Building Safety Act 2022

The Building Safety Act (the “Act”) today received Royal Assent and given its wide-reaching impact on the industry we have summarised how the Act has evolved from the Building Safety Bill (the “Bill”) that was first introduced on 5 July 2021, along with its key resulting provisions and when they come into force.

Amendments introduced by the Commons and Lords

As the Bill passed through the House of Lords, Lord Blencathra commented that it had “changed beyond all recognition” from the draft which was first introduced. It is hard to disagree. Here are some of the most notable amendments to the Bill on its way to the statute books:

• The Bill originally created the new role of the Building Safety Manager to manage the occupation phase of higher-risk buildings (buildings over 18 metres or 7 storeys containing at least 2 residential units) but was amended so that the Act now does away with Building Safety Managers and any obligation to appoint one. The Accountable Person will now take on the day-to-day responsibility for managing the safety of a higher risk building.
• Amendments to the Bill introduced the concept of remediation orders and remediation contribution orders which may be made to compel developers, partnerships, limited liability partnerships and landlords to pay for remediation, side-stepping complex company structures. Remediation Orders may also set out the remediation work required, and the time period in which it must be completed.
• Unlike the initial Bill, the Act now includes ways to compel construction products manufacturers to pay to put right buildings that have been compromised by their products.
• New build home warranties are introduced.  Developers must provide a warranty of at least 15 years as standard for new build homes, under which they agree to remedy any defects in specified circumstances in a specified period and warrant that prescribed persons will obtain the benefit of a policy of insurance covering defects in the common parts.

Some publicised amendments have not survived, including the removal of leaseholder contributions and applying leaseholder protections to buildings of any height. The Act rows back from the position in previous iterations of the Bill: (i) the leaseholder safeguards only apply to buildings over 11m; and (ii) leaseholders may still be asked to contribute up to a “capped” amount, but only after all other avenues have been pursued first.

The amendments have taken on a life of their own, and so the above is only a flavour of some of the most far-reaching amendments to the Bill during its transformative journey through the Houses of Parliament.

The Defective Premises Act and Limitation

The Act widens the scope of the duties owed under the Defective Premises Act 1972 (“DPA”) to include a new section 2A, meaning refurbishment or rectification works can give rise to a cause of action once the Act is in force.

One of the most notable amendments to the Bill which is now enshrined in the Act relates to the limitation periods for claims brought under the DPA. The current limitation period for a claim under s1 of the DPA is 6 years from the date of practical completion. That included defects that were latent at the time of completion, if it can be proved that the property was unfit for habitation at the date of completion. The Act extends the limitation period to 15 years prospectively for claims under s1 and s2A (i.e. for claims that accrue after the Act takes effect); and to 30 years retrospectively for claims under s1 only (for claims that accrued before the Act takes effect). This is a significant increase from the current 6 years and potentially revives a very large number of claims. This provision is intended to come into force as soon as 2 months after Royal Assent.

Dutyholders

One of the key features of the Act is the requirement for all dutyholders to be competent. This means that the individuals that are appointed to hold these regulated positions must possess the necessary knowledge, skills and experience in order to carry out their roles.

There is also a requirement under the Act for a ‘golden thread’ of information to be maintained at all times to demonstrate that a building is compliant with the appropriate building regulations, during the construction phase, and in order to identify, understand, manage and mitigate ongoing building safety risks throughout the building’s lifecycle. These requirements are expected to come into force between 12 and 18 months after Royal Assent.

Accountable Person

The Act defines an Accountable Person as someone who holds a legal estate in possession of the common parts or, alternatively, someone who has relevant repairing obligations in respect of any part of the common parts.

‘Accountable Person’ responsibilities include:

• Carrying out a risk assessment of higher-risk buildings as soon as possible;
• Taking all reasonable steps to prevent building safety risks materialising and reduce the severity of any incident;
• Preparing a safety case report;
• Notifying the regulator after the preparation or revision of a safety case report;
• Mandatory reporting requirements that prescribed information pertaining to building safety risks is provided to the regulator; and
• Retaining prescribed information and ensuring that it is kept up to date.

Impact on project management

Before construction starts

It is now crucial to ensure that staff with the necessary skills, knowledge and experience are in place, at the outset, so that dutyholders are competent, allowing developers and contractors to execute their roles as an accountable person. This should not be an afterthought.    

During construction

The team will need to ensure that, throughout construction, technical documents such as plans, drawings and any specifications are retained and made available. These documents will form the ‘golden thread’ of information to mitigate any ongoing building safety risks.

The introduction of Mandatory Occurrence Reporting also means that organisations will need to have systems in place for dutyholders to report any fire and structural safety occurrences to the regulator. 

Completion

The regulator could halt progress of the project whilst it satisfies itself that any requirements have been met. Thought should be given to allowing sufficient time or float that mitigates these delays, so as to avoid any liquidated or other damages.

The building must be registered before it can be occupied. Even after completion, any project documents and records must be retained, ideally for the length of the extended defects liability period which could be up to 30 years.

All of these provisions affecting the delivery of projects are expected to come into force between 12 to 18 months after Royal Assent, i.e. in the Autumn of 2023.

Conclusion

The Building Safety Bill was one of the most scrutinised and hotly anticipated pieces of legislation in recent years. The passing of the Bill into law and creation of the Act marks a watershed moment following the tragedy of the Grenfell Tower fire in June 2017.  Its purpose was to put in place enhanced regulatory regimes for building safety and construction and these obligations will impact almost all levels of the construction and development industries. The real impact of these changes remains to be seen. There is undoubtedly a range of new duties and liabilities for clients to consider, but the staged approach of bringing these obligations into force allows companies time to prepare.

If your organisation would like advice on steps to take in order to comply with the range of new obligations under the Act, then please do contact us via the details below.