Following the tragic Grenfell Tower fire in June 2017 a number of government inquiries were established to consider, amongst other things, the circumstances leading up to and surrounding the fire and the wider building and fire safety regimes in place at the date of the fire. The Hackitt Report, which reviewed the adequacy of the Building Regulations and fire safety regime, was published in May 2018.
A draft of the Building Safety Bill (the 'Bill'), intended to implement the recommendations of the Hackitt Report, was published for scrutiny in July 2020. An amended version of the draft Bill, altered to address some of the criticisms of the initial draft Bill received during the scrutiny process, was subsequently laid before Parliament on Monday 5 July 2021.
The New Building Safety Regime
The Bill seeks to establish a comprehensive new building safety regime governing the design, construction and occupation of higher-risk buildings. The key aspects of the proposed new building safety regime are as follows:
Scope of Building Safety Regime
The new building safety regime is intended to address building safety risks in higher-risk buildings. For the purposes of the Bill:
- building safety risks mean risks to the safety of people in or around a building arising as a result of (i) the spread of fire; (ii) structural failure; and (iii) any other prescribed risks; and
- higher-risk buildings mean a building that is at least 18 metres in height (or is more than seven storeys) and which contains at least two residential units.
Building Safety Regulator
A new Building Safety Regulator is to be established within the Health and Safety Executive to implement, oversee and enforce the new building safety regime. As the regulator leading the delivery of the more stringent regulatory regime, the Building Safety Regulator will be responsible for all regulatory decisions under the new regime during the design, construction, occupation and refurbishment of higher-risk buildings.
The Building Safety Regulator will have power to prosecute offences under the Bill (and the Building Act 1984) and, where an offence is committed by a corporate body with the 'consent or connivance' of a director or manager of that corporate body, or is attributable to their neglect, then that person may also be prosecuted. Sanctions for an offence under the Bill include unlimited fines, and in respect of an individual, up to two years in prison.
Building Safety Regime – Construction
The Bill introduces powers for the creation of a new three stage Gateway Regime, to be overseen by the Building Safety Regulator governing the design and construction of new higher-risk buildings. Each Gateway will be implemented through statutory instruments which will set out details of the regime.
- Gateway One (Planning) – implemented by amendments to Town and Country Planning (Development Management Procedure) (England) Order 2015 ('TCPO') and is applicable to all applications for detailed planning permission that involve, or are likely to involve, a higher-risk building from 1 August 2021. Gateway One requires that:
- the Building Safety Regulator is consulted, as a statutory consultee, on building safety risks before any planning permission is granted; and
- as set out in more detail here, Gateway One requires that a fire safety statement is submitted, in the prescribed format and signed by a competent person, setting out the fire safety strategy for the development.
- Gateway Two (Design) – will replace current building control ‘deposit of plans’ stage and will provide a ‘hard stop’ where construction of a building cannot begin until the Building Safety Regulator is satisfied that the design meets the functional requirements of the Building Regulations and does not contain any unrealistic safety management expectations.
- Gateway Three (Construction) – the Building Safety Regulator will inspect the building and assess whether the completed works comply with the requirements of the Building Regulations before issuing a completion certificate. The building cannot be occupied until the certificate has been issued.
New Duty Holders
The Bill creates two new duty holders responsible for ensuring safety for the duration of the occupation of a higher-risk building – the accountable person and the building safety manager.
The accountable person is any individual, partnership or corporate body who holds the legal estate for the common parts of a higher-risk building or is under a repairing obligation in relation to the common parts of a higher-risk building. In circumstances where there are two or more accountable persons, the party who holds the legal estate for the structure and exterior of the building will be deemed to be the principal accountable person.
The building safety manager is appointed by the accountable person and can be an individual or organisation. The principal role of the building safety manager is to support the accountable person in complying with their obligations under the Bill.
Golden Thread
The Bill introduces provisions for the creation and maintenance of a golden thread of information, with the intention of ensuring that information relating to the original design intent, and any subsequent changes to the building, is captured, preserved and available for use in the management of building safety risks throughout the lifecycle of a higher-risk building.
The golden thread information is collated by the principal designer and the principal contractor during the design and construction of a higher-risk building and then handed to the accountable person on completion. The accountable person is responsible for the management of the golden thread information during occupation.
Building Safety Regime – Occupation
Higher-risk buildings will need to be registered with the Building Safety Regulator before the building can be occupied. This is an additional requirement to the provisions of Gateway Three and applies to all higher-risk buildings (i.e. existing higher-risk buildings in addition to newly developed higher-risk buildings). However, it is intended that existing higher-risk buildings will be brought within the scope of the building safety regime within a fixed transition period, rather than at the date the Bill comes in to force. No details of the transition regime are available at the present time.
