Building Safety Act becomes law
The Building Safety Act received Royal Assent on 28 April 2022, five years after the Grenfell Tower fire and Dame Judith Hackitt's damning review of the building industry, Building a Safer Future. Certain key provisions of the Act (including extended liability periods under the Defective Premises Act 1972) came into force automatically on 28 June. A massive and complex piece of legislation, the Act represents the biggest shake-up to the building industry since the health and safety legislation of the 1970s.
Following Dame Judith's recommendations, the Act imports a new and stricter regulatory regime to govern the design, construction and maintenance of the built environment.
Central to the new regime is the creation of a national Building Safety Regulator, sitting within the Health and Safety Executive, with responsibilities for monitoring the safety of all buildings in England. The Regulator has wide-ranging powers to regulate standards for buildings and construction work, including powers to investigate and prosecute breaches.
The Act establishes new "Dutyholder" obligations for clients, designers and contractors working on most building works covered by the Building Regulations, including a general requirement that all those appointed on building projects are "competent" to do their work.
The Regulator will oversee a new building control approval regime for the design, construction and major refurbishment of "higher-risk buildings". Draft regulations published last year define "higher-risk buildings" as residential buildings of two or more units that are at least 7 storeys or 18 metres tall, and includes hospitals and care homes meeting those height requirements for their design and construction stages. The Government is currently consulting on this definition, though the Secretary of State has an ongoing remit to amend and expand the scope of the new rules.
New higher-risk buildings will be expected to pass a three-stage "gateway" approval process, with hard stops on any projects not meeting the requirements. The Regulator becomes the building control authority for all higher-risk buildings and will establish and supervise a new building safety inspectorate to support the new regime.
The rules relating to higher-risk buildings extend into their occupation phase. New roles of "Accountable Persons" and "Principal Accountable Persons" will be responsible for registering buildings under their control before they can be occupied, and have ongoing obligations to manage building safety risks during the entire occupation phase. The much discussed role of the Building Safety Manager, who was meant to take on day-to-day management of higher-risk buildings, has been removed from the final legislation.
The Act imposes implied terms into tenancy agreements covered by the Landlord and Tenant Act 1985, requiring tenants to comply with landlords and Accountable Persons carrying out building safety activities. Landlords will be given access to enter dwellings for building safety purposes, subject to reasonable notice, and may apply for court warrants to enter properties.
In the most heavily publicised part of the Act, landlords' ability to recover leaseholder service charges for non-cladding remediation works has been capped. Courts will be empowered to make corporate bodies liable for remediating building works and make compensation payments to residents. Associated persons of liable bodies may also be required to make financial contributions, including where the original body has become insolvent.
The Secretary of State is given wide powers to establish a building industry scheme for developers, requiring them to make financial contributions towards cladding remediation works. Non-compliant developers may be blacklisted from submitting planning and building control applications. To date, over 35 developers have already signed up to the scheme, pledging £3bn towards a remediation works fund.
The Act also extends the limitation periods for claims under the Defective Premises Act 1972 to 30 years (where the cause of action arose before the Act came into force) and 15 years where the cause of action arises post-commencement. The Act also imposes a duty on anyone working on a building to ensure that their work doesn't render any dwellings in the building unfit for habitation.
The Act also establishes a New Homes Ombudsman, requires developers to provide new build home purchasers with 15 year warranties for defects rectification, and establishes a new more stringent regime to regulate construction products used in the UK.
The Act is a complex piece of legislation that will affect nearly every aspect of the construction industry. Many key aspects of the new regime, such as the definition of "higher-risk buildings" and the building control process for higher-risk buildings, are currently being consulted on and have still to be formalised in secondary legislation. The Regulator is now set up and running, and is expected to issue further guidance about the Act in the autumn.
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