The Building Safety Bill published on 5th July 2021 contains sweeping changes to building safety, amending the Building Act 1984 and changing the building control process. The changes are backed by criminal sanctions in some cases. The Bill will also extend the limitation period for claims under the Defective Premises Act 1972 from 6 to 15 years. This will apply retrospectively. As the Bill may become law by April 2022, this raises the possibility of claims against developers for properties built from 2007.
Other changes will include strengthening the Fire Safety Order, improving the competence of architects and changes to the system regulating construction products. A new National Regulator for Construction Products will have power to require the withdrawal or recall of products if they present a risk.
The Bill introduces the concept of a “golden thread” of information about a building, with safety considered from the earliest stage of the planning process and throughout the lifecycle of the building.
The key changes for developers and housebuilders include the following.
New Building Safety Regulator (BSR)
The BSR will be the single building control authority for higher-risk buildings and will drive improvements in all buildings. It will also manage the system of registered building inspectors. Higher-risk buildings are defined as being at least 18 metres in height (from ground level) or at least 7 storeys, and containing at least 2 residential units. The BSR has already been set up on an interim basis within the HSE although is not yet up and running. The regulator will be funded in part by charging fees for its services (similar to the HSE) and will have the power to prosecute.
Occupied higher-risk buildings
They will require a Building Assessment Certificate from the BSR. There are new duty holder roles:
- The Accountable Person will have a duty to manage the safety of the building and to maintain a Safety Case Report (required for existing and new buildings). Subject to lease terms, this will typically be the person or organisation who is in possession of, or who holds a repairing obligation in relation to the common parts. Where there is more than one AP, they must cooperate and a Principal AP must be identified.
- The Building Safety Manager is responsible for the day to day management of building safety risks, including fire and structural failure.
- Residents will be given new rights to request information and to make complaints about building safety (and will also have legal duties including co-operation with the AP and avoiding actions that create a significant building risk).
New higher risk buildings – the Gateway regime
Gateways will act as hard stops during the design and construction process. Further detail (Gateways 2 and 3) will be provided in Regulations but the current proposals are:
- Gateway 1 will be introduced on 1 August 2021. From that date planning applicants are required to provide a Fire Statement.
- Gateway 2 occurs prior to construction work beginning and replaces the current building control deposit of plans stage. Construction cannot begin until the BSR is satisfied that the design meets the functional requirements of the Building Regulations and does not contain any unrealistic safety management expectations.
- Gateway 3 is equivalent to the current completion/final certificate phase. The BSR will undertake final inspections and issue a completion certificate. All golden thread documents must be handed over to the new building owner.
The BSR will have the right to inspect any development. It will have the power to issue compliance notices for a contravention of the Building Regulations occurring within the previous 12 months and will be able to stop work if it will contravene the Regulations. Where a company commits an offence, directors and other senior individuals may be prosecuted in some circumstances. Failure to comply with a notice will be a criminal offence; the penalty is an unlimited fine or a prison sentence of up to 2 years.
A New Homes Ombudsman will be created and will be financed through fees charged to developers.
This is a complicated and far reaching Bill that requires detailed scrutiny. Most of the provisions will apply in England only as building regulation is generally a devolved matter although some changes (to construction products and architects) will apply more widely. The new regime will impose responsibility for compliance with building regulations on CDM duty holders including the Principal Designer and Principal Contractor and there are new competence requirements. These duties will be in addition to existing duties under the CDM Regulations relating to construction site safety. The proposals will impose further costs on industry, including a developer levy.
We await further detail in the draft Regulations and as the proposals are scrutinised by Parliament in the coming months. There is considerable support for the changes and we expect to see these proposals implemented. Clients should aware of the changes, the impact on their business and the need to plan accordingly.