The new building safety regime implemented by the Building Safety Act 2022 (BSA) and its secondary legislation represents a step-change in the approach to building safety in England. While aspects of the building safety regime are applicable to all construction projects, the primary focus of the new regime is building safety in higher-risk buildings (HRBs) which are buildings of at least 18 metres or seven storeys that contain at least two residential units. The new regime applies not only to the design and construction of HRBs, but also the occupation of new and existing HRBs, and places various duties on those who are deemed to be either the “Accountable Person” and/or the “Principal Accountable Person” under the BSA. In this article we consider who is an Accountable Person and Principal Accountable Person for a HRB and the nature and extent of their duties under the new building safety regime.
Who is an Accountable Person?
Any individual or organisation that owns, or has an obligation to repair, the common parts of a HRB (being those shared by the residents of the building, such as the corridors, staircases, the structure and the exterior) will be deemed to be an accountable person (AP) for the purposes of the new building safety regime. This means that an AP could for instance be the freehold owner, a landlord, a resident management company or right to manage company and that, for any HRB, there may be more than one AP.
In addition, for every HRB, there must be a clearly identifiable principal accountable person (PAP). If there is only one AP for the building, that AP will be the PAP. Otherwise, where there is more than one AP, the PAP is the individual or entity who either owns the structure and exterior of the building or holds the repairing obligation for the structure and the exterior of the building.
Where the AP or PAP is an organisation, it is required to designate an individual within the organisation to be the single point of contact for the purposes of communication. The organisation will remain responsible for compliance with the regime and not the designated individual.
What are APs and PAPs required to do under the BSA?
The building safety regime places a range of obligations and duties on APs and PAPs in relation to the management and mitigation of building safety risks throughout the occupation of a HRB. The key duties and obligations of an AP and PAP are summarised in the table below. Importantly, these are ongoing duties which will require duty holders to review/assess their compliance and take appropriate action where so required to ensure continued compliance. It is clear therefore that these new duties are broad in scope and will likely place a significant new burden on APs and PAPs as they navigate each duty and seek to ensure compliance throughout the occupation phase of the HRB.
We’ve outlined and categorised the various duties into themes, which can be viewed by clicking the pink button below.
Compliance with duties under the BSA
APs and PAPs cannot delegate their legal obligations to others. While an AP and/or PAP can employ an organisation or individual, like a managing agent, to carry out duties on their behalf, the accountability for making sure those duties are carried out, and the liability for a building’s safety, remains with the AP and/or PAP.
Failure to comply with the duties and obligations outlined above constitutes a criminal offence under the BSA and the BSR is empowered and is required to enforce compliance with the AP and PAP duties and obligations under the BSA. Under the BSA the sanctions for a building safety offence are:
- unlimited fines for an offending organisation; and
- unlimited fines and up to two years imprisonment for individuals (including directors and/or managers of an organisation).
Further to the above, the BSR may issue a “compliance notice” to an AP where it considers the AP has failed to comply with its duties and obligations. Alternatively, where the BSR considers that a contravention would put the building or its residents in immediate danger it may specify the notice as an “urgent action notice”. A compliance notice or urgent action notice will state the steps to be taken by the AP within a specified period of time to either:
- remedy a contravention; or
- avoid the contravention occurring.
Failure to comply with a compliance notice, or urgent action notice, within the time specified constitutes an offence subject to the sanctions set out in the above paragraph.
The Regulatory Reform (Fire Safety) Order 2005
In addition, an AP or PAP of a HRB could also hold the role of a ‘responsible person’ for purposes of The Regulatory Reform (Fire Safety) Order 2005 (Fire Safety Order), resulting in a further set of duties and obligations applying in addition the those discussed in this article. A HRB will generally fall under the scope of the Fire Safety Order where a building (i) contains two or more domestic premises with (ii) shared common areas through which residents must evacuate in the event of a fire.
It is therefore likely that a HRB will fall within the Fire Safety Order’s scope meaning that the AP or PAP identified as the responsible person must comply with various duties including the completion of a fire risk assessment, provision of key fire safety information to residents and general mitigation of fire safety risks via the imposition of adequate fire safety measures. Generally, APs should be alive to the existence of this parallel duty holder regime – even if not a responsible person, both regimes compliment the other in order to amplify the building safety and fire safety measures taken in a HRB. We discuss the duties of responsible persons in more detail in the following article: Building Safety: Government publishes guidance for new duty holders, Tom Weld (burges-salmon.com)
Burges Salmon comment
The new building safety regime places a significant number of new duties and obligations onto APs and PAPs for their relevant HRBs. Whilst these duty holders can seek to engage third parties to carry out the duties, ultimate liability will remain with the AP/PAP. Failure to comply with the new duties throughout the occupation of the HRB will not only put safety at risk, but it also risks APs/PAPs being subject to significant sanctions under the new regime. APs and PAPs therefore need to take steps to ensure that they are fully aware of and in compliance with their duties and obligations under the BSA for their HRB.
If you require any advice on the building safety regime, our cross-sector, multi-discipline team have expert knowledge of this developing area of law and would be happy to support. Please contact Tom Weld for more information.
This article was written by Tom Weld and Kayla Urbanski.
This briefing gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.