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Introduction
The Building Safety Act 2022 (“the BSA”) has been described as the biggest revision of UK building safety regulation for nearly 40 years. The legislation was granted Royal Assent on 28 April 2022.
The driver behind the BSA was the Grenfell Tower fire in 2017 which tragically killed 72 people. The inquiry into the disaster concluded with confidence that each and every one of the deaths in the fire was avoidable. It was preventable because of the materials in use on the high-rise apartment building in West London. The functional requirements of the Building Regulations in respect of external walls is that the material used must adequately resist the spread of fire. The materials used in the Grenfell Tower did not, however, adequately resist the spread of fire but instead actively promoted the rapid fire spread. The Polyethylene cored ACM cladding panels used on the exterior of the building were combustible and propagated the spread of fire. There was also inter alia no compartmentation. This resulted in the fire, originating from the 3rd floor of the building, reaching the 17th floor twenty-one minutes after the first 999 call had been made and the building being completely engulfed 15 minutes thereafter.
Kingspan's K15 insulation was used in part of the flammable cladding system mounted on to Grenfell Tower. It was concluded from the Grenfell inquiry that the manufacturer Kingspan had put their products through an independent testing regime wrapped around a non-combustible material achieving a result reflecting having non-combustible material, then took the material off and sold this to the construction industry. The result of this being that what was being sold did not resemble what had been tested.
It is clear from the foregoing that there had been significant failures in respect of building safety regulation, and this is why there are such drastic changes by way of the BSA.
The BSA has been split into 6 Parts and contains provisions intended to secure the safety of people in or about buildings and to improve the standard of buildings. It does not concern just fire safety, but the safety of entire buildings. It is a huge piece of legislation spanning over 230 pages and amends many other Acts of Parliament.
A more detailed explanation of Parts 2 to 5 of the BSA is summarized below but some of the headline points in relation to the BSA are highlighted as follows:
Part 2 of the BSA – The Building Safety Regulator
Part 2 of the BSA contains provisions about the Building Safety Regulator (“the BSR”) and its functions in relation to buildings in England.
The BSR will be responsible for overseeing and enforcing the key provisions of the BSA. The BSR will play a central role in the ongoing management of building safety risks and the competence of those involved in the construction industry.
The BSA appoints the Health and Safety Executive to be the BSR. Its objectives are set out in Section 3(1) of the BSA, namely to exercise its building functions with a view to (i) securing the safety of people in or about buildings in relation to risks arising from buildings; and (ii) improving the standards of buildings.
The BSR describes its three main functions as: (i) overseeing the safety and standards of all buildings; (ii) helping and encouraging the built environment industry and building control professionals to improve their competence; and (iii) leading the implementation of the new regulatory framework for high-rise buildings.
Pursuant to Sections 9 to 12 of the BSA, to assist and inform its functions, the BSR is required to establish the following:
The BSR will also have powers to authorize remedial works, cease non-compliant projects, impose measures for failing projects and replace key officers, along with responsibilities for the registration of higher-risk buildings.
Part 3 of the BSA – New framework for the design and construction of higher-risk buildings
Part 3 of the BSA sets out a number of amendments to the Building Act 1984, including the definition of “higher-risk buildings”, the dutyholder regime, general competence requirements, the gateway process and enforcement processes.
The definition of higher-risk buildings
For the purposes of Part 3 of the BSA, section 31 of the BSA defines higher-risk buildings as those buildings which are at least 18m in height or 7 storeys high with 2 or more residential units. Care homes and hospitals will also be higher-risk buildings for the purposes of Part 3 of the BSA, but some properties are excluded such as hotels.
The dutyholder regime
Part 3 of the BSA creates a regime for “dutyholders” for higher-risk buildings to be in existence across the life cycle of higher-risk buildings. Different roles will be created, which include those similar to those set out in the Construction (Design and Management) Regulations 2015 for the design and construction phase.
Dutyholder roles (client, principal designer, principal contractor, designer and contractor) may be fulfilled by an individual or a legal entity and some dutyholders may hold more than one role in a project. Each dutyholder role will have specific duties in respect of higher-risk buildings, and will be expected to ensure that the people they have appointed are competent; have systems in place to plan and manage the work to ensure compliance with Building Regulations; comply with specific regulatory requirements of the higher-risk buildings regime (e.g. gateway requirements (see below) and mandatory occurrence reporting); and co-operate and share information with other relevant dutyholders.
The gateway regime
There will be a three-stage gateway regime for the design and construction of and major refurbishment to all higher-risk buildings. The aim is to ensure that building safety risks are considered at each stage of a new higher-risk building’s design and construction.
Gateway 1 – the planning gateway: this requires submitting an application for planning permission and submitting a fire safety statement (setting out the fire safety considerations specific to the building) and for the Health and Safety Executive to be a statutory consultee.
