The Building Safety Act 2022 (“the Act”) has finally received Royal Assent, bringing with it wholesale changes to the regulation of building safety. While much of the Act focuses on ‘higher-risk buildings’ (“HRBs”), its scope is broad and will affect most buildings.
What is the Building Safety Regulator?
The Act establishes a new regulatory body, the Building Safety Regulator (“BSR”), which will have oversight for building safety. The BSR will operate as part of the Health and Safety Executive. It will have significant enforcing powers, including powers to prosecute breaches of building regulations, issue stop notices and compliance notices, and in some cases put in place managers to rectify serious safety issues. The BSR will be funded partly by a new levy, the Building Safety Levy.
What about Higher-Risk Buildings?
HRBs are residential buildings at least 18m or seven storeys tall, with at least two residential units. HRBs are subject to a more onerous building safety regime:
1. During the construction, redevelopment or refurbishment of HRBs, there will be ‘gateways’ at each stage of work. At each gateway, information will need to be provided to relevant authorities before the next stage of work can proceed, and before the building is occupied. This information will together form a ‘golden thread’ of information necessary to understand the building and management of its safety.
2. Dutyholders (whose roles are similar to those under existing CDM Regulations) will have additional duties under the Act. Importantly for building owners, those impose additional duties on clients, above and beyond those in the CDM regulations.
3. Each HRB will have ‘accountable persons’ responsible for assessing and managing building safety risks. Broadly, the accountable person will be the person with repairing obligations for the common or structural parts, or the owner. Where there are multiple accountable persons, the ‘principal accountable person’ will be the person with responsibility for the structure and exterior. The principal accountable person will also be responsible for maintaining the golden thread of information.
4. Landlords will be able to recover the cost of complying with their building safety duties via service charges. The Act implies terms into long leases of HRBs to facilitate recovery.
Who is responsible for Remediation costs?
Remediation costs for historic fire-safety failures sit primarily with landlords and developers. For non-cladding defects, landlords will only be able to claim the cost of remediation works via service charges if they cannot get funding from other sources, such as insurers, government grants, guarantees, or from claims against developers.
How does the Act impact limitation periods?
The Act significantly extends the limitation period for claims relating to defective premises. For claims brought under section 1 of the Defective Premises Act 1972 – dwellings unfit for habitation – the limitation period is extended from 6 years to 15 years for new claims, and from 6 years to 30 years for claims arising before the Act came into force. For claims brought under section 38 of the Building Act 1984 – breaches of building regulations – the limitation period is extended to 15 years for new claims. The High Court can issue ‘building liability orders’ to extend liability for the above claims to defendants’ group companies.
How does the impact Regulatory Reform?
The Act amends the Regulatory Reform (Fire Safety) Order 2005, to introduce new obligations on the responsible person in relation to carrying out fire safety assessments, recording fire safety arrangements, and passing key fire safety information to future responsible persons.
What is the timeframe of this new Act’s introduction?
Most of the Act is not yet in force, but it is expected to be entirely in force by October 2023. Much of the detail will be introduced by statutory instruments supplementing the Act itself. The final shape of the new framework will therefore continue to develop over the next 18 months.
The Act is a wholesale change to the regulation of Building Safety in England which developers and owners will need to quickly get to grips with over the course of the implementation period.