Building Safety Act 2022

The Building Safety Act 2022 (the “BSA”) received Royal Assent on 28th of April 2022. Although, the government has already published some guidelines and secondary legislation there will be further guidance and more secondary legislation in due course.

The BSA will have a transitioning period of up to 18 months as set out in the chart below.

BSA was introduced as an answer to the Grenfell Tower disaster, and it is intended to secure the safety of people in higher-risk buildings by controlling and improving the way such buildings are constructed and maintained throughout its lifecycle. This article is a high-level overview of the below listed topics setting out some of the key sections of the BSA.

1. Introduction
2. Higher Risk Buildings
3. The Three Key Stages of a Development (Planning, Construction and Occupation)
4. Golden Thread Rule
5. Right to Redress
6. Regulation of Construction Products

Introduction

BSA is formed of six parts, all of which share the overall objective of securing the safety and standard of buildings for people in and about them. The regulator of BSA will be the Health and Safety Executive who must exercise its building functions to achieve the overall objectives of the BSA in relation to the standards of buildings and the risks arising with them. BSA aims to regulate the construction of “higher-risk buildings” from planning stage, through construction, occupation and throughout its lifecycle by putting obligations on different individuals and body corporates who are involved in the development of the building at different stages. BSA introduces criminal punishment of up to two years imprisonment, fine and or both on those individuals or directors (representing body corporates) who are found to be in breach of certain BSA obligations to ensure compliance. We will set out below some of these obligations, breach of which could lead to such individuals or directors facing imprisonment, fine or both.

Higher-Risk Buildings

BSA defines “higher-risk buildings” to be at least 18 meters in height or at least 7 storeys and contain at least 2 residential units. Building safety risk is defined as the spread of fire, structural failure and any other prescribed matter. Any building that falls within this definition will need to be monitored and controlled by the building safety regulator throughout its lifecycle.

Three Key Stages of a Development

Planning Stage (also known as Gateway 1)

Prior to BSA receiving Royal Assent, the Town and Country Planning (Development Management Procedure) (England) Order 2015 and associated legislation was amended and came into effect on 1 August 2021 to ensure that fire safety as it relates to land use and planning matters is incorporated for developments that contain a higher-risk building. Whether that be in the provision of a new higher-risk building, the development of an existing higher-risk building, or the development within the curtilage of a higher-risk building. 

Construction Stage (also known as Gateway 2)

The construction stage of a development will be monitored closely by the regulator who is given rights to issue compliance notices as well as stop and go notices to ensure that the Duty Holders are constructing the building in accordance with the relevant safety regulations. This stage is referred to as Gateway 2 in the government guidelines. The regulator is expected to consider the construction of the building more holistically and the Duty Holders have various obligations set out under the BSA that they need to comply with to achieve the relevant standards and requirements.

• Duty Holders

BSA puts obligations on persons who procure, plan, manage and undertake building work who are referred to as Duty Holders. The definition of Duty Holders includes the Client, Principal Designer, Designers, Principal Contractor and Contractors. The Duty Holders are expected to cooperate and coordinate with one another to ensure that all relevant building regulations are met.

• Industry Competence

 Any individual appointed or nominated by their company to work on a development that fall under the BSA are expected to have the appropriate skills, knowledge, experience and behaviours needed to manage the functions they are appointed to do.

 

Occupation Stage

Once construction is complete, a completion certificate is required before occupation can occur (occupation being defined as there being residents of more than one residential unit in the building). If occupation occurs prior to receiving a completion certificate, the Accountable or the Principal Accountable Person could be liable to up to two years of imprisonment, a fine or both. The Accountable or the Principal Accountable Person will need to demonstrate how the building is compliant with the building regulations and submit the plans and documents that reflect the “as-built” building which will be included in the Golden Thread it receives from the Duty Holder at the end of the construction stage. An Accountable or the Principal Accountable Person is defined as a person who holds legal estate in possession of any part of the common parts, or a person who is not a legal estate owner but has relevant repair obligations to any part of the common parts. Where there is more than one Accountable Person, the Principal Accountable Person will have the ultimate responsibility for the purposes of the BSA. The Accountable or the Principal Accountable Person is also required to display specific information within the building, such as a prescribed notice of the Accountable or the Principal Accountable Persons details, the building safety certificate (subject to where a special measures order is in force) and relevant compliance notice. Again, failure to comply with this could mean up to two year of imprisonment, a fine or both. It should be noted that the Secretary of State may make a provision under clause 58 of the BSA for a levy for the purpose of meeting any building safety expenditure on certain applications for building control approval.

The Golden Thread Rule

The Golden Thread is the name given to the body of information that will exist to monitor and track the lifecycle of the higher-risk building. It needs to begin prior to works commencing and remain updated throughout all elements of a higher-risk buildings design and construction phase by the Duty Holders. Once the building is occupied, the Accountable or the Principal Accountable Person will be responsible for maintaining the Golden Thread. The Golden Thread will need to be in digital form. In the case of refurbishment this may involve all the above as some buildings will remain occupied during the refurbishment. Furthermore, where there is an existing building the Accountable or the Principal Accountable Person will be responsible for creating and maintaining the Golden Thread. Although the specifics of Golden Thread is still yet to be detailed in secondary legislation, it is important to start gathering the information on a digital file that can be shared with viewing rights available to all related persons whereby all relevant documents including documents/information relevant to the Three Stages of Development, registration and certification documents, the “safety case” prepared by the Accountable or the Principal Accountable Person and any mandatory occurrence reports, are stored in. This digital file share system will need to be updated and maintained by the Accountable and or the Principal Accountable Person throughout the buildings lifecycle. 

Rights of Redress

BSA increases access to remedies via the Defective Premises Act 1972 (“DPA”) and the Building Act 1984 (“BA”).A new section 2A is introduced via the DPA where a person who takes on work to any relevant part of the building owes a duty to whom the work is done for and each person who has or acquires an interest in dwelling in the building. This means that work that relates to refurbishment is also included. BSA also amends section 1 and 2A of the DPA and extends the limitation period within which building owners, homeowners and leaseholders can bring a claim for relevant defective work. The limitation period is extended from 6 to 15 years prospectively under section 1 and 2A of the DPA and up to 30 years retrospectively under section 1 of the DPA.BSA will also bring into effect section 38 of the Building Act to allow for claims for compensation to be brought for physical damage (e.g. injury or damage to property) caused by a breach of building regulations. For example, if a fire is caused in a property due to building work not meeting building regulations at the time the work was done.

Regulation of Construction and Cladding Products

BSA will regulate the construction and cladding products used in higher risk buildings and claims may be brought against any person who fails to comply with the requirements of a construction or cladding product, markets or supplies products and/or who makes a misleading statement as to the product or manufactures such a product. Liability for manufacturing, selling or using construction or cladding products that cause a building to be unfit for habitation could be liable for any direct and indirect costs. Liability period on construction products will be 15 years under new section 10B of the Limitation Act 1980 from the date the right of action accrues. For cladding products, where a right of action accrued prior to the BSA, the liability period is 30 years from the date of when the right of action accrued. Where the right of action accrued after the BSA came into force, the expiration is 15 years.

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If you would like any further information in relation anything covered in this Construction & Engineering article, please contact Jacob Farnworth.