The Building Safety Act finally received Royal Assent on 28th April 2022 following a robust debate in Parliament. The Act is ambitious in its scope and will apply to everyone involved in the design, construction and management of buildings. It has been described as bringing forward the biggest changes to building safety legislation.
Parts of the Act are now in force; others will come into force at the end of June, or will require secondary legislation. The Act should be fully in force by late 2023. We highlight here the key changes and late stage amendments, as well as those parts which are in force or are imminent.
Amendments and other changes
The government rejected the Lords attempt to extend leaseholder protections to include buildings under 11 metres, as the government’s view is that such buildings are unlikely to need costly remediation to make them safe.
There may be future attempts to protect all leaseholders (including enfranchised leaseholders) from remediation costs, so watch this space.
The cap on leaseholder contributions remains at £10,000, or £15,000 in Greater London. The government resisted an attempt to remove that to zero. Based on the additional package of protection for leaseholders, including the developers pledge, the government’s assessment is that the vast majority of leaseholders will pay less than the caps, or nothing at all. More than 35 developers have signed up to the developer pledge to fix defects in their own buildings.
The new Building Safety Regulator is already established within the HSE and is recruiting. The regulator will enforce the new measures introduced by the Act for the safety and quality of all buildings. All “higher-risk” buildings in scope (18 metres and above, or at least 7 storeys and contains at least 2 residential units) will require a Safety Case Report submitted to the Regulator by the Accountable Persons (usually the owner). Late in the process the government made the decision to abolish the building safety manager role, a role intended to assist the Accountable Person. While regulations will specify the content of the safety case reports, the HSE has published guidance in the form of a factsheet by way of an early warning to Accountable Persons to start to examine whether the safety measures in place need strengthening to properly protect residents. There will be costs for owners in implementing the arrangements and upskilling where necessary.
The government has extended the timescale (to 3 years) for the regulator to carry out and publish an assessment on improving the safety of people in buildings. This will include a review of matters including fire suppression systems, electrical equipment and the provisions for persons with disabilities. Further regulations may follow the review.
Timescales
Not all parts of the Act will come into force immediately.
The government had previously published a transition plan – https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/999356/Timeline_for_Transition_Plan.pdf - and we expect to see further developments on the secondary legislation now the Act is law. For now:
- Planning Gateway 1 is already live.
- The Building Safety Regulator is in place and subject to regulations, will charge for its interventions.
- The following provisions will come into force in late June 2022:
- Significantly extending scope and the limitation periods for claims under the Defective Premises Act and the Building Act s38. Notably, to 30 years for retrospective claims and 15 years for prospective claims, including refurbishments. This raises the prospect of a large number of claims being notified.
- The provision for regulations in relation to construction products.
- The amendments to the Architects Act.
- From April 2023 higher-risk buildings in scope should be registered with the Building Safety Regulator. The new safety management requirements will apply from October 2023.
The legislation has received a mixed response as a lot of the detail has yet to be published. However, building owners and the industry need to start planning now for the changes to come.
DAC Beachcroft has a range of specialist teams which can advise on all legal issues arising out of the Bill including contractual disputes; investigations by the Building Safety Regulator; drafting development agreements, collaboration agreements, build contracts and supply chain contracts; and advising on the defence of claims for damages as a result of potential breaches of professional duties.
