Out-Law News | 07 Jul 2021 | 4:11 pm | 4 min. read
The changes are among those included in the Building Safety Bill, which was introduced to the UK parliament this week. Various supporting and explanatory documents have also been published, including some draft regulations. The bill was published in draft form for pre-legislative scrutiny last year, but received some criticism from stakeholders including the House of Commons’ Housing, Communities and Local Government committee.
The bill, once passed, will introduce new and enhanced regulatory regimes for building safety in England and Wales, and for construction products throughout the UK. The bill will also make related changes to fire safety regulation for all buildings in England and Wales.
The government described the reforms as “the biggest changes to building safety regulation in a generation” and said that the bill “will set out a clear pathway for the future on how residential buildings should be constructed and maintained”.
The bill is expected to take at least nine months to pass through parliament due to its size and complexity. The government intends to bring forward a number of changes within the first 12 months of Royal Assent with the majority to follow within 12 to 18 months, according to a timeline and transition plan published alongside the bill.
The new regime, once in force, will apply to ‘higher risk’ buildings of over 18 metres in height or seven or more storeys, containing two or more residential units. This definition may be expanded in future on the recommendation of the new Building Safety Regulator, which will sit within the Health and Safety Executive (HSE). In Wales, the Welsh government will have powers to vary the scope and application of the rules.
As the short lead-in time for the implementation of gateway one was a surprise, the transition to the new arrangements is especially important
The bill incorporates notable changes in relation to limitation periods for any dwellings of one or more regardless of height. They include an extension of the time limit for claims under the Defective Premises Act and breaches of the Building Regulations during construction from six years to 15 years, which will apply retrospectively once the legislation is in force. Defences to the extended limitation period would arise where allowing the claim would either contravene human rights or the claim has already been settled or dismissed.
The bill also introduces a new duty for building owners to take all reasonable steps to seek alternative ways to meet the cost of remediation works before these costs can be passed to homeowners. Developers will be required to join and remain members of the New Homes Ombudsman scheme, which will require them to provide redress to homebuyers where necessary; while a new building safety charge, payable by leaseholders, will cover ongoing but not historical costs.
Property investment and building safety experts at Pinsent Masons, the law firm behind Out-Law, described the legislation as a “mixed bag” for building owners and landlords.
“In some respects, the provisions are helpful as they give landlords rights to enter into residential units and recognise that tenants have a part to play in building safety,” said Natalie Harris. “However, the recovery provisions will be of concern as they will have the impact of limiting what is recoverable from tenants.”
“This is inevitably going to have an impact on the value and liquidity of assets where compliance with building safety requirements cannot be demonstrated and will make it crucial that proper due diligence is undertaken,” she said.
Zoe de Courcy Arbiser added that the retrospective limitation provisions would “likely be highly controversial, particularly when consideration is given to whether defendants in previously time-barred cases have a fair right to trial”.
The new regime will incorporate specific ‘gateway points’ at design, construction and completion phases, at which building safety and fire safety risk must be considered. Planning gateway one is due to come into force on 1 August, while further details of gateways two and three, at pre-construction and pre-occupation, will be confirmed once the bill reaches committee stage. However, they are not expected to enter into force until 18 months after Royal Assent.
“As the short lead-in time for the implementation of gateway one was a surprise, the transition to the new arrangements is especially important,” said health and safety law expert Sean Elson. “The attempt at bringing clarity, through the timeline for the possible introduction of the various measures published among the government documents, is welcome.”
Despite the lack of further guidance, the news should end any remaining lingering doubt on whether contracts need to be updated now for the regime – they do and they must.
Five categories of ‘duty holder’ will be created during the construction phase, mirroring existing roles under health and safety legislation but with new responsibilities for fire and structural safety of the building across any work to which the building regulations apply. The ‘principal contractor’ and ‘principal designer’ duty holders will be required to sign a declaration that the building complies with the building regulations. Once the building is occupied, a ‘principal accountable person’ must be appointed to ensure the ongoing fire and structural safety of the building. The principal accountable person will be required to appoint a building safety manager to run the building safely on a day to day basis, unless they have the competence to do that themselves.
“The duty holders will all be subject to an over-arching duty to take reasonable steps to ensure that any building work or design work carried out by them or under their control is planned, managed and monitored so as to be in compliance with the building regulations,” said building safety expert Katherine Metcalfe. “There are also new competence requirements across the board, and HSE and industry guidance will explain what ‘competent’ looks like.”
“It is really encouraging to see that the government is enhancing the regulation of fire safety across the built environment, not just in higher risk residential buildings. ‘Responsible person’ duties will look a lot more like building safety duties once these proposals become law,” she said.
Duty holders will also be responsible for keeping up to date vital safety information about how the building was designed and built and is managed. This so-called ‘golden thread’ of information will be stored electronically for the entire life of the building. The government is yet to publish further details of the form that this information must take.
Infrastructure technology expert Anne-Marie Friel said: “Stakeholders will need to take a pragmatic approach to filling in the gaps to establish key asset information requirements to submit which will define the building safety case. However, despite the lack of further guidance, the news should end any remaining lingering doubt on whether contracts need to be updated now for the regime – they do and they must”.
26 Nov 2020
21 Jul 2020