Guidance and legislation on building safety is developing at pace since the BSA came into force. Here's a roundup of what's been published by the Government in the last month or two:
1. Independent Review of the Construction Products Testing Regime
In April the Government published a Report on Construction materials and bringing them into the scope of another new Regulator.
The review provides widespread criticism of the current regime for regulating the safety of construction products, the Construction Products Regulations ("CPR"). The Report found that the main problem with the CPR is that it only provides a product testing system for construction products for which there is a designated standard. This only accounts for around one third of all construction products. Further criticism was levied at the complexity of the process and a disconnect between those involved in the testing system and those who design and construct buildings.
The report makes 20 recommendations including that all construction products be brought into the testing regime and a new National Regulator for Construction Products be implemented, who will work with the new Building Safety Regulator and monitor compliance with the regime.
2. Draft regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023
In late April, the Government issued draft regulations to implement the first phase of the Responsible Actors Scheme ("RAS"), following our insight on the Guidance issued in March.
The RAS will have the effect of prohibiting eligible developers from commencing or completing developments in England unless they sign the Developer Remediation Contract and comply with both its conditions and those of the RAS. Its aim is to incentivise developers to get on with the remediation or mitigation of life-critical fire safety defects in residential buildings of 11m and above and to reimburse government schemes where work has already been carried out at tax-payers’ expense.
3. Guidance on the information required to register a high-rise building
In May the Government issued Guidance as to what needs to be provided to the Building Safety Regulator when applying to register a High Rise Residential Building.
The information must be provided in electronic format and include information about potential risk factors (e.g. use or change of use); the external wall system, the structural design of the building, number of storeys / staircases, energy supplies, the fire evacuation strategy and whether the property adjoins or attaches to another building. However, the Guidance does not explain how the Regulator is going to review the information it receives or what procedures to follow exactly. Although we note in the press that the Building Safety Regulator is reported to be recruiting more than 160 staff members in the coming months, which will increase its workforce by 60%.
4. Draft regulations: The Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023
On 12 June 2023, the Government released a set of draft amends to the Building Safety Act. These Regulations will amend the Building Safety (Leaseholder Protections) (Information etc) (England) Regulations 2022 (SI 2022/859) and the Building Safety (Leaseholder Protections) (England) Regulations 2022 (SI 2022/711), both of which are key to the operation of the leaseholder protection provisions in the BSA.
The explanatory memorandum accompanying the draft Regulations explains that the reason for these new regulations is two-fold: to deal with drafting issues raised by the Joint Committee and also to deal with issues raised in two Judicial Review cases.
The key changes can be summarised as follows:
- The category of interested persons who may apply for a remediation contribution order ("RCO") has been expanded to include the Homes and Communities Agency, the named manager, RMC and RTM companies of a relevant building.
- When a leaseholder certificate is received by a landlord, named manager, RMC or RTM company this must now be shared with the landlord carrying out repairs.
- Within one week of receiving a leaseholder certificate, the landlord must provide a copy to any RMC, RTM or named manager.
- A new circumstance for providing a landlord's certificate ("LLC") has been introduced:
- a LLC will also be required within 4 weeks of a new leaseholder deed of certificate (if this contains information not included in an earlier LLC). - An attempt has been made to reduce the administrative burden and LLCs no longer have to contain (all of the) specified information relating to the (i) landlord group structure / accounts; and (ii) relevant defects and remedial works where certain requirements have been met. There are six different scenarios described in the draft Regulations, each of which is accompanied by a different list of documents that are no longer required.
-For e.g. where:- The relevant landlord met the contribution condition or the lease is not a qualifying lease; and
- No service charge is payable because the landlord is responsible for the relevant defect or did not believe at the time of completing the LCC that there was a relevant defect, then
- Various information does not have to be included.
- This list of information to be included in a LLC has been amended to include the percentage of storeys in a relevant building for which each relevant landlord was the landlord at the qualifying time.
- A new form of the LLC has been introduced.
In summary, the draft Regulations focus on the expansion of those with standing to bring a RCO and issues around Landlord Certificates (which are useful). These proposed amendments appear to "tidy up" the previous regulations. However, they do not fix the problems with Remediation Orders, chasing foreign companies and given the 10+ consultations over the last year - none of the feedback received from industry has been reflected in this draft, which probably means further amendments are around the corner.
DAC Beachcroft has a dedicated building safety team with extensive experience advising all stakeholders on how best to prepare for, manage and mitigate the implications of the Building Safety Act and associated legislation. As well as proactive advice on how the legislation affects commercial interests, we help our clients navigate the risks in procurement and contract management, legacy claims, extended exposures under the Act, construction products, commercial disputes and insurance issues. We also offer bespoke training on how the Building Safety Act impacts across the industry.
