largest house builders in the UK have signed. The scheme requires those signed up to rectify any “life-critical fire safety defects” on all buildings over 11 metres constructed by these developers in the last 30 years.
The Act also places a waterfall mechanism for repair liability for non-cladding defects. This will only require leaseholders pay towards costs if the developers cannot be found or freeholders are unable to pay. These are, capped at £15,000 for those in London and £10,000 for those outside of the capital (only increasing for properties valued in excess of £1,000,000).
Leaseholders in buildings above 18 metres can also benefit from the Government’s £5.1 billion Building Safety Fund for the removal of unsafe cladding, which exists separately to the protections under the Act.
The Act is the first step in a much larger process of building safety reform. Significant swathes of secondary legislation are incoming, so anyone playing a part in the building lifecycle must ensure they remain up to date with the duties and obligations imposed to avoid liability for non-compliance.
An indicative timeline for the implementation of secondary legislation can be found here, but the immediate focus should be on the provisions coming into force on 28 June, such as the extension of liability periods, which will increase developer exposure and likely lead to an uplift in claims.
In time the Act promises to ‘’create lasting generational change’’, but in the short-term the construction and real estate markets should expect considerable pressure, as a result of the widening of potential liabilities and obligations to ensure the systems, procedures and right people are in place to comply with the Act.
How Birketts Can Help?
Birketts have a specialist team of Housing Management lawyers to assist our clients stay ahead. Our expert lawyers can advise on all aspects of housing and asset management from complex ASB claims, Equality Act defences, Building Safety issues, defending disrepair claims/EPA prosecutions, subletting/housing fraud cases, service charge disputes, s.20 consultation issues, applications to vary defective leases, to name but a few of the issues we can assist with. Our experts have decades of experience acting for Registered Providers and Local Authorities and offer a truly ‘one stop shop’ for the issues facing the sector.
If you have any queries regarding the content of this article or wish to discuss any issue regarding the management of your tenants or stock, please contact Clive Adams, Jonathan Hulley or any member of the Social Housing Team, to see how Birketts can help you.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2022.