Gateway 2 – before construction begins: A building control approval application will need to be submitted electronically to the BSR, together with the required supporting documentation, showing how dutyholder, competence, golden thread (see below for definition) and mandatory occurrence reporting obligations will be met. The BSR will consider the application, and by way of example, will consult and provide information to the relevant fire and rescue authority. Pursuant to The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, the BSR will have 12 weeks (in the case of an application for new high-risk building work) or 8 weeks (for works to an existing high-rise building) from the date of the application (plus any agreed extensions) to decide whether to approve the application, give conditional approval or reject. It will be an offence for work to commence before the BSR has given Gateway 2 approval. If approval is given, the BSR will operate a bespoke inspection and enforcement regime for the works. During construction, any major deviations from the original proposals will also require the BSR's approval before being undertaken. Other changes will need to be notified to the BSR.
Gateway 3 – completion certificate application: Dutyholders must submit to the BSR an application for the completion certificate together with the required information reflecting the as-built building and demonstrating compliance with Building Regulations and fire safety requirements. The BSR must assess whether the building work complies with the Building Regulations, undertake inspections and issue a completion certificate on approval. The BSR may approve and issue a completion certificate, reject the application, or agree an extension of time for the application to provide additional information. Once Gateway 3 has been passed, the accountable person can register the building for occupation (see Part 4).
Enforcement of building regulations
The BSR has the power to serve enforcement notices requiring work that does not comply with Building Regulations to be altered or removed within 28 days. The deadline for service of such notices will be extended from 12 months to 10 years from completion of the work that is in breach.
The BSR can also issue compliance and stop notices enabling it to require work to be corrected by a given date or for work to cease until non-compliance is addressed.
Prosecution rights will be extended to the BSR and the claim will be expanded to include not just breach of Building Regulations, but also any individual requirements imposed under Building Regulations (for example, dutyholder duties).
Part 4 of the BSA – New framework for the occupation of higher-risk buildings
Part 4 of the BSA addresses managing building safety risks in occupied higher-risk buildings.
The definition of higher-risk buildings for the purposes of Part 4 is the same as that for Part 3 (see above) save that (i) it does not include care homes or hospitals (they are only higher-risk buildings during the construction phase when Part 3 applies) and (ii) an independent section of a building can be a building if certain criteria are met.
A building safety risk for the purposes of Part 4 is a risk to the safety of people in or about a building arising from any of the following occurring with regards to the building: (i) spread of fire; (ii) structural failure; or (iii) any other matter prescribed in regulations.
A building is occupied if there are residents of more than one residential unit in the building. Residential occupation of a higher-risk building is subject to a building regulations completion certificate having been issued and the building have been registered with the BSR – breach of these requirements without reasonable excuse amounts to a criminal offence.
To effectively manage building safety risks, Part 4 establishes the role of the Accountable Person and the Principal Accountable Person. The Accountable Person is legally responsible for identifying and managing building safety risks in higher-risk buildings
The Accountable Person is a person or entity who holds a legal estate in possession of any part of the common parts (e.g. the freeholder or landlord); or does not hold a legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of those common parts (e.g. management company).
The Accountable Person has onerous obligations including:
Where a building has more than one Accountable Person, a Principal Accountable Person will be identified and have overall responsibility for the safety of the building.
The golden thread requirements will relate to both:
During the design and construction phase, responsibility for creating and maintaining the golden thread falls on the dutyholders while during the occupation phase the onus passes to the Authorised Person(s) and Principal Authorised Person. It will be a condition of Gateway 3 approval for the applicant to provide a statement signed by the client and the Principal Accountable Person confirming that the golden thread has been handed over.
Part 5 of the BSA
Detailed as follows is a summary of some of the provisions of Part 5 of the BSA:
Liability of construction and cladding manufacturers
Previously, there was no legal relationship between the current owner or resident and the manufacturers of construction materials that comprised that dwelling, often leaving them with no remedy for defective materials that rendered their home unfit for habitation.
A new cause of action appears within Sections 148-149 of the BSA to allow claims to be brought against any party who:
This therefore allows claims for damages to be brought against product manufacturers and suppliers in respect of personal injury, damage to property and/or economic loss by anyone who has an interest in the dwelling and has suffered a loss as a result of said dwelling being ‘unfit for habitation’.
Section 150 of the BSA inserts new section 10B into the Limitation Act 1980, which provides a special time limit of 15 years for claims brought under sections 148 and 149 of the BSA where the right of action accrued after 28 June 2022 (which is when sections 148 and 149 came into force). A retrospective 30-year limitation period applies to claims brought under section 148 and 149 of the BSA where the right of action accrued before 28 June 2022, pursuant to section 10B(2) of the Limitation Act 1980.
