On 9 May 2023, 39 Essex Chambers hosted an evening seminar: "The Building Safety Act: One year on, where are we now?"
The event was chaired by Paul Darling KC, with Kerry Bretherton KC, Kate Grange KC, David Sawtell, Samantha Jones, Nick Higgs and Sam Burrett speaking on crucial developments within the Government’s new building safety regime in England.
By way of overview, the event covered the following interesting topics:
- Kerry Bretherton KC discussed the concept of a “qualifying lease” and mechanisms under the Building Safety Act 2022 (the “Act”) setting out leaseholder rights and financial protection for leaseholders from the full extent of remediation costs. Examples of areas identified as being ripe for scrutiny/dispute by landlords seeking to recover remediation costs from leaseholders were:
- the definitions of cladding;
- the reasons for its replacement; as well as
- relevant landlords' annual accounts and any attempts to reduce the net worth of the ‘landlord group’ at the qualifying time so it is not found to meet the contribution condition and therefore be precluded under the Act from recovering remediation costs from qualifying leaseholders.
- Kate Grange KC explored sections of the Act in respect of liability relating to construction products and liability for past defaults relating to cladding products and the detailed criteria within each. It was interesting to note that up to two-thirds of construction products are unregulated. Construction products will be subject to further regulations in secondary legislation and we await to see what shape this will take (and extent to which these instruments implement Dame Judith Hackitt’s recently unveiled new global framework for regulating construction products);
- Nick Higgs commented on evidential issues within fire safety defect claims such as the challenges associated with extrapolation cases, and explored expert evidence best practice. Extrapolation cases are expected to be a trend to watch out for in forthcoming fire safety defects claims;
- Samantha Jones discussed remediation orders and remediation contribution orders (orders which the First-tier Tribunal may make requiring a landlord/specified entity to remedy relevant defects or contribute to remedying a relevant defect) and the key terminology relevant to the two types of orders. Among other trends in applications for these orders, it is expected that leaseholders will bundle a number of defects (some of which may not constitute a relevant defect for the purposes of the Act) into one application;
- David Sawtell provided a useful overview of the Government’s developer remediation contract and Responsible Actors Scheme and commented on how this impacts developers and their business activities (especially those developers who fail to sign up); and
- Sam Burrett assessed the implications of the Act on the insurance industry, notably discussing areas where there will potentially be additional liability to insure as a result of the Act. Sam Burrett was of the view that if the Act does create a cultural shift within the construction industry, insurers will be happy to underwrite the liabilities created by the Act – if no such cultural shift comes about, the insurance market is expected to be subject to vast change.
With each speaker bringing a wealth of experience in navigating the developing building safety regime one year on from the Act, this event was truly insightful and we are grateful for the opportunity to attend.