The Building Safety Act 2022 (“the Act”) came into force on 1 October 2023, introducing a new more stringent regulatory regime for all buildings identified as “higher-risk buildings” (i.e. those which are at least 18 metres or seven storeys high and contain at least two residential units).
In this piece, we look at the new Building Safety Regulator (“BSR”), the new offences and potential liability (for both individuals and organisations) under the Act and what we might expect from the BSR’s approach to enforcement. If you wish to review our guidance page summarising the new building safety regime and the latest news, please click here.
What is the new Building Safety Regulator (BSR)?
The BSR has been created by the Act, and is part of the Health and Safety Executive (“HSE”). The key functions of the BSR will be to oversee the safety and standards of all buildings, to implement the new regime for higher-risk buildings and to help promote competence among industry professionals to raise standards in the design, construction and management of buildings.
The creation of a new regulator was recommended by Dame Judith Hackitt in her 2018 ‘Building a Safer Future’ report, which was commissioned by the Government in response to the Grenfell Tower fire. Dame Hackitt considered that we needed a better framework for bodies such as local authority building standards teams, the fire and rescue authorities and the HSE allowing them to better work together. In answer to this, the new regulator will sit above these bodies and have powers to bring together teams with the relevant expertise to ensure a more joined up approach to building safety.
But what powers will the new regulator have to ensure compliance with the Act?
One of the criticisms in Dame Hackitt’s Report was that “Where enforcement is necessary, it is often not pursued. Where it is pursued, the penalties are so small as to be an ineffective deterrent.” In response, the Act makes clear that officers authorised by the BSR have far-reaching powers of investigation and enforcement to ensure that its requirements are met.
The investigatory powers include the right to enter domestic and non-domestic premises (with a warrant where required), to require and take copies of information and documents and to seize anything that appears to be evidence of an offence. In addition, where there is a significant failure or repeated failures on the part of the Accountable Person (i.e. the organisation or person who owns or is accountable for a building) to comply with their duties, the BSR will have the power to apply to Court to appoint a Special Measures Manager to replace that person and take over the management of the building.
What new offences are created by the Act?
There are a number of new criminal offences under the Act, including the following:
- Obstructing or impersonating an authorised officer of the BSR;
- Knowingly or recklessly providing false or misleading information to the BSR;
- Failure of an Accountable Person to register an occupied higher-risk building (the deadline to register existing occupied buildings was 30 September 2023);
- Failure of an Accountable Person to give prescribed information to the BSR; and
- Allowing occupation of a higher-risk building without a completion certificate.
The Act also extends the existing criminal offence provisions in the Building Safety Act 1984 and increases the penalties for certain offences to up to an unlimited fine and/ or two years’ imprisonment. The Act also significantly extends the period for taking enforcement action from one year (from the date of completion of the work) to ten years.
In addition, the Act empowers the BSR to issue notices during the design and construction phase of higher-risk buildings – compliance notices (requiring non-compliant work to be remedied by a specified date) and stop notices (requiring work to be halted until serious non-compliance is addressed). These are intended to be applied at an early stage, for example, to prevent dangerous non-compliant work from being continued or completed where there is a risk of serious harm to people. Failure to comply with such notices without a reasonable excuse is also a criminal offence.
The extent of criminal offences and potential liability under the Act is therefore considerable. This is intended to act as a deterrent and to give the BSR the toolkit needed to ensure compliance with the Act, to drive positive industry change and elevate responsibility for building safety so that it becomes of primary importance.
Personal liability for individuals
It is also important to note that the Act provides that where certain offences are committed by an organisation, senior individuals within that organisation may also be prosecuted where the offence is committed with their consent or connivance, or as a result of their neglect (which can result in a prison sentence as well as a substantial fine). This provision mirrors the Health and Safety at Work etc. Act 1974 and continues the regulatory trend of imposing personal liability on senior management.
What will be the BSR’s approach to enforcement?
Given the high-profile background to the legislation, it is inevitable that there will be media and public interest in any suspected breaches.
According to Government guidance, the use of the BSR’s powers will be set out in a published Enforcement Policy Statement (EPS) in due course, however enforcement action is expected to be proportionate to the safety risks and the seriousness of any breach, including the likelihood of any actual or potential harm. Other factors that are likely to be relevant to the BSR’s discretion include the attitude and competence of management, incident history and previous enforcement action.
On 26 July 2023, the Department for Levelling Up, Housing and Communities (DLUHC) also issued a Joint Statement alongside the BSR, the Local Government Association and the National Fire Chiefs Council (available here). It issued a warning to building owners that:
"Local authorities and fire and rescue services are already taking enforcement action against building owners who are dragging their feet… Building owners who are continuing to stall should know they are running out of time if they are to avoid being forced to act… we are tightening the regulatory screw. Regulators will not hesitate to take enforcement action against building owners if they do not comply with their legal duties."
The Joint Statement also indicated that “the Building Safety Regulator will start enforcing building safety in residential buildings above 18 metres or 7 storeys in spring 2024” and “those who have yet to remediate can expect early attention from the Building Safety Regulator.”
Any building owners who are yet to undertake required remediation work should therefore endeavour to bring their buildings into compliance by next Spring or face consequences from the new regulator. If you find yourself subject to an investigation, we would recommend obtaining legal advice and representation as soon as possible to ensure that you do not inadvertently make your position worse.