As we have previously discussed, the Building Safety Bill ("BSB") was introduced to Parliament on 5 July 2021. In that earlier article, we looked at the impact which the BSB will have on owners and tenants' rights to make a claim under the Defective Premises Act 1972 in relation to a property which is "unfit for habitation", and the related changes to the standard limitation position. However, this is not the only change that the BSB will make.
If the BSB becomes law in its current form, then it will introduce a revolutionary new regime for how multi-storey buildings are managed.
What Buildings are Covered by this Regime?
Any building which is:
- at least 18 metres in height or has at least 7 storeys, and
- contains at least 2 residential units.
will now be considered as a "higher-risk" building and will fall within the new management scheme. The scheme applies to both buildings which are already occupied and new projects, and both traditional residential properties and mixed used facilities will be covered.
What Measures are Coming into Force?
The BSB prescribes that a Dutyholder must be in place at all stages (planning application, construction phase, occupation) of the life of a higher-risk building. When the building is in use, the Dutyholder will be the "Accountable Person" – a new role created by the BSB and defined as "a person who holds a legal estate in possession in any part of the common parts" or, a person "who is under a relevant repairing obligation in relation to any part of the common parts". The role of Accountable Person can be held by an individual, partnership or a corporate body.
The Accountable Person has a number of statutory duties which they must comply with. Some of the key duties are set out below:
- Taking over responsibility for the "golden thread" of safety information from the previous Dutyholders (the Principal Designer and the Principal Contractor having held this responsibility at earlier stages). The golden thread was defined in the Government's initial consultation as "building information created, maintained and held digitally to ensure that the original design intent and any subsequent changes to the building are captured, preserved and used to support safety improvements" Whilst we would expect further guidance to follow, information such as as-built drawings, O&M Manuals and Health & Safety Manuals are likely to be included.
- Assessing and managing any safety risk associated with the building and taking steps to prevent these risks from arising. This is an ongoing duty, and these matters should be considered on a regular basis. A "safety case" should be maintained to show evidence of how this has been done and a "safety case report" should also be produced to set out the safety measures for the building. The Accountable Person will be responsible for keeping these up to date.
- Another change introduced by the BSB is the creation of a new body – the Building Safety Regulator (BSR), which will be set up by the HSE. Where the building in question is new, the Appointed Person will be required to register it with the BSR before residents move in. Existing buildings will also need to be registered once the new regime is in force. Once this is done, the next step is for the Accountable Person to apply to the BSR for a Building Assessment Certificate. This Certificate will provide comfort to residents that the Accountable Person is following their required statutory obligations.
- Appointing a Building Safety Manager who will take on the day-to-day management of building safety and serve as the official point of contact for residents. The Accountable Person can perform this role in house – if there is someone in the organisation who has the required skillset. The British Standards Institute has confirmed that it will be publishing specific standards to confirm what those skills will be. This is an important part of the Accountable Person's role as the BSR will look at the suitability of the Building Safety Manager when deciding whether to issue a Building Assessment Certificate.
- Establish a reporting process for "Mandatory Occurrence Reporting" when a "structural and fire safety occurrence" arises. These reports will also be made to the BSR. What exactly falls within this definition will be set out in secondary legislation in due course.
Overall, the Accountable Person is responsible for the safety of each building and should maintain a clear record of any measures taken to address any issues around that safety.
When will this take effect?
Assuming the government's legislative plans run to schedule, the BSB will be granted royal assent by summer next year. The intention is that the provisions of the BSB will come into effect across the following 18 months – meaning that by the end of 2023 these provisions are likely to be in force.
It would therefore be sensible for those who manage buildings covered by the new legislation to start considering how they will meet their obligations now, so that the correct processes can be in place in good time. This is particularly so when sanctions will apply in the event of an Accountable Person failing to comply with their obligations.