An Introduction to the Building Safety Act 2022

The Building Safety Act 2022 (BSA) received Royal Assent in April 2022. Deborah Down outlines the main provisions.

The BSA focuses on the safety of ‘higher-risk buildings’ from design stage through to management once occupied, including through raising construction standards generally. It also contains provisions on service charges payable by leaseholders for cladding etc. It is the government’s response to the Grenfell Tower fire and recommendations from the subsequent Hackitt review.

The BSA is weighty and multi-faceted, and many provisions merely enable the making of more detailed regulations, some of which have been published as drafts. To illustrate some of its complexity, different Parts regulate risks for different types of buildings (see box):

What came into force on 28th June 2022 (2 months from Royal Assent)?

1) Establishment of a new building safety regulator or BSR– the existing Health & Safety Executive (HSE) will fulfill this role. It has to exercise its functions with a view to:

• Securing the safety of people in or about buildings (all buildings)
• Improving the standard of buildings.

It has initial duties from 28th June to draw up strategy, consult on regulations etc

2) Leaseholder rights to get defects rectified, and limits on service charges

• A key date here is 28th February 2022 – qualifying long leaseholders get rights only if their lease was granted before this date, and they also need to meet other requirements around living there/owning other properties, liability for service charges, length of lease.
• See “relevant building” definition above; “relevant defects” / “relevant works” are also key.

By Schedule 8, no service charges are payable for relevant works and related issues for remedying a relevant defect (or to prevent one materialising) where:

• It is for remediation of unsafe cladding, or
• The landlord or an associate was “responsible” (as defined) for the relevant defect, or
• The landlord meets a “contribution condition” – based on value of the landlord’s group (not applying to local authorities or private registered providers of social housing), or
• The value of the lease is below a certain value – in London £325,00 and elsewhere £175,000, or
• It is for legal or professional services relating to liability for relevant defects.

In other cases, service charges for relevant works are capped if certain conditions are fulfilled, both subject to an overall cap and also an annual limit.

The legislation could also bite on limiting/ refunding of charges made for “waking watches” post-Grenfell, which attracted a lot of media attention. These may qualify as “measures” to reduce risk in relation to “relevant defects”.

Also in force:

• Lease covenants seeking to limit the Schedule 8 rights are automatically void.
• The ability to apply for a “building liability order” – the High Court can determine contributions that different potentially responsible parties can be required to make towards any liability under the BSA. This should prevent, for example, a complicated company structure or tiers of subcontractors being used to avoid liability.

Note: under future regulations further rights will be available in relation to safety works:

• To provide leaseholders with a mechanism to enforce refunds of service charges where they have already paid out for relevant works, if their leases do not already provide for this
  
• Qualifying leaseholders, the BSR, local authority or fire authority can apply to the First-tier Tribunal for an order that the then landlord rectify a relevant defect (a remediation order).
  
• The First-tier tribunal under a “remediation contribution order” can also order that related parties, such as the landlord or developer at the time of the construction, or even certain company directors, have to contribute to the costs of anyrelevant defects.
  
• section 20 notices to recover service charges – landlord needs first to have applied for any insurance payout, grant etc available, and deduct this before charging leaseholders.

3) Enhanced Liability under the Defective Premises Act 1972

Despite its title, the relevant parts of this Act only regulate dwellings, and whether they are constructed / designed in a workmanlike/ professional manner and using proper materials, so as to be “fit for habitation”. Section 1 already covers civil liability of builders and designers when the dwelling was built, and a new section 2A is inserted by the BSA to extend this to subsequent works.

Then the limitation period for claims under sections 1 and 2A accruing for buildings completed after 28th June 2022 is extended to 15 years from completion, and the limitation period for claims accruing under section 1 only for buildings completed before 28th June 2022 is extended to 30 years. Retrospective liability of this type is very unusual, and there is a defence under human rights legislation.

Note: it is also intended to bring into force the never-implemented section 38 of the Building Act 1984 about civil claims being available for those who have suffered loss arising out of the misapplication of or failure to apply the relevant Building Regulations. Once in force this will also have a limitation period of 15 years, but not retrospectively.

4) Setting up a framework to better regulate the supply and marketing of construction products.

The detailed regulations to implement this will not happen until 2023 (will replace an existing framework, under which for example the cladding of the type used at Grenfell has already been banned) with the overall emphasis on safety and not mere meeting of technical standards. However, what is in force from 28th June 2022 is the overall framework (Schedule 11) plus new potential civil liability for manufacturers and suppliers of construction products where conditions are met. Again, this is focused on housing and being “unfit for habitation”. A wide range of behaviour can be caught, such as false statements in marketing information. The limitation period for this will be 15 years, but with special retrospective liability for past cladding defaults of 30 years from when the works were completed, provided completion was before 28th June 2022, though again with a human rights legislation defence. Courts can make costs contribution orders where more than one party is liable.

What will come into force later?

The timeline indicated by the government is that the rest of the BSA will come into force over the next 12-18 months, however more detailed regulations may still then be required. Key provisions:

1: Further powers for the BSR – enforcing or regulating many of the items listed above

2: Amending the Building Act 1984 etc – Part 3 of the Act.

When in force, this Part will:

1. make the BSR the building control authority in place of the local authority for all “higher risk” buildings (definition as above for Part 3)
2. allow more safety-related detail to be included in future building regulations. These regulation-making powers are general, all the BSA inserts into the Building Act 1984 is that “Building Regulations may make provision for…..” This includes: provisions about the Building Regulations being able to provide for new dutyholder roles prior to and during construction – gov.uk indicates this will apply for all buildings which need to comply with Building Regulations, not just those “higher-risk”. Ability for building regulations to include more enforcement eg being able to get work opened up for inspection. Some aspects enforceable as criminal offences.
3. Extending criminal liability for offences under the Building Act 1984 which are committed by a body corporate, to directors/partners etc committing an offence – where they have “consented” or “connived”. The range of sentences on conviction also increase.
4. Implement new building control approval gateways – the term “gateway” has been used in commentary, though this term is not in the BSA amendments to the Building Act 1984 Building control approval for gateway 1 (introduced last year separately by reforming the planning legislation but with a different definition of the buildings to which it relates to any of those set out in the BSA!) and gateway 2 (pre-construction) will lapse after 3 years. it is not yet clear whether the regulations will cover “higher risk” buildings only, though information on gov.uk indicates so.
5. A levy on building control approval, to fund building safety expenditure
6. Requirements for a “golden thread” of information to be held about buildings
7. Reform of the building control profession with the BSR as regulator – building approvers certifying compliance with building regulations (previously called “building inspectors”) to be registered, coupled with a Code of conduct and minimum qualifications.

Part 4: Regulating higher risk occupied residential buildings (see definition above). This focuses on a key concept of “building safety risk”. This Part includes:

1. Requiring such buildings to be registered with the BSR (including existing buildings) and that a completion certificate under the Building Act 1984 must be in place before a higher risk residential building can be occupied
2. Appointment of an “accountable person” to manage building safety risks, carry out certain duties and respond to the regulator – failure of that person to carry out their duties can see the building placed in special measures.
3. Other rights for residents including supply of information with rent demands, landlord covenants implied into leases around building safety, and better rights to complain.

5) Creating a new homes ombudsman and other protections for occupants of new homes.

6) The detail of the construction products regulatory framework already described.

The full Act can be viewed here and Commencement Order no.1 here

Deborah Down is a Legal Director at Sharpe Pritchard LLP

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