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Building Safety Bill: What changes are on the horizon?

In July 2021 the Government introduced the Building Safety Bill into Parliament.  The Bill proposes a regime overseen by a new Building Safety Regulator (BSR) with particular emphasis on higher risk buildings. In doing so, it creates obligations that apply throughout the building’s lifecycle; introduces requirements relating to the confidence of those involved with buildings including residents; provides means of enforcement for breach including criminal sanctions together with an extension of the limitation period for civil actions; and deals with financial costs relating to construction in the form of a developer levy.

The wider relevance of the Bill is even greater considering its proposals for extending the limitation period for certain types of claim, its impact on leaseholder liability for the cost of remedial work, and its proposed changes to the rules governing architects’ confidence, fire safety legislation and construction products, together with its creation of a framework with a New Homes Ombudsman.

  • The Bill has its origins in the Grenfell Tower fire which occurred on the 14 June 2017.
  • The Bill’s structure consists of six parts and nine schedules.
  • Part 1 is the introduction and provides an overview.
  • Part 2 provides for the Regulator and its functions and gives the BSR a footing within the Health & Safety Executive.
  • It also defines the scope of the regime by identifying the risk that the BSR will manage.
  • Part 3 deals with the amendments to the Building Act 1984 and enables the government to decide by way of secondary legislation which buildings are included in the scope of the regime; sets out the provisions for the new regulatory review during the final construction phase of high-risk buildings; and provides for the registration of building inspectors and building control approval.
  • Part 4 is concerned with higher risk buildings in England when they are occupied. It places duties on the Accountable Person (the duty holder in occupation) in relation to building safety risks in their building.
  • Part 5 is supplementary with covers general provisions relating to service charges, catering for changes, building regulations and the RRO 2005, the establishment of the New Homes Ombudsman; for power to regulate construction products; allowing disciplinary orders made against architects; and removing the “democratic filter” that requires social housing residents to refer unresolved complaints to a designated person or wait eight weeks before they can access redress through the Housing Ombudsman.
  • Part 6 is a general part covering sundry items including liability for offences of body corporates; reviewing the regulatory regime and the bills jurisdictional scope.
  • The Building Safety Regime imposes more onerous regimes on “higher risk buildings” during their design and construction and during their occupation.
  • The Bill contains different definitions of “high risk building” for each of the relevant situations.

Further information and definitions

The Part 3 definition of a higher risk building in clause 30 defines the higher risk building for the purposes of Part 3 of the Bill, which creates the BSR as “a building in England that:

(a) is at least 18 metres in height or has at least 7 storeys; and
(b) is of a description specified in regulations made by the Secretary of State.

Clause 2 of the Bill establishes the HSE as the Building Safety Regulator.  The BSR establishes three Committees:-

(i) Building Advisory Committee;
(ii) Committee on Industry Competence; and
(iii) Residents’ Panel.

The BSR can enforce obligations under the Bill by exercising powers under Section 35 and 36 in relation to non-compliance with the building regulations, the time limits for prosecution of these are extended from one year to ten years for Section 36 Notices and removed entirely in relation to Section 35.

It also includes issuing compliance notices and stop notices.

The Bill aims to create a unified regime for building control professionals.  In order to do so it introduces the concept of:-

  • Building Control Approvers
  • Registered Building Inspectors

The Bill creates a framework under which the Government can introduce the duty holder regime previously canvassed.  Duty holders can be:-

  • Clients
  • Principal Contractors
  • Principal Designers
  • Contractor
  • Designer

The Bill also creates a regime for mandatory occurrence reporting, which requires duty holders to inform the BSR of structural fire safety occurrences that could cause a significant risk to life.

The Bill amends the Building Act 1984 to allow the creation of a gateway regime to be introduced by secondary legislation.

In terms of timing, Gateway One occurs before duty holders are required to be in place so its requirements are fulfilled by those applying for planning permission for development containing higher risk buildings.

Gateway Two occurs before construction work begins and covers the current building control deposit of full plans stage where a duty holder provides a building control body with their full design intention. It provides a hard stop where construction cannot begin until the BSR is satisfied that the duty holder’s design meets the functional requirements of the building regulations and does not contain any unrealistic safety management expectations.

Gateway Three occurs at the completion of the final certificate phase, when the building control body assesses whether the work has been carried out in accordance with the building regulations.

A building cannot be occupied until the Gateway Three process has been completed.

The Bill includes provisions for a developer levy that will apply when a developer seeks permission to develop certain higher risk buildings in England – the Gateway Two levy.