Section 10B(3) further includes a one-year grace period for historic claims brought less than a year after the BSA 2022 came into force.
Expanded remit of the Defective Premises Act 1972 (DPA)
Section 134(1) of the BSA introduces a new section 2A to the DPA. This extends the ability of homeowners (including leaseholders and landlords) to bring statutory claims under the DPA regarding refurbishment and rectification works carried out on existing dwellings where such work renders the dwelling ‘unfit for habitation’.
This represents a significant expansion in the scope of the existing DPA regime. Residents will be able to bring claims against contractors, designers, and developers in respect of defective repair work. This was previously excluded from the DPA on the basis that the duty in section 1(1) (of the DPA) was restricted to the ‘provision’ of a dwelling – meaning its original construction or conversion.
New claims under Section 38 of the Building Act 1984
Section 38 provides a statutory right to claim compensation for physical damage (e.g. injury or damage to property) from those responsible for the damage caused, where such damage is caused by a breach of the Building Regulations.
Unlike the DPA and new construction products cause of action detailed above, section 38 is not limited to dwellings or residential properties but applies to all buildings within the scope of the Building Regulations.
Section 38 will not include pure economic loss which would be recoverable for actions under the DPA.
Section 38 claims may be brought up to 15 years from the date of completed building works, but only in respect of buildings completed after 28 June 2022. It does not have retrospective effect.
Extended limitation periods for claims under the DPA
Section 135(1) of the BSA adds a new section 4B into the Limitation Act 1980, thereby changing the limitation period within which building owners, homeowners, and leaseholders can bring claims for defective work relating to a dwelling under the DPA:
Section 135(4) of the BSA provides that limitation periods applicable to claims under the DPA will not expire until one year after the new law comes into effect. The BSA, therefore, provides a one-year buffer for claimants who find themselves close to the end of the 30-year period, in an identical fashion to the new construction products cause of action.
Piercing the corporate veil – Building Liability Orders
Section 130 of the BSA gives the High Court power to grant building liability orders (“BLOs”). BLOs create joint and several liability for associated companies in relation to liabilities arising under the DPA, section 38 the Building Safety Act 1984, or as a result of a building safety risk (defined below).
Section 131 of the BSA provides that a body corporate is 'associated' with another body if: (i) one of them 'controls' the other; or (ii) a third body corporate controls both of them. This will encompass, by way of example, parent companies and subsidiaries, as well as sister companies within a group structure.
Section 130(5) of the BSA confirms that BLOs can be granted in respect of a liability of a body corporate which has already been dissolved, or is dissolved after the making of a BLO, to enable claimants to recover their losses from associated corporate bodies.
BLOs will be granted where it is “just and equitable to do so”. In determining whether it is just and equitable to do so, the court should have regard to the “full factual matrix” of each individual case.
Section 132 of the BSA further supports prospective claimants seeking BLOs, by enabling them to apply for orders requiring specified corporate bodies to share information about their associated companies relating to their corporate structures.
Remediation Orders and Remediation Contribution Orders
Pursuant to section 123(2) of the BSA, a Remediation Order is an order, made by the First-tier Tribunal on the application of an interested person, requiring a relevant landlord to remedy specified relevant defects in a specified relevant building by a specified time.
An ‘interested person’ includes (but is not limited to) the BSR and those with a legal or equitable interest in the building, or any part of it.
A ‘relevant building’ is defined by way of section 117 of the BSA as a self-contained (structurally detached) building or part of a building containing at least two dwellings which is at least 11 meters in height, or which has at least five storeys, but excluding leaseholder-owned buildings.
Section 120 of the BSA defines a ‘relevant defect’ as a building defect that arises "as a result of anything done (or not done), or anything used (or not used), in connection with relevant works" that also causes a building safety risk.
A ‘building safety risk’ is widely defined as a risk to the safety of people in or about the building arising from the spread of fire, or the collapse of the building or any part thereof.
Section 124(1) of the BSA provides that the First-tier Tribunal may, on the application of an interested person, make a Remediation Contribution Order in relation to a relevant building if it considers it just and equitable to do so.
A Remediation Contribution Order means an order requiring a specified body corporate or partnership to make payments to a specified person, for the purpose of meeting costs incurred or to be incurred in remedying relevant defects (or specified relevant defects) relating to the relevant building.
A body corporate or partnership may be specified only if it is:
"Associated" parties are broadly defined by section 121 of the BSA and encompass both parent companies, subsidiaries, and sister companies within a group structure, as well as companies that share or have shared a director in the five years leading up to 14 February 2022.
To discuss any of the above further, please feel free to contact Brandon Silver: brandonsilver@bexleybeaumont.com | 07834173528
Legal disclaimer
The matters contained within this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions.
