updated on 24 October 2023
QuestionWhat does the Building Safety Act mean for the construction sector?
The Building Safety Act 2022 (the BSA) became law in April 2022 and established the new building safety regime in England. The BSA is a legislative response to the Grenfell Tower fire that occurred in June 2017 and aims to improve the standard of buildings and the safety of those who reside in them. Following the Grenfell disaster, the government commissioned Dame Judith Hackitt to conduct a review of building and fire safety regulations in England (the Hackitt Review), which concluded that the fire safety regime for high-rise buildings wasn’t fit for purpose. The suggestions for change arising from the Hackitt Review form the foundation of the new building safety regime which is now partly in force under the umbrella of the BSA.
The BSA is a complex and wide-ranging piece of legislation made up of six parts, some of which aren’t yet fully in force. Certain provisions, such as the landlord and tenant obligations under the BSA, are beyond the scope of this article, however some noteworthy provisions follow.
The BSA has established the Building Safety Regulator (the regulator), an independent regulator with responsibility for overseeing the new building control regime for high-rise residential buildings. Provisions relating to the role of the regulator are contained in part 2 of the BSA. The BSA provides that the regulator must exercise its functions with a view to securing the safety of people in or about buildings in relation to risks arising from buildings and improve the standard of buildings. The regulator must also have regard to the principles of transparency, accountability, proportionality and consistency.
One of the regulator's most significant responsibilities is the implementation of building control regulations for higher-risk buildings (HRBs). In respect of design and construction, a building is classified as higher risk if it’s at least 18 metres in height and has at least seven storeys. Care homes and hospitals are also included within this definition. Occupied buildings, on the other hand, are only higher risk if they meet the additional requirement of having at least two residential units. Care homes and hospitals are excluded from the latter definition.
As the building control authority for HRBs, the regulator is responsible for inspecting HRBs during their construction and for registering new and existing HRBs. The deadline for registering existing HRBs has now passed with the regulator recently announcing that over 13,000 duty holders either started or completed their applications to register in advance of the 1 October 2023 deadline. New HRBs must also be registered with the regulator prior to occupation.
Some of the most well-publicised provisions of the BSA concern the amendments made to the Defective Premises Act 1972 (the DPA). Notably, the BSA extends the limitation period for claims arising under Section 1 of the DPA (the duty to build residential dwellings properly) to 30 years retrospectively (pre-28 June 2022) and 15 years prospectively (post-28 June 2022). Moreover, the BSA establishes a new Section 2A of the DPA which places a duty on those taking on work in relation to a building containing a dwelling that such buildings are fit for habitation when complete. The limitation period in respect of claims arising under Section 2A of the DPA is also 15 years.
Part 4 of the BSA creates the ‘accountable person’ who bears legal responsibility for the safety of occupied HRBs and who has an ongoing duty to assess building safety risks and report to the regulator. The accountable person may be the landlord or freeholder of the building or the entity responsible for repairing common parts of the building.
While the accountable person has duties in respect of occupied HRBs, the BSA also creates new duty holders who are legally responsible for the work undertaken on HRBs and for the appointment of those performing services in relation to construction. Examples of duty holders are clients, principal designers and those with design responsibility, principal contractors and all contractors engaged on a project.
This is the key question for construction professionals seeking to navigate the intricacies of the BSA and is a prime example of how regulatory change and commercial considerations so often go hand in hand. While the long-term impact of the BSA remains to be seen, it’s possible to identify several likely implications.
Amendments to the DPA including an extended limitation period have opened new potential avenues for claims against those responsible for defective works. For instance, new owners of a property within a building can now bring a claim for defective work pursuant to Section 2A of the DPA. Whether the amendments to the DPA will increase the number of claims remains to be seen, however construction professionals will need to be mindful of an evolving claims landscape brought about by the BSA and seek to manage any potential risk accordingly.
Construction lawyers are likely considering with their clients whether to re-draft certain clauses within their suite of construction contracts to account for the new regime. For example, they may seek to address the changes to the limitation periods in the DPA and re-allocate project team roles in line with the new duty holder regime created by the BSA. It should be noted, however, that new drafting to account for the provisions of the BSA is untested at this stage and it;’ not entirely clear how it’ll be interpreted by the courts.
The heightened emphasis on education and training within the construction industry since the inception of the BSA is symptomatic of the impact of significant regulatory change on any sector. To ensure compliance, construction professionals and duty holders will need to continuously update their knowledge of the evolving building safety regulations provided by the BSA as well as all applicable secondary legislation.
One area that’s likely to be the subject of continuous training is the new 'golden thread' of building safety information which must now be electronically stored pursuant to the BSA throughout the lifecycle of a building. Indeed, the accountable person is responsible for maintaining a 'golden thread' of information for older and newer HRBs, so the availability of relevant information is likely to be of great importance in terms of compliance with the new storage and reporting obligations.
As is often the case with wide-ranging regulatory change, it may take some years for the full impact of the BSA to come to light. On the one hand, the BSA may create new risks for construction professionals to navigate but on the other, it may drive improved accountability and transparency in the sector in line with Dame Judith Hackitt's vision to restore public trust in the building safety regime.
Dominic Barnes is a trainee solicitor at RPC.