Clause 57 of the Bill empowers the Government to introduce the Gateway Two levy via secondary legislation but the explanatory note states that the Gateway Two levy will only apply to buildings that are subject to the Building Regulations Regime for higher risk buildings and apply to the second gateway of the new three stage gateway regimes.  Sanctions for failure to pay the levy will be defined in secondary legislation but failure to pay will result in the Gateway Two application not being signed off by the BSR.

The Gateway Two levy will operate separately but alongside the Government’s UK wide Residential Property Development Tax (which was announced at the same time as the levy).

A building cannot be occupied until the Gateway Three process has been completed.

Clause 57 of the Bill empowers the Government to introduce the Gateway Two levy via secondary legislation.

The Bill’s provisions for higher risk buildings during their occupation centre around two roles:-

  • Accountable Person
  • Building Safety Manager

In addition to the above residents of a higher risk building or an owner of a residential unit in such a building must:

  • not act in a way that creates a significant risk of a building safety risk materialising
  • not interfere with safety equipment that is in the common parts of the building
  • comply with an accountable person’s request in connection with its duty to assess safety risk in the building and take steps to prevent serious harm.

Clause 120 of the Bill amends the Landlord and Tenant Act 1985 to imply building safety duties into leases of buildings in higher risk buildings.

The landlord’s building safety duties are:-

  • where the landlord is an accountable person for a higher risk building to comply with the building safety duties;
  • to co-operate with any person in connection with a relevant person complying with their building safety duties;
  • where special measures order in relation to higher risk building is enforced to comply with the order so far as it relates to the landlord.

In addition, there are implied duties on the tenant in relation to the following:-

  • to allow the landlord, a relevant person or person authorised in writing by the landlord or a relevant person to enter the premises for relevant building safety purposes;
  • where the tenant is a resident of the higher risk building to comply with their duties under clauses 95 and 97 of the Bill;
  • where a special measures order in relation to higher risk building is enforced to comply with that order so far as it relates to the tenant.

For the purposes of clause 120 relevant person means:

  • accountable person for the higher risk building;
  • building safety manager for the higher risk building;
  • special measures manager for the higher risk building.

In addition to the building safety duties further covenants relating to building safety charges are implied into relevant leases.  A relevant lease is one where both the following apply:-

  • the lease was granted for a fixed term of 7 years or over;
  • the tenant is liable to pay a service charge.

A relevant lease does not include a relevant social housing tenancy.

Clause 124 of the Bill inserts a new section 20D into the Landlord and Tenant Act 1985 relating to the recovery of remediation works cost.

The Bill seeks to extend the limitation period for claims relating to a dwelling.  The longer limitation period will apply to claims under the Defective Premises Act 1972 and Section 38 of the Building Act 1984.  The Bill enables such claims by adding a new Section 4B to the Limitation Act 1980.

Under the Defective Premises Act 1972 the Bill creates a duty on those who do any work on a building that contains a dwelling to ensure the work does not render the building unfit for habitation.  It extends the limitation period for claims from 6 to 15 years and the extended limitation period will apply both prospectively and retrospectively for claims under Section 1o the Act.  Where the claim is made retrospectively the Bill includes two safeguards and are intended to ensure fairness:-

  • clause 126(5) provides that a claim must be dismissed if it breaches the defendant’s human rights; and
  • clause 126(6) provides that a claim that has previously been dismissed cannot be revised simply because of the extended limitation period.

Claims under Section 38 of the Building Act 1984 has two aspects to the right to bring a claim.  Section 38 has never been fully brought into effect.  The Bill extends the limitation period for claims under Section 38 to 15 years.  This change will apply only prospectively not retrospectively.

The Bill sets out the framework for a New Homes Ombudsman Scheme aimed at providing a forum for owners of newly built homes to seek redress against developers/builders.

In terms of construction products current legislative framework applies only to 400 products.  The Bill provides powers so that all construction products marketed in the UK will fall under a regulatory regime allowing them to be withdrawn from the market if they present a risk.

In summary

The Bill’s provisions are extensive and far reaching and will impact significantly upon the liability of those involved in the construction process and in the occupation and maintenance of premises.

Careful consideration needs to be given to the Bill and its impact by landlords, leaseholders, owners and occupiers of premises in England.

For more information please contact Martin Collingwood, head of construction at Andrew Jackson Solicitors, on 01482 325242 or email martin.collingwood@andrewjackson.co.uk

 

 

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