In our December 2023 BSA update, we signposted two key issues for the first part of 2024:
1. The anticipated decision in Triathlon Homes v Get Living concerning the first Remediation Contribution Order heard by the First Tier Tribunal.
Our report on this test case can be found here.
In short, the Tribunal ordered that a property company and its subsidiary (the original developer – Get Living) should contribute approximately £16 million to the cost of remediation work in respect of fire safety defects found in five residential buildings.
We understand that this Judgment is in the process of being Appealed.
2. 6 April 2024 – being the next significant date in the BSA calendar, when a number of the transitional arrangements will come to an end.
On 24 January 2024 The Building Safety Act 2022 (Commencement No. 7 and Transitional Provisions) Regulations 2024 were made which will bring into force on 6 April 2024 the following sections of the BSA (so far as they are not already in force):
Sections 42, 43 ( and Schedule 4), 44, 45, 49-52, 53(2), (3)(a)(ii) and (iii) and (3)(b), 55 and Schedule 5 (so far as relating to paragraph 1, and in so far as it relates to paragraphs 44 and 52, and paragraphs 44 and 52) and section 58.
This will bring an end to the transitional arrangements and provide for the transfer of approved inspectors to become registered building control approvers. Any building control inspectors who are not registered and have not carried out their competency assessments with the Regulator in time will face criminal sanctions if they continue to work as a building inspector. The provisions also provide for plans certificates, cancellation of initial notices and new initial notices.
However, in response to widespread industry concern that a significant proportion of building control professionals have been unable to complete competence assessments or register with the Building Safety Regulator before the 6 April 2024 deadline, the Government has extended the competence assessment period by 13 weeks to 6 July 2024. However, inspectors must still be registered by 6 April 2024 in order to keep practising.
Other developments in the first quarter of this year include:
3. Provisions which came into force on 16 January 2024
On 13 January 2024 The Building Safety Act 2022 (Commencement No. 6) Regulations 2024 were made, which brought into force on 16 January 2024 a further 22 provisions of the BSA, between sections 79 to 111 of the BSA.
These provisions largely deal with the requirements for (i) building assessment certificates; and (ii) assessment of building safety risks in relation to occupied higher-risk buildings. The principal accountable person must apply for and display a building assessment certificate at the property, failure to do so carries criminal sanctions. The principal accountable person must also now plan for and carry out regular assessments of building safety risks and report these to the regulator.
4. Non-determination applications for higher-risk buildings procedures
On 17 January 2024, the Government issued guidance on the specified applications that can be made to the Secretary of State following the introduction of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023.
This guidance applies to instances where a decision has not been issued by the Building Safety Regulator within the required timeframe and where an extension has not been agreed. These applications, known as non-determinations applications, are made to the Secretary of State under section 30A of the Building Act 1984.
5. Amendments to s.123 BSA (Remediation Orders) and s.124 (Remediation Contribution Orders)
On 26 February 2024, the Government tabled various amendments to the Leaseholder and Freehold Reform Bill, including provisions to amend sections 123 (Remediation Orders) and 124 (Remediation Contribution Orders) of the BSA to introduce "expert reports". Allowing the Tribunal to order and then enforce the findings of the expert's report.
This Bill is through the 3rd reading stage, so may yet be amended. However one can see these amendments are recognition that ss.123 / 124 of the BSA are not operating as the Government intended them to.
We are aware that the Tribunal is also recruiting Building Safety Experts to sit alongside the Judges when hearing such applications, no doubt to help them with this.
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.
