The following seeks to provide a round-up of the guidance and legislation issued under the BSA since our last update in June.
1. Responsible Actors Scheme - The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023
The Responsible Actors Scheme (RAS) was launched on 24 July 2023 for residential developers pursuant to The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023. It is the culmination of the Developer Pledge and the Developer Remediation Contract. Its aim is to:
(i) incentivise developers to get on with the remediation or mitigation of life-critical fire safety defects in residential buildings of 11m and above, which they developed or refurbished in England over the 30-year period to 4 April 2022; and
(ii) to reimburse government schemes where work has already been carried out at tax-payers’ expense.
In reality, developers have little choice but to join. Developers who are considered eligible have been invited by the Secretary of State to join the RAS and given 60 days to respond. In order to join, eligible developers will need to respond to the invitation, apply for membership and enter into the Developer Remediation Contract. If successful, the developer's name will be added to the RAS members list. Eligible developers who do not sign up, or have their membership revoked because they have not complied with the membership conditions, will be added to the RAS prohibitions list and will be prohibited from carrying out major development in England and from securing building control approval.
2. Cladding Safety Scheme
On 25 July 2023, the Government announced the opening of the Cladding Safety Scheme (CSS) which will provide funding for the remediation of unsafe cladding in England where a responsible developer cannot be identified, traced, or held responsible. The CSS will be available to all eligible buildings over 11 metres outside of London and between 11 – 18 metres inside London. The CSS replaces the pilot Medium Rise Scheme in operation since November 2022 and means that costs of fixing dangerous cladding for all buildings in England over 11 metres will now be covered either by government funding or by developers who built them.
3. Joint statement on enforcing the remediation of fire safety defects
A joint statement issued on 26 July 2023 by DLUHC, the BSR, the Local Government Association, and the National Fire Chiefs Council commits to working together to see buildings made safe faster. Building owners watch out - robust enforcement action is expected and indeed promised to be taken in Spring 2024 for those who have yet to remediate buildings.
4. The Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023
We reported on the content of these Regulations in our last update, when they were in draft. These Regulations came into force on 5 August 2023, and the promised Government Guidance was finally published on 10 August 2023. In particular, this guidance focuses on the new form of landlord certificate that must be used with effect from 5 August 2023 and the changes made to the requirements relating to the content and service of landlord certificates.
5. Government response to the consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings
On 17 August 2023, the Government published its response to the consultation on implementing the new building control regime for higher-risk buildings and wider changes to the building regulations for all buildings. Coming in at close to 200 pages, it is by no means light reading. The document sets out how consultees have reacted to the Government's proposed new legislative framework and how the Government has adapted the new rules in response. Amongst the key issues covered are:
• The new duty-holder roles and responsibilities;
• The new gateway regime;
• Management of the 'golden thread';
• More rigorous enforcement powers; and
• Transitional provisions for higher-risk buildings.
In conjunction with the response, and at the same time as publishing the response, several new regulations were laid before Parliament to address the various changes to the building control regime. The regulations are currently subject to the negative parliamentary procedure and will come into force on 1 October 2023. The regulations laid before Parliament on 17 August 2023 are as follows:
5.1 The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023
These Regulations deal with the management of building safety risks in occupied, higher-risk buildings. Including (a) how to apply for a building assessment certificate and what that certificate must contain; (b) how an accountable person must comply when managing building safety risks; and (c) the content of a safety case report prepared.
5.2 The Building Safety Act 2022 (Consequential Amendments etc) Regulations 2023.
These aim to amend the terminology in relation to Building Control in anticipation of the new regime for Higher Risk Buildings. Importantly for remedial schemes and before the BSR is in place, there are some transitional provisions. These confirm that these regulations will not apply to developments where notice or full plans were deposited before the regulations come into force in the Autumn.
5.3 The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023
These regulations cover procedures and various matters including: (a) building control approval for new Higher Risk Buildings; (b) building control approval for existing Higher Risk Buildings; (c) changes before and during construction; (d) 'golden thread' and mandatory occurrence reporting; and (e) inspections.
5.4 The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023
These regulations followed in tandem with the Government's response to the consultation on changes to the building control profession and the building control process for approved inspectors, which was also published on 17 August 2023. The regulations cover the transitional provisions from the old approved inspector regime to the new building control approver regime and how that change will impact on the Approved Inspectors Regulations.
There may well be further developments by the time this article is published. The broad spectrum of issues touched on above illustrates the wide-ranging nature of the BSA. And the pace of change will now ramp up with 1 October 2023 being a key date in the BSA calendar. This will bring with it the registration of new High-Rise residential buildings, the Building Safety Regulator taking over as the building control body for Higher-Risk buildings, the introduction of Gateways Two and Three and the coming into force of an array of additional regulations.
Enough to keep us all busy.
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.
