The Building Safety Act 2022 has been enacted with the intention of securing the safety of people in buildings and to improve the standard of buildings, following the Grenfell Tower disaster in 2017. The Act received Royal Assent on 28 April 2022 with many provisions coming into force on 28 June 2022.
The Act overhauls existing regulations and makes clear how residential buildings should be constructed, maintained and made safe.
Three new bodies are to be created provide effective oversight of the new regime: the Building Safety Regulator, the National Regulator of Construction Products and the New Homes Ombudsman (see below).
The Act has been brought into force so that owners will manage their buildings better and the construction industry has the appropriate and proportionate framework to deliver more, and better, high-quality homes.
The Act removes the idea that leaseholders should be the first port of call to pay for historical safety defects. Protection is given to qualifying leaseholders (including those living in their own homes and with no more than three UK properties in total) from the costs associated with correcting historical building safety defects, with measures allowing those responsible for building safety defects to be held to account.
Building owners will not be permitted to charge qualifying leaseholders for any costs in circumstances where a building (in the majority of cases meaning those over five storeys or eleven metres tall) requires cladding to be removed or remediated. Those leaseholders will also be protected from the costs associated with non-cladding defects, including interim measures like waking watches. Where landlords do not have the means to pay, costs to be shared with qualifying leaseholders are to be capped at £10,000 (£15,000 in London) and spread over ten years. No costs are to be passed on where the landlord or their ‘associate’ is responsible for the defect or where the landlord and any person ‘associated’ with them have a combined net worth over £2 million (‘associate’ and ‘associated’ in this context includes sister or parent companies but also extends to partners in a partnership and directors).
Residents in high-rise buildings will have more say in how their building is kept safe and will be able to raise building safety concerns directly to the owners and managers of their buildings known as ‘Accountable Person(s)’ (AP). The AP will have a duty to listen to the residents. The AP will be the organisation or person who owns or has responsibility for the building. It may also be an organisation or person who is responsible for maintaining the common parts of a building, for example corridors or lobbies.
The AP will usually be an organisation or business, but could also be an individual. The AP will have a duty to take all reasonable steps to:
prevent a building safety risk happening, with building safety risk defined as ‘spread of fire and/or structural failure’; and
reduce the seriousness of an incident if one happens.
If a building has more than one AP, the AP responsible for the structure and exterior of the building will be the ‘Principal Accountable Person’ (PAP). When buildings have a single AP, that entity or person is the PAP.
As well as their duties as an AP, PAPs must:
register existing buildings with the Building Safety Regulator, they can do this between April 2023 and October 2023
register all new buildings before occupation
All occupied buildings must be registered by October 2023, it is an offence if a building is occupied but not registered after this date. An AP may be prosecuted if it breaches its obligations.
PAPs must also prepare a safety case report for the building, which should show that the APs have assessed all building safety risks (major fire and structural hazards) and taken all reasonable steps to control them. PAPs must also give the safety case report to the Building Safety Regulator on request (the Building Safety Regulator will examine it during the building assessment) and apply for a building assessment certificate when directed by Building Safety Regulator.
If residents feel their concerns are being ignored, they can raise them with the Building Safety Regulator. All homeowners will also have more than twice the amount of time, from 6 to 15 years, to claim compensation for sub-standard construction work. In certain circumstances, the limitation period for retrospective claims is extended to 30 years. The practical effect of these new, extended limitation periods means that developers or leaseholders who had considered certain claims to be time barred may now have them resurrected and have a new limitation date expiring in the future. These changes came into force on 28 June 2022.
The Act also allows liability under the Defective Premises Act 1972, for breach of the Building Regulations, or for other building safety matters to be imputed to related companies by orders obtained from the High Court referred to as ‘Building Liability Orders’. This extends the specific liabilities of one body corporate (a company or limited liability partnership) to any of its associates and makes them jointly and severally liable. Building Liability Orders came into effect on 28 June 2022. Although an additional cause of action has been introduced by the Act, which gives effect to section 38 of the Building Act 1984. this is not yet in force. Once in force, this will gives private individuals the right to claim damages, including for death or injury, where they suffer harm as a result of work on a building if it has not met the Building Regulations’ standards. This includes all buildings and is not limited to just domestic premises. This has the potential to include work done by builders, designers and architects.
New requirements are to be introduced to make sure all construction products on the UK market are safe for their intended use, with a National Regulator for Construction Products to monitor and enforce this. There will also be a new developer tax, and a levy on developers to ensure that the construction industry contributes to setting things right.
The Building Safety Regulator (BSR), which is to be established as part of the Health and Safety Executive, will oversee the safety and performance of all buildings, as well as having a special focus on high-rise buildings, leading implementation of the new regulatory framework for such buildings. It will promote competence and organisational capability within the sector including for building control professionals and tradespeople. Those high-rise buildings overseen by the BSR are buildings with 7 or more storeys or that are 18 metres or higher, and either have at least 2 residential units or are hospitals or care homes. There are currently more than 13,000 of these ‘higher-risk’ buildings in the UK, increasing by around 400 new each year.
The new regulatory framework for high-rise buildings will include giving dutyholders clear accountability and statutory responsibilities as buildings are designed, built, refurbished and occupied, a golden thread of building information – identified, stored and updated throughout the building’s life cycle and mandatory reporting of prescribed fire and structural safety occurrences to the BSR. Dutyholders will be clients, principal designer, designers, principal contractors and contractors. Designs for such projects will need to be submitted to the new regulator at ‘gateway’ points – (i) the planning stage, (ii) prior to building works commencing and (iii) the completion/final certification stage. The BSR will have the power to freeze projects if safety is compromised.
The Act amends the Landlord and Tenant Act 1987 to require landlords of higher-risk buildings to provide information about building safety to their tenants. There is a requirement to include building safety information in demands for rent or service charge, together with a requirement to give a notice to the tenant containing building safety information. If the demand does not meet the statutory requirements, any service charge or administration charge included in the demand is not due until the landlord has given the building safety information to the tenant.
The National Construction Products Regulator (NRCP) will oversee a more effective construction products regulatory regime and lead and co-ordinate market surveillance and enforcement in this sector across the UK. Although not yet fully operational, the NRCP has already started taking enforcement action under the scope of existing regulations. The new regulatory regime will start to apply once the necessary secondary legislation on the future regulatory regime has been approved by Parliament.
The New Homes Ombudsman Scheme will allow relevant owners of new-build homes to escalate complaints to a New Homes Ombudsman. Developers of new-build homes will be required by secondary legislation to become and remain a member of the New Homes Ombudsman Scheme and secondary legislation will also set out the enforcement framework and sanctions for breaching requirements. The Secretary of State may also approve or issue a developers’ code of practice which sets out the standards of conduct and the standards of quality of work expected of the New Homes Ombudsman scheme’s members. New build home warranties are to be extended from 10 to 15 years.