On registration, the Building Safety Regulator may direct that a building assessment certificate is required in relation to a higher-risk building. Where a building assessment certificate is required, an application supported by information required to demonstrate the accountable person’s compliance with their duties under the Bill and a safety case report, must be submitted to the Building Safety Regulator within 28 days of request for the Building Safety Regulator’s approval.
For the duration of the occupation of a higher-risk building the accountable person is required to (i) assess building safety risks at regular intervals or if the accountable person has reason to suspect that the current assessment is no longer valid; (ii) take all reasonable steps to prevent building safety risks materialising; and (iii) engage with the residents of the building in relation to the management of building safety risks and to address any safety concerns raised by the residents.
The accountable person is also under a duty to appoint a building safety manager (save to the extent that the accountable person has the organisational capability to deliver the role in-house). The satisfactory appointment of a building safety manager will be considered by the Building Safety Regulator as part of the certification process for the building assessment certificate.
Implied Terms in Leases
Under the Bill a number of new terms will be implied into all leases relating to a residential unit in a higher-risk building. These implied terms include:
- where the landlord is the accountable person, an obligation on the landlord to comply with its building safety duties; and
- an obligation on all leaseholders to allow the landlord, or its agents, access to their dwelling, on reasonable notice, in order to carry out building safety works.
In addition, a further term will be implied into any lease that (i) relates to a higher-risk building; (ii) has a term in excess of seven years; and (iii) requires the leaseholder to pay a service charge, which will impose a covenant on the leaseholder to pay a proportion of any building safety charges incurred within 28 days of the landlord’s demand (or such longer period specified by the landlord).
Building safety charges are the reasonable costs (or estimated costs) incurred by, or on behalf of, the accountable person in connection with carrying out building safety measures. Such costs will include legal fees, professional fees, fees payable to the Building Safety Regulator and management costs.
Limitation on Service Charges
As a condition precedent to a landlord recovering building safety charges from a leaseholder, the Bill proposes to place an obligation on landlords, by way of an amendment to the statutory consultation procedure under the Landlord and Tenant Act 1985, to take 'reasonable steps' to ascertain whether any other avenues of funding (e.g. grants, claims against third parties etc.) may be available before recharging building safety costs to a leaseholder as a service charge.
To the extent that any of the above funding options are available then the landlord is obliged to obtain such funding and the amount of the funding is to be offset against the cost of the building safety works and any building safety charge to a leaseholder reduced accordingly.
The provisions limiting the extent to which the cost of building safety works can be recovered by a landlord via the service charge mechanisms within a lease appears to apply to all buildings, not just higher-risk buildings.
Extended Limitation Period
If a homeowner discovers a defect in their property they may have a right of action against the original developer and/or builder of their property under the Defective Premises Act 1972 ('DPA').
The DPA requires a person (including a company) taking on work in connection with the provision of a dwelling to undertake the work (i) in a good and workmanlike or professional manner; (ii) with proper materials; and (iii) to ensure that the dwelling is fit for habitation when complete. The time limit for bringing claims under the DPA is currently 6 years from the date that the dwelling was completed.
In order to extend the protection afforded to homeowners under the DPA the Bill proposes to amend the Limitation Act 1980 to change the limitation period for claims under the DPA from 6 years from the cause of action to 15 years. The proposed amendment is:
- of retrospective effect, meaning that claims that were previously statute barred may now be permitted (subject to any legal challenge under human rights legislation); and
- not limited to fire safety defects and will apply to any claim where a dwelling meets the test under the DPA as being 'unfit for habitation' as a result of defects in the works.
New Homes Ombudsman Scheme
The Bill includes provisions that allow relevant owners of new build homes to escalate complaints to a scheme to be known as the new homes ombudsman scheme. The Secretary of State must make arrangements for a scheme to be available for complaints against members of the scheme to be investigated and determined by an independent person.
Construction Products
The Bill creates powers for the Secretary of State to make provision for regulation of all construction products placed on the UK market and to require manufacturers to ensure that the products they supply are safe. The Bill also introduces the concept of safety critical products which may be subject to more stringent regulation.
Commentary
An article setting out our thoughts on some of the main areas of concern with the Bill, and some of the potential implications of the Bill passing into law, can be found here.
Timeline for implentation
- Gateway One (Planning) – provisions of amended TCPO are applicable from 1 August 2021.
- Bill anticipated to receive Royal Assent within 9 to 12 months from 5 July 2021 – Summer 2022.
- Secondary legislation and regulations setting out detail of the new building safety regime to be in force between 12 and 18 months of the date of the Bill receiving Royal Assent – Summer 2023 to early 2024.
This article was written by Tom Weld. If you have any questions relating to the above, please contact Tom Weld or a member of the construction and engineering team.