The long-awaited Building Safety Act 2022 (the Act) received Royal Assent on 28th April 2022. The Act is expected to be fully in force within the next eighteen months, but some key provisions will come into effect sooner and developers,
particularly those of ‘higher-risk buildings’, need to prepare for the impact of the Act now.
Buildings Covered by the Act
At present Buildings in scope, as defined within the Act, are multiple occupancy residences over 18m in height or 7 storeys.
The Building Regulator
The Act establishes a more stringent regulatory regime for higher-risk buildings overseen by the new Building Safety Regulator (the Regulator) sitting within the Health and Safety Executive. The Regulator will be the sole building control
body for higher-risk buildings. The Regulator has three primary functions which it must exercise with a view to securing the safety of people in or about buildings in relation to risks arising from buildings; Duty to facilitate safety, keeping the safety and standards of buildings under review and facilitating improvement in the competence of the building industry and building inspectors.
Extended Liability
One of the most controversial and far-reaching changes introduced by the Act is the extension of the limitation period for bringing claims under section 1 of the Defective Premises Act 1972 from 6 to 30 years (for work already completed) and from 6 to 15 years (for work completed in the future). The new provisions mean that claims could be made against anyone involved in the work, including building owners, landlords, developers,
contractors, architects and surveyors.
Remediation Order and Building Liability Orders Contributions
The Act introduces the concept of a ‘remediation contribution order’ under which a specified body corporate or
partnership (the landlord, developer or a person ‘associated’ with them) is required to contribute towards the costs of
remedying certain defects in buildings that contain at least two dwellings and are at least 11 metres high or have at
least five storeys. In this context, ‘associated’ includes sister or parent companies but also extends to partners in a
partnership and directors. This section came into force on 28 June 2022.
Blocking Developers From the Market
The Act allows for regulations to be made placing prohibitions on development and building control for any purpose
connected with securing the safety of people in or about buildings in relation to risks arising from them, or improving
the standard of buildings. Essentially this will force those in the building industry to remedy defects in buildings or
contribute to the associated costs. The implication is that those who do not sign up to a building industry scheme for
that purpose would be subject to the prohibitions.
The ‘Gateways’ for Higher-Risk Buildings
Three overarching Gateways will form part of the new regime governing how higher risk buildings are designed and
constructed and how any major renovations are undertaken.
- Planning (this does not form part of the Act as it became operational from 1 August 2021) – Anyone submitting planning applications to construct a higher risk building will need to show that they have considered fire safety issues and dutyholders will need to provide fire safety information.
- Prior to construction (12 – 18 months from Royal Assent) – Approval must be sought from the new Regulator before breaking ground. Dutyholders must demonstrate to the Regulator how the design and construction will comply with Building Regulations. Where works begin before this gateway has been passed, the Regulator will have a range of enforcement options, including prosecuting the developer.
- Completion (12 – 18 months from Royal Assent) – Dutyholders must submit documentation to the Regulator, including detailed as-built drawings and must also demonstrate compliance with Building Regulations and fire safety requirements. The Regulator will undertake an assessment and, if satisfied that the building is fire safe, will issue a completion certificate.
The introduction of stop-go gateways is where evidence of compliance must be produced before a project can move
into the next phase.
The Dutyholder Regime
There are three key duty holders under the Building Safety Act and these roles are aligned with those under the
CDM Regulations 2015. It is intended that in the majority of cases it will be the same persons/organisations fulfilling
these roles under both sets of legislation.
The Duty Holders are:
- The Client – the person or organisation for whom the works are being carried out.
- The Principal Designer – as appointed by the Client under the CDM Regulations 2015.
- The Principal Contractor – as appointed by the Client under the CDM Regulations 2015.
The government has indicated that the regulations will apply to all work to which the Building Regulations 2010 apply, and that enhanced duties of cooperation, coordination, communication and competence will apply for building work associated with higher-risk buildings.
Non-Compliance
Developers should be aware of the Regulator’s increased enforcement powers. Disobeying a compliance or stop notice will be a criminal offence under the Act, with a maximum penalty of two years’ imprisonment or a fine or both. For contravention of building regulations, the time limit for section 36 notices requiring removal or alteration of non-compliant work is extended from 12 months to 10 years.
Where an offence under the Act is committed by a body corporate with the consent or involvement of any director, manager, secretary or other similar officer (or any person who was purporting to act in any such capacity), or is attributable to any neglect on their part, that person as well as the body corporate commits the offence and is liable accordingly.
Development Levy
An additional levy, known as the Building Safety Levy (or sometimes the “gateway two developer levy” has been incorporated into the Act and will attach to applications for Building Control approval for higher-risk buildings. The gateway two developer levy, which will be introduced under the BSA 2022 , applies when a developer seeks to develop certain residential buildings in England. The levy will be payable at the second gateway of the new three-stage gateway regime, which corresponds to the current deposit of plans stage of building control.
Golden Thread and “Competency” Requirements for “Higher Risk” Buildings Requirement
There will be a requirement on “duty holders” which, during the design and construction, captures developers, to maintain a ‘golden thread’ of information that is accurate, accessible and up-to-date. This golden thread information must be generated before building work commences and must be kept updated throughout design and construction. It is then handed over to the ‘accountable person’ who is responsible for the building in occupation.
New Homes Ombudsman
The Act makes provision for the establishment of a new homes ombudsman scheme which will provide dispute
resolution for, and determine complaints by, buyers of new build homes against developers. Developers of newbuild homes will be required by secondary legislation to become and remain members of the scheme and secondary legislation will also set out the enforcement framework and sanctions for breaching requirements